The category of alternative felony-misdemeanors, also called "wobblers," includes:

 

            (1)  A felony defined by a statute that specifically provides for a prison sentence or a county jail sentence;

 

            (2)  A felony defined by a statute that specifically provides for a prison sentence or a fine; and

 

            (3)  A felony defined by a statute that specifically provides for a prison sentence or a county jail sentence or a fine.

 

An alternative felony-misdemeanor may be reduced from a felony to a misdemeanor under Penal Code § § 17(b)(5) and 18.  But when the offense is punishable only by state prison, it may not be reduced.[54] 

 

            In California, if a felony conviction is punishable, under the statute defining the offense, by state prison or a county jail sentence, or by state prison or a fine, it is an alternative felony-misdemeanor, or "wobbler," that can be reduced by the court from a felony to a misdemeanor under various circumstances pursuant to Penal Code § 17(b).[55]  On the other hand, if the statute defining the offense states it is punishable by "state prison" period, or by a lower term in prison, a midterm, or an upper term, but without an alternative county jail sentence or fine, it is a non-alternative felony that cannot be reduced to a misdemeanor under that provision.[56]  The trial court may not accept a plea agreement conditioned upon a reduction of an offense that is not legally reducible.[57]  Penal Code § 18, as well, does not authorize reduction unless the statute provides an alternative punishment of county jail or a fine.[58]  (Crimes with no alternative county jail sentence, but with an alternative fine, do exist.[59])

 

            For example, Penal Code § 489 states: 

Grand theft is punishable as follows:

(a) When the grand theft involves the theft of a firearm, by imprisonment in the state prison for 16 months, 2 or 3 years.

(b) In all other cases, by imprisonment in a county jail not exceeding one year or in the state prison.

 

Grand theft of a firearm is punishable under Penal Code § 489(a) by a state prison sentence, and the statute does not provide an alternative sentence of either county jail or a fine.  Therefore, a conviction under this subdivision is a “non-alternative felony,” and is not reducible pursuant to Penal Code § 17(b)(3).  On the other hand, Penal Code § 489(b) specifies that all other grand thefts are punishable “by imprisonment in a county jail . . . or in the state prison.”[60]  Therefore, a felony conviction of grand theft of anything but a firearm, under Penal Code § 487(b), may be reduced to a misdemeanor under Penal Code § 17(b)(3).  If the punishment specified in the statute is simply that the offense is punishable by imprisonment in the state prison, period, it is a non-reducible felony.  If the statute specifies that the offender may be punished by imprisonment in the state prison or by a fine, then it is a reducible alternative felony-misdemeanor.[61]

[54] People v. Isaia (1989) 206 Cal.App.3d 1558, 254 Cal.Rptr. 500.”

[55] People v. Statum (2002) 28 Cal.4th 682, 685; see People v. Superior Court (Feinstein) (2002) 29 Cal.App.4th 323, 329 (trial court "may only reduce an offense to a misdemeanor if it is a felony-misdemeanor ('wobbler’), which may be prosecuted as either a felony or a misdemeanor.").

[56] People v. Mauch (June 3, 2008) 163 Cal.App.4th 669, 77 Cal.Rptr.3d 751 (Califoria Health & Safety Code § 11358, which is punishable by state prison without an alternative county jail sentence or fine, may not be reduced from felony to misdemeanor under Penal Code § 17(b); People v. Superior Court (Feinstein), supra, at 330; People v. Mendez (1991) 234 Cal.App.3d 1773, 1779, n.5.

[57] People v. Beebe (1989) 216 Cal.App.3d 927, 931 ("Since the offense was not alternately punishable by a fine or imprisonment in the county jail, the trial court had no power to authorize the future reduction of this felony to a misdemeanor under section 17".) 

[58] People v. Mauch, supra; People v. Isaia (1989) 206 Cal.App.3d 1558, 1564.

[59] E.g., Penal Code § § 107 (escape from a reformatory or state hospital); 148.3(b) (false report of an emergency); 337b (point shaving in an athletic contest).

[60] Penal Code § 489(b).

[61] People v. Superior Court (Alvarez) (1977) 14 Cal.4th 968, 976, 60 Cal.Rptr.2d 93.

Other

CAL POST CON " FELONY " MOTION TO REDUCE FELONY TO MISDEMEANOR
People v. Feyrer, No. S154242 Decision of the court of appeal reversing trial court's refusal to grant defendant's request to declare his offense of assault by means of force likely to produce great bodily injury to be a misdemeanor in its order of early termination of probation, is affirmed as the plea agreement did not render inoperative the statute conferring upon the court discretionary authority to declare a wobbler offense to be a misdemeanor where the court initially granted probation by suspending the imposition of a sentence.

CAL POST CON " VEHICLES " REDUCTION OF FELONY TO MISDEMEANOR " SENTENCE ENHANCEMENT
People v. Feyrer (2010) 48 Cal.4th 426 (court has jurisdiction to reduce felony to misdemeanor under Penal Code 17(b), even though a felony sentence enhancement had been admitted or found true).