“Wobbler” Offences

*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.

What constitutes a crime includes many different things. But part of justice is about being able to consistently identify not only what is a crime, but what kind of crime it is too. Because in order to deal out a just verdict in our punitive justice system, there needs to be a legal framework in place that defines crimes so that we can standardize fair and normal punishments for them. In the US crimes fall into 4 basic categories; felonies, misdemeanors, felony-misdemeanors (wobblers), and infractions. This blog will focus on defining these “wobbler” offences.

Wobbler offences are crimes that can be classified and punished as either a misdemeanor or a felony in California. As the name suggests, the wobble on the edge between the two classifications. They can also be known as an “alternative felony/misdemeanor offense”.

It is generally up to the discretion of the prosecutor to determine whether they will charge the offense as the lesser or more severe charge. In some instances, the judges may decide how to punish a wobbler offense. Judges are not bound by the prosecutor’s decision on how to charge the crime. If there are mitigating circumstances of the crime, judges are able to reduce a wobbler felony down to a misdemeanor. Additionally, a defendant convicted of a wobbler felony may elect to file a petition with the court to reduce the conviction to a misdemeanor if they were given the more severe charge/judgement.

There four times when a wobbler crime can be reduced from a felony to a misdemeanor include the following; when the prosecution first charges the offense; at a felony preliminary hearing when the defendant is held to answer; during sentencing; or,

if the defendant was not sentenced to prison, after the defendant has done California’s felony probation and filed a petition to reduce the charge.

In California, there are hundreds of different offenses that all fall into this misdemeanor-felony classification, with some examples including sex crimes, domestic violence, and fraud crimes. For example, under a wobbler statute that allows assault to be charged as a felony or a misdemeanor, the prosecutor usually will decide which charge to bring based upon the severity of the injury to the victim and the nature of the defendant's intent and past criminal record.

California does not mandate how a prosecutor should charge a wobbler crime, it remains at their discretion. In California prosecutors often follow the crime charging standards put out by the California District Attorneys Association. They suggest prosecutors look at the following factors to inform their decision: the severity of the crime; the age of the defendant; the defendant’s cooperation with law enforcement; the chances of defendant continuing to commit crimes; the defendant’s criminal record; if the defendant is eligible for probation; and/or how strong the prosecution’s case is.

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