LEGAL GUIDE
Written by attorney Hussein Ali Chahine | Feb 14, 2011

Southern California Criminal Defense Attorney: Infraction vs. Misdemeanor v. Felony Charges

California defines criminal behavior primarily through its Penal Code, Vehicle Code, and Health and Safety Code. Crimes in each of these areas are divided into felonies, misdemeanors, and infractions. The category a crime falls into depends on the severity of the offense and the existence of any prior convictions on a defendant's record.

Infractions

Infractions are the least severe and come with fines of up to $250 and no possibility of jail time. Examples are traffic tickets and some city ordinances.

Misdemeanors

Misdemeanors carry penalties of up to one year in county jail, fines of up to $1000, probation, counseling, and/or community service. Examples of crimes classified as misdemeanors include petty theft, reckless driving, first time DUI, simple assault and battery, possession of less than one ounce of marijuana, and underage drinking. Defendants in misdemeanor cases have the option to waive their right to appear in court and allow their attorney to appear for them.

Some misdemeanor can be settled via a “civil compromise," pursuant to California Penal Code Sections 1377 and 1378. These sections permit a defendant to have a criminal proceeding permanently stayed or dismissed provided the victim of the crime appears before the judge, either in person or by declaration, acknowledging that they have received satisfaction for their injury. However, the court must agree to the compromise.

Other offenses, usually involving drugs, may be eligible for “deferred entry of judgment" or “diversion." These provisions permit someone, who has pled guilty or no contest to a drug charge, to complete a drug awareness program and have the underlying criminal case dismissed after 18 months. However, if the defendant fails to successfully complete the program, the court can impose a jail sentence.

Even in a misdemeanor case, it’s important to have strong criminal defense representation. An experienced, knowledgeable and skilled attorney will reduce your chances of going to jail and in some cases reduce the charges all together.

Wobblers

Some crimes - assault, DUI with injuries, drug possession, theft, vandalism, for example - are “wobblers," meaning they can be charged as misdemeanors or felonies depending on the circumstances of the case and the defendant’s criminal history. In California, “wobbler" offenses include misdemeanors that are elevated to felony status because of the defendant’s prior record. For example, petty theft is normally a misdemeanor, except when it is committed by an offender who has a prior theft conviction. Those types of cases involving minor instances of drug possession or driving under the influence are also examples of wobbler offenses.

When a case is a wobbler, the district attorney has the discretion to file it at either a felony or a misdemeanor. Then, following conviction, the sentencing judge has similar discretion to sentence the defendant to either a misdemeanor or felony sentence.

Felonies

Felonies constitute more serious criminal offenses and carry the possibility of state prison terms of 16 months or longer, a combination of probation plus up to one year in county jail, stiffer fines, and in extreme cases even the death penalty. Examples of crimes classified as felonies include drug possession and distribution, sexual assault, aggravated assault, felony DUI, grand theft, arson, and homicide.

If a person is convicted of a felony, the judge looks to the California Determinant Sentencing Laws, which give three sentencing options: a low term conviction (usually 16 months in the state prison); a middle term conviction (years in the state prison); or a high term conviction (years in the state prison). The judge's interpretation of the facts of the case and the defendant’s criminal history determines the sentencing term he or she selects. Factors include the seriousness of the crime, existence of previous convictions, and aggravating circumstances.

Over the last 20 years, California law has made the consequences for felonies considerably more punitive. Penal Code 667, the Three Strikes Law, has particularly severe ramifications. Under certain circumstances, a second felony conviction can result in a reduction in the amount of prison term credit that can be earned for good behavior. It can also mean that the prison sentence for the current crime is doubled. A third felony with two strikes can mean a prison sentence of 25 years to life without the possibility of parole. Complicating matters even more is Penal Code 666, which allows a theft with a prior to be charged as a felony. It raises the possibility of someone with two strikes committing a minor theft, having that theft charged as a felony, and then being sent to prison for 25 years to life.

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