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The Difference Between an Infraction, a Misdemeanor, and a Felony?

Updated: Nov 14

The laws related to criminal conduct in California are mostly found in the penal code, the vehicle code, the health and safety code, the welfare and institutions code, and the business and professions code.


These criminal laws are classified as either infractions, misdemeanors, or felonies. The classification of a particular crime represents the seriousness of the crime and the related punishments. Infractions represent the least serious crimes; misdemeanor represent crimes that are more serious than infractions but less serious than felonies; felonies represent the most serious crimes. The following is a brief discussion of the similarities and differences between infractions, misdemeanors, and felonies.


Infractions: An infraction is a crime that is considered less serious than a misdemeanor or a felony. Infractions are usually handled in traffic court as most infractions are traffic related, such as driving without a license, speeding, or driving without insurance. Some infractions can be handled in criminal court alongside more serious crimes, but usually those infraction cases are initially filed as misdemeanors and later reduced to an infraction as part of a plea bargain between the defendant and the court or the between the defendant and the district attorney.


For example, the crimes of drunk in public, disturbing the peace, and underage DUI, are usually filed as misdemeanors charges in criminal court; however, it is not uncommon for these crimes to be reduced to an infraction after an agreement between the defendant and the district attorney in exchange for the defendant’s promise to plead guilty or no contest to the charge (Plea bargain).


Infraction are different than misdemeanors and felonies in that the defendant who faces an infraction charge is not entitled to a government paid attorney that assists the defendant in her case. Similarly, the defendant is not entitled to a jury trial in an infraction case. Of course, the defendant has a right to have a trial in an infraction case as well as a right to use the services of a private attorney in her defense.


Note: Hiring a private criminal defense attorney in an infraction case is usually a good idea, especially if the defendant intends to have a trial on the matter or the defendant is facing a vehicle charge that could have a significant impact on her commercial driver’s license.


Misdemeanors: Misdemeanor crime are crimes that are more serious than infractions but less serious than felonies. Common misdemeanor crimes include: DUI without Injury, trespassing, public intoxication, simple battery, prostitution, reckless driving without injury, contracting without a license, etc. Sometimes, a misdemeanor is initially charged against the defendant, and later, the misdemeanor charge is reduced to an infraction. When this happens, the criminal case is not transferred to a different court, but rather, the judge handles the case as an infraction.


Misdemeanor Procedures: A defendant is entitled to a public defense attorney if she cannot afford an attorney to represent her in the case. This is because it is possible to be punished with incarceration if the defendant is found guilty or pleads no contest to a misdemeanor charge. Similarly, the defendant is entitled to a jury trial when she is charged with a misdemeanor crime.


Note: A private criminal defense lawyer may usually represent the defendant in a misdemeanor case without the need for the defendant to be personally present at court. There are exceptions to this rule for certain cases and certain court hearings. For example, a defendant must personally appear for arraignment (first court hearing) in any domestic violence misdemeanor type case (i.e. child neglect, domestic battery, simple battery, willful child endangerment, etc.). Other exception apply. On the other hand, a defendant who uses the services of the public defender in a misdemeanor case will be required to appear at every court hearing as the public defender is rarely amenable to proceeding without the defendant’s presence, even when the defendant’s presence is otherwise unnecessary at most misdemeanor court hearings.


Misdemeanor Penalties: The lower penalties in misdemeanor cases reflect the seriousness of the crime (lower than the penalties related to felony cases). In any event, misdemeanor jail sentences do not exceed one (1) year. Most misdemeanor jail sentences are either 90, 180, or 364 days as a maximum. For example, a violation of California’s open container law, a misdemeanor, carries a maximum jail sentence of 180 days upon conviction. Other misdemeanor penalties can include court fines and fees, restitution (payment to victims for lost income, personal injury, or property damage), firearm restrictions for assault-type misdemeanors, and more.


