Wobblers
Category > Wobblers
Updated 3/4/2024Juvenile court’s failure to declare the wobbler offense to be a felony or misdemeanor required a remand.Welfare and Institutions Code section 702 provides that when a minor is found to have committed a “wobbler” offense, the court shall declare the offense to be a felony or a misdemeanor. The failure to comply with the express declaration mandate requires a remand unless the record as a whole demonstrates that the juvenile court was aware of, and exercised its discretion as to wobblers.id: 27864
Section 666.5 does not define a new crime or enhancement and does not affect the trial court’s ability to reduce a wobbler to a misdemeanor at sentencing. The trial court erroneously believed it lacked discretion to reduce defendant’s convictions to misdemeanors under Penal Code section 17, subd.(b) because of a section 666.5 allegation. Section 666.5 is an alternate punishment scheme that does not define a new offense and is not an enhancement. It does not affect the trial court’s authority to reduce a wobbler to a misdemeanor at sentencing. id: 25410
The juvenile court erred by failing to explicitly state whether the minor’s earlier offenses were felonies or misdemeanors.The juvenile court erred by failing to state on the record whether the minor’s prior offenses were felonies or misdemeanors. While the court’s intent to treat the prior offences as felonies was clear from the minute orders, the matter was remanded for the limited purpose of declaring on the record whether the priors were felonies or misdemeanors.id: 21301
The juvenile court erred by concluding the minor’s weapon possession offenses were mandatory felonies. The minor was found to be in possession of a concealed and loaded handgun in violation of Penal Code sections 25400(a)(2) and 25850(a). The juvenile court erred by finding the offenses were automatically felonies by virtue of the defendant’s status as a minor. id: 24010
The trial court erred in extending his probation beyond three years for the wobbler offense the court earlier classified as a misdemeanor.The trial court erred by extending defendant’s probation beyond three years because at an earlier proceeding, the court had classified his wobbler conviction as a misdemeanor. The probation extension was reversed because misdemeanors may not be punished by probation in excess of three years.id: 23423
Obtaining health care benefits by false declaration is a wobbler rather than a straight felony.Defendant pled no contest to one count of obtaining more than $400 in health care benefits by a false declaration in violation of Welfare and Institutions Code section 14014. Contrary to the prosecution's argument, section 14014 is a "wobbler" rather than a "straight felony" offense. Therefore, the trial court did not err in declaring the offense to be a misdemeanor under Penal Code section 17, subd.(b).id: 15478
Battery on an officer statutes violate equal protection principles because they permit prosecutors to arbitrarily subject violators who commit lesser acts to greater punishment than those committing more serious acts.Battery on a custodial officer may be punished as a felony under Penal Code section 243.1, a misdemeanor under section 243, subd.(b) or a wobbler under section 243, subd.(c) which contains the additional requirement of an injury. The statutes violate equal protection principles because they permit prosecutors to arbitrarily subject violators who commit less egregious conduct to greater punishment than those committing more serious acts.id: 16911
Witness can be impeached with a felony under section 788 even where sentence has not been imposed on the offense.Evidence Code section 788 provides that the credibility of a witness may be attacked by a showing that a witness has been convicted of a felony. The term "convicted" includes otherwise qualifying felony convictions suffered even though sentence has not yet been imposed on the charge. Moreover, the fact the felony conviction is a wobbler does not change the result since a wobbler is regarded as a felony for every purpose until judgment is entered.id: 15985
Prosecution could not appeal the reduction of a wobbler to a misdemeanor following plea where no writ of mandate was filed within 60 days of the grant of probation.Trial court granted defendant's motion to treat the theft offenses to which defendant pled no contest as misdemeanors pursuant to Penal Code section 17, subdivision (b). The prosecution appealed arguing that once defendant pled no contest to a wobbler charged as a felony the court was powerless to reduce the offense under section 17. However, the prosecution had no right to appeal. Since the prosecution sought review of an order underlying the grant of probation it was required to file a petition for a writ of mandate or prohibition within 60 days after the trial court granted probation pursuant to section 1238, subdivision (d). The failure to do so required dismissal of the appeal.id: 9456
