A misdemeanor offense in California is characterized by how much potential time you could serve incarcerated and where you would spend it. A “gross’ misdemeanor is punishable by time served of no more than
- One year in county jail1.
though a number of less serious offenses or standard misdemenaors will specify jail time of no more than 6 months2.
Misdemeanors are criminal offenses that are less serious than felonies, though many do involve violence to some extent and even the death of another person. California does not classify misdemeanors based on their seriousness but does have gross or aggravated misdemeanors where the penal code section will provide that the fine may be as high as $2000 and jail time up to one year.
Examples of misdemeanors include:
- DUI—VC 23152(a)
- Driving on a suspended license—VC 14601.1(a)
- Disorderly conduct—PC 415
- Public drunkenness—647(f) pc m
- Petty theft—PC 484/488
- Shoplifting—PC 459.5
- Soliciting for an act of prostitution PC 647(b)
- Probation violations—PC code 1203
- Domestic violence—PC 273.5
- Reckless driving California —VC 23103 b
There are three main stages in a misdemeanor criminal proceeding:
You can be ticketed for a misdemeanor or even arrested, given a citation and then released. In most cases, there will be no bail. The ticket or citation will give you a date for an arraignment in court.
For many misdemeanors, your attorney can appear for you without you. The charges against you are either read or waived and a plea of guilty, nolo contendre (no contest) or not guilty is entered.
If you enter a guilty or plea or nolo contendre, you will have to be present for sentencing. If not guilty, a pretrial proceeding is scheduled for 2 weeks or more in the future.
Should you be indigent, you may qualify for a public defender and one will be appointed for you at this hearing. Also, the DA will usually provide you with a copy of the police report and of the charges or complaint against you.
- Pretrial hearing
The pretrial is where most misdemeanor charges are resolved with a plea bargain or agreement to reduce the charges or sentence or where the defendant enters a plea outright to all or some of the charges. If a plea bargain or plea of guilty is not to be entered, the defense can request additional discovery from the prosecution or DA.
The defendant is not required to be present in most cases. The court can schedule another pretrial hearing or set the matter for trial.
You are entitled to a jury trial of 12 persons where the prosecution must find you guilty beyond a reasonable doubt on all elements of the offense. A guilty verdict must be unanimous. If not, it is considered a hung jury and the prosecution has the option of retrying you.
In California, violations of the law or local ordinances are classified as either infractions, misdemeanors or felonies depending on the nature of the violation, the ordinance or law that is broken and in some cases, the criminal record or history of the defendant.
Infractions are not considered criminal offenses and do not appear on your public record unless it was for a traffic violation and then it will appear on your driving record. You cannot be sentenced to jail for an infraction and may only receive a fine of up to $250.
No probation period is imposed either. Examples of infractions are certain moving violations such as speeding or making an illegal U-turn. You do get points on your driving record for a moving traffic violation.
Accumulate too many points and the DMV will suspend your license. You can have an infraction that is a moving violation removed from your driving record by paying the fine and completing a traffic class unless you have too many moving violations within a certain period.
Other infractions include:
- Seat belt violation
- Some speeding tickets
- Failure to stop at a stop sign
- Making an illegal turn
- Disturbing the peace
If you contest an infraction, you are only entitled to a court or bench trial where the judge is the sole trier of fact.
Misdemeanors are criminal offenses for which you may be sentenced to county jail. A standard misdemeanor is a less serious type of offense for which a jail sentence of
- No more than 6 months may be imposed and/or a fine up to $1,000.
- More serious misdemeanors have a county jail sentence of up to one year with a fine of either no more than $1,000 or up to $2,000.
Most misdemeanors have sentences of a few days or months in jail or probation and community service and/or a fine. You are entitled to have a public defender appointed to represent you for any criminal offense for which jail time is possible if you cannot afford private counsel.
