A misdemeanor is still serious

It is easy to think of a misdemeanor as minor. The people who call Marcus usually do not see it that way, and they are right.

A misdemeanor conviction can bring county jail time, fines, probation, classes and a criminal record. That record can appear when you apply for a job, a professional license, an apartment or a loan. For non-citizens, even a misdemeanor can have immigration consequences. At the same time, misdemeanor cases often offer real options, such as diversion, civil compromise, reduction to an infraction or dismissal, that can keep a conviction off your record entirely. This page explains how misdemeanor cases generally work in San Diego County and how a San Diego misdemeanor defense attorney can help you find the right path through one.

What a misdemeanor is in California

California law sorts crimes into felonies, misdemeanors and infractions. A misdemeanor sits in the middle. Under Penal Code section 19, a misdemeanor is generally punishable by up to six months in county jail, a fine, or both, unless the law for a particular offense sets a different maximum. Some misdemeanors carry up to one year in county jail.

What a sentence often looks like

Maximum penalties are rarely the whole picture. Many misdemeanor cases, especially for people with no prior record, are resolved with summary probation (also called informal probation), fines and fees, a class or program, community service, or restitution. Since 2021, California law has generally limited misdemeanor probation to one year, with exceptions for offenses whose own statutes set a longer term, such as DUI. Jail is possible in some cases, but it is far from the only outcome, and in many cases it can be avoided.

Fines and fees add up

The fine listed in a statute is often only the starting point. California adds penalty assessments and fees on top of most base fines, so the total amount can be several times higher than the number people expect. Classes and programs usually carry their own costs too. When money is tight, that is worth raising, because courts can consider ability to pay in some situations and alternatives such as community service may be available.

Misdemeanors, wobblers and infractions

Some offenses can be charged either as a felony or as a misdemeanor. These are called wobblers, and they are covered on the felony defense page. A smaller group of offenses can be charged either as a misdemeanor or as an infraction. An infraction cannot be punished with jail and is usually limited to a fine. Moving a case from one category to a lower one is often one of the goals of a misdemeanor defense.

Common misdemeanor charges

Marcus defends a range of non-violent misdemeanor charges in San Diego County and southwest Riverside County. The most common include the following.

Petty theft and shoplifting

Petty theft generally covers taking property worth 950 dollars or less. Shoplifting, under Penal Code section 459.5, covers entering an open store during business hours intending to steal property worth 950 dollars or less. Both are usually misdemeanors, particularly for a first offense. Many people charged with shoplifting also receive a letter from the store demanding money. California law allows retailers to seek civil damages, but that demand is separate from the criminal case and does not decide it. See theft crimes for more.

To prove theft, the prosecution generally has to show that you took property that belonged to someone else, without consent, intending to deprive the owner of it permanently. Intent is often the real question. Self-checkout errors, items forgotten in a cart, a mix-up between family members, or a distracted moment with a child in tow can all look like theft on a short video clip, and they deserve a careful explanation.

Simple drug possession

Possession of most controlled substances for personal use is generally a misdemeanor in California, as is possession of drug paraphernalia. Drug diversion under Penal Code section 1000 can lead to dismissal for many of these charges. Recent changes have increased the stakes for some people with multiple prior drug convictions, so your history matters. See drug crimes.

Trespass

Penal Code section 602 covers many different kinds of trespass, from refusing to leave private property to entering certain closed areas. Most trespass charges are misdemeanors. Whether you were told to leave, whether the area was posted, and whether you had permission are often key questions.

Vandalism

Vandalism under Penal Code section 594 covers defacing, damaging or destroying property that belongs to someone else. Depending on the amount of damage alleged, it can be a misdemeanor or a wobbler. The claimed damage amount is often worth examining closely, because it can affect both the charge and any restitution.

