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Generally, a felony is a crime for which the punishment may include prison. A misdemeanor is a crime which does not result in a prison sentence. All crimes which have an unspecified sentence are misdemeanors. California Penal Code 177 and 650.5.

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, VC 23153, which can actually be either a felony or a misdemeanor.

A wobbler charged as a misdemeanor in the complaint by the DA is a misdemeanor. California Penal Code 17(b)(4).

Additionally, a wobbler charged as a felony, but which results in a sentence not including prison, is a misdemeanor. California Penal Code 17(b)(1). This is not to be confused with a suspended sentence. Failure to impose any sentence whatsoever on a wobbler results in a felony. U.S. v. Robinson (1992) 967 F2d. Imposition of a suspended sentence even with imposition of jail time, also results in a felony. Jamison v. Hickey (1988) 199 CA3d 595, 244 CR 859, People v. Banks (1959) 53 C2d 370, 1 CR 669.

The Court additionally retains the jurisdiction to reduce a charged felony to a misdemeanor after the original sentencing, in certain cases. California Penal Code 17(b)(2), (3) and (5). See, for example, People v. Soto (1985) 166 CA3d 770, 212 CR 969.

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