The difference between a misdemeanor and a felony in California comes down to the maximum punishment. A misdemeanor is punishable by up to one year in county jail; a felony is punishable by state prison, or by county jail under California’s realignment law. But that one line hides a bigger reality: in California, many crimes can be charged either way, and the decision of which level you face — and whether it can be reduced later — shapes everything from your sentence to your gun rights, your job prospects, and your immigration status.
This guide explains the three levels of crime in California, how misdemeanors and felonies differ in court and afterward, what a “wobbler” is, and how charges can be reduced or cleared from your record.
The Three Levels of Crime in California
California law sorts every criminal offense into one of three categories under Penal Code § 16:
- Infractions are the lowest level — most traffic tickets, for example. They are punishable by a fine only. There is no jail time and no right to a jury trial.
- Misdemeanors are more serious offenses punishable by county jail, a fine, or both, but never state prison.
- Felonies are the most serious crimes. Under Penal Code § 17(a), a felony is any crime punishable by death, by imprisonment in state prison, or by county jail under Penal Code § 1170(h).
Everything that is not a felony or an infraction is a misdemeanor. Unlike some other states, the California Penal Code does not divide misdemeanors into a class B misdemeanor or class C misdemeanor, and it does not use the term gross misdemeanors. The federal government defines a felony more simply, as a federal crime punishable by more than one year in prison. California’s definition sounds simple too, but the line between misdemeanor and felony is where most of the consequences — and most of the negotiating — happen.
What Is a Misdemeanor in California?
A misdemeanor in California is a crime punishable by no more than one year in county jail. Under Penal Code § 19, the default punishment is up to six months in county jail, a fine of up to $1,000, or both, unless a specific statute sets a different penalty. Many misdemeanors carry a maximum of one full year.
In practice, many misdemeanor convictions result in informal (summary) probation rather than jail time, often combined with fines, classes, community service, or restitution. Common misdemeanors in Orange County include:
- First-time DUI with no injuries
- Petty theft and most shoplifting under $950
- Simple battery and simple assault
- Domestic battery under Penal Code § 243(e)(1)
- Driving on a suspended license
- Disorderly conduct
- Possession of drugs for personal use, in most cases
Misdemeanors are the less serious crime category, and California courts have a range of alternative sentencing options for them. Instead of a jail sentence in the local county jail, a judge may order a fine or community service, a diversion program, electronic monitoring, or a combination, depending on the offense and the defendant’s record. Misdemeanor fines are generally capped at $1,000, though some statutes allow more.
A misdemeanor is still a criminal conviction. It shows up on background checks, can affect employment and housing, and some misdemeanors carry consequences that last far longer than the sentence itself.
What Is a Felony in California?
A felony is a crime punishable by more than one year of incarceration — in state prison, or in county jail under Penal Code § 1170(h). That second option exists because of California’s 2011 realignment law, which moved many lower-level felony sentences from state prison to county jail. The crime is still a felony; only the location of the sentence changes.
Felonies are the most serious category of crime and carry longer sentences, larger fines, formal probation supervised by a probation officer, and a set of lasting consequences that misdemeanors usually do not. Most California felonies are sentenced on a three-tier system under Penal Code § 1170(b): each offense has a low, middle, and high term, and the judge chooses among them based on the facts. The most severe crimes, such as first-degree murder, can carry long prison sentences up to life imprisonment, and in rare cases the death penalty. Common felonies include:
- Residential burglary
- Robbery
- Sexual assault
- Aggravated assault, which California charges as assault with a deadly weapon or assault causing great bodily injury
- Certain drug offenses, such as selling a controlled substance
- Grand theft above the $950 line, when charged as a felony
- DUI causing injury, when charged as a felony, or a fourth DUI within 10 years
California’s Three Strikes Law
A felony conviction can raise the stakes of any future case. Under California’s three strikes law, a prior conviction for a serious or violent felony counts as a “strike.” If a person with one strike is convicted of any new felony, the sentence is doubled. A person with two strikes who is convicted of a new serious or violent felony faces 25 years to life. The strikes law is one of the main reasons felony charges carry harsher penalties than the potential penalties for the current case alone suggest — and one more reason the misdemeanor vs. felony decision matters.
Wobblers: When the Prosecutor Decides
A wobbler is a crime that California law allows to be charged as either a misdemeanor or a felony. A large share of California offenses are wobblers, and a wobbler offense is where the charge level matters most.