Disorderly conduct and public intoxication

Penal Code section 647 covers several forms of disorderly conduct, including being intoxicated in public to the point of being unable to care for your own safety or blocking a public way. Some people arrested only for public intoxication are released without charges being filed. When charges are filed, these cases are often good candidates for diversion or a reduced outcome.

Driving on a suspended license

Driving while your license is suspended or revoked is charged under Vehicle Code section 14601 and related sections, depending on the reason for the suspension. The prosecution generally has to show that you knew about the suspension. In many cases, getting the license issue resolved with the DMV is an important step that can affect how the case is negotiated.

First-time DUI

A first DUI is usually charged as a misdemeanor, but it follows its own rules and comes with a separate DMV process with a short deadline. See DUI defense and the 10-day DMV hearing deadline.

How misdemeanor cases start in San Diego

Many misdemeanor cases begin quietly. You may not be taken to jail at all, and you may not hear anything for weeks or months.

Citations and notices to appear

For many misdemeanors, police issue a citation, sometimes called a notice to appear, and release you on your written promise to appear in court on a set date. That date is not always the date the case is actually filed. Sometimes the prosecutor has not yet decided whether to file charges when the court date arrives.

Arrest and release

Other cases begin with an arrest, followed by release with a court date. Either way, the police report goes to the prosecutor, who decides whether to file charges, what to file, and whether to offer any pre-filing program.

Who prosecutes the case

Misdemeanors that occur within the City of San Diego are generally prosecuted by the San Diego City Attorney's Office. Misdemeanors elsewhere in the county are generally prosecuted by the San Diego County District Attorney's Office. The two offices have different policies and programs, which is one reason local experience matters.

Letters and delayed filings

For most misdemeanors, the prosecution generally has one year from the offense to file charges, with some exceptions. If you receive a letter about a case long after the incident, or learn that a case was filed after your court date passed, talk to an attorney before you respond. A missed court date can lead to a bench warrant, which is covered on the probation violations and warrants page.

What to do in the meantime

• Keep your citation, release paperwork and any letters you receive.
• Write down what happened, privately, while your memory is fresh.
• Save receipts, texts, photos or other records that may help explain events.
• Do not discuss the case with the police, store staff or the other people involved before talking to an attorney.
• Do not post about it online.
• Do not miss a court date. If you cannot attend, talk to an attorney before the date, not after.

The misdemeanor court process

Misdemeanor cases in San Diego County are heard at the Central Courthouse downtown, the East County Regional Center in El Cajon, the South County Regional Center in Chula Vista, or the North County Regional Center in Vista, depending on where the case arose. Cases from Temecula, Murrieta, Lake Elsinore, Menifee and Perris are heard at the Southwest Justice Center in Murrieta. The general path looks like this.

Arraignment

At the arraignment, the court formally advises you of the charges and you enter a plea, usually not guilty at this stage. Discovery begins, and the next date is set. In many misdemeanor cases, your attorney can handle this hearing for you. For more, see what to expect at an arraignment.

Pretrial and readiness conferences

After arraignment, most misdemeanor cases have one or more pretrial conferences. These are where most of the work happens: reviewing reports and video, raising problems with the evidence, presenting your background, asking about diversion, and negotiating with the prosecutor. Many misdemeanor cases are resolved at this stage.

Motions

If evidence was obtained through an unlawful stop, search or seizure, a motion to suppress under Penal Code section 1538.5 may ask the court to exclude it. Other motions can address discovery, the wording of the charges, or a request for diversion.

Trial

You have the right to a jury trial on a misdemeanor charge. Unless you agree to more time, Penal Code section 1382 generally requires trial within 30 days of arraignment if you are in custody, or 45 days if you are not. Most people agree to more time so that the defense can prepare. The prosecution must prove each element beyond a reasonable doubt, and the jury's verdict must be unanimous.

Sentencing

If the case ends in a conviction, the judge sets the sentence, often at the same hearing as the plea in a negotiated case. Information about your work, family, school and steps you have already taken can influence the terms.

