November 15, 2017 By Paul Wallin

Can You Have a Felony and Not Go to Jail? (PC 1170(h))

Most people assume that if they are convicted of a felony, they will be sent to prison. In many cases, this is true. However, California law allows judges to offer alternative sentencing for some felony offenses. Alternative sentencing includes probation, pre-trial diversion and other programs designed to reduce the number of people being held in jail or prison.

With the help of an experienced criminal defense attorney, you may be able to avoid jail or prison time if you are convicted of a felony.

Sentencing Under California Penal Code Section 1170

Many felony offenses carry a specific punishment. However, some felony crimes in California are sentenced according to California Penal Code Section 1170. This statute lays out sentencing for “wobbler” offenses and crimes that do not list a specific punishment.

For example, the crime of forgery under California Penal Code Section 473 is a wobbler offense and doesn’t carry a specific punishment. A wobbler offense is a crime that could be punished as either a felony or a misdemeanor. Under PC 1170(h), a misdemeanor is punishable by up to 364 days in county jail.

A felony conviction carries a sentence of 16 months or 2 or 3 years in prison. Under PC 1170, the judge must consider any aggravating and mitigating factors when deciding between the lower term (16 months), middle term (two years) and upper term (three years).

Under California Rules of Court Rule 4.421 (JCR 4.421), aggravating circumstances the court must consider when determining your sentence term include:

  • Whether the crime involved great violence, great bodily harm or other acts displaying a high degree of cruelty, viciousness or callousness
  • Whether you were armed or used a weapon during the commission of the crime
  • If the victim was particularly vulnerable
  • Whether you induced others to participate in the commission of the crime
  • Whether you threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process
  • If the manner in which the crime was carried out indicates planning, sophistication or professionalism
  • Whether the crime involved an attempted or actual taking or damage of great monetary value
  • If you took advantage of a position of trust or confidence to commit the offense, and
  • If the crime constitutes a hate crime under California Penal Code Section 422.55 and no hate crime sentence enhancements (California Penal Code Section 422.75) are imposed, and the crime is not subject to sentencing under California Penal Code Section 1170.8

The judge may also look to aggravating factors that relate to your prior conduct or criminal history, including whether:

  • You engaged in violent conduct that indicates a serious danger to society
  • You have prior convictions of increasing seriousness
  • You served a prior prison term
  • You were on probation or parole when the crime was committed, and
  • Your prior performance on probation or parole was unsatisfactory

If the judge finds that the mitigating factors outweigh the aggravating factors in your case, he or she will likely impose the lower term sentence. According to California Rules of Court Rule 4.423, mitigating factors the judge must consider include that:

  • You were a passive participant or played a minor role in the crime
  • The victim was an initiator of, willing participant in, or aggressor or provoker of the incident
  • The crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur
  • You participated in the crime under circumstances of coercion or duress, or your criminal conduct was partially excusable for some other reason not amounting to a defense
  • You exercised caution to avoid harm to persons or damage to property, the amounts of money or property taken were deliberately small, or no harm was done or threatened against the victim
  • You believed that you had a claim or right to the property taken, or for other reasons mistakenly believed that your conduct was legal
  • You were motivated by a desire to provide necessities for your family or self, and
  • You suffered from repeated or continuous physical, sexual, or psychological abuse inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse, was your spouse, intimate cohabitant, or parent of your child, and the abuse does not amount to a defense.

The judge must also consider these possible mitigating factors that relate to your prior conduct or criminal history, including whether:

  • You have no prior record or have an insignificant record of criminal conduct, considering the recency and frequency of prior crimes
  • You were suffering from a mental or physical condition that significantly reduced culpability for the crime
  • You voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process
  • You are ineligible for probation and but for that ineligibility would have been granted probation
  • You made restitution to the victim, and
  • Your prior performance on probation or parole was satisfactory

PC 1170(h) also states that:

“(4) Nothing in this subdivision shall be construed to prevent other dispositions authorized by law, including pretrial diversion, deferred entry of judgment, or an order granting probation pursuant to Section 1203.1.”

This means that the court is allowed to give you alternative sentencing if you are convicted of a felony.

Felonies That Must Be Punished With Prison or Jail Time

Are you eligible for probation if you are convicted of a felony? The answer depends upon the offense you are convicted of.

Some felony crimes carry mandatory prison time. You are not eligible for felony probation under the following circumstances:

  • Your conviction is for a serious felony or you were previously convicted of a serious felony listed under PC 1192.7(c)
  • You are convicted of a violent felony listed under PC 667.5(c)
  • You have an out-of-state felony conviction for a crime that would qualify as a serious or violent felony in California
  • You were previously convicted of a sex crime that carries the requirement to register as a sex offender under PC 290
  • You were convicted of a felony and your sentence includes an enhancement for aggravated theft under PC 186.11

Are You Eligible for Felony Probation?

In some cases, a judge may be able to issue you a “suspended sentence” (also referred to as “felony probation”) in lieu of a jail sentence or prison term. If you are granted felony probation, your sentence will be “suspended” pending your successful completion of the terms of probation.

To determine if you qualify for felony probation, the judge must review the California Rules of Court Rule 4.414. According to this court rule, whether you qualify for felony probation depends upon the following factors:

The nature of your offense – The court will review several factors to determine how serious your offense was, including:

  • Whether you were armed with or used a weapon
  • The vulnerability of the victim
  • Whether you inflicted physical or emotional injury upon the victim
  • The degree of monetary loss to the victim
  • Whether you were an active or a passive participant (i.e. were you coerced?)
  • Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur
  • Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on your part, and
  • Whether you took advantage of a position of trust or confidence to commit the crime

The court will also review the offender, including:

  • Whether you have a prior criminal record, including how frequently and recently your prior convictions occurred
  • Your past performance on probation or parole, and present probation or parole status
  • Your willingness to comply with the terms of probation
  • Your ability to comply with reasonable terms of probation as indicated by your age, education, health, mental faculties, history of alcohol or substance abuse, family background, employment and military service history, and other relevant factors
  • The likely effect of imprisonment on you and any of your dependents
  • The adverse collateral consequences on your life resulting from the felony conviction
  • Whether you show remorse, and
  • Whether your present a danger to others

If you are granted felony probation, you may be required to check in with a probation officer who tracks your progress in fulfilling your probation terms. He or she will check to see if you are paying any court-ordered fines and restitution and verify that you are attending any counseling required by the court.

If you fail to comply with the conditions of felony probation, the probation officer can arrest you for an alleged violation of your probation, which could subject you to the original punishment for the crime you were placed on probation for or additional punishment.

Felony Eligibility for PC 1000

Deferred entry of judgment under PC 1000 is a program that delays your sentence. You plead guilty to the crime, and the prosecution