The prosecution may not appeal the magistrate's decision made at the preliminary hearing that the wobbler offenses were misdemeanors.The prosecution may not appeal the magistrate's determination under Penal Code section 17, subd. (b)(5) that the wobbler offenses charges as felonies were misdemeanors. The superior court's denial of the prosecution's motion to reinstate the felony complaint is appealable, but that appeal is without merit, because the superior court could not properly review under section 871.5 the magistrate's determination that the wobbler offenses charged as felonies were misdemeanors.id: 18548
Juvenile Court erred in failing to declare the wobbler a felony or misdemeanor.Welfare and Institutions Code section 702 provides that in a juvenile proceeding if a minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or misdemeanor, the court shall declare the offense to be a misdemeanor or felony. The instant court imposed a felony level term for the wobbler offense but did not expressly declare that it was a felony. The juvenile court's error required remand for a declaration that the offense was a felony or misdemeanor and possible recalculation of the term of commitment.id: 11680
Juvenile court was required to declare the wobbler a felony or a misdemeanor.The juvenile court was required to declare the grand theft offense, a wobbler, a felony or misdemeanor. The matter was remanded for a finding on the wobbler as required by Welfare and Institutions Code section 702.id: 11678
Wobbler assault punished as a misdemeanor could not be used as a strike prior.Defendant's assault conviction in the prior case was a wobbler. In that case when the court suspended proceedings, granted summary probation, ordered defendant to serve one year in county jail and directed that probation be terminated after the jail term, it automatically rendered the crime a misdemeanor under Penal Code section 17, subd.(b)(1). It follows that the conviction does not constitute a serious prior felony under the three strikes law.id: 15199
Updated 3/6/2024Juvenile court’s failure to designate the wobbler to be a felony or misdemeanor could not be challenged after the time to appeal the disposition had expired.When a minor is found to have committed a wobbler offense, the juvenile court must declare the offense to be a felony or misdemeanor. The court’s failure to so declare cannot be challenged after the time to appeal the original disposition expired. Noncompliance did not make the original disposition order an unauthorized sentence that could be corrected at any time.id: 26663
The trial court did not err by denying defendant’s request to reduce his conspiracy conviction to a misdemeanor following Prop 64.The trial court denied defendant’s request to reduce his felony conspiracy conviction to a misdemeanor. The court had discretion to reduce the offense under Penal Code section 17, subd. (b)(3) since the target of the conspiracy - possession of marijuana for sale became a misdemeanor following Prop 64. The court did not abuse its discretion by denying the request in light of defendant’s record and character. The court could not reduce the offense under Health and Safety Code section 11364.8, subd.(e) (also added by Prop 64) because conspiracy is not a marijuana-related offense.id: 25680
The trial court properly denied defendant’s request to reduce the felony conspiracy to a misdemeanor.The trial court did not err by refusing to sentence on the felony conspiracy to commit petty theft as a misdemeanor. The court noted the conspiracy was serious even though it involved a conspiracy to commit a misdemeanor. The court recognized the defendant’s youth and nonserious criminal record but still decided felony sentencing was proper. Nothing more was required in denying the Penal Code section 17, subd.(b) motion to reduce the wobbler to a misdemeanor.id: 25484
Trial court can consider the post-plea probation report when considering the section 17(b) request to reduce the felony to a misdemeanor.The trial court did not err in denying defendant’s motion to reduce his 2005 felony assault conviction to a misdemeanor under Penal Code section 17(b). Contrary to defendant’s claim, the trial court can rely on the post-plea probation report to understand the facts and circumstances supporting the conviction and exercise its discretion under section 17(b). Moreover, the fact that defendant successfully completed probation did not entitle him to relief - the facts and circumstances of the offense remain a relevant consideration.id: 24414
The trial court erred by reducing the wobbler to a misdemeanor before the guilty plea. Unless the prosecution consents to a reduction of the charged “wobbler” to a misdemeanor, the defendant’s guilt must precede the court’s reduction of the offense under Penal Code section 17, subd.(b)(3). The trial court’s reduction of the offense to a misdemeanor before the guilty plea constituted an unlawful judicial plea bargain.id: 23935