How long a misdemeanor case takes

There is no single timeline. A straightforward case may be resolved at the first or second pretrial conference, within a few weeks. A case with video to review, a motion to litigate or a diversion request may take several months. If diversion is granted, the case stays open until the diversion period ends. Marcus gives you a realistic sense of the timeline once he has seen the evidence, and keeps you updated as it moves.

An attorney appearing for you under PC 977

One of the most practical benefits of hiring an attorney in a misdemeanor case is that you may not have to go to court at all, or only rarely.

How it works

Under Penal Code section 977, a person charged with a misdemeanor can generally appear through counsel. That means your attorney can attend the arraignment, pretrial conferences and many other hearings for you, while you stay at work, at school or with your family. For people who live out of the area, or whose jobs make court dates difficult, this can make a significant difference.

Exceptions

For a small number of offense types, the statute requires the person to be present at the arraignment, at the time of plea and at sentencing. A judge can also order you to appear in person, and some hearings, such as trial, generally require your presence. Marcus can tell you early which dates you need to attend and which he can handle for you.

If you live outside San Diego

Visitors, students who have gone home for the summer, people who have since moved, and service members who have been transferred often face a San Diego misdemeanor from far away. Because an attorney can appear for many hearings, these cases can often be handled without repeated trips back. Marcus can meet with you by phone or Zoom, keep you updated after each date, and tell you if and when your presence is needed.

Misdemeanor diversion under PC 1001.95

California's misdemeanor diversion law, Penal Code section 1001.95, allows a judge to offer diversion for many misdemeanor charges. It is one of the most important options in misdemeanor defense, and it is worth raising early.

How judicial diversion works

The judge can grant diversion even when the prosecutor objects. The court sets conditions, which may include classes, community service, restitution, staying out of trouble, or other terms that fit the case. The diversion period can last up to 24 months. If you complete the conditions, the court dismisses the charge. If you do not, the court can end diversion and the case resumes.

What a dismissal through diversion means

Because diversion happens before any plea or conviction, successful completion can mean no conviction at all. In general, the law then treats the arrest as if it did not occur, and you can usually answer questions about it on most private job applications accordingly, with some exceptions, such as applications for positions as a peace officer.

Who is eligible

Most misdemeanors are eligible, but a short list of offense types is excluded by the statute. DUI charges are governed by a separate rule in the Vehicle Code that generally prevents diversion, so they are handled differently. Beyond the statutory exclusions, the judge has discretion and considers the facts of the case, your history, and whether diversion makes sense for you.

Making a strong request

A diversion request is more persuasive when it shows who you are: employment records, school enrollment, letters, proof of steps you have already taken, and money set aside for any restitution. Marcus prepares that material and presents it to the court.

If something goes wrong during diversion

Life does not pause for a diversion program. If you fall behind on a class, a payment or another condition, raise it with your attorney early. Courts can sometimes extend deadlines or adjust conditions when there is a good reason and the request is made before a problem becomes a violation. A new arrest during diversion is more serious and can lead the court to end diversion, so it should be addressed right away.

Informal diversion and other programs

Judicial diversion is not the only path. Depending on the case and the prosecuting office, other options may be available.

Prosecutor-led and pre-filing programs

Prosecuting offices sometimes offer their own diversion programs for lower-level cases, in some cases before charges are even filed. These programs may involve a class, community service or restitution, and completion can lead to the case not being filed or being dismissed. What is offered changes over time and varies between offices, so it is worth asking about directly.

Drug diversion under PC 1000

For certain drug possession offenses, Penal Code section 1000 allows pretrial diversion. Completing the program leads to dismissal. It does not require a guilty plea, which can matter a great deal for non-citizens.

Mental health and military diversion

When a qualifying mental health condition played a significant role in an offense, Penal Code section 1001.36 may allow diversion with treatment. For current and former service members whose offense may be related to service-connected conditions, Penal Code section 1001.80 allows military diversion for many misdemeanors. See military diversion.

