Tooby's California Post-Conviction Relief for Immigrants

 

The category of alternative felony-misdemeanors, also called "wobblers," includes:

 

            (1)  A felony defined by a statute that specifically provides for a prison sentence or a county jail sentence;

 

            (2)  A felony defined by a statute that specifically provides for a prison sentence or a fine; and

 

            (3)  A felony defined by a statute that specifically provides for a prison sentence or a county jail sentence or a fine.

 

An alternative felony-misdemeanor may be reduced from a felony to a misdemeanor under Penal Code § § 17(b)(5) and 18.  But when the offense is punishable only by state prison, it may not be reduced.[54] 

 

            In California, if a felony conviction is punishable, under the statute defining the offense, by state prison or a county jail sentence, or by state prison or a fine, it is an alternative felony-misdemeanor, or "wobbler," that can be reduced by the court from a felony to a misdemeanor under various circumstances pursuant to Penal Code § 17(b).[55]  On the other hand, if the statute defining the offense states it is punishable by "state prison" period, or by a lower term in prison, a midterm, or an upper term, but without an alternative county jail sentence or fine, it is a non-alternative felony that cannot be reduced to a misdemeanor under that provision.[56]  The trial court may not accept a plea agreement conditioned upon a reduction of an offense that is not legally reducible.[57]  Penal Code § 18, as well, does not authorize reduction unless the statute provides an alternative punishment of county jail or a fine.[58]  (Crimes with no alternative county jail sentence, but with an alternative fine, do exist.[59])

 

            For example, Penal Code § 489 states: 

Grand theft is punishable as follows:

(a) When the grand theft involves the theft of a firearm, by imprisonment in the state prison for 16 months, 2 or 3 years.

(b) In all other cases, by imprisonment in a county jail not exceeding one year or in the state prison.

 

Grand theft of a firearm is punishable under Penal Code § 489(a) by a state prison sentence, and the statute does not provide an alternative sentence of either county jail or a fine.  Therefore, a conviction under this subdivision is a “non-alternative felony,” and is not reducible pursuant to Penal Code § 17(b)(3).  On the other hand, Penal Code § 489(b) specifies that all other grand thefts are punishable “by imprisonment in a county jail . . . or in the state prison.”[60]  Therefore, a felony conviction of grand theft of anything but a firearm, under Penal Code § 487(b), may be reduced to a misdemeanor under Penal Code § 17(b)(3).  If the punishment specified in the statute is simply that the offense is punishable by imprisonment in the state prison, period, it is a non-reducible felony.  If the statute specifies that the offender may be punished by imprisonment in the state prison or by a fine, then it is a reducible alternative felony-misdemeanor.[61]

[54] People v. Isaia (1989) 206 Cal.App.3d 1558, 254 Cal.Rptr. 500.”

[55] People v. Statum (2002) 28 Cal.4th 682, 685; see People v. Superior Court (Feinstein) (2002) 29 Cal.App.4th 323, 329 (trial court "may only reduce an offense to a misdemeanor if it is a felony-misdemeanor ('wobbler’), which may be prosecuted as either a felony or a misdemeanor.").

[56] People v. Mauch (June 3, 2008) 163 Cal.App.4th 669, 77 Cal.Rptr.3d 751 (Califoria Health & Safety Code § 11358, which is punishable by state prison without an alternative county jail sentence or fine, may not be reduced from felony to misdemeanor under Penal Code § 17(b); People v. Superior Court (Feinstein), supra, at 330; People v. Mendez (1991) 234 Cal.App.3d 1773, 1779, n.5.

[57] People v. Beebe (1989) 216 Cal.App.3d 927, 931 ("Since the offense was not alternately punishable by a fine or imprisonment in the county jail, the trial court had no power to authorize the future reduction of this felony to a misdemeanor under section 17".) 

[58] People v. Mauch, supra; People v. Isaia (1989) 206 Cal.App.3d 1558, 1564.

[59] E.g., Penal Code § § 107 (escape from a reformatory or state hospital); 148.3(b) (false report of an emergency); 337b (point shaving in an athletic contest).

[60] Penal Code § 489(b).

[61] People v. Superior Court (Alvarez) (1977) 14 Cal.4th 968, 976, 60 Cal.Rptr.2d 93.