Section 12025, subd.(b)(3) was properly alleged as a strike prior even though the state didn’t prove the gang participation involved was a felony.The complaint alleged that defendant had a prior felony conviction under Penal Code section 12025, subd.(b)(3) which involves carrying a concealed firearm by a person who was an active participant in a gang under section 186.22, subd.(a). The latter offense is a wobbler and defendant argued that because it had not been proven to be a felony, the offense did not constitute a strike prior. However, active gang participation is a felony unless charged as, or later reduced to a felony, which did not happen here. Section 12025 subd.(b)(3) was adequately alleged to be a felony violation. id: 23817
The trial court did not err by delaying the request to reduce the wobbler to a misdemeanor until defendant completed her probation.Defendant was convicted of selling counterfeit merchandise under Penal Code section 350. The offense was a “wobbler” and she argued the trial court erred by refusing her request to reduce the conviction to a misdemeanor under section 17, subd.(b). However, the court did not err by delaying the decision until after it ensured that she complied with her probation and did not resume her unlawful business. id: 23469
Even after a trial court reduces a felony to a misdemeanor, it lacks the authority to terminate the lifetime sex offender registration requirement. The trial court granted defendant’s motion under Penal Code section 17, subd.(b) to reduce his earlier conviction of distributing harmful matter to a minor over the Internet to a misdemeanor. However, the trial court then properly found that section 17, subd.(e) restricted its authority to terminate defendant’s lifetime sex offender registration requirement.id: 22167
Defendant is liable for accessory to a burglary even if the burglary, which is a wobbler, is later sentenced as a misdemeanor.Defendant was convicted as an accessory after the fact under Penal Code section 32 for his role in assisting his girlfriend who committed a burglary of a grocery store. He argued there was no evidence the underlying burglary was a felony burglary, necessary to support his conviction, because burglary is a wobbler. However, a wobbler is treated as a felony for all purposes until sentencing, and even if the girlfriend was given a misdemeanor sentence that would not be given retroactive effect in a way that would impact defendant’s accessory liability.id: 22151
The plea agreement did not render inoperative the statute conferring upon the court discretionary authority to declare a wobbler a misdemeanor where the court initially granted probation by suspending the imposition of sentence.Defendant pled no contest to a felony assault and admitted a great bodily injury enhancement allegation. He would then serve six months in jail as a condition of probation with the court suspending imposition of sentence. The Court of Appeal later found defendant's wobbler offense could be declared a misdemeanor. The plea agreement did not render inoperative the statute conferring upon the court discretionary authority to declare a wobbler offense to be a misdemeanor where the court initially granted probation by suspending the imposition of sentence. id: 21923
Because the cocaine possession was a straight felony rather than a wobbler, the trial court lacked the authority to reduce it to a misdemeanor after the successful completion of Prop. 36 probation.Defendant pled guilty to possession of cocaine under Health and Safety Code section 11350, which is a straight felony. After the successful completion of Prop 36 probation, he argued the offense should be reduced to a misdemeanor since he could not be sentenced to state prison. However, because section 11350 is a straight felony, and not a wobbler, the trial court lacked the authority to reduce the offense to a misdemeanor.id: 20785
Defendant’s prior aggravated assault conviction, though a wobbler qualified as a strike prior where the parties originally agreed it was a felony and could be used as a strike prior in the future.Defendant was convicted of a drug offense and admitted a prior conviction for violating Penal Code section 245, subd.(a)(1), which is a wobbler offense. He argued the conviction did not qualify as a strike prior because it had been sentenced as a misdemeanor. However, the assault with a weapon charge was originally charged as a felony and defendant agreed in could be used as a strike prior in the future. Moreover, the sentencing judge emphasized that defendant was pleading to a serious felony which could later be used as a strike. Under the circumstances, defendant’s prior assault conviction was a felony strike prior. id: 20606
The trial court lacked the authority to reduce felony marijuana cultivation to a misdemeanor because it was not a “wobbler.”Because the Legislature classified cultivation of marijuana under Health and Safety Code section 11358 as a felony without providing for alternative punishment, the trial court exceeded it jurisdiction in purporting to reduce the offense to a misdemeanor.id: 20416
