“Misdemeanors” in California – 8 Key Things to Know

In California, a misdemeanor is a criminal offense for which the maximum penalty is no more than 364 days in county jail and a fine of not more than $1,000.00. A misdemeanor is more serious than an infraction but less serious than a felony charge.

Here are five key things to know about misdemeanor crimes in California:

1. Standard misdemeanors carry up to six months in and/or up to $1,000 in fines.
2. Gross or aggravated misdemeanors carry up to 364 days in jail and/or up to $1,000.
3. Most defendants facing misdemeanor charges are eligible for probation.
4. If you successfully complete a diversion program, the case will be dismissed.
5. Wobblers are crimes the prosecutor can charge as a misdemeanor or a felony.¹

This chart illustrates the difference between misdemeanors and felonies:

Here at Shouse Law Group, we have represented literally thousands of people charged with misdemeanors. In nearly all cases, we can get the charges dismissed through a diversion program, probation, or negotiation without ever having to go to trial.

Our California criminal defense lawyers answer eight key questions about misdemeanors:

• 1. What is the maximum penalty for a misdemeanor in California?
• 2. What are some common misdemeanors in California?
• 3. What is a California “wobbler” offense?
• 4. What is the process after a misdemeanor arrest?
• 5. Can I get probation for a misdemeanor?
• 6. Does a misdemeanor give you a criminal record?
• 7. Can you expunge a misdemeanor from your record in California?
• 8. Can a conviction lead to deportation?
• Additional reading

There are two classes of misdemeanors: Standard and gross/aggravated.

1. What is the maximum penalty for a misdemeanor in California?

The worst-case penalties for California misdemeanors are:

• 6 months in jail (for standard misdemeanors) or 364 days in jail (for gross/aggravated misdemeanors); and
• $1,000 in fines (plus court costs)

Note that in Los Angeles County, courts must impose sentences on the low end of the penalty range absent extraordinary circumstances.²

You may sometimes read that a misdemeanor can be punished by “up to 1 year” in the county jail (not state prison like for felony convictions). Though as of January 1, 2015, the maximum sentence is 364 days.³

Also see our article on California misdemeanor sentencing guidelines. We explain some of the differences between a felony offense and a misdemeanor here and examples of misdemeanors here.

2. What are some common misdemeanors in California?

3. What is a California “wobbler” offense?

Some California misdemeanors can be charged either more or less seriously, at the prosecutor’s discretion. How the prosecutor chooses to charge these “wobblers” depends on:

• The facts of the case, and/or
• Your criminal history, if any.⁴

In some cases, we can conduct a “prefile intervention” where we contact the prosecutors ahead of time and try to persuade them against bringing felony charges. If we can show their evidence is weak, we may be able to persuade them to drop the entire case.

There are no unclassified misdemeanors in California criminal law.

3.1. Examples of misdemeanor / felony wobblers

• Brandishing a weapon — Penal Code 417 (punishable as a misdemeanor by up to 1-year jail sentence and/or up to a $1,000 fine),
• Elder abuse — Penal Code 368 (punishable as a misdemeanor by up to 364 days in jail and/or up to a $6,000 fine), and
• Assault with a deadly weapon — Penal Code 245(a)(1) (punishable as a misdemeanor by up to 364 days in jail and/or up to a $10,000 fine).

3.2. Examples of misdemeanor / infraction wobblers

• Disturbing the peace/disorderly conduct — Penal Code 415 (punishable as a misdemeanor by up to 90 days in jail and/or up to a $400 fine), and
• Wobbler trespassing (punishable as a misdemeanor by up to 6 months in jail and/or up to a $1,000 fine).

A case can be dropped at any stage if the evidence is weak or the court grants a motion to suppress evidence.

4. What is the process after a misdemeanor arrest?

Misdemeanor cases in California can proceed through various stages in the following order:

1. Arrest by law enforcement;
2. Arraignment (formal charging and plea);
3. Bail hearing;
4. Pretrial phase (including discovery and motions to dismiss or exclude evidence);
5. Jury trial or bench trial; and
6. Appeal.

In our experience, most cases will not go through all of these steps. A case can be dropped at any stage if the evidence is weak or the court grants a motion to suppress evidence. Or the prosecution and you can agree to a plea bargain in California.

For more information about each of these stages, please see our article on “California’s Criminal Court Process.”

5. Can I get probation for a misdemeanor?

Nearly all of our clients facing misdemeanor convictions are eligible for probation in California with no jail time. Sometimes, misdemeanor probation is referred to as

• summary probation, or
• informal probation.

Misdemeanor probation typically lasts for 364 days unless the crime statute specifies otherwise. During that time, you must adhere to certain conditions in order to stay out of jail.

Conditions of probation can include (without limitation):

• Community service or labor (such as CAL-TRANS roadside work),
• Electronic monitoring or house arrest,
• Participation in counseling / treatment programs, and /or
• Paying victim restitution.

Note that in Los Angeles County, courts must grant probation in probation-eligible cases absent extraordinary circumstances.⁵

6. Does a misdemeanor give you a criminal record?

A misdemeanor charge results in a criminal record when you:

• plead guilty;
• plead “no contest”; or
• are found guilty at trial.

An exception is when you participate in and successfully complete

• California PC 1000 Drug Diversion or
• Prop 36 drug diversion.

Thousands of our clients have successfully completed diversion. As soon as the program ends, the judge dismisses the charges, and there will be no conviction on your record.

7. Can you expunge a misdemeanor from your record in California?

Misdemeanor offenses are the least serious criminal charges. Infractions – which are less serious violations than misdemeanors – are not crimes.

California law permits the expungement of most misdemeanor crimes. The exception is a misdemeanor sex crime against a child – such as certain counts of statutory rape, California Penal Code 261.5 PC.

To be eligible to expunge a misdemeanor you:

• Must have successfully completed probation, and
• Must not currently be charged with, on probation for, or serving a sentence for a criminal offense.

If asked about criminal history on a job application or in an interview, you do not need to disclose an expunged conviction.

To learn more, please see our article on “Penal Code 1203.4 PC, Expungement of Criminal Records in California.”

You may also wish to read our article on “Criminal Convictions and Job Applications in California.”

8. Can a conviction lead to deportation?

We have represented countless visa- and green card holders facing criminal charges. From what we have seen, most misdemeanors do not lead to deportation for non-citizens unless they involve:

• Drugs,
• Firearms, or
• Domestic violence.

Under U.S. law, you are subject to deportation if within five years of admission to the U.S you commit a crime that:

• Involves “moral turpitude,” and
• Carries a potential sentence of 1 year or more.⁶
  

As of January 1, 2015, the maximum punishment for a misdemeanor in California is 364 days.⁷ Because this is less than 1 year, a conviction on a single California misdemeanor no longer subjects you to deportation for a crime of moral turpitude.

For more information, please see our criminal defense attorneys’ article “California Crimes that Can Lead to Deportation.”

Additional reading

For more in-depth information, refer to these scholarly articles:

• Criminal Law: Punishment: Misdemeanors: Statutory Construction – California Law Review.
• Three Strikes and You’re in (For Life): An Analysis of the California Three Strikes Law as Applied to Convictions for Misdemeanor Conduct – Thomas Jefferson Law Review.
• Misdemeanors – California Law Review.
• Misdemeanors by the Numbers – Boston College Law Review.
• Crashing the Misdemeanor System – Washington & Lee Law Review.

Legal references: