Misdemeanor vs. Felony in California: What Is the Difference?
The short answer: in California, a felony is a crime that can be punished by imprisonment in state prison or by a county jail term under the realignment statute, while a misdemeanor is punishable by up to one year in county jail, a fine, or both. The label is set by the statute that defines the crime, and for a large group of offenses called wobblers the prosecutor and the judge choose which it will be. The classification decides far more than the sentence: it determines whether you must appear in court personally, whether you get a preliminary hearing, how long probation lasts, whether you can own a firearm, and how the conviction can be cleared later. This guide explains the differences the way they play out in Riverside, San Bernardino, Hesperia, Los Angeles, and Orange County courtrooms.
How California Defines Misdemeanors, Felonies, and Infractions
Three classes of crime. Penal Code section 16 divides crimes into felonies, misdemeanors, and infractions. Penal Code section 17, subdivision (a), defines a felony as a crime punishable by death, imprisonment in state prison, or imprisonment in county jail under Penal Code section 1170, subdivision (h), and provides that every other crime is a misdemeanor except those classified as infractions. The definition turns on the punishment the Legislature authorized, not on how serious the conduct seems.
Default punishments. When a statute makes an offense a felony without specifying a term, Penal Code section 18 sets the range at 16 months, two years, or three years. When a statute makes an offense a misdemeanor without specifying a term, Penal Code section 19 sets the maximum at six months in county jail, a fine of up to $1,000, or both. Many misdemeanors carry their own higher maximum of up to one year, and Penal Code section 18.5 provides that a one-year misdemeanor sentence means 364 days, a change made so that a California misdemeanor does not count as a one-year sentence under federal immigration law.
Infractions are not jailable. Infractions, which include most traffic offenses and some low-level Penal Code violations, cannot result in jail. Penal Code section 19.6 provides that a person charged only with an infraction has no right to a jury trial or to appointed counsel. Some misdemeanors can be charged or reduced to infractions, a group sometimes called wobblettes, under Penal Code section 17, subdivision (d), and Penal Code section 19.8.
What Is a Wobbler?
A wobbler can be filed either way. Thousands of California offenses are punishable "by imprisonment in the county jail not exceeding one year or by imprisonment pursuant to subdivision (h) of Section 1170," which is the statutory language of a wobbler. The District Attorney decides at filing whether to charge a felony or a misdemeanor, and the court can later reduce a felony wobbler to a misdemeanor under Penal Code section 17, subdivision (b), at the preliminary hearing, at sentencing, or after probation. Our guide to reducing a felony to a misdemeanor explains the motion.
Common wobblers. Corporal injury to a spouse under Penal Code section 273.5, assault with a deadly weapon under Penal Code section 245, criminal threats under Penal Code section 422, second-degree burglary under Penal Code section 459, grand theft under Penal Code section 487, vandalism over $400 under Penal Code section 594, DUI causing injury under Vehicle Code section 23153, and elder abuse under Penal Code section 368 are all wobblers. Prosecutors in Riverside and San Bernardino County typically file them as felonies when there is injury, a weapon, a prior record, or a vulnerable victim, and as misdemeanors otherwise.
Straight felonies and straight misdemeanors. Some crimes can only be felonies: robbery under Penal Code section 211, first-degree residential burglary under Penal Code section 459, and murder among them. Others can only be misdemeanors: a first or second DUI under Vehicle Code section 23152, petty theft under Penal Code section 488, domestic battery under Penal Code section 243, subdivision (e)(1), and public intoxication under Penal Code section 647, subdivision (f). Since Proposition 47, simple drug possession under Health and Safety Code section 11350 and Health and Safety Code section 11377 and most thefts of $950 or less are misdemeanors for people without disqualifying priors.
Punishment: County Jail, State Prison, and Realignment
Misdemeanor sentences. A misdemeanor sentence is served in county jail, with a maximum of one year for the most serious misdemeanors and six months for the default class. In the Inland Empire, most first-offense misdemeanors resolve with probation, fines, classes, community service, or work release rather than straight jail, and many are diverted entirely under Penal Code section 1001.95. Penal Code section 19.2 bars a county jail sentence for a misdemeanor from exceeding one year.
Felony sentences and realignment. Since 2011, under Penal Code section 1170, subdivision (h), many felonies that are not serious, violent, or sex offenses are served in county jail rather than state prison, sometimes with a split sentence that combines jail time with mandatory supervision. Serious and violent felonies listed in Penal Code section 1192.7, subdivision (c), and Penal Code section 667.5, subdivision (c), still go to state prison, carry strike consequences under Penal Code section 667, and limit conduct credits. Our guides to how sentencing works and the Three Strikes law explain the ranges.