Failure to register as a sex offender is a felony not a wobbler.Defendant pled guilty to failure to register as a sex offender pursuant to Penal Code section 290, subdivision (f). Contrary to defendant's claim, the offense is not an alternative felony - misdemeanor ("wobbler"), but, rather, is a straight felony.id: 9959
The prosecution may appeal the trial court's decision to impose a misdemeanor sentence for a wobbler offense.A superior court judgment imposing a misdemeanor sentence for a "wobbler" offense is "an order... modifying the offense to a lesser offense" under Penal Code section 1238, subd.(a)(6), and thus an order from which the prosecution may appeal.id: 16931
The statutory scheme for battery on a custodial officer does not violate equal protection even though the provision relating to injury of an officer is punishable as a wobbler.The Court of Appeal ruled the statutory scheme pertaining to battery on a custodial officer violates equal protection principles because the statutes allow battery on an officer without injury to be punished more severely than battery on a custodial officer with injury. In the case of the latter, the Legislature has given the prosecution discretion to reduce the offense to a misdemeanor. However, a rational basis for these statutes exists; the Legislature could reasonably have concluded the reduction of the Penal Code section 243.1 offenses is not appropriate in cases of battery that is deemed serious enough by the prosecutor to warrant felony prosecution under section 243, subd.(c).id: 18022
Possession of another's canceled credit card constitutes possession of access card account information with respect to an access card validly issued to another.Fraudulent possession of an access card violates Penal Code section 484 (e), subd.(c), a misdemeanor. Defendant argued that mere fraudulent possession of an access card may not also constitute fraudulent possession of access card account information in violation of section 484e, subd.(d), a wobbler. However, access card account information need not mean something other than the access card itself.id: 17969
Defendant was not entitled to the return or "expungement" of his biological samples and expungement of his DNA profile from the state's DNA database after his wobbler offense was reduced to a misdemeanor.For purposes of the DNA Data Base Act, defendant was convicted of a felony when he pled guilty to a wobbler offense as a felony. He was therefore subject to the provisions of the Act when the DNA samples were taken. Because the samples were lawfully collected, there was no constitutional right to their return. Nor does Penal Code section 299 of the DNA profile Act permit expungement (or destruction of the sample) merely because the charge was later reduced to a misdemeanor.id: 18563
Wobblers are treated as felonies for purposes of determining the applicable statute of limitations period.Defendant argued that her misdemeanor conviction of filing a false statement under Penal Code section 532, subd.(a) must be stricken because the charge was filed after the one year limitations period applicable to misdemeanors. However, the offense was a wobbler which must be treated as a felony for purposes of determining the applicable limitations period. That the prosecution charged it as a misdemeanor was irrelevant.id: 18866
Trial court may reduce a wobbler to a misdemeanor under section 17 (b) despite the admission of a GBI enhancement. Defendant sought to reduce his wobbler assault conviction to a misdemeanor under Penal Code section 17, subd.(b), but the court refused because it believed the great bodily injury enhancement made the offense a felony for all purposes. However, a trial court may reduce a wobbler to a misdemeanor under section 17,
subd.(b)(3) despite the admission of such an enhancement.id: 19647
Defendant was properly convicted of felony dissuading a victim, and the lack of an instruction on "force or fear" did not render the offense a misdemeanor.Defendant was convicted of dissuading a victim or witness under Penal Code section 136.1, subd.(b)(1). He argued the evidence did not sustain the felony conviction because the jury was not instructed on the "force or fear" element, and therefore the offense was a misdemeanor under section 136.1, subd.(b). However, section 136.1, subd.(b)(1) is a wobbler, and following a conviction and prison sentence, defendant was properly convicted of a felony.id: 18363
Prosecution may appeal the reduction of a wobbler to a misdemeanor under section 17, subdivision (b)(3) where there was no challenge to the grant of probation.The prosecution was authorized to appeal a superior court's order, made immediately after imposition of sentence was suspended and probation granted, declaring an alternative felony-misdemeanor offense to be a misdemeanor under Penal Code section 17, subdivision (b)(3). Neither the language of section 1238, subdivision (d), nor its purpose require that the appeal be barred. The prosecution did not appeal from an order granting probation, but from a separate order declaring the offense to be a misdemeanor. Neither did the prosecution implicitly appeal from the grant of probation by seeking its reversal in their appellate briefs. The appeal therefore poses no direct threat to defendant's probation and thus could not result in his facing the unfair consequence of being committed to prison after having served all or part of his probationary period while the appeal was pending.id: 16337
