Criminal Defense

Felonies, Misdemeanors & Infractions: What’s the Difference?

September 27, 2017 by Mikel Rastegar in Criminal Defense  Rights   Leave a Comment
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The Difference Between Felony, Misdemeanor and Infraction

Criminal offenses in California are classified according to their seriousness. They are categorized in 3 different types: Infraction, Misdemeanor, and Felony.

For crimes against property: the gravity of a crime is proportional to the value of the property taken or damaged. The greater the property value, the more serious the crime.

For crimes against persons: the gravity of a crime is proportional to the amount of bodily injury inflicted on someone. The greater the injury, the more serious the crime.

Several other factors can influence the seriousness of a defendant’s charges. These factors include (but not limited to):

  • Was the crime commited with intent, cruelty, malice, or in reckless negligence of safety?
  • Did the defendant have a prior criminal record?
  • Was the victim a minor, senior citizen, handicapped, etc?
  • Was it a hate crime?
  • Was the crime associated with a gang?

Thus, a less serious crime can be made more serious by the presence of these additional factors, and a more serious crime can be made less serious by their absence.

Categories of California Crimes
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1. Infraction

An infraction, sometimes also called ‘petty offense’ or simply a ‘violation’, is usually a minor offense of the law, contract or right. Infractions are not punishable by a prison term or jail time, but are subject to a maximum fine of $250.

The most common of these small violations are traffic offenses. As a punishment, the defendant’s license may also be suspended based on accumulated points:

Common examples of ‘1-Point’ DMV Infractions:

  • Disobeying traffic signals or signs.
  • Failure to yield the right of way to a pedestrian.
  • Conducting an illegal U-turn.
  • Speeding above the posted limits.
  • Failure to stop for a school bus.
  • Drug and alcohol offenses.
  • Child safety restraint violations.
  • Passing on a double line.

Common examples of ‘2-Point’ DMV Infractions:

  • Reckless driving.
  • Evading law enforcement.
  • Driving at a speed over 100 MPH.
  • Transporting explosives.
  • Hit and run with property damage or physical injury.
  • Driving with a suspended or revoked license.

Those accused of infractions do not have the right to a jury trial, since violations cannot lead to imprisonment or even probation. A defendant charged with an infraction may hire an attorney, but the court doesn’t have a duty to appoint a public defender for these cases. In fact, even prosecutors don’t appear on behalf of the people in most cases involving infractions.

An infraction won’t appear on a convicted offender’s criminal record.

2. Misdemeanor

A misdemeanor is a criminal offense in California which is punishable by:

  • Standard Misdemeanor – a prison term of up to 6 months in jail and/or a fine of up to $1,000
  • Aggravated Misdemeanor (Gross Misdemeanor) – a prison term of up to 1 year in jail and/or a fine of up to $2,000

Similarly, the penalty for misdemeanor may include: probation, community service, payment of a fine, and restitution. Some aggravated misdemeanors also carry more severe fines, for instance a misdemeanor violation of Battery on a Police Officer is punishable by imprisonment in a county jail for up to one year and/or a $2,000 fine.

Defendants who are accused of a misdemeanor often have the right to a jury trial. Indigent defendants who was accused of committing misdemeanor often have the right to legal representation via a public defender, but have much better chances of reducing, dismissing or winning their case with a criminal defense attorney.

A misdemeanor offense will appear on a convicted offender’s criminal record.

3. Felony

A felony is the most serious type of criminal offense (drug sales cases, robbery, sex crimes, and assault with a deadly weapon, corporal injury to spouse, rape, murder, etc), and often associated with the threat of harm and/or with serious physical harm to a victim.

Surprising to some, non-violent white collar crimes like fraud schemes are felonies in California.

It’s important to note that offenses that are normally misdemeanors may be elevated to felonies for second-time offenders. A felony conviction, like a misdemeanor conviction, doesn’t necessarily mean you will be incarcerated, but the chances that you will be are much greater.

A felony involves a prison sentence of:

  • Non-Aggravated Felony – more than 1 year in county jail or California state prison, or probation and/or a fine of up to $10,000
  • Aggravated Felony – a prison term of up to life imprisonment without parole and/or a fine of up to $10,000
  • Enhanced Felony – longer prison terms for multiple offenses, gang involvement, or 3-strikes laws and/or a fine of up to $10,000

Generally, a California felony offender will receive the standard term. The judge will usually only impose a sentence to the higher term if the crime involves aggravation or violence, such as: use of a weapon or a crime involving violence. By contrast, a lower term is imposed when there are mitigation factors involved in the crime. For example if the offender’s participation in the crime was marginal.

The defendant can also be fined up to $10,000, the payment of a fine can be in addition to imprisonment, or instead of imprisonment.

A felony offense will appear on a convicted offender’s criminal record.

‘Wobblers’ and ‘Wobblettes’

Wobblers

Wobblers are crimes that “wobble” between two classifications and may be prosecuted as either a felony or misdemeanor.

An offense that was prosecuted as a felony may also be downgraded to a misdemeanor at the time of sentencing. This occurs only when statutes authorize judges to punish offenders as either misdemeanors or felony offenders. For more details on which crimes are ‘wobblers’, see our Wobbler Article.

California Penal Code 17(b) PC establishes two requirements for reducing a felony conviction to a misdemeanor:

  • The underlying offense must be a wobbler, and probation must have been granted. In order for you to reduce your felony conviction to a misdemeanor, both of these requirements must be satisfied. This means that even if your offense was a wobbler, but you served time in the state prison you are ineligible for this relief.

Wobblettes

Wobblettes are essentially the same as wobblers, but they “wobble” between an infraction or misdemeanor.

An offense that was prosecuted as a misdemeanor may also be downgraded to an infraction at the time of sentencing.

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In many instances, an expert criminal defense attorney will be able reduce your charges to a lesser crime, have the case dismissed through something called ‘early intervention‘ or through ‘discovery‘, or beat your case.

If you have recently been arrested for any criminal offense or are under investigation, or please don’t hesitate to call us for a free, no-obligation consultation.

Seppi Esfandi is an expert in Criminal Law who has over 17 years of practice defending a variety of criminal cases.

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