Can a Misdemeanor Lead to a Strike?

By San Diego Attorney on October 22, 2021

Three strikes laws are designed to ensure certain types of offenders are penalized substantially more severely for repeat offenses. These laws require courts to sentence people convicted of three or more felony offenses to significantly longer sentences than they would otherwise receive.

California’s three strikes law works in the following ways:

• With one prior serious or violent felony conviction, the prison term for a second felony conviction is doubled.
• With two or more prior serious or violent felony convictions, the term for a third or subsequent conviction will be whichever is greater – three times the usual sentence for that felony conviction, or a state prison sentence of 25 years.

When a misdemeanor charge is elevated to a felony based on the defendant’s prior criminal record, it can result in a strike under California’s three strikes law.

When Are Misdemeanors Charged as Felonies?

Certain misdemeanor offenses are considered “wobblers,” meaning the prosecution has the discretion to charge the crime as a misdemeanor or a felony. In most cases, misdemeanors are elevated to felonies if there are aggravating circumstances, such as serious injury suffered by the victim or the defendant’s criminal record. Misdemeanor crimes that are wobblers in California include:

• Domestic violence
• Assault with a deadly weapon
• Child endangerment
• Child abuse
• Second-degree burglary
• Deadly threats
• DUI causing injury
• Embezzlement
• Grand theft

Who Is Being Charged and Convicted Under Three Strikes Laws?

An analysis of the effects of the three strikes law in California was published by the Legislative Analyst’s Office (LAO). In reviewing characteristics of offenders charged and convicted under three strikes, LAO found that 70% of all second and third strikes were for a wide variety of nonviolent, non-serious offenses. Burglary was the largest single category of third-strike charges, accounting for 12% of the total. Of all the third-strike offenders serving time, only 50 were convicted of a serious or violent offense. This analysis was done before Proposition 47 was passed. Proposition 47 reduced certain offenses that were previously wobblers or felonies to misdemeanors.

How Can a Criminal Defense Attorney Get a Felony Reduced to a Misdemeanor to Avoid a Strike?

There are several ways in which criminal defense attorneys can help clients get wobbler crimes charged as a felony reduced to a misdemeanor to avoid a strike:

• One way is by plea agreement before trial. This is a bargain between the prosecution and a criminal defense attorney to resolve a criminal case with the defendant pleading nolo contendere (no contest) or guilty to a lesser charge, or in exchange for a reduced sentence.
• Another way is by motion of the judge. A judge can reduce a wobbler felony to a misdemeanor at the conclusion of the preliminary hearing, at the time of sentencing, or after a successfully completed probation.
• Under Penal Code 17(b), a convicted defendant can present a motion to have a felony reduced to a misdemeanor provided no time was served in state prison.

Why Choose jD Law Criminal Defense Attorneys?

Our firm was founded in 1990. We have decades of experience handling criminal defense matters. Our founding attorney, James N. Dicks is a board-certified criminal law specialist, of which there are only 30 in San Diego County. He began his career as a police officer for LAPD and rose in the ranks to become a narcotics investigator. Mr. Dicks has represented hundreds of clients and tried hundreds of cases.

At jD Law Criminal Defense Attorneys, we take our responsibility to defend our clients seriously and make it our goal to have your charges reduced or dismissed. We custom-tailor our defense strategy to the specific details of your situation. If you need to have a felony reduced to a misdemeanor to avoid a strike under the California three strikes law, call us at (760) 630-2000 to schedule a free initial consultation.