Probation length differs. Under Penal Code section 1203.1, felony probation is generally limited to two years, and under Penal Code section 1203a, misdemeanor probation is generally limited to one year, with statutory exceptions that include DUI, domestic violence under Penal Code section 1203.097, and certain theft and financial crimes. Felony probation is usually formal, with a probation officer, while misdemeanor probation is usually informal, or summary, with the court as the only supervisor. See How Probation Works in California.
How the Court Process Differs
Appearing in court. Penal Code section 977, subdivision (a), lets a misdemeanor defendant appear through counsel for most hearings, with exceptions such as domestic violence charges. A felony defendant must generally be present at arraignment, plea, preliminary hearing, and trial, although remote appearances are permitted in some circumstances. For a working person in Hesperia or Moreno Valley, this difference alone can mean several days off work.
The preliminary hearing. Felony cases include a preliminary hearing under Penal Code section 859b, where a judge decides whether there is probable cause to hold the defendant to answer, and the DA then files an information under Penal Code section 739. Misdemeanors skip that stage and go from arraignment to pretrial conferences and trial. The prelim is a real opportunity to test witnesses and reduce wobblers, as we explain in What Actually Happens at a Preliminary Hearing.
Speedy trial deadlines. Penal Code section 1382 requires a misdemeanor trial within 30 days of arraignment if the defendant is in custody and 45 days if out of custody, and a felony trial within 60 days of arraignment on the information, unless time is waived. Most defendants waive time to allow investigation and negotiation, but the deadlines give the defense leverage when the prosecution is not ready.
Jury trials for both. California provides a jury trial for misdemeanors as well as felonies; the right comes from Article I, section 16 of the California Constitution and Penal Code section 689. Both use twelve jurors and require a unanimous verdict. Infractions are tried to a judge alone. See How a Criminal Jury Trial Works.
Statutes of limitation. Under Penal Code section 802, most misdemeanors must be charged within one year of the offense, while Penal Code section 801 gives the prosecutor three years for most felonies, and longer periods apply to specific crimes. For a wobbler, the felony period applies. Our guide on how long the DA has to file charges covers the exceptions.
What a Misdemeanor Conviction Does to Your Record and Rights
Firearms. Most misdemeanors do not affect gun rights, but convictions listed in Penal Code section 29805, including domestic battery, assault, battery, and brandishing, carry a ten-year firearm ban, and a domestic violence misdemeanor also triggers a federal lifetime ban. See Can You Own a Gun After a Domestic Violence Conviction.
Employment and licensing. A misdemeanor shows on a background check until it is dismissed, and licensing boards can discipline for any conviction substantially related to the profession under Business and Professions Code section 490. The Fair Chance Act in Government Code section 12952 bars most employers from asking about convictions before a conditional offer, but it does not prevent consideration afterward.
Immigration. Misdemeanors are not safe for non-citizens. A misdemeanor involving moral turpitude, a controlled substance, domestic violence, or a firearm can carry removal consequences, which is why Penal Code section 1016.3 requires defense counsel to advise on them before any plea. The 364-day rule in Penal Code section 18.5 helps, but it does not solve the problem.
Clearing the record. A misdemeanor with probation can be dismissed under Penal Code section 1203.4 on form CR-180 after probation ends, and a misdemeanor without probation can be dismissed under Penal Code section 1203.4a one year after conviction. See How to Expunge a Criminal Record.
What a Felony Conviction Does to Your Record and Rights
Firearms. A felony conviction carries a lifetime ban on owning or possessing firearms and ammunition under Penal Code section 29800, which survives a Penal Code section 1203.4 dismissal. The only routes back are a reduction to a misdemeanor under Penal Code section 17, subdivision (b), for a wobbler, or a pardon.
Voting, jury service, and public office. In California, a person with a felony conviction can vote unless currently serving a state or federal prison term, and can serve on a jury after completing the sentence unless required to register as a sex offender. Some public offices and licenses remain closed to people with certain felony convictions. Rules on these subjects change, so confirm the current law.
Employment, housing, and immigration. Felonies are the convictions that most often cost people jobs, apartments, professional licenses, and security clearances, and a felony with a sentence of a year or more can be an aggravated felony under federal immigration law, which is close to the worst possible immigration outcome. These consequences are why a defense lawyer fights so hard to keep a wobbler at the misdemeanor level.
