What is a “wobbler” and why is it important for expungement?

If you were convicted of a felony, but were NOT sentenced to a state prison term (or county jail under California’s Realignment Act), your offense is called a “wobbler.” A wobbler is an offense that can be charged as either a misdemeanor or a felony, so the offense “wobbles” between the two offense categories. You can find out if your conviction is a wobbler by reading the California Penal Code section that is listed on your RAP sheet. If it says that the offense is punishable by a fine or time in the county jail (misdemeanor sentences) OR time in state prison or “imprisonment pursuant to subdivision (h) of Section 1170”[3065] (felony sentence), your offense is considered a wobbler.[3066]

Remember, felony “wobblers” are eligible for reduction and ultimately expungement if:[3067]

    You were NOT sentenced to prison time for the offense;
    You were NOT sentenced to county jail instead of prison under Realignment;
    You were NOT sent to prison for a violation while on probation for the offense;
    You were NOT convicted of an offense that is NEVER eligible for expungement (see PG. 960); AND
    You otherwise meet the requirements for expungement (for more information on these requirements, see PG. 960).

For more information on expunging a felony “wobbler” conviction, see PG. 960.

Although the law does not require you to be off probation, you will have a better chance of getting your conviction reduced if you have successfully completed probation first. For information on how to get off probation early, see PG. 966.

IMPORTANT: Felonies that CANNOT be reduced to misdemeanors. If you were sentenced to state prison OR sentenced to county jail for a straight felony under Realignment—even if the judge suspended your sentence so you never spent any time in custody—your conviction is NOT eligible to be reduced to a misdemeanor.[3068]

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However, if you never spent any time in prison and you were not sentenced to county jail instead of prison because of Realignment, you may still qualify to have your felony conviction expunged (see PG. 960).[3069]

  1. 3065

    California Realignment Act, Cal. Penal Code § 1170(h). ↑

  2. 3066

    People v. Mauch, 163 Cal. App. 4th 669, 675 (Ct. App. 2008); (There are a small number of felonies where the legislature has prescribed a fine as an alternative to state prison. For these crimes, Cal. Penal Code section 18 permits the court to sentence a person to county jail, thus making the conviction a misdemeanor although the legislature in the original writing of the statute, did not permit this alternative. According to the court in People v. Mauch, “By providing for incarceration in the county jail instead of prison, section 18 authorizes a reduction to a misdemeanor for certain felonies even though the Legislature did not provide for misdemeanor treatment in the statutory provisions defining those particular crimes. Because the Legislature has not elsewhere expressly declared any of these particular felonies may qualify as misdemeanors, section 18 creates, to coin a phrase, "stealth wobblers." Section 18's misdemeanor option, however, is limited to felonies the Legislature has specified are punishable by imposition of a fine as an alternative to state prison. People v. Isaia (1989) 206 Cal. App. 3d 1558, 1564. ↑

  3. 3067

    People v. Moomey, 194 Cal. App. 4th 850, 857 (Ct. App. 2011) (citing to authorities stating that “the commission of a wobbler is a felony at the time it is committed and remains a felony unless and until the principal is convicted and sentenced to something less than imprisonment in state prison (or the crime is otherwise characterized as a misdemeanor). ↑

  4. 3068

    Cal. Penal Code § 1170(h); see Criminal Justice Realignment Frequently Asked Questions, Cal. Judicial Branch, (Rev. Apr. 2014), http://www.courts.ca.gov/partners/documents/cjr_faq.pdf. ↑

  5. 3069

    See People v. Parker, 217 Cal. App. 4th 498 (2013). ↑