What Is a Felony?

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What Is a Felony?

Every jurisdiction divides criminal offenses into at least two categories–felonies and misdemeanors, with felonies being the most serious. California is no exception. If you are facing felony charges, you’ve got trouble.

Definition of a Felony

Definition of a Felony

A felony is defined by the seriousness of its penalty. Any crime for which the maximum incarceration is more than a year in prison is a felony, while any crime for which the length of incarceration is a year or less is a misdemeanor. The maximum penalties are life without parole and death. Although California cannot currently execute an inmate (there is a moratorium on the death penalty in the state), life without parole is common.

Two Types of Felonies in California

There are two different types of felonies under California criminal law–straight felonies and wobblers. Straight felonies are offenses that California always charges as a felony, while wobblers are offenses that California can charge as either a felony or a misdemeanor.

Straight Felonies

Violent crimes are usually charged as straight felonies, although there are exceptions. The same description applies to sex offenses, drug offenses (especially drug trafficking), and sex crimes.


If your criminal charge qualifies as a wobbler, the quality of your attorney is particularly likely to make a difference in your case. The difference between the punishment for a felony and a misdemeanor is typically vast, both before and after your release from incarceration. A felony sentence of incarceration might be five times as long as a misdemeanor sentence. 

Following is an abbreviated list of offenses that qualify as wobblers under California criminal law: 

  • Assault with a deadly weapon;
  • Burglary;
  • Child endangerment;
  • Grand theft;
  • Lewd acts with a minor;
  • Sexual battery;
  • Spousal battery; and.
  • Vehicular manslaughter.

DUI can also be a wobbler, depending on the defendant’s criminal record and the number of prior DUIs. 

California’s Felony Sentencing System

California Penal Code 1170(h) PC sets out California’s sentencing system for felonies. In a nutshell, California administers a three-tier sentencing system. A judge can sentence you to a low, middle, or high term for the same felony, depending on a number of factors. Most California judges use the middle sentence as their default, with low reserved for defendants with mitigating factors and high reserved for defendants with aggravating factors.

Mitigating Factors

Mitigating factors include:

  • Lack of a prior criminal record;
  • The victim was also guilty of a crime;
  • A difficult childhood (some judges);
  • Provocation by the victim;
  • Mental or physical illness; and
  • Remorse for the crime.

Other factors might come into play as well.

Aggravating Factors

Aggravating factors include:

  • Prior similar offenses;
  • Vulnerable victim (a crime against a child or an elderly person, for example);
  • A leadership role in a conspiracy; and
  • The offense is a hate crime—the defendant targeted the victim because of their race, religion, nationality, etc.

Intangible factors often come into play when a judge determines the sentence for a particular offense.  

Penalties Other Than Prison

California courts can also assess the following penalties:

  • Fines of up to $10,000 in addition to or instead of a prison sentence.
  • Felony probation: Probation can substitute for some or all of your prison time under the right circumstances. You can go home, but you will be subject to a lot of rules and close supervision. If you violate the rules, you could go to prison.

California judges enjoy a great deal of discretion when determining the penalty for a felony. This gives your lawyer room to operate.

Felony Plea Bargaining

Everyone facing felony charges hopes for an acquittal or a dismissal of charges. Sometimes this is possible, and sometimes it is not. In plea bargaining, you agree to plead guilty to some or all of the charges against you or to a lesser charge. In exchange, the prosecutor agrees to certain negotiated concessions.

You might plead guilty to a wobbler offense such as burglary, for example. In exchange, the prosecutor might agree to recommend that the judge treat your offense as a misdemeanor rather than a felony. The judge does not have to accept the prosecutor’s recommendation, but they usually do.

California’s “Three Strikes” Law

California’s three strikes law was once one of the harshest pieces of criminal offense legislation in the country. California voters have since modified it to make it more lenient. Nevertheless, it is still fearsome. 

Under the three strikes law, offenders convicted of a third “serious or violent felony” (murder, rape, or robbery, for example) will do 25 years to life in prison. An offender convicted of a second serious or violent felony will double the sentence of a first felony offender. If the minimum first-offense prison time is five years, for example, a second offender can go to prison for at least ten years.

There Is No Substitute for an Experienced Criminal Defense Lawyer When Your Freedom Is at Stake 

Criminal prosecutions can move very quickly, and you have to move just as quickly to find an experienced and successful criminal defense lawyer. Don’t make the mistake of trying to represent yourself for a felony, because that decision could shave years off your life. Contact the dynamic legal team of Ahmed & Sukaram, DUI and Criminal Defense Attorneys for a free consultation at (408) 217-8818.

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