Have You Been Charged With a Felony?

Posted by George L. FernandezFeb 18, 20210 Comments

In California, a felony is a crime that carries a maximum sentence of more than one year in jail or prison. The most serious California felonies can even be punished by death.

People convicted of a felony may also be fined up to $10,000 in addition to, or instead of, imprisonment. 1 2

Alternatively, a judge might sentence a felony offender to formal (felony) probation. If granted felony probation the offender will serve, at most, one year in county jail.

To help you better understand the definitions and consequences of a felony conviction in California, our criminal defense lawyers discuss the following, below:

A “straight” felony is one that can be charged and sentenced only as a felony. It cannot be charged as, or reduced to, a misdemeanor.

Most serious California crimes are straight felonies. These include crimes that count as a “strike” for purposes of California's “three strikes” law.

Example: California law defines first degree burglary as burglary of an inhabited house or dwelling structure.3 First degree burglary is always a felony. It is, therefore, a “straight” felony.

1.1. Examples of “straight” felonies in California

Though not by any means a complete list, straight felonies in California include:

2. What is a “wobbler” felony?

Some California crimes may be charged as either a felony or a misdemeanor, in the prosecutor's discretion.4 These are known as “wobbler” offenses.5

Factors a prosecutor will consider when deciding whether to charge a wobbler as a felony or a misdemeanor include:

  • The specific facts of the case, and
  • The defendant's criminal history (if any)

Example: Burglary of an uninhabited or commercial structure is considered second degree burglary.6 Second degree burglary is a wobbler offense. It can be punished either:

  • As a misdemeanor, by up to one year in county jail, or
  • As a felony, by up to three years in jail.

2.1. Examples of wobbler offenses in California

California “wobbler” offenses that can be charged as a felony include (but are not limited to):

3. What is the penalty for a felony in California?

Felony sentencing in California can include:

  • Imprisonment in county jail or California state prison, and/or
  • A fine of up to $10,000.

Alternatively, the judge can sentence someone convicted of a felony to felony (formal) probation.

Let's take a closer look at each of these felony punishments.

3.1. How long are felony sentences?

Felonies are usually punished by imprisonment for one of three terms:

  • A low term,
  • A middle term, or
  • A high term.

Some criminal statutes specifically set forth these terms specifically. They also often state whether the sentence is to be served in state prison or county jail.

Example: California Penal Code 461(a) PC provides that first degree burglary is to be punished by a California state prison term of:

  • Two years,
  • Four years, or
  • Six years.

Note that in Los Angeles County, courts must impose sentences on the low end of the penalty range absent extraordinary circumstances.7

3.2. What is California Penal Code 1170(h) PC?

Sometimes a felony statute does not set forth specific terms of imprisonment. It simply states that the offense may be punished pursuant to California Penal Code 1170(h) PC.

Penal Code 1170(h) PC is a catchall provision for felony sentencing. When a statute calls for punishment pursuant to Penal Code 1170(h), the judge can sentence the defendant to a county jail term of:

  • 16 months,
  • Two years, or
  • Three years.8

3.3. How does a judge decide between the low, middle and high term?

Generally, a California felony offender will receive the middle term.

The judge will usually only sentence someone to the high term of there are factors in aggravation of the crime.9

Aggravating factors include the use of a weapon or a crime involving “extreme violence.”

By contrast, the low term is used when there are factors in mitigation of the crime.

Mitigating factors include (without limitation) that the offender's participation in the crime was minimal.

3.4. What are the fines for a California felony?

Punishment for a California felony can include a fine. Sometimes the fine is set forth in the statute defining the crime. Where the amount is not specified, the judge can impose a fine of up to $10,000.

This fine can be either in addition to — or instead of — time in jail or prison.

4. How does felony probation work?

Judges have the discretion to convert all or part of a felony offender's sentence to California formal (felony) probation.

Felony probation is designed to rehabilitate offenders and let them lead a law-abiding life. It allows offenders to serve most or all of their sentences under the supervision of a probation officer rather than in custody.

