California law defines a felony as a crime that carries a penalty of death, incarceration in state prison, or—for certain lower-level felonies—incarceration in county jail. Other
less-serious offenses are considered misdemeanors in California, which are generally punishable by fines and/or up to 364 days in county jail, or infractions, which result only in fines. (Cal. Penal Code §§ 17, 18.5 (2019).)

Many crimes, however, may be treated as either felonies or misdemeanors, and courts may change felony convictions to misdemeanors in some circumstances.

How do courts decide the sentence for a felony?

For most felonies in California, the law sets out three determinate (or fixed) sentences that are specific for that crime. If it’s not spelled out in the statute, the options will be 16 months, two years, or three years.

At the sentencing hearing following a conviction, the judge must choose one of those fixed periods of incarceration as the base sentence, unless the law allows an alternative such as a fine, probation, or mandatory supervision for part of the sentence. When deciding among the possible terms, the judge may consider evidence of mitigating or aggravating circumstances (including victim statements). Beyond the base sentence for each felony conviction, some defendants will have to serve additional time based on the nature of their crimes and their criminal histories.

While most felony sentences are for a fixed term, California law does call for “indeterminate” sentences (such as 25 years to life) in a few circumstances, including a conviction for murder. (Cal. Penal §§ 18, 667, 1170.)

County Jail or State Prison: “Realignment” in California

As part of a law known as the “Public Safety Realignment Act,” California requires that felons serve their sentences in county jail rather than state prison, unless (1) they were convicted of serious or violent felonies, either in the current case or previously; (2) they have to register as sex offenders; or (3) their current convictions include a sentencing enhancement for aggravated white collar crime. Examples of serious or violent felonies include murder, voluntary manslaughter, rape, robbery, carjacking, and any felony where the defendant used a gun. (Cal. Penal Code § 1170 (2019).)

When a crime includes serious injury or damage to person or property, it will be filed as a felony. A felony is the highest level an offense may be charged, and will warrant the most severe consequences.

Many cases are filed as either misdemeanors, or felonies. This decision is made by the prosecutor after reviewing the person’s criminal record and the specific facts of the case. The most ideal for a person charged with a felony would be to prepare a powerful argument and strong defenses through a Los Angeles DUI and Criminal Defense Attorney so that the case is filed as a misdemeanor. While a misdemeanor is as serious offense, it is still a level below a felony charge.

To determine the difference between a misdemeanor and a felony, the court will study the facts and the background of the person being tried. For example, let’s say person A has one drug offense conviction and is charged with aggravated assault. The person assaulted has some bruises and minor pain but nothing internal or serious. The case has a chance of being charged as a misdemeanor if a skilled DUI and Criminal Defense Attorney can prepare a strong argument minimizing the injuries and downplaying the previous criminal record. In contrast, person A has no criminal record and is also being charged with aggravated assault. However, in this situation the person assaulted has suffered some broken bones and internal injuries. Person B is likely to be tried as a felony case because of the severity of injuries sustained by the person assaulted.

When someone is charged with a criminal offense, it is either filed as an infraction, misdemeanor or a felony. Many offenses can be filed as any of the three depending on the specific criminal code section it is being charged under. Such sections of the criminal code are referred to as wobblers. For example, a petty theft charge is a wobbler, and may be charged as either a misdemeanor or felony.

Wobblers are up to the Prosecution’s discretion and may be charged as an infraction, misdemeanor or felony after several factors have been taken into consideration. To determine which it will be charged as, prosecutors look into the specific facts of the case as well as the criminal record of the person. Criminal offenses may be charged as either an infraction, misdemeanor or felony. The prosecutor’s determine the final charge after a consideration of the person’s criminal history and the specific facts of the case. Sections of the criminal code that have the autonomy of being charged as either an infraction, misdemeanor or felony are referred to as wobblers.

In California, one of the best ways to determine if you are eligible for an expungement of your felony  offenses is by first understanding who is not eligible. If you are currently serving time for a felony offense, you will not be able to have it expunged. Even if you are on probation for the offense, you cannot have it expunged. Being charged with any type of criminal offense will keep you from going through the expungement process. There are also certain sex crimes involving children that cannot be expunged.

Under Penal Code 1203.4 PC, defendants who have been convicted of misdemeanor or felony offenses and who have successfully completed the terms of their probation or parole can have their records expunged. Please note, though, that if time in a state prison was served as part of their sentence, then expungement is not possible. When an expungement is granted to an offender, this means he or she no longer have to identify themselves as a felon, nor do they have to put on employment applications that they have been convicted of a felony. Instead, it is as if the felony conviction never occurred.

You are entitled to have your criminal record expunged if you meet the following criteria:

• You have successfully completed the terms of your probation or parole and you have received any further criminal charges.
• The entirety of your probation or parole terms must be completed, and if you are completing your probation early, you must have documentation outlining the early termination of your probation.

To qualify for the successful completion of your probation, you must attend all court appearances, not commit any new crimes, pay all fines and restitution, complete any recommended counseling programs, and perform all required community service. As stated above, there are some crimes that cannot be expunged from your record. If you want to know what crimes cannot be expunged, speak with your attorney and they can assist you further.