With a wobbler, the District Attorney chooses the level at filing, based on the facts of the case, the harm involved, and the defendant’s criminal history. Common wobblers include:
- Corporal injury to a spouse or cohabitant under Penal Code 273.5
- Grand theft under Penal Code 487
- Repeat theft under Penal Code 666.1, which returned to felony territory after Prop 36
- Assault with a deadly weapon
- Vandalism causing $400 or more in damage
- Dissuading a witness under Penal Code 136.1
The prosecutor’s first choice is not always the final one. Under Penal Code § 17(b), a judge can reduce a wobbler to a misdemeanor — before trial, at sentencing, or after probation is completed. Once reduced, the offense becomes “a misdemeanor for all purposes.” That makes a wobbler charge one of the most negotiable situations in criminal law, and one of the most important to address early.
How the Court Process Differs
Misdemeanor and felony cases move through the court system differently, and the difference affects your time, your schedule, and your strategy.
Court appearances. In most misdemeanor cases, Penal Code § 977 allows your attorney to appear in court on your behalf, so you may not have to miss work for every hearing. There are exceptions: in domestic violence cases you must attend arraignment and sentencing, and in DUI cases the court can order you to appear. In a felony case, you must be physically present at arraignment, plea, the preliminary hearing, trial, and sentencing.
Preliminary hearing. Felony cases include a preliminary hearing, where a judge decides whether there is enough evidence for the case to proceed to trial. This is a critical opportunity to challenge weak evidence. Misdemeanor cases do not have a preliminary hearing.
Filing deadlines. Prosecutors generally must file misdemeanor charges within one year of the alleged offense under Penal Code § 802. Most felonies carry a three-year deadline under Penal Code § 801, and the most serious crimes have longer deadlines or none at all.
Most Orange County criminal cases are handled at the Central Justice Center in Santa Ana or at one of the county’s regional justice centers, depending on where the offense occurred. Missing a required appearance in either type of case can lead to a bench warrant.
Long-Term Consequences of a Misdemeanor vs. a Felony
The sentence is only part of the picture. The collateral consequences of a conviction — the effects that follow you after the case closes — are often where the misdemeanor vs. felony difference is felt most. Either conviction creates a permanent criminal record unless it is later dismissed, which can limit employment opportunities, housing, and professional licensing. A felony can also affect civil rights such as voting, jury service, and firearm ownership.
| Consequence | Misdemeanor | Felony |
|---|---|---|
| Maximum incarceration | Up to 1 year in county jail | State prison, or county jail under PC 1170(h) |
| Probation | Usually informal (summary) probation | Usually formal probation with a probation officer |
| Firearms (right to possess firearms) | No ban for most; a 10-year California ban for certain listed misdemeanors (PC 29805); a lifetime federal ban for domestic violence misdemeanors | Lifetime ban under California and federal law |
| Voting | Not affected | Cannot vote while serving a state prison sentence; restored on release, including parole, under Prop 17 |
| Jury service | Not affected | Restricted while serving a sentence or under supervision |
| Professional licenses | Can affect some licenses | Can lead to denial or revocation of many licenses |
| Immigration | Some misdemeanors carry serious consequences | Higher risk of serious consequences |
For non-citizens, the charge level is only one factor. Some misdemeanors — including certain domestic violence, theft, and drug offenses, and crimes involving moral turpitude — can carry immigration consequences as serious as a felony. If you are not a U.S. citizen, read how a criminal charge can affect your immigration status in California before accepting any plea.
Can a Felony Be Reduced to a Misdemeanor in California?
Yes, in many cases. If the felony is a wobbler, there are several paths to a reduction:
- Negotiation before filing or early in the case. A defense attorney can present mitigating evidence and argue that the case belongs at the misdemeanor level.
- A Penal Code § 17(b) motion at sentencing. If the judge grants probation, the judge can declare the offense a misdemeanor at that time.
- A § 17(b) motion after probation. Someone convicted of a wobbler felony who completes probation can ask the court to reduce the conviction to a misdemeanor afterward.
- Proposition 47. Passed in 2014, Prop 47 reclassified certain theft and drug possession offenses as misdemeanors, and people with older felony convictions for those offenses may be able to have them reduced.