Alternate Sentencing: Most misdemeanor crimes can be diverted. To divert a crime means to circumvent the criminal prosecution process. In essence, diversion in a misdemeanor case means that the defendant promises to perform some form of punishment, such as pay fines, attend classes, stay out of trouble, etc., in exchange for the court’s promise to dismiss the misdemeanor charges if the defendant successfully completes the diversion requirements. The end result would be that the defendant has no criminal conviction on her criminal record (For more information, see Diversion & RISE Program). In addition, if the defendant is sentenced to actual jail in a misdemeanor case, the court is usually amenable to allowing that jail term to be served alternatively on out-of-custody work release or house arrest.


Note: Despite the fact that misdemeanor crimes usually carry lighter jail sentences, the criminal arrest and/or conviction of a misdemeanor could negatively impact the defendant’s life in other respects. For example, the conviction of a misdemeanor could result in any of the following: the revocation of a professional license (i.e. doctor, therapist, lawyer, nurse, etc.), deportation or denial of reentry into the United States (for non-US citizens), denial or discharge from the armed forced (Navy, Space Force, Army, etc.), loss of rights in family court, such as the right to adopt a child, loss of a commercial driver’s license for driving related offenses (i.e. commercial driver DUI), mandatory registration or classes (for crimes related to drugs, arson, or sex offender registration, DUI classes, etc.), loss of employment, and more (See Professional Licensing and Criminal Convictions, Immigration Consequences for Criminal Convictions, and Military Enlistment and Criminal Convictions).


Felonies: Felony crimes represent the most serious of the criminal offenses. Felony crimes include, but are not limited to: torture, aggravated mayhem, murder, carjacking, first degree robbery, home invasion, lewd acts on a child, rape, pimping, etc.


Note: The term aggravated felony is sometimes used in the criminal law; however, the term aggravated felony is not a classification of crime that means the crime is more serious than a felony. The term aggravated felony is used in three situations: 1) In determining whether or not the defendant should receive the maximum sentence under California’s Triad Sentencing Law (See Triad Sentencing Below), 2) As a term added to a crime that differentiates that crime from a another similar crime (i.e. aggravated mayhem differentiated from mayhem,) and 3) A term used in immigration law that means the defendant is sentenced to more than a year in jail or prison as that fact relates to the defendant’s immigration status. Sometimes, criminal defense attorneys also use the term aggravated misdemeanor, which means a misdemeanor that carries a possible maximum 364 day jail sentence.


Criminal Procedure: Felony charges carry the harshest punishments in terms of possible incarceration and related court fees. As such, felony criminal charges come with many defense rights, including, but not limited to, the following: the right to an attorney, even if the defendant cannot afford an attorney; the right to a jury trial, the right confront accusers; the right to remain silent; the right to testify; the right to reasonable bail, and more (same rights as in misdemeanor cases). In addition, in felony cases, the defendant has a special right to a probable cause hearing (preliminary hearing). A probable cause hearing is a formal hearing in felony cases where the district attorney must demonstrate to the judge that there is enough evidence against the defendant to justify continuing a prosecution of the defendant. This preliminary hearing occurs early in a felony case (within 10 court days of the defendant’s arraignment unless the defendant’s waives her right to this statutory timeline, also called “waive time”). A preliminary hearing is not a right in misdemeanor cases; however, a criminal defense attorney can file a request to have the district attorney demonstrate to the court that there is sufficient evidence to justify continued prosecution against the defendant (PC 991).


Felony Punishment: The punishment in felony cases is almost always more severe than what would be expected in a misdemeanor case. Jail or prison confinement is possible in every type of felony case. The range of incarceration is from one year in jail to life in prison without the possibility of parole (LWOP), or even death. For example, the crime of failure to provide for a child (felony) carries a maximum one (1) year prison sentence, while felony kidnapping for ransom carries a prison sentence of life without the possibility of parole (LWOP).