Strikes and future sentencing. A serious or violent felony becomes a strike under Penal Code section 667 that doubles the sentence for any later felony and can produce a life term after a third strike. Felony priors also increase the ranges for future offenses and disqualify people from diversion and Proposition 47 relief in some situations.
Clearing a felony. A felony resulting in probation can be dismissed under Penal Code section 1203.4; a felony sentenced to county jail under realignment can be dismissed under Penal Code section 1203.41; and a felony that resulted in state prison may qualify under Penal Code section 1203.42 or a certificate of rehabilitation. Dismissal does not restore firearm rights or lift the strike. See How to Expunge a Criminal Record.
How the Charging Decision Gets Made, and How a Lawyer Changes It
The DA's filing decision. For a wobbler, the filing deputy looks at injury, weapons, the victim, the defendant's record, and the police report's tone. That decision is made before the defense has said a word, which is why early representation matters. A lawyer can submit medical records, witness statements, or proof of restitution to the filing deputy and ask that a case be filed as a misdemeanor or not at all. See What Prosecutors Look At Before Filing Criminal Charges.
Reducing a felony during the case. The defense can ask the judge to reduce a wobbler at the preliminary hearing under Penal Code section 17, subdivision (b)(5), negotiate a misdemeanor plea, or seek a reduction at sentencing. Diversion under Penal Code section 1001.36 or Penal Code section 1001.80 can resolve a felony with no conviction at all. The weaker the case, the more room there is, which is why the defense starts by finding the weaknesses described in What Makes a Criminal Case Weak.
Where these cases are heard. Felony and misdemeanor cases in the Inland Empire are heard at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Rancho Cucamonga courthouse, the Victorville courthouse for Hesperia, Victorville, and Apple Valley, and the Barstow and Joshua Tree courthouses in the High Desert; Los Angeles County cases go to the Clara Shortridge Foltz Criminal Justice Center, Van Nuys, Pomona, and other branch courts, and Orange County cases to the Central Justice Center in Santa Ana. Confirm your assignment on the court's website. Flat-fee representation is available for both misdemeanor and felony cases.
Frequently Asked Questions
What is the main difference between a misdemeanor and a felony in California?
The punishment the statute authorizes. Under Penal Code section 17, subdivision (a), a felony is punishable by state prison or a county jail term under Penal Code section 1170, subdivision (h), and a misdemeanor by up to one year in county jail. That classification then drives the court procedure, probation length, firearm rights, and record relief.
Can a felony be reduced to a misdemeanor in California?
Yes, if the offense is a wobbler. Penal Code section 17, subdivision (b), lets the court reduce a wobbler at the preliminary hearing, at sentencing, or after probation. Straight felonies such as robbery cannot be reduced, though they can sometimes be negotiated down to a different charge.
Do I have to go to court for a misdemeanor in California?
Usually your lawyer can appear for you. Penal Code section 977, subdivision (a), allows appearance through counsel in most misdemeanor cases, with exceptions for domestic violence and certain other charges. Felony defendants must generally appear personally at key hearings.
Does a misdemeanor stay on your record in California?
Yes, until it is dismissed. A misdemeanor conviction appears on background checks until a petition under Penal Code section 1203.4 or Penal Code section 1203.4a is granted, after which most private employers cannot see it. Licensing boards, law enforcement, and immigration authorities can still see the dismissed conviction.
Is a DUI a misdemeanor or a felony in California?
A first, second, or third DUI is a misdemeanor; some DUIs are felonies. DUI under Vehicle Code section 23152 is a misdemeanor unless it caused injury under Vehicle Code section 23153, which is a wobbler, or the driver has a prior felony DUI or three or more prior DUI convictions within ten years. See our DUI defense page.
Can you go to jail for a misdemeanor in California?
Yes, but most first-time misdemeanors do not result in jail. The maximum is one year in county jail for the most serious misdemeanors and six months under Penal Code section 19 for the default class. Probation, fines, classes, work release, and diversion under Penal Code section 1001.95 are the usual outcomes for first offenses in Riverside and San Bernardino County.
Gramling Law Group defends misdemeanor and felony cases at the Riverside Hall of Justice, the Southwest Justice Center, the San Bernardino Justice Center, the Rancho Cucamonga, Victorville, and Barstow courthouses, and courts throughout the Inland Empire, Los Angeles County, Orange County, and Southern California. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options so you know the cost before the case begins. Call (909) 654-4575 or contact us through this website for a consultation.
This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.
Related Guides From Gramling Law Group
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