What Is a Wobbler in California? When a Felony Can Be a Misdemeanor

The definitions. Penal Code 17(a): “A felony is a crime that is punishable with death, by imprisonment in the state prison, or, notwithstanding any other law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.”

Penal Code 17(b) then covers any crime “punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail.” Those are the two halves of a wobbler. One half is felony punishment, the other is misdemeanor punishment, and the choice belongs to the court.

What county jail under 1170(h) means. Penal Code 1170(h)(1) says a felony punished under that subdivision, where the offense does not name its own term, “shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.” Under 1170(h)(2), if the offense does name a term, that term is served in county jail. Either way it is a felony sentence. Paragraph (h)(3) sends some people to state prison anyway, including people with a prior or current serious or violent felony and people required to register as sex offenders.

The default rules. When a law calls something a felony and sets no other punishment, Penal Code 18(a) sets the term at “16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170.” When a law calls something a misdemeanor and sets no other punishment, Penal Code 19 sets the maximum at “imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both.” Each wobbler quoted on this page sets its own county jail ceiling instead, and in every one of them it is 1 year.

One more default is technical. Penal Code 18(b) covers a felony “punishable by imprisonment or by a fine, but without an alternate sentence to the county jail for a period not exceeding one year.” It says that offense “may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.” If your charge lists a fine as the alternative to prison but no county jail, ask your lawyer how 18(b) applies.

The 1-year cap on misdemeanor jail. Penal Code 19.2 says no one sentenced to jail “on conviction of a misdemeanor” may be committed “for a period in excess of one year.” It makes exceptions, including “a conviction of more than one offense when consecutive sentences have been imposed.”

Real examples, read from the statutes.

Penal Code 245(a)(1), assault with a deadly weapon other than a firearm, is the wobbler quoted above. The same section also holds straight felonies. Penal Code 245(b), assault with a semiautomatic firearm, is punished “by imprisonment in the state prison for three, six, or nine years,” with no county jail choice at all. Same section number, different answer. Always check the subdivision.

Penal Code 273.5(a) covers corporal injury to a current or former spouse, cohabitant, fiance, or dating partner, or the other parent of the offender’s child. The punishment is “imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment.” That is a wobbler. A prior conviction within 7 years can move a case into 273.5(f), which raises the punishment but keeps a county jail choice.

Grand theft is defined in Penal Code 487. Examples include taking property worth more than $950, or taking a car or a firearm. Penal Code 489(c)(1) punishes grand theft not covered by 489(a) or (b) “by imprisonment in a county jail not exceeding one year or pursuant to subdivision (h) of Section 1170.” That is a wobbler. But 489(a) punishes grand theft of a firearm “by imprisonment in the state prison for 16 months, or two or three years.” That is a straight felony.

Driving under the influence and causing injury is Vehicle Code 23153. The punishment for a first violation sits in a different section, Vehicle Code 23554: “imprisonment in the state prison, or in a county jail for not less than 90 days nor more than one year,” plus a fine. That is a wobbler too.

These are examples, not a complete list. The only safe way to know about your charge is to read the punishment language for your exact subdivision, with a lawyer if you can.

Penal Code 17(b) says a wobbler “is a misdemeanor for all purposes under the following circumstances.” There are five, and the last one has two parts.

(b)(1), a misdemeanor sentence. “After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.” If the sentence is not felony time, the crime becomes a misdemeanor on its own. Nobody has to ask. Watch the exception: county jail under 1170(h) is felony time and does not trigger this.

(b)(2), a youth facility. “When the court, upon committing the defendant to a secure youth treatment facility, designates the offense to be a misdemeanor.” Subdivision (c) adds a second rule for the same kind of facility. When a person is committed there for a wobbler, the offense is “deemed a misdemeanor for all purposes” after the person is discharged.

(b)(3), probation. “When the court grants probation to a defendant and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.” Two moments are packed in here: at sentencing, and later. The later one is the subject of our guide on reducing a felony to a misdemeanor.

