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A crime may be charged as either a Felony,  Misdemeanor or an Infraction. Generally, a Felony is a crime for which the punishment may include incarceration in the state prison. A Misdemeanor is a crime which does not result in a state prison sentence. The punishment for a Misdemeanor offense is generally up to one (1)  year in the County jail. An Infraction (like a traffic ticket) cannot result in Jail time, but is generally punished by a fine only. If you fail to appear (FTA) in traffic court or Fail to pay (FTP) a traffic fine, then you can be charged with a Misdemeanor.

While most crimes provide either an express declaration of classification, or impose sentences which make the crime conclusively either a felony or misdemeanor, other crimes may be either one of a felony or misdemeanor. The latter are called “Wobblers” in the criminal courts. Wobblers have statutory penalties which give the alternative option of either prison or jail/fine. An example is a so called “felony drunk driving causing injury” charge, (Vehicle Code Section 23153 (a)-(g), which can actually be charged as a either a felony or a misdemeanor depending on the severity of the injuries caused.

The Court additionally retains the jurisdiction to reduce a charged felony to a misdemeanor (Pursuant to Penal Code Section 17) after the Preliminary Examination or at sentencing, in certain cases.


There are six (6) pleas available to a criminal defendant in California . The pleas of “not guilty,” “guilty,” and “nolo contendere” are the three (3) commonly encountered. The usual practice is for the defendant to plead “not guilty” and then either negotiate terms of a different plea to the charges, or proceed to Trial.

The six pleas are:

  • Guilty
  • Not guilty
  • Nolo contendere or (no contest), subject to the approval of the court.

The court shall ascertain whether the defendant completely understands that a plea of nolo contendere (no contest) shall be considered the same as a plea of guilty and that, upon a plea of nolo contendere, the court shall find the defendant guilty. The legal effect of such a plea to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes. In cases other than those punishable as felonies, the plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, and factual basis for, the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.

  • A former judgment of conviction or acquittal of the offense charged.
  • Once in jeopardy.
  • Not guilty by reason of insanity.

Both felonies and misdemeanors start with a procedure called an Arraignment. After that, they have less in common.

The arraignment ostensibly is to advise the defendant of the charges against him and to give him an opportunity to plead. A defendant pleading “not guilty” will be given certain options at arraignment, including whether to assert his speedy trial right. A case wherein the defendant is not asserting his speedy trial right, will be referred to in the system as a “time waived” case.

In felony cases, the defendant must personally appear at all hearings unless the court waives the requirement pursuant to a “977” waiver. (California Penal Code Section 977). Defendants charged with a misdemeanor violation who are represented by counsel, are typically not required to personally appear. Misdemeanor domestic violence cases are an exception, as the Defendant must be personally present at both the arraignment and sentencing, to allow service of a Criminal Restraining Order.

After arraignment, the case will usually be set for a hearing called a “Pretrial Conference or equivalent. This proceeding is similar to a civil settlement conference. A misdemeanor matter will usually proceed from the pretrial conference stage directly to a readiness hearing and trial.

A felony usually requires a “Preliminary Hearing or Preliminary Examination” at some point following the arraignment, unless waived by the defendant. The preliminary hearing is an evidentiary hearing to determine if the evidence is sufficient to support further prosecution on the felony charges. A victim will often testify at the preliminary hearing. On sufficient proof, the defendant is then “held over to answer” to the charges in Superior Court.  After being held over, the defendant is arraigned again and the case is then generally set for motions and trial.