A turkey? A person who has had a bit too much to drink? A spinning top?
Well, it might be all those things, but in California law, a “wobbler” refers to an offense that may be charged and punished as a felony or a misdemeanor. There are literally hundreds of wobbler offenses on the California law books. Although the Penal (criminal) Code lists the most wobblers, these offenses are also found in other codes, such as the Business and Professions Code, the Health and Safety Code, the Professions Code, the Vehicle Code, the Commercial Code, and the Family Law Code. A wobbler provides for punishment by incarceration in state prison (a felony) or in county jail (a misdemeanor).
For example, a charge of assault with a deadly weapon other than a firearm under Penal Code section 245 is punishable by either two, three, or four years imprisonment in state prison or incarceration in county jail for six months to one year. It’s important to keep in mind that even though the punishment calls for incarceration, that does not mean that if the defendant is convicted he or she will go to jail or prison. Even if convicted, and depending on the circumstances of the crime, the court will often “stay” or “suspend imposition” of a sentence and grant the defendant probation or some other alternative sentence.
When the prosecution files charges under a wobbler offense, it will often file the charge as a felony unless the circumstances of the crime are very minor or the defendant has no criminal history. One reason the prosecution often files wobblers as felonies is that it provides a “bargaining tool” to the prosecution in plea bargaining. The prosecution might, for example, offer the defendant a reduction to a misdemeanor in exchange for the defendant’s guilty plea.
Another important thing about wobblers concerns the potential to expunge the conviction. In California, a person who has completed a sentence of probation for a misdemeanor offense is eligible to petition the court for an expungment (dismissal) of the conviction. Felony convictions are usually not eligible for expungement unless the underlying offense was a wobbler. In that case, the former defendant can petition the court reduce the felony conviction to a misdemeanor and then expunge the conviction.
Some of the more common wobbler offenses include:
Domestic Violence under Penal Code section 273.5
Criminal Threats (Penal Code section 422)
Aggravated Battery (Penal Code section 243(d))
If you are charged with a wobbler offense and you chose to plea, a skilled criminal defense attorney is often able to negotiate with the prosecution to get the charge reduced to a misdemeanor or an agreement that the prosecution will not oppose a petition to reduce the conviction to a misdemeanor and thereafter for an expungment of the conviction provided the defendant abides by the terms of the agreement.
Criminal defense attorney William Weinberg has 25 years’ experience defending persons accused of wobblers and other offenses in Orange County. He is happy to discuss your matter free of charge. You may contact him at his Irvine office by calling 949-474-8008 or by emailing him at email@example.com.