Sentencing & Penalties


The penalties when you’re convicted of a crime in California work differently than in many states. A lot of other jurisdictions will categorize offenses by degree or class, such as a 1st-degree felony or a Class A misdemeanor. Then penalties are set for a particular class or degree of crime, with some exceptions for particular offenses. If you are facing criminal charges, an experienced San Diego criminal defense attorney will be able to protect your rights.

California has no such designations. Offenses generally fall into three types: infractions, misdemeanors, and felonies. In California, penalties are primarily set for each individual offense rather than for entire categories of crimes. If no penalty is set in the statute defining an offense, then a general misdemeanor or felony penalty may apply.

If you’ve been charged with a crime, an experienced San Diego criminal defense attorney can explain what possible outcomes to expect based on your charge and the circumstances of your offense.

Infraction Penalties

Infractions are minor offenses. Typically, infractions are punished only with a fine. An example of an infraction in California is personal possession of marijuana. When you possess a small quantity of marijuana, there is no jail time as part of the penalty. You pay a relatively small fine, and you don’t end up with a criminal record.

Misdemeanor Penalties

Misdemeanors are more serious than infractions, but can still be relatively minor. Misdemeanor offenses are punishable by a jail sentence of 1 year or less. A fine is usually part of a misdemeanor sentence as well. An example of a misdemeanor crime in California is petty theft. Petty theft involves a theft valued at less than $400. The punishment for a misdemeanor conviction for petty theft is set at up to 6 months in jail and a fine of up to $1,000.

Felony Penalties

Felonies are more serious crimes that carry the potential to serve a sentence in a state prison. Some extremely serious felonies are punishable with a death sentence in California.

Felony crimes have a low term, mid term, and high term prison sentence option set by statute. For example, the felony crime of drug transportation can be punished with a sentence of 3 years, 4 years, or 5 years in prison for the basic offense. That doesn’t mean the range is 3 to 5 years and a judge can pick any sentence in that range, such as 3 ½ years. The judge must sentence you to either 3 years, 4 years, or 5 years in prison. The judge has some discretion to choose which of the three prison terms is the most appropriate sentence based on a variety of factors in your case.

Wobbler Offenses

Wobblers are offenses that can be prosecuted as either misdemeanors or felonies. It’s up to the prosecutor to decide whether to charge the offense as a misdemeanor or felony, and that decision usually is made based on the facts and circumstances of the crime itself as well as your prior criminal history, if any.

If you have a long history of prior convictions, a prosecutor may be more likely to charge a wobbler as a felony. Likewise, a prosecutor may be more likely to charge a wobbler offense as a misdemeanor if it’s your first offense and the facts support relative leniency.

The penalty for a wobbler depends on whether the conviction is a misdemeanor or a felony. An example of a wobbler offense is domestic violence assault, charged as “willful infliction of corporal injury on an intimate partner.” If you have a prior history of domestic violence or the assault caused serious injuries, the offense may be charged as a felony and a conviction can be punished with 2, 3, or 4 years in prison. If it’s your first offense and the assault resulted in minor injuries or no injuries, it may be charged as a misdemeanor and the punishment for a conviction may include up to 1 year in jail and a fine of up to $6,000.

California’s Three Strikes Law

For many years, California had one of the toughest “Three Strikes” laws on the books in the U.S. The intention of the law was to prevent people who committed serious crimes from being released to re-offend, and in particular to be able to commit violent offenses in the community again.

However, the law that was passed back in 1994 was broad enough that people who committed non-violent crimes faced a strict mandatory sentence of 25 years to life on their third felony conviction — even if the felony was something like possession of a relatively small amount of drugs.

After nearly 20 years of seeing how “Three Strikes” worked in reality, California voters approved a revision to the law in November 2012. Under the amended Three Strikes law, a person who is convicted of a third felony offense only faces the mandatory 25 years to life sentence when the third conviction is for a serious or violent felony — such as rape, robbery, or murder— and your previous convictions are for serious or violent felonies.

So under California’s current Three Strikes law, your progression of penalties would work like this:

  • First Serious or Violent Felony — Normal statutory penalty
  • Second Serious or Violent Felony — Mandatory sentence of double the normal statutory penalty
  • Third Serious or Violent Felony — Mandatory sentence of 25 years to life

A San Diego Criminal Defense Attorney Role

If you’ve been charged with a crime, a skilled California criminal defense lawyer can explain what to expect in court and the potential outcomes you might face. Call Jessica McElfresh at (858) 756-7107 for a free consultation. Your lawyer can walk you through how California law treats your specific charge, and the potential sentences based on the circumstances of your case and the nature of your charge.

If you plead guilty to the charge or are convicted, your lawyer can advocate for a more lenient sentence. A good defense lawyer who understands California’s complex system of crimes and penalties can prepare an argument and present evidence why a judge should choose the low term sentence, or why a wobbler offense should be treated as a misdemeanor rather than a felony. With a strong California criminal defense lawyer in your corner, your charge may have less of an impact on your life than it might without a lawyer’s help.