Civil compromise

For some misdemeanors, California law allows a case to be dismissed once the person who suffered the loss has been paid back. This is called a civil compromise, under Penal Code sections 1377 and 1378.

How it works

When the alleged victim has a civil remedy, such as payment for damaged or taken property, and that person confirms in court or in writing that they have been compensated, the judge may dismiss the case. The judge has discretion, and the dismissal is not automatic.

Where it can apply

Civil compromise is most often useful in property cases, such as some vandalism, petty theft or property damage cases, where the harm can be measured and repaid. It is not available for every offense; the statute lists exceptions. Reaching out to an alleged victim also needs to be done properly and through counsel, so it does not create new problems.

Civil compromise compared with restitution

Restitution is money a court orders you to pay as part of a sentence or a program, usually after a conviction or as a condition of diversion. A civil compromise is different: the payment comes first, and the case itself can be dismissed. Where it is available, a civil compromise can resolve a case without any plea at all. Documentation matters, so the agreement and proof of payment should be handled carefully.

Infraction reductions and other outcomes

When diversion is not available or not the right fit, there are still many ways a misdemeanor case can be resolved without the full weight of a conviction for the original charge.

Reduction to an infraction

Some misdemeanors, listed in Penal Code section 19.8, can be treated as infractions under Penal Code section 17(d). That can happen when the prosecutor files the charge as an infraction, or when the court, with your consent, decides the offense should proceed as one. Disturbing the peace under Penal Code section 415 is one commonly discussed example. In negotiations, a charge may also be amended to a different infraction. An infraction is not punishable by jail and is generally viewed far less seriously.

Dismissal or a lesser charge

Weaknesses in the evidence, problems with a stop or search, or a clear picture of who you are can lead a prosecutor to dismiss a case or agree to a less serious charge. A different offense can sometimes avoid specific consequences, for example a charge that does not involve theft for someone who handles money at work.

Deferred and conditional outcomes

Some agreements allow a charge to be dismissed or reduced after a period of good conduct or the completion of agreed conditions. Terms vary by case and by office. Marcus explains exactly what each option would mean before you decide.

Wobblers filed as misdemeanors

Some offenses that could have been charged as felonies are filed as misdemeanors from the start. When that happens, the case proceeds as a misdemeanor, which generally means lower exposure and access to misdemeanor options such as diversion. It is still important to resolve these cases carefully, because the prosecution sometimes has room to revisit how the case is charged if the facts change.

What an attorney reviews in your case

Every misdemeanor case deserves a careful look at the evidence, even when the goal is diversion or a negotiated result. A defense that finds real problems in the prosecution's case often leads to a better offer.

• The stop or contact. Whether the police had a lawful reason to stop, detain or question you.
• Searches. Whether a search of your person, car, bag or phone was lawful, and whether consent was truly voluntary.
• Statements. What you said, when, and whether you were properly advised of your rights when that was required.
• Video and records. Store footage, body-worn camera recordings and receipts, which can contradict or add context to a report.
• Intent and knowledge. Many offenses require a particular intent or knowledge, such as intent to steal or knowledge of a license suspension.
• Value and damage. Claimed amounts can affect the charge, the outcome and restitution.
• Identification. Whether witnesses could actually see what they describe.

Alongside the evidence, Marcus looks at you: your work, family, education and history. In many cases, that picture is as important as any legal issue.

Consequences of a misdemeanor conviction

The court sentence is only part of what a misdemeanor conviction can bring. These consequences are often the real reason to fight for diversion or dismissal.

Background checks and jobs

A misdemeanor conviction is part of your criminal record and can appear on many background checks. California law limits what most employers can ask: under the Labor Code, employers generally cannot ask about or consider an arrest that did not lead to a conviction, participation in a diversion program, or a conviction that has been dismissed or sealed, with exceptions for certain employers. Under the Fair Chance Act, employers with five or more employees generally cannot ask about convictions until after a conditional job offer.