A “straight” felony — one that cannot be charged as a misdemeanor — cannot be reduced under § 17(b). Whether a reduction is available depends on the specific statute, the facts, and the defendant’s record.
Can Misdemeanors and Felonies Be Expunged?
Both can often be cleared under California law. Under Penal Code § 1203.4, a person who completed probation for a misdemeanor or felony can petition to have the conviction dismissed. Felonies served in county jail under realignment may qualify for relief under Penal Code § 1203.41, generally one or two years after the sentence is completed. Misdemeanors that did not involve probation can be cleared under Penal Code § 1203.4a.
An expungement does not erase the record entirely, and it does not restore firearm rights, but it releases you from most of the conviction’s penalties and helps with most private employment background checks. Our guide to getting a criminal record expunged in California explains eligibility and the process.
Why the Charge Level Is Worth Fighting Early
The single most important moment in many criminal cases is the prosecutor’s filing decision. Before charges are formally filed, a defense attorney can sometimes persuade the District Attorney to file a wobbler as a misdemeanor instead of a felony — or not to file at all — by presenting evidence the police report left out.
After filing, the charge level remains negotiable through plea discussions, the preliminary hearing, and § 17(b) motions. A defense attorney can also challenge the evidence itself — whether the police officer had legal grounds for the stop, search, or arrest, and whether the prosecution has sufficient evidence to proceed. A successful motion to suppress or a weak showing at the preliminary hearing can lead to reduced charges or a dismissal. But options narrow as the case moves forward. If you were recently arrested in Santa Ana or anywhere in Orange County, the time to address the charge level is before the first court date, not after.
Frequently Asked Questions
Is a misdemeanor still a criminal record?
Yes. A misdemeanor conviction is a criminal conviction and appears on criminal background checks. It can affect employment, housing, professional licensing, and immigration status. Many misdemeanor convictions can later be dismissed under Penal Code § 1203.4 or § 1203.4a.
Is a DUI a misdemeanor or a felony in California?
Most DUIs in California are misdemeanors. A first, second, or third DUI within 10 years with no injuries is typically charged as a misdemeanor. A DUI becomes a felony when it causes injury and is charged as a felony, when it is a fourth DUI within 10 years, or when the person has a prior felony DUI.
What is a wobbler in California?
A wobbler is a crime that can be charged as either a misdemeanor or a felony. The District Attorney decides the charge level at filing, and a judge can later reduce a felony wobbler to a misdemeanor under Penal Code § 17(b). Common wobblers include grand theft, corporal injury to a spouse under Penal Code 273.5, and assault with a deadly weapon.
Can a felony be reduced to a misdemeanor in California?
Often, yes. If the felony is a wobbler, a judge can reduce it to a misdemeanor under Penal Code § 17(b) before trial, at sentencing, or after probation is completed. Certain older theft and drug felonies may also be reduced under Proposition 47. Straight felonies cannot be reduced this way.
How long does a misdemeanor stay on your record in California?
A misdemeanor conviction stays on your record permanently unless it is dismissed. Dismissal under Penal Code § 1203.4 or § 1203.4a does not erase the record, but it releases you from most penalties and allows you to answer “no” about the conviction on most private job applications.
Do I need a lawyer for a misdemeanor?
Felony and misdemeanor charges both carry real consequences. A misdemeanor can still mean jail time, probation, a permanent record, and consequences for immigration, firearms, and professional licenses. An experienced criminal defense attorney can often appear in court for you, guide you through the criminal process, negotiate a reduction or dismissal, and protect you from consequences that outlast the sentence. Speaking with an attorney before your first court date gives you the most options.
Facing a Misdemeanor or Felony Charge in Orange County? Talk to an Attorney
Whether you are facing a misdemeanor, a felony, or a wobbler that could go either way, the charge level is often the most important fight in the case — and it is usually decided early. Navigating the California criminal justice system without legal help leaves that decision in the prosecutor’s hands alone. Attorney Anthony J. Nuñes has 26 years of experience handling criminal defense cases in Orange County courts and works directly with every client.
Call the Law Office of Anthony J. Nuñes at (714) 404-3131 to schedule a consultation with a Santa Ana criminal defense lawyer. The firm serves clients throughout Orange County from offices in Santa Ana and La Mirada.
This article is for general informational purposes and is not legal advice. Contacting the firm does not create an attorney-client relationship; that relationship is formed only by a signed written agreement.