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Misdemeanors and Felonies

Most of my clients understand that criminal charges are divided into two major categories, misdemeanors and felonies, and that misdemeanors are minor, petty offenses, while felonies are more serious. Most of my clients also understand that misdemeanors and felonies differ in how much jail time is available at sentencing. But beyond these obvious differences between misdemeanors and felonies, there are many other lesser known, but very important distinctions. For my clients who have previously been charged with a misdemeanor but find themselves facing a felony for the first time, I often explain these differences using their knowledge of misdemeanors as a baseline. The following explanation summarizes some of the more important differences between misdemeanors and felonies.

What are the main differences between misdemeanors and felonies?

Type of OffenseExamplesProbation available?Custody served where?Max sentence / half time
180-day MisdemeanorBattery, shoplifting, 1st DUIYesCounty Jail / Alternative Custody180 days / yes
364-day Misdemeanor2nd DUI, domestic batteryYesCounty Jail / Alternative Custody364 days / yes
Non-serious FelonyCommercial burglary, Vandalism, Grand TheftUsuallyCounty Jail / Alternative Custody3 years / yes
Serious FelonyResidential burglary, assault with a deadly weaponUsually notState PrisonMore than 3 years / no

Misdemeanors are petty criminal offenses, while felonies are serious crimes. Commonly charged misdemeanors include DUIs, shoplifting, simple battery, hit and run, and driving on a suspended license. Felonies encompass a wide range of more serious offenses that in many cases, but not all, involve either significant loss of property, bodily harm, or death.

Many criminal offenses, like theft or vandalism, “wobble” between misdemeanors and felonies. For these crimes, the prosecuting attorney may decide to file as a misdemeanor or felony based on circumstances specific to the case, like the amount of property damaged or stolen. There are other classes of crimes that are charged as misdemeanors or felonies based on other considerations. For instance, DUIs may be charged as a felony based on whether someone has three or more prior DUIs within the past ten years, or whether someone was injured because of a DUI.

Does a defendant have the same rights in a misdemeanor and felony?

In many ways, misdemeanors and felonies work their way from arraignment to trial in much the same fashion, but there are important differences. First the similarities: in both misdemeanors and felonies, the defendant has the right to a speedy trial and to make procedural motions to challenge the case, like a motion to suppress evidence that was the product of an illegal search.

Procedurally, the main difference between a misdemeanor and felony is that a felony case has an extra step in the process – a ‘preliminary examination’. The preliminary examination (also called a preliminary hearing or ‘prelim’) is a live hearing where a judge hears an overview of the evidence against the defendant, as testified under oath by witnesses or an investigating officer. Unlike at a jury trial, where the prosecutor must prove their case to a jury beyond a reasonable doubt, at a prelim, a prosecutor only needs to prove to a judge that there is “probable cause” to believe the defendant committed the crimes charged. In addition, at a jury trial a prosecutor must not rely on hearsay, whereas at a prelim, the prosecutor may call a properly qualified investigating officer to testify to what witnesses said about the crime (hearsay). Prelims typically last an hour or more, but rarely last more than a day.

Because the stakes are much higher in felonies, the purpose of the prelim is to keep a case from getting too far along in the process without having a judge hear what it is all about. Due to the prosecution’s low standard of proof, it is rare for a defendant to win a case outright at prelim. However, defense attorneys can use the prelim as an opportunity to expose weaknesses in the prosecution’s case to gain leverage for further negotiation, and to lock the testifying witness into one version of events so they are unable to change their story later. Prelims also serve an investigative purpose, much like a deposition in a civil case. Finally, prelims are often opportunities to request the judge reduce qualifying wobblers from felonies to misdemeanors under a Penal Code 17(b) motion.

What are the differences between misdemeanor and felony sentencing?

If you’re convicted of a misdemeanor, you’re looking at a maximum penalty, in most cases, of either six months or 364 days in county jail, with a good chance of  being offered probation. If you violate probation, you will have to spend time in the local county jail at “half time”. Half time means someone serving a jail sentence gets one bonus day of credit for every day served. This is alternatively known as “good time/work time”. Also, those ordered to serve a misdemeanor sentence may apply for an alternative custody arrangement, such as house arrest.

If you’re convicted of a felony, you may face a stiffer sentence that almost always includes some amount of jail time. While probation is still a first option for some felonies, a judge may deny probation outright and sentence you either to state prison or county jail depending on the charge. Most felonies carry a “triad” of sentencing options, otherwise referred to as the ‘low term’, ‘middle term’, and ‘upper term’. Whether a judge sentences a defendant to the low, middle, or upper term depends on how the judge weighs various factors in mitigation and aggravation. Many low seriousness felonies, like vandalism, grand theft, or possession of an illegal dagger have the 16, 2, 3 triad. That means that low term is designated as 16 months in county jail, middle term is 2 years, and upper term is 3 years. Like misdemeanors, low level felonies are also served at 1/2 time, but the same is not true of more serious felonies.

Not all felonies are sentenced the same way. Felony sentencing constantly evolves as new laws are enacted. Some low-level felonies qualify a defendant for “mandatory supervision”, which is a similar, but slightly different concept to probation. Serious and/or violent felonies bring with them special considerations because they are considered “strikes” and strikes can be used to enhance the penalties of future criminal convictions. Sex offenses carry with them mandatory registration on a public sex offender registry. Each one of these topics could warrant its own lengthy discussion.