Professional licenses

Nurses, teachers, real estate agents, contractors, security guards and many others hold licenses or registrations that can be affected by a conviction. Some licensing boards require you to report an arrest or conviction, and some offenses, such as theft, can raise particular concerns for jobs involving money or trust. If you hold a license, Marcus factors that into every decision in the case.

Immigration

For non-citizens, even a misdemeanor can have serious immigration consequences. Drug and theft offenses deserve particular care. Federal immigration law uses its own definitions, so a state dismissal may not undo an immigration effect, while a diversion program that does not require a guilty plea is often far safer than a plea. Tell your attorney about your status at the start.

Driving, school and travel

Some offenses carry consequences for your driver's license. Students may face campus conduct processes separate from the court case. Some countries, including Canada, can refuse entry to people with certain convictions, including some misdemeanors.

Housing and finances

Landlords often run background checks, and a recent theft or drug conviction can make a rental application harder. Some lenders, employers in financial services, and bonding companies look closely at theft and fraud-related offenses in particular. These effects tend to fade with time and with record relief, but avoiding a conviction in the first place is usually the strongest protection.

Students and young adults

College students in San Diego are often surprised to learn that an off-campus citation can lead to a campus conduct process, and that the two run on separate tracks. Students in programs that lead to licensed careers, such as nursing, teaching or law, should consider how a conviction might be reported later. Diversion or a dismissal is often especially valuable early in a career.

Service members

For active duty service members, a civilian misdemeanor can also lead to questions from command and can affect clearances and career plans. Military diversion may be available for some cases. See military diversion for more.

Clearing a misdemeanor later

Even when a case ends in a conviction, California often allows it to be cleared afterward.

Dismissal after probation

If you were granted probation and completed it, or were discharged early, Penal Code section 1203.4 generally allows the court to set aside the conviction and dismiss the case. If you were not granted probation, Penal Code section 1203.4a generally allows a similar dismissal after a year has passed from the judgment, if you have complied with the sentence and are not facing new charges.

Sealing an arrest

If a case was dismissed, was never filed, or ended in diversion, the arrest record can often be sealed. California also provides automatic relief for some records, but it does not cover every case, and an order from the court can be more certain.

Planning for it from the start

The way a case is resolved affects how easily it can be cleared later. A diversion that ends in dismissal is generally simpler to deal with than a conviction that later needs to be dismissed. Even when a conviction cannot be avoided, the length and terms of probation can affect when you can apply for relief. Marcus keeps that end point in mind from the first conversation.

What dismissal does not do

A dismissal helps with many private employers, but it does not erase the case for every purpose. It may still need to be disclosed for some state licenses and public office, and it can count as a prior if there is a new case. See record sealing and expungement for more.

Working with Marcus

Marcus E. DeBose has defended San Diego clients since 2001 (State Bar No. 216328), and has been a partner at Tegnelia & DeBose, APC, the firm behind Email My Lawyer, since 2016. Many of his clients have never been in trouble before, and he knows how unsettling a first court case can be.

A long first conversation

His approach begins with taking the time to learn what happened and why. When a good person is charged with a misdemeanor, there is almost always more to the story than the police report shows. Marcus then tells that story to the prosecutor and the judge, so the people making decisions see the whole person.

Direct access and local courts

You work with Marcus directly and can reach him day or night. He appears in every San Diego County courthouse and at the Southwest Justice Center in Murrieta, and he is bilingual in English and Spanish. Hablamos español. Learn more about Marcus.

If you have received a citation, a court date or a letter about a misdemeanor charge, book a free consultation. Meet Marcus at the Mission Valley office, which he prefers for a first meeting, or talk by phone or Zoom.

This page is general information about California law, not legal advice for your situation. Every case is different, and past results do not guarantee a similar outcome.