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Nov 19, 2018

What is the Difference Between a Misdemeanor and a Felony?

If you’ve been charged with a crime in California, you may be asking, “What is the difference between a misdemeanor and a felony?” The short answer is that, in California, misdemeanors carry a lighter penalty and felonies carry more significant penalties. But the question of the difference between a misdemeanor and a felony actually requires a more nuanced answer. This is due to the way crimes are charged, the way those accused are processed, the way convictions are obtained, and the way sentencing is conducted. Let’s look at each in turn.


Misdemeanor and Felony Charges in California

While misdemeanors and felonies are defined by law, the difference between a misdemeanor and a felony is often a matter of degree. And, to make matters more confusing, there’s sometimes a gray area between the two. For example, illegal possession of a controlled substance is a misdemeanor in California, but possession of cocaine, crack, or heroin can be charged as either a misdemeanor or a felony. Possession for sale is considered a felony. Prior felony convictions or prior sex offense convictions can also turn misdemeanor possession charges into felony charges.

Similarly, assault and battery is a misdemeanor in California, but aggravated battery and sexual battery are felonies. Petty theft and shoplifting are misdemeanors, but auto theft, burglary, and robbery are felonies. This may seem intuitive, in that a crime moves from the misdemeanor category into the felony category when it becomes more intense. However, it isn’t always clear-cut. Some crimes are called “wobblers” because they can be charged as either misdemeanors or felonies. Offenses that are considered wobblers in California include assault with a deadly weapon, child endangerment, vehicular manslaughter, and forgery.

If you’re charged with a crime, it’s important to get experienced legal counsel as soon as possible. This is especially true when you’re charged with a wobbler, because that’s where the difference between a misdemeanor and a felony gets especially murky. A prosecutor has discretion regarding whether a wobbler is charged as a felony or a misdemeanor, and a criminal defense attorney can influence that process. If felony charges are filed for a wobbler, the charges can also be reduced at your preliminary hearing. If you’re found guilty, your wobbler felony conviction can be reduced to a misdemeanor conviction at the time of sentencing. Having strong criminal defense representation can mean the difference between a felony and a misdemeanor conviction.


Misdemeanor and Felony Processing in California

If a California law enforcement officer or agency believes that you have violated the law and are guilty of a misdemeanor or a felony, you’ll be arrested and taken to jail. At that point, one of four things can happen. If a prosecutor believes that there’s not enough evidence to make a case against you, no charges will be filed and you’re free to go. If the prosecutor thinks they have a solid case, charges will be prepared. In the meantime, you may have the opportunity to post bail or you may be released on your own recognizance. In either of those cases, you can leave jail but are required to appear in court at a later date. Finally, you may be denied bail or release, and remain in jail until your arraignment.

Your arraignment is a court appearance where the judge outlines the charges against you, explains your rights, and tells you that you’re entitled to legal representation. The judge also informs you that, if you aren’t able to afford an attorney, you are entitled to a court-appointed attorney.

The arraignment is also the time when you enter a plea. The three choices are guilty, not guilty, and no contest. The “no contest” plea is typically used when a defendant is not denying the charge, but does not want to enter a guilty plea that could be used at a later time in a civil lawsuit. For example, a defendant might plead no contest to the crime of involuntary manslaughter so that the victim’s family cannot use his plea as evidence of guilt of wrongful death in civil court.

At the conclusion of your arraignment, you may be released on your own recognizance, the judge may set bail, or the judge may deny bail, in which case you are transported back to jail. If you’ve been charged with a misdemeanor, your next step will be a flurry of pretrial activity. For a felony, the next step is a preliminary hearing, where the judge will determine if there is enough evidence against you for the case to proceed.

An experienced criminal defense attorney is invaluable when it comes to navigating the criminal justice system’s machinations. At virtually every point during the processing phase, your lawyer can intervene and advocate on your behalf. For example, if you call an attorney when you’re arrested, your lawyer can be at your side during questioning. Without an attorney, you may end up saying something to law enforcement that helps them make a case against you. In contrast, your attorney can keep you from revealing self-incriminating information, which could lead law enforcement to decide that they don’t have enough evidence to hold you or a prosecutor to decide that they don’t have enough evidence to file charges against you.

If charges are filed, your lawyer can advise you about your plea during arraignment and can argue that you should be released on your own recognizance or be allowed to post bond. For felony charges, your attorney can poke holes in the prosecution’s case against you, and during your preliminary hearing convince a judge that your case should be dropped.


Misdemeanor and Felony Convictions in California

When it comes to the process of being convicted, there is really no difference between a misdemeanor and a felony. A conviction can result from one of three scenarios: you plead guilty to the crime, you are convicted by a jury at trial, or a judge convicts you at a bench trial. In order to have a bench trial, you must waive your right to a jury trial.