Triad Sentencing: Most felony crimes have a sentencing range. For example, the felony crime of criminal threats carries a felony range of either 16 months, 2 years, or 3 years or prison. In this example, the crime of criminal threats has three levels of sentencing (triad sentencing). The low term of 16 months, also called the mitigated term; the middle term of 2 years, also called the mid-term, and the high term of 3 years, also called the aggravated term. Most felony crimes refer to this triad sentencing scheme; however, the range of some felony crimes is set as a minimum amount of time. For example, the crime of second degree murder carries a sentence range of 15 year to life. This means that the defendant must serve at least 15 years upon a conviction for second degree murder, but there is no indication as to how much time in excess of 15 years that the defendant must serve.


Felony Probation: In some felony cases the defendant may serve a probation sentence after conviction. A probation sentence is period of supervision as opposed to actual jail or prison. Not all felony charges allow a probation sentence. If the judge grants a probation sentence in a felony case the defendant will be placed on felony probation. Felony probation comes with a probation officer who supervises and monitors the defendant while she is on probation. Common felony probation terms include: Commit no crimes, do not leave state of California without probation’s permission, submit to search of the defendant, keep the probation office up-to-date on the probationer’s address, submit to drug testing, pay all fines and restitution, etc.


Note: Felony and misdemeanor probation are not the same. Probation in felony cases is called felony probation or formal probation and the probationer (defendant) is monitored by a probation officer. Misdemeanor probation is called court probation, informal probation, or summary probation. These terms are synonymous. Misdemeanor probation is monitored by the court. Generally speaking, misdemeanor probation usually includes only a few terms of probation, such as commit no crime, pay fines, fees, and restitution (if applicable), stay away from victim (if applicable), and attend classes (i.e. DUI or Domestic Violence Crimes). In misdemeanor probation cases the defendant is usually allowed to leave the state of California without permission.


PC 1170(h) Sentencing: In felony cases, sentencing may sometimes be split (served partially in jail or prison and partially out of jail or prison on work release or house arrest), or suspended (not served unless the defendant violates a term of felony probation). Whether or not PC 1170(h) sentencing is available in a felony case depends on the exact felony for which the defendant is convicted and the terms of a plea bargain, if any. PC 1170(h) sentencing also allows the defendant to serve her incarceration period in a local county jail as opposed to a state prison; however, as stated, PC 1170(h) sentencing is not available in every felony case (For more information, see Penal Code 1170(H) and Jail v. Prison).


Strike Offense: Some of the more serious felonies in California are considered strike offenses. A strike offense is a crime that is considered serious or violent as those terms are defined in the penal code at PC 1192.7 and 667.5, respectively. These strike crimes are among the most serious in terms of prison sentence length. Strike crimes include: torture, murder, criminal threats, assault on an officer, mayhem, rape, lewd acts on a minor, robbery, aggravated kidnapping, carjacking, human sex trafficking, and more. Strike crimes generally carry longer prison sentences. In addition, strike crimes almost always carry less opportunity for time off the defendant’s prison sentence for good behavior while incarcerated (good conduct credits). For example, the felony crime of rape, a strike offense, requires the defendant to serve at least 80% of his prison sentence, even if he serves that prison sentence with good behavior. On the other hand, the felony crime of unlawful sexual intercourse with a minor (statutory rape), requires the defendant to serve at least 50% of his jail sentence. Finally, a conviction for a strike offense will enhance the prison sentence upon subsequent criminal conviction, if any (For more information, See Serious Crimes, Violent Crimes, and Three Strikes Sentencing).


Note: There are many felonies in the criminal law that are not strike offenses. Non-strike felony offenses carry an opportunity for the defendant to earn up to 50% of her sentence for good behavior while in jail or prison. These non-strike felonies include: unauthorized use of an automobile, grand theft, theft from elder, embezzlement, perjury, receipt of stolen property, non-injury DUI, false personation, and more. Notice that many of these non-strike felonies are also wobbler offenses (See below at Wobbler Crimes).


