There are a number of California crimes that can be charged as either misdemeanors or felonies. With these offenses—called “wobblers”—the prosecution can decide how to charge the defendant. (Pen. Code, § 17, subd. (b).) In deciding whether to charge a misdemeanor or felony in a particular case, the prosecutor typically focuses on the facts and circumstances of the offense and the criminal history of the defendant.

Can the prosecution change their mind after filing the charge?

The prosecution isn’t necessarily locked into their initial decision charging a wobbler as a misdemeanor or a felony. If new facts come to light (whether mitigating or aggravating) which convince the prosecutor that their initial charging decision was wrong, the charge can be dismissed and a new charge can be filed. (See Pen. Code, §§ 1385, 1387, and Malone v. Superior Court, 47 Cal.App.3d 313, 316-18 (1975).)

Can the judge override the prosecution’s decision?

When the prosecution has charged a wobbler as a misdemeanor, the judge can’t elevate the charge to a felony . On the other hand, there’s several ways the judge can reduce a wobbler charged as a felony to a misdemeanor.

When the prosecution charges a wobber as a felony, the preliminary hearing judge (called a “magistrate”) can reduce the charge to a misdemeanor before or at the preliminary hearing. (Pen. Code, § 17, subd. (b)(5).) The judge has a second opportunity to reduce a felony wobbler to a misdemeanor after the defendant is found guilty. Once a defendant is convicted (whether by entering a plea or being found guilty at trial), the judge has two ways of reducing a felony wobbler to a misdemeanor:

  • By imposing a misdemeanor sentence (Pen. Code, § 17, subd. (b)(1)), or

  • When the defendant is sentenced to probation, by declaring the offense to be a misdemeanor. (Pen. Code, § 17, subd. (b)(3).)

(See People v. Superior Court, 232 Cal.App.4th 1199 (2015).)