Technically, a sentence of formal probation can include up to one year in county jail. But in practice, people sentenced to formal probation in California often serve little to no jail time.

Note that in Los Angeles County, courts must grant probation in probation-eligible cases absent extraordinary circumstances.10

4.1. What are the conditions of formal probation?

Felony probation usually lasts up to two (2) years for non-violent felonies. But probation can last up to three (3) years for the following crimes involving more than $25,000:

These two- or three-year probation limits do not apply to violent felonies or to crimes whose statutes specify the probationary range.11

During probation, the person on probation must comply with certain conditions.

These conditions often include (but are not limited to):

  • Monthly meetings with a probation officer,
  • Payment of victim restitution,
  • Individual or group therapy,
  • Drug testing (if the felony involved a California drug crime),
  • Community service or labor, and/or
  • Searches of the offender's person or property with or without a warrant.

4.2. What happens if I violate my felony probation?

If an offender violates felony probation, the judge can:

  1. Revoke probation and
  2. Send the offender to prison or jail for up to the maximum sentence for the crime.

But if there is a good reason for the violation, the judge may let it slide. Or the judge can increase the length of probation or make the conditions harsher.

An experienced California probation lawyer may be able to help you avoid these significant consequences of a probation violation.

5. How does felony parole work?

California parole laws are similar to probation laws. But they only apply when:

  • An offender was sentenced to California state prison, and
  • The offender has completed the sentence or been granted early release.

Much like probation, parole comes with conditions. And like probation, California parole can be revoked.

If your parole is revoked, the judge can send you back to prison.

6. Collateral consequences of a California felony conviction

A California felony conviction carries numerous collateral consequences. Some of the most important are:

  • You must disclose your felony conviction on job applications, if asked,
  • You may not own or possess a gun (sometimes for 10 years, at other times for life),
  • If your felony was a sex crime, you will be required to register as a California sex offender under “Megan's Law”, and
  • Your offense may count as a strike under California's “three strikes law”. (Note that Los Angeles County prosecutors are no longer increasing sentences based on prior strikes. Learn more here.)

For a more complete listing of consequences, please see our article on the Collateral Consequences of a California Felony Conviction, referenced above.

7. Can a felony be reduced to a misdemeanor?

In some cases, a felony can be reduced to a misdemeanor after the fact. Under California Penal Code 17(b) PC a felony can be reduced to a misdemeanor when:

  • The offense was a “wobbler” felony, and
  • The offender was sentenced to and completed felony probation for the offense.

For more information, please see our article on “How to Reduce a California Felony to a Misdemeanor.”

8. Can I get a California felony conviction expunged?

It is possible for some offenders to get a California felony conviction expunged. They must have been granted probation, and completed it successfully. A person who goes to state prison is not eligible to get the conviction expunged.

An expungement is not a complete “erasure” of a conviction. But it does relieve an offender of many adverse consequences of a conviction.

As Riverside criminal defense attorney Michael Scaffidi10 explains:

“Being convicted of a California felony doesn't have to mean the end of your civil rights. A skilled criminal defense attorney has several ways to help relieve a client of the stigma and restrictions that come with a California felony conviction.”

8.1. What rights are restored by expungement?

There are many benefits to expunging a California conviction. One of the most important is that an expunged conviction does not need to be disclosed on most job applications.

In the case of wobbler felony convictions, however, most people choose to have the felony reduced to a misdemeanor before seeking expungement.

An expunged misdemeanor carries more benefits than an expunged felony. For instance, most (though not all) people with expunged misdemeanors are allowed to possess a gun.

For more information, please see our article on “How to Restore Your California Gun Rights.”

8.2. What are the requirements for expunging a conviction?

Someone convicted of a felony or a misdemeanor in California may qualify for expungement if:

  • The offender was not sentenced to incarceration,
  • The offender is not currently charged with, on probation for, or serving a sentence for a criminal offense, and
  • The conviction was not for certain sex offenses or violent crimes.

Charged with a felony in California? Call us for help…