A crime may be either a felony or a misdemeanor. Generally, a felony
is a crime for which the punishment may include prison. A
misdemeanor is a crime which does not result in a prison sentence. All
crimes which have an unspecified sentence are misdemeanors. Penal
Code Sections 177 and 650.5.
While most crimes provide either an express declaration of
classification, or impose sentences which make the crime conclusively
either a felony or misdemeanor, other crimes may be either one of a
felony or misdemeanor. The latter are called "wobblers" in the criminal
courts. Wobblers have statutory penalties which give the alternative
option of either prison or jail/fine. An example is a so called "felony
drunk driving," VC 23153, which can actually be either a felony or a
Determining whether a wobbler is a felony or misdemeanor for use in
civil proceedings requires a review of the charges and criminal
First, and most simple, a wobbler charged as a misdemeanor in the
complaint by the DA is a misdemeanor. Penal Code Section 17(b)(4).
Additionally, a wobbler charged as a felony, but which results in a
sentence not including prison, is a misdemeanor. Penal Code Section
17(b)(1). This is not to be confused with a suspended sentence.
Failure to impose any sentence whatsoever on a wobbler results in a
felony. U.S. v. Robinson (1992) 967 F2d. Imposition of a suspended
sentence even with imposition of jail time, also results in a felony.
Jamison v. Hickey (1988) 199 CA3d 595, 244 CR 859, People v. Banks
(1959) 53 C2d 370, 1 CR 669.
The Court additionally retains the jurisdiction to reduce a charged
felony to a misdemeanor after the original sentencing, in certain cases.
Penal Code Section 17(b)(2), (3) and (5). See, for example, People v.
Soto (1985) 166 CA3d 770, 212 CR 969.
There are six (6) pleas available to a criminal defendant in California.
Penal Code Section 1016. The pleas of "not guilty," "guilty," and "nolo
contendere" are the three (3) commonly encountered. The usual
practice is for the defendant to plead "not guilty" and then either
negotiate terms of a different plea, or proceed to judgment.
There are six kinds of pleas to an indictment or an information, or to a
complaint charging an offense triable in any inferior court:
Nolo contendere, subject to the approval of the court. The court shall
ascertain whether the defendant completely understands that a plea of
nolo contendere shall be considered the same as a plea of guilty and
that, upon a plea of nolo contendere, the court shall find the defendant
guilty. The legal effect of such a plea, to a crime punishable as a
felony, shall be the same as that of a plea of guilty for all purposes. In
cases other than those punishable as felonies, the plea and any
admissions required by the court during any inquiry it makes as to the
voluntariness of, and factual basis for, the plea may not be used
against the defendant as an admission in any civil suit based upon or
growing out of the act upon which the criminal prosecution is based.
A former judgment of conviction or acquittal of the offense charged.
Once in jeopardy.
Not guilty by reason of insanity . . . Penal Code Section 1016
The change of a plea requires leave of Court. People v. Lewis (1883)
64 C 401, 1 P 490. A plea of nolo contendere may be made only with
Court approval. Penal Code Section 1016, Caminetti v. Imperial Life
(1943) 59 CA2d 476, 139 P2d 681.
The language of the section pertaining to nolo contendere pleas
indicates a prohibition of its application to all crimes "punishable as
felonies." This language is broader than the Penal Code Section 17
definition of felonies, since under Section 17 the ultimate sentence or
other factors determine whether the conviction is a felony or
misdemeanor. The language of the section indicates that a nolo
contendere plea has the same as a guilty plea effect in cases of
"wobblers," even those which result in misdemeanor convictions, since
they are punishable as felonies. See Comment to Evidence Code
The change in language barring application of nolo contendere pleas
to crimes punishable as felonies was made in 1982 under the mandate
of the Victims Bill of Rights.
Both felonies and misdemeanors start with a procedure called an
arraignment. Penal Code Section 976. After that, they have little in
The arraignment ostensibly is to advise the defendant of the charges
against him and to give him an opportunity to plead. A defendant
pleading "not guilty" will be given certain options at arraignment,
including whether to assert his speedy trial right. A case wherein the
defendant is not asserting his speedy trial right, will be referred to in
the system as a "time waived" case.
In felony cases, the defendant must personally appear at all hearings
unless the court waives the requirement. Defendants charged with a
misdemeanor, represented by counsel, are not required to personally
appear. Penal Code Section 977.
After arraignment, the case will usually be set for a hearing called a
"pretrial" or equivalent. This proceeding is similar to a civil settlement
conference. A misdemeanor will usually proceed from pretrial directly
A felony usually requires a "preliminary hearing" at some point
following the arraignment unless waived by the defendant. Penal Code
Section 859b. The preliminary hearing is an evidentiary hearing to
determine if the evidence is sufficient to support further felony
prosecution on the felony charges. A victim will often testify at the
preliminary hearing. On sufficient proof, the defendant is then "held
over". Penal Code Section 872. After being held over, the defendant is
arraigned again and set for trial.
As with civil proceedings, during the course of the proceedings,
various motions and other procedures can intervene.
Criminal cases tend to be more oriented toward oral pleadings than
civil cases. This has caused the language of lawyers and judges within
the criminal system to evolve into abbreviated terms, giving criminal
proceedings a language of their own. The following is a nonexclusive
list of the more common references:
"Arbuckle Waiver" - Where the defendant waives his right to be
sentenced before the same judge who accepted his plea.
