Wobbler: When petty theft is a felony and that stick of gum will get you three years

Wobbler.  Apparently the word “wobbler” can refer to Norwegian progressive rock (http://www.wobblermusic.com/), a disease of the central nervous system in dogs and horses (http://en.wikipedia.org/wiki/Wobbler_disease), and a type of fishing lure.  However the term “wobbler” can also refer to a crime that is both chargeable as a misdemeanor or a felony.  In many jurisdictions, such as California, it is up to the prosecution to determine whether the crime is charged as a misdemeanor or a felony.  The institutional culture in most DA’s offices pushes most prosecutors to push for the felony conviction.  What does this look like and how does it work?  Here is an example:

Let’s say that you get charged with petty theft (CA Penal Code § 488).  No big deal right?  Well, maybe.  The maximum sentence is six months in jail and a $1000 fine.  Let’s say  you get charged with petty theft again.  The prosecutor can charge you with a wobbler.  Not of the Norwegian progressive rock variety, the felony kind.  Under CA Penal Code § 666, petty theft with a prior may result in up to three years in state prison.  Dura lex sed lex (the law is hard but it is the law).  I guess so.  That first petty theft conviction is looking a little more important.

For first time offenses, a prosecutor may be willing to reduce the petty theft charge to an infraction, or dismissing the case with the agreement of paying restitution…which may be valuable in preventing a future wobbler.

Southwestern Law School has an expungement clinic, where mostly indigent clients can meet with law students and lawyers with the aim of clearing minor convictions of their record.  Most of these clients show a long string of petty theft convictions for stealing shopping carts.  Why does an LAPD officer take the time to charge a homeless person with petty theft of a shopping cart instead of just getting the cart back?  The next one is a wobbler.  Two shopping cart thefts can bring up to 3.5 years in incarceration and large fines.

Judicial salvation?  Besides prosecutorial discretion, is there any saving grace?  A judge can sua sponte strike the previous convictions from the charging document, preventing the wobbler from coming to fruition.  How often does this happen?  Probably not enough.

What happens when a wobbler meets California’s Three strikes law?  I’ll save that for another post.