How To Change A Code Enforcement Misdemeanor Into An Infraction

By Michael Reiter, Attorney at Law

When I was a Deputy City Attorney in San Bernardino and the Assistant City Attorney for the City of Redlands, many of the code sections I prosecuted were alternate misdemeanors/infractions, also known as wobblettes to distinguish them from alternate felony/misdemeanors, which are known as wobblers. Usually, the code section will designate punishment and note if the charge is an alternate misdemeanor/infraction, or a code will have a general penalty section. Typically, the city prosecutor will have prosecutorial discretion on how to charge the violation or how to plea it out. If it is a straight misdemeanor, and the code does not have a provision allowing prosecutorial discretion in reducing it to an infraction, the prosecutor does not have the ability to reduce the charge to an infraction. Similarly, if it is a straight infraction, which are never punishable by jail time, the city prosecutor does not have the ability to make the charge a misdemeanor. Why would someone want a misdemeanor instead of an infraction? Perhaps they served jail time, possibly on a bench warrant, possibly on some other charge, and they want credit for time served in lieu of a fine.

Can a court reduce a code enforcement misdemeanor to an infraction? I have seen it done in San Bernardino both to straight misdemeanors and alternative misdemeanor/infraction cases. Penal Code section 17(b) is the authority many criminal judges are familiar with regarding wobblers. But what about wobblettes? Penal Code section 17(d) reads:

A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 when: (1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or; (2) The court, with the consent of the defendant, determines that the offense is an infraction in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint.

Penal Code section 19.8 refers to a variety of California code sections, but does not reference Municipal Code violations. Penal Code section 19.8 does refer to other offenses made subject to 17(d) by the Legislature, but presumably that means the California Legislature, and not a legislative body like a city council.

Straight misdemeanors were difficult at times, particularly violations of the California Fire Code. Sometimes a barrier to settlement was not the punishment (as far as fines), but the fact that the charge was a misdemeanor. The work-around was finding an alternate violation for the same conduct.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 296-6708