Collateral Punishments: Just as in misdemeanor cases, there are collateral punishments in felony cases. For example, a felony conviction will have a negative impact on all of the following: military enlistment, professional licensing, immigration status, employment, restraining orders (criminal protective orders), firearm prohibition, and more. In addition, the restitution payments, court fees, and bail tend to be much higher in felony cases then they are in misdemeanor case.


Wobbler Crimes: Sometimes a crime may be charged under more than one classification. These are called wobbler crimes because the classification of the crime oscillates, or "wobbles," between two classifications. For example, the crime of welfare fraud (WI 10980(c)(2)) may be charged as a felony or as a misdemeanor. When welfare fraud is charged as a felony, the crime carries up to three years of incarceration as a punishment; when welfare fraud is charged as a misdemeanor, the crime carries up to a one year county jail sentence.


A wobbler crime can wobble between an infraction and a misdemeanor or between a misdemeanor and a felony. Almost all wobbler crime wobble between a misdemeanor and a felony. These wobbler crimes tend to be among either the most serious of misdemeanor crimes, or among the least serious of felony crimes (depending on your view the situation). Common wobbler crimes include: vandalism, welfare fraud, criminal threats, prohibited weapons, receipt of stolen property, vehicle theft, identity theft, and more.


Wobblers in Court: Whether or not a district attorney files a wobbler crime as a misdemeanor or as a felony depends on several factors, including the egregiousness of the fact of the case and the defendant’s criminal history. When a wobbler crime is charged as a felony, the charged may be reclassified as a misdemeanor, and vice versa. This is usually happens, if at all, as a result of a plea bargain between the defendant and the district attorney or upon a request to the judge after the judge hears some basic facts of the case after a preliminary hearing. The motion to reduce (reclassify) a felony charge to a misdemeanor charge is made pursuant to law found in penal code section 17(b).


Defenses to Crimes: The same defenses generally apply to all classifications of crime; however, for practical purposes, most defendants do not spend too much time or money on the defense of infraction charges. Also, some defenses tend to lend themselves to a particular criminal classification. For example, the defense of entrapment and the defense of statute of limitations is commonly used in misdemeanor cases related to loitering for prostitution, possession of controlled substance, DUI, and more. On the other hand, the defense of entrapment and the defense of statute of limitations is rarely used in felony cases.


Note: The statute of limitations in felony cases is at least three years from the date of incident in most non-strike felonies, and much longer in more serious strike felonies.


Post-Conviction Relief: Procedurally, there is a difference between misdemeanors and felonies when it comes to post-conviction relief, such as appealing a conviction, requesting an expungement, terminating probation early, etc. While the process is slightly different between a misdemeanor and a felony when it comes to these post-conviction remedies the goal is usually the same: removal from the sex offender registration, receive a certificate of rehabilitation, restore rights to possess a firearm, etc. Post-conviction differences and availability, if any, in both misdemeanor and felony cases are explored more at expungements, criminal appeals, and certificate of rehabilitation.


Finally, California does not use letters or number in front of the crime classification to denote the severity of the crime within the classification. For example, some states, other than California, might refer to a misdemeanor as a “class A misdemeanor,” or a felony as “class IV felony.” The states that use letters or number in front of a crime classification tend to use a fixed sentencing option; whereas, California uses a felony triad sentencing option. The felony sentencing triad option allows judges to sentence the convicted defendant with either a low-term, a mid-term, or a high-term sentence depending on the presence or absence of mitigating or aggravating factors in the case, if any (See Above at Triad Sentencing).


To learn more about the difference between infractions, misdemeanors, and felonies, or for more information on misdemeanor or felony probation, wobbler offenses, and the punishment or defenses associated with any California crime, contact our criminal defense lawyers for a free consultation. Our criminal defense lawyers are available every day of the week to discuss your case and review your rights and defense options. Call today!


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