Possession of a firearm by a minor is a wobbler.The defense argued that possession by a minor of a firearm under Penal Code section 12101, subdivision (a)(1) is a misdemeanor absent a qualifying prior conviction. However, the offense is a wobbler punishable either as a felony or a misdemeanor.id: 15544
Court did not err in failing to specifically state why it was imposing a prison term for the wobbler.Defendant was convicted of a wobbler which is punishable as a felony or a misdemeanor. He argued the court's decision to impose a prison sentence required a statement of reasons. However, the court's stated reasons for denying probation and imposing the upper term clearly indicated the court had no intention of reducing the offense to a misdemeanor. Moreover, defendant waived the issue since he was aware the count would be treated as a felony and had ample opportunity to object to the imposition of the upper term.id: 13371
Magistrate lacked power to reduce a straightforward felony to a misdemeanor.A magistrate purported to reduce two felony charges to misdemeanors because she believed the evidence at the preliminary hearing was insufficient to hold the defendant to answer felony charges. Neither offense was a felony-misdemeanor (wobbler) which could have been reduced. The magistrate was without power to reduce these offenses to misdemeanors, and her doing so amounted to dismissal of the felony charges. However, the superior court may review the magistrate's order pursuant to Penal Code section 871.5.id: 11615
The magistrate could not consider reducing the felony wobbler to a misdemeanor after the superior court reinstated the wobbler as a felony following the dismissal of the count at the preliminary hearing.The magistrate was not permitted to revisit the issue of whether to exercise his discretion under Penal Code section 17, subdivision (b)(5) to reduce a felony charge brought under a "wobbler" statute to a misdemeanor, after the case had been returned to him by the superior court via an order, issued under section 871.5, reinstating as a felony a wobbler count previously dismissed at the preliminary hearing under section 871.id: 11634
After the bindover and filing of the information the magistrate lacked authority under section 17, subdivision (b)(5) to reduce the wobbler to a misdemeanor.The same superior court judge sat as magistrate at the preliminary hearing and later as superior court judge. After the bindover and the filing of the information the court, pursuant to Penal Code section 17, subdivision (b)(5), purported to grant a motion to reduce a wobbler to a misdemeanor. However, at this stage of the proceeding the magistrate had lost the authority to grant the motion under section 17(b)(5). Moreover, the events had not yet occurred to trigger the superior court's authority to consider reduction to a misdemeanor pursuant to section 17, subdivisions (b)(1) or (3). The judgment was reversed.id: 11601
Court was not required to instruct on misdemeanor-manslaughter where simple possession of the bomb could have been charged as a misdemeanor.Appellant was convicted of reckless or malicious possession of a destructive device under Penal Code section 12303.2. He argued the court should have instructed sua sponte on misdemeanor-manslaughter because simple possession of a destructive device (section 12303) could have been a misdemeanor. However, simple possession is an alternative felony (a wobbler). Since it is punishable by imprisonment in state prison it was a felony for all purposes until validly reduced to a misdemeanor. There was no basis for a misdemeanor-manslaughter instruction.id: 10311
Remand was required where the record did not show the sentencing court was aware of its discretion to dismiss a strike prior.The issue of judicial discretion to dismiss a strike prior was raised but the judge concluded he lacked the power to dismiss a strike. This was not the judge who presided at the trial and who imposed sentence. While the <i>Romero</i> issue was not raised at sentencing, the judge did determine the wobbler should not be treated as a misdemeanor. Under the circumstances, a remand was required for a determination by the sentencing court on the issue of dismissing a prior pursuant to Penal Code section 1385.id: 9464