"Bottom" - Opposite of "Top." The defendant will not be sentenced to
less than a specified amount of time in exchange for a plea.
"Bullet" - One year in jail.
"Concurrent Punishment" - The defendant receives punishment of
more than one form, or on more than one case, at the same time.
"Consecutive Punishment" - The defendant receives various
punishments added onto each other.
"Deuce" - A DUI.
"Harvey Waiver" - Permits Court to consider dismissed counts in
"Hitch" or "Trombetta" or "Youngblood Motion" - These three all refer
to a motion claiming the prosecution failed to preserve scientific
"Johnson Waiver" - The defendant waives the maximum jail sentence,
permitting a jail sentence in lieu of prison.
"Marsden Motion" - A motion made by the defendant claiming he is not
being represented adequately.
"Major Mover" - Indicates a driving related misdemeanor.
"Mover" - Indicates a driving related infraction.
"Pitchess Motion" - A motion by the defense to review the
personnel/complaint records of the arresting officer.
"Time Waived" - The defendant has given up some right for something
to happen in a specified period.
"Top" - An offer by the court to not sentence the defendant in excess
of a specified length of time in exchange for a plea.
"Wobbler" - A crime which may be either a felony or a misdemeanor.
"977" - The court has waived the requirement the defendant be
present in felony cases.
"995" - A motion to dismiss.
"1538.5" - A motion to suppress evidence illegally gained.
Upon conviction, judgment is imposed and the defendant is sentenced.
For misdemeanors, sentence is to be imposed in "not less than six
hours, nor more than five days" after conviction. Penal Code Section
1449. For felonies, sentence is to be imposed within 28 days of
conviction. Penal Code Section 1191.
These time constraints with respect to imposing sentence are routinely
waived by the defendant.
For felonies, the court usually orders a probation report prior to
sentence under Penal Code Section 1203.10. Probation reports are
rarely ordered in misdemeanor cases.
Probation and Parole
Probation is "the suspension of the imposition or execution of a
sentence and the order of conditional and revocable release in the
community . . ." Penal Code Section 1203(a).
Every misdemeanant, and most felons are eligible for probation.
Certain felons are excluded for public policy reasons, subject to a
showing of "unusual" facts. Penal Code Sections 462, 462.5, 1203(e),
In granting probation, "the paramount concerns in sentencing must be
the protection of society. The interests of the defendant are of
legitimate but secondary concern." People v. Warner (1978) 20 C3d
678, 143 CR 885.
Probation and parole are sometimes confused. Parole refers to the
conditional release of a prisoner before the date set for his release
from incarceration. Parole may be granted at both the county jail and
state prison levels.
With certain exceptions, under Penal Code Section 1203.4 and
1203.4a, a defendant may have his record expunged after his
probation period has expired, so long as the defendant did not violate
probation and is not facing any new charges or is not serving time for,
or on probation for any new offenses at the time of application.
By the terms of the statutes, the defendant "shall thereafter be
released from all penalties and disabilities resulting from the offense . .
. and conviction set aside, and the charges dismissed." Penal Code
Despite the broad language of the statute, the courts have interpreted
the effect of expungement narrowly.
Courts have held that an expunged conviction is still a conviction for
purposes of subsequent criminal charges. People v. Hairline (1933)
219 C 532, 28 P2d 16. Similarly, courts have also found that
expungement does not relieve a defendant in subsequent
administrative proceedings. Adams v. County of Sacramento (1991)
235 CA3d 872, 1 CR2d 138.
Despite expungement, the conviction may still be used to impeach the
defendant. People v. O'Brien (1949) 92 CA2d 752, 756, 207 P2d
1083. Courts have also held that expungement does not give
defendants relief from the res judicata effects of the conviction, at least
in criminal cases. People v. Majado (1937) 22 CA2d 323, 70 P2d 1015.
Furthermore, an expunged guilty plea remains an admission against
interest in a subsequent civil case. Vaughn v. Jones (1948) 31 C2d
586, 191 P2d 432. However, it is generally not admissible for the
purpose of attacking credibility. Evidence Code Section 788.
Finally, it would appear that expungement has no effect on the various
civil procedure preferences granted to victims after passage of
Proposition 8. In Jamison v. Hickey (1988) 199 CA3d 595, 244 CR 859,
the court reduced a felony to a misdemeanor under Section 17 of the
Penal Code, and then dismissed the charge, presumably under the
expungement provisions of Penal Code Section 1203.4. The court held
the attorney's fees provisions of CCP 1021.4 and the extended statute
of limitations provisions of CCP 243.3 remained applicable.
It is important to understand the distinction between criminal
proceedings and juvenile proceedings. Juveniles are not convicted of
crimes. Welfare and Institutions Code Section 203, In re Tony S.
(1978) 87 CA3d 429, 51 CR 84. The proceedings in which juvenile
charges are handled are civil proceedings, not criminal. In re Castro
(1966) 243 CA2d 402, 52 CR 469.
Additionally, the confusing language of Proposition 8, Article 1, Section
28(f), dealing with prior felony convictions of juveniles, has been held
as ineffective in changing existing California law in this area. People v.
West (1984) 154 CA3d 100, 201 CR 63.
NOTICE: This general information sheet is not intended to guide you in
the defenses of your particular case or provide legal advice as to your
particular case. Each case is different. For legal advice on the
particulars of your case, you should consult an attorney. To speak to
an experienced attorney please contact Monty S. Gill, Esq. at