(b)(4), the prosecutor’s filing. “When the prosecuting attorney files in a court having jurisdiction over misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless the defendant at the time of arraignment or plea objects to the offense being made a misdemeanor, in which event the complaint shall be amended to charge the felony and the case shall proceed on the felony complaint.” So the defendant can object and push the case back to a felony. Do not do that without talking to a lawyer.

(b)(5)(A), a judge before trial. “When the court determines, prior to trial, either on its own motion or the motion of a party, that the offense is a misdemeanor, in which event the case shall proceed as if the defendant had been arraigned on a misdemeanor complaint.” A “party” means either side, the defense or the prosecution.

(b)(5)(B), asking a second time. After a denial, another motion “may only be made upon a showing of changed circumstances, which includes, but is not limited to, newly available facts relevant to the charge or defendant’s personal circumstances, or change in the applicable law.”

What changed in 2026. Subdivision (b)(5) was rewritten by Assembly Bill 321 (Stats. 2025, ch. 611), effective January 1, 2026. The Legislative Counsel’s Digest for that bill says the old version applied when, “at or before the preliminary examination or prior to a certain order being filed, the magistrate determines that the offense is a misdemeanor.” The new version applies “any time the court, prior to trial, determines that the offense is a misdemeanor.” Older articles that tie this route to the preliminary hearing are out of date.

What section 17 does not say. It has no list of factors the judge has to weigh. The choice is the judge’s, and the code gives no checklist for it. Our reduction guide explains where the factors judges actually use come from.

One limit and one protection. Subdivision (e) says the section “does not authorize a judge to relieve a defendant of the duty to register as a sex offender pursuant to Section 290” where the charge requires registration and the defendant was found guilty. Subdivision (f) says “an unfulfilled order of restitution or a restitution fine shall not be grounds for denial of a request or application for reduction.”

Current version of section 17: amended by Stats. 2025, ch. 611 (AB 321), effective January 1, 2026.

The rule. Penal Code 17(d) says “A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 in either of the following cases:”

The first case: “The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time they are arraigned, after being informed of their rights, elects to have the case proceed as a misdemeanor.”

The second case: “The court, with the consent of the defendant, determines that the offense is an infraction, in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint.”

The full list. Penal Code 19.8(a)(1) names Penal Code sections 193.8, 330, 415, 485, 490.7, 555, 602.13, and 853.7; subdivision (c) of section 532b and subdivision (o) of section 602; Business and Professions Code section 25658(b) and sections 21672, 25661, and 25662; Government Code section 27204; and Vehicle Code section 23109(c) and sections 5201.1, 12500, 14601.1, 27150.1, and 40508. It also reaches “Any other offense that the Legislature makes subject to subdivision (d) of Section 17.”

The fine. Penal Code 19.8(a)(2): “Except where a lesser maximum fine is expressly provided for a violation of those sections, a violation that is an infraction is punishable by a fine not exceeding two hundred fifty dollars ($250).”

What an infraction takes away. Penal Code 19.6: “An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury. A person charged with an infraction shall not be entitled to have the public defender or other counsel appointed at public expense to represent him or her unless he or she is arrested and not released on his or her written promise to appear, his or her own recognizance, or a deposit of bail.”

Penal Code 19.7 fills in the rest: “Except as otherwise provided by law, all provisions of law relating to misdemeanors shall apply to infractions.”

What it protects. Penal Code 19.8(c) says a conviction for an offense made an infraction under 17(d) “is not grounds for the suspension, revocation, or denial of a license or for the revocation of probation or parole of the person convicted.” Two exceptions are written into that subdivision: “the violations enumerated in subdivision (d) of Section 13202.5 of the Vehicle Code and Section 14601.1 of the Vehicle Code based upon failure to appear.”

The trade. Taking the infraction takes jail off the table. It also gives up the jury trial, and the appointed lawyer unless you were arrested and held. That is why 17(d)(1) lets you elect a misdemeanor at arraignment. Which way to go turns on the evidence in your case, so make that call with a lawyer.

Current versions: section 19.8 amended by Stats. 2024, ch. 226 (AB 3278), effective January 1, 2025. Sections 19.6 and 19.7 were added by Stats. 1989, ch. 897, which renumbered former sections 19c and 19d.