Unlike a felony, a misdemeanor conviction does not prevent you from retaining your right to own and possess firearms unless other circumstances intervene or the court places you on probation where firearms possession is prohibited. You are not prevented from obtaining a professional license, from jury service, serving in the US military or other public employment or from having immigration consequences unless it is a crime of moral turpitude (and a deportable offense) where evil or reckless intent is involved.
Felonies are the most serious criminal offenses and typically involve crimes of violence, sexual misconduct, abuse and possession, sale, manufacture and trafficking of controlled substances. Most crimes committed with firearms are felonies.
Any crime for which a state prison sentence of more than one year may be imposed is a felony, though some felony sentences may be either served in a county jail facility or on probation with some time spent in county jail if at all. Fines are up to $10,000.
The consequences of a felony conviction are far more onerous than for misdemeanors. You may not own or possess firearms, will generally lose your professional license or not be eligible to obtain one, may not serve on juries, the US military, in law enforcement or receive public benefits in many cases.
If you are not a US citizen, there are felonies that are deportable offenses and generally include those involving firearms, controlled substances, violence or sexual misconduct among others.
There are certain misdemeanor crimes considered “wobblers” for which the prosecution or DA is given the discretion to charge as either a misdemeanor or felony. Usually there is some aggravating circumstance that will elevate or convince the DA to charge the defendant with a felony. Another determining factor is the defendant’s criminal history or record.
In many determinations, the deciding factor is whether the victim suffered an injury and the extent of the injury. Examples of misdemeanors that are wobblers include:
- Assault with a deadly weapon–PC 245(a)(1)
- Child endangerment—PC 273a
- Child abuse—PC 273(d)
- Domestic violence—PC 273.5
- Deadly threats—PC 422
- Second degree burglary—PC 459-460(b)
- Grand theft—PC 487
- DUI with injury–CVC 23153
- Embezzlement—PC 503
No wobbler offense that is charged as a misdemeanor can have a sentence of more than one year in county jail. If charged as a felony, most wobbler offense have state prison or county jail sentences of no more than 3 years though there are some exceptions.
Even if you are charged with a felony under a wobbler, it can be reduced to a misdemeanor by plea agreement prior to trial or by the motion of the judge. If convicted, the defendant can present a motion under Penal Code 17(b) to have the felony reduced to a misdemeanor provided the defendant served no time in state prison.
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The standard penalty for a misdemeanor is up to one year in county jail and/or a fine up to $1,000. However, unless the code or statute provides otherwise, any offense deemed a misdemeanor will have county jail time of up to 6 months. Some misdemeanors do have fines of up to $2,000 such as an assault against a health care provider under PC 241 or driving on a suspended license-VC 14601.1(a).
Many sentences provide for probation only and a fine and/or community service. Depending on the nature of the offense, the court may also impose:
- Home detention or electronic monitoring
- Victim restitution
- Counseling for drugs and alcohol, abuse or anger management
- Labor on behalf of Caltrans
- Restraining or protective orders against the defendant with provisions such as no contact with a victim or requirement to keep a certain distance
Under PC 1203.4, you may petition the court to expunge most convictions for a misdemeanor. You will want to seek an expungement since your conviction will not appear on a public database should anyone conduct a criminal background check, including landlords or private employers.
You can apply for expungement the day after your probation ends. There is an exception in cases where no probation was imposed whereby you must wait one year from the date of your conviction.
If granted, you will receive an Order of Dismissal
Since most misdemeanors are eligible for expungement, a Certificate of Rehabilitation comes into play for those misdemeanor sex offenses that do not qualify for expungement. However, there are still some sex offenses, even if you are convicted of a misdemeanor, which are not eligible for a Certificate of Rehabilitation:
The following links have information on the criminal court process in a misdemeanor:
If you have been arrested for a misdemeanor and would like to learn more about what attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you are ready to discuss a pending misdemeanor case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
Request A Free Consultation 818-351-9555
- California Penal Code 18.5(a) – Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days. This section shall apply retroactively, whether or not the case was final as of January 1, 2015. [↩]
- California Penal Code 19 -Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both. [↩]