The court did not participate in an illegal plea bargain where it gave an indicated sentence and defendant entered into an open plea.The trial court reduced a wobbler to a misdemeanor despite the People's argument that such act was prohibited by the three strikes law. The People argued the trial court's indication that it would reduce the crime to a misdemeanor if defendant pled guilty constituted an illegal plea bargain between the court and the defendant. However, where the defendant pleads guilty to all charges there is no requirement that the People consent to the plea. The trial court properly exercised its sentencing discretion and did not participate in an illegal plea bargain.id: 9467
Three strikes law did not abrogate the trial court's authority to declare a wobbler a misdemeanor.The Legislature in enacting the Three Strikes law did not intend to abrogate the trial judge's long-standing power under Penal Code section 17, subdivision (b)(3) to declare a wobbler a misdemeanor and to impose probation at the time of sentencing.id: 9468
Three strikes law does not limit the sentencing court's discretion to reduce a wobbler to a misdemeanor.The three strikes law has no impact on the power of a magistrate or judge to rule that an offense which may be either a felony or a misdemeanor, a so-called wobbler should be tried or sentenced as a misdemeanor. Penal Code section 17, subdivision (b)(1) and (2) expressly confers that power on the court and nothing in the three strikes law limits that power.id: 9469
Three strikes law does not prevent the trial judge from sentencing a wobbler as a misdemeanor.Defendant pled guilty to punching his girlfriend pursuant to Penal Code section 273.5, subdivision (a), which is punishable as a misdemeanor or a felony. Under provisions of section 17, subdivision (b) the court reduced the crime to a misdemeanor, imposed sentence and granted probation. Contrary to the People's argument, section 17 does not conflict with the legislative intent of the three strikes law. Moreover, because the court reduced the crime to a misdemeanor under section 17, subdivision (b)(1), defendant was not convicted of a felony, and section 667 did not apply. Finally, section 667 does not specifically or by implication restrict the trial court's power to impose a misdemeanor sentence under section 17, subdivision (b)(1).id: 9470
Trial court abuses its discretion in sentencing a wobbler offense as a misdemeanor solely to avoid the effects of the three strikes law.The three strikes law did not abrogate the trial court's discretion under Penal code section 17, subdivision (b)(1) to declare wobbler offenses to be misdemeanors. However, a trial court abuses its discretion where it selects a misdemeanor sentence for a wobbler offense solely to avoid the effects of the three strikes law.id: 9471
Trial court has discretion to reduce a wobbler to a misdemeanor to avoid the three strikes sentencing scheme.The prosecution argued that because the three strikes law applied the trial court was without authority to reduce the burglary conviction to a misdemeanor and avoid the three strikes sentencing scheme. However, in the case of a wobbler, the trial court has discretion to select a misdemeanor sentence over a felony sentence. Where the court has exercised its discretion to impose a punishment other than imprisonment in state prison, which by operation of law renders the conviction a misdemeanor, the three strikes law is not triggered. Moreover, the court did not abuse its discretion in reducing the second degree burglary to a misdemeanor given the nature of defendant's prior offenses and the fact that the instant offense was motivated by necessity.id: 9473
Unless the prior offense is a wobbler, it qualifies under section 667, subdivision (c) when guilt is established by a plea or verdict.Defendant argued that because judgment was not pronounced on his prior burglary offense until after he committed the instant burglary, the court erred in treating the prior offense as a strike. A defendant has a prior felony conviction for purposes of Penal Code section 667, subdivision (c), when guilt is established by plea or verdict. The term prior conviction may not be construed to include the pronouncement of judgment. However, when a prior offense is a wobbler, a plea or verdict does not establish whether it is a felony, rather the sentence does.id: 9475
Court's authority to declare a wobbler a misdemeanor was not abrogated by the three strikes law.The Legislature in enacting the three strikes law did not intend to abrogate the trial court's long-standing powers under Penal Code section 17, subd.(b)(1) and did not intend to supersede the court's authority under subd.(b)(3) of that section to determine whether a wobbler should be reduced to a misdemeanor when such authority is exercised at the initial sentencing.id: 9451
People had the right to appeal the court's failure to apply the three strikes law which was an arguably unlawful sentence.The trial court sentenced a wobbler as a misdemeanor and the People appealed. The appeal was not based on the sentence of probation itself, but on the trial court's failure to apply the three strikes law, resulting in an arguably unlawful sentence. It was therefore proper.id: 9391
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245