A misdemeanor or felony conviction on your record has serious repercussions. It can cost you your freedom, your reputation, and your future opportunities. A criminal record can prevent you from landing a good-paying job, which can then impact your ability to afford housing, transportation, and even groceries. Some convictions, such as those requiring sex offender registration, can prevent you from living in certain places or freely moving through your community. They can also subject you to unwanted attention from and targeting by neighbors and community members.

A skillful defense lawyer can do their best to ensure that it never gets this far. There are many points in the criminal justice process when an attorney can intervene, resulting in no conviction at all, or a conviction for a lesser crime.

Prior to or during trial, your attorney may negotiate a plea bargain with the prosecutor and present you with the choice to plead guilty to a lesser crime. Ahead of your trial, this option can be attractive to the prosecutor because it saves the time, money, and resources necessary to try your case in the courtroom. This can be a good choice for you if the evidence against you is solid and the likelihood of conviction is great.

In negotiating a plea bargain prior to trial, your criminal defense attorney’s strategy may be to reduce the severity of the charges – from a felony to a misdemeanor or from a misdemeanor to an infraction. Their strategy could be to drop several related charges in exchange to a guilty plea for one charge. Negotiations in the pretrial phase can also involve the severity of penalties, such as time spent in jail or prison, fines, and restitution.

During trial, a plea bargain may be offered to you by the prosecution because your attorney has done a good job poking holes in the prosecution’s case and they are unsure whether or not they’ll get the conviction they want. Your lawyer will present the offer to you and explain their perception of the probable outcome of your case. You can then decide whether to accept the plea agreement or to continue with the trial.


Misdemeanor and Felony Sentencing in California

In California, a misdemeanor is punishable by a maximum of 364 days in county jail and a maximum $1,000 fine. In contrast, a felony conviction can bring penalties ranging from a year in confinement to the death penalty, as well as fines and victim restitution. However, just as there are gray areas in how a crime is charged, there are gray areas in sentencing.

When it comes to felony sentencing, the type of sentence depends upon the type of crime. Some crimes have what are called determinate sentences, where the terms are set by law. Those laws specify three different terms for each crime, so that factors specific to your case can be taken into account during sentencing. For example, if you’re a state employee convicted of taking a bribe, you can receive a prison sentence of two, three, or four years and a fine of $2,000 to $10,000. If you’re convicted of robbery, you can get three, four, or five years.

Under determinate sentencing, if you haven’t had a prior violent offense or sex offense, you can serve your time in county jail rather than state prison. You can also receive split sentencing, where part of your sentence is served in jail and part on probation.

Other felonies have what are called indeterminate sentences, meaning that there is a minimum prison sentence specified by law but no maximum. For example, a conviction of first-degree murder can carry a sentence of death, life in prison without the possibility of parole, or 25 years to life.

It’s important to note that, unless the law dictates a mandatory prison term, if you’re convicted of a felony you can receive probation instead of a prison sentence. There can, however, be a variety of conditions related to probation, such as doing community service or paying restitution. If you violate the conditions of your probation, you’re required to serve your prison term. It’s also possible to be convicted of a felony and be diverted into a special program, such as a drug rehabilitation program or a counseling program.

There are a greater number of sentencing options for misdemeanors. As with felonies, the law allows for a range of penalties to be imposed for most misdemeanors. For example, a first-time conviction of possession of a controlled substance can result in a fine, mandatory AIDS education, and mandatory registration as a narcotics offender. If you’re under 21, your license can be suspended for a year. If you’ve had a prior conviction, you could be sentenced to 60 days in jail or you could be offered the opportunity to enter drug rehabilitation in lieu of going to jail.

Using another example, if you’re convicted of assault with a deadly weapon and the weapon is a firearm, you face a mandatory 180 days in jail and a fine. The weapon will be destroyed, and you may be directed to an anger management course.

As previously discussed, some crimes – wobblers – can be considered either felonies or misdemeanors. During sentencing, judges have the discretion to choose one or the other.

It’s easy to see how a seasoned criminal defense lawyer can have a tremendous impact on the type and severity of sentence you receive as part of a criminal conviction. A skilled lawyer can argue on your behalf during your sentencing hearing, or negotiate a lessened sentence as part of a plea agreement.

“What is the difference between a misdemeanor and a felony?” is a reasonable question to ask when you or a loved one has been arrested. Your next question should be, “Where can I find a good criminal defense attorney?” Calling on an experienced lawyer will ensure that you have the representation you need as you navigate through California’s complex criminal justice system. Remember that, although laws appear set in concrete, the application of those laws varies widely. Almost always, those with the best attorneys have the best outcomes.

Contact Silver Law Firm if you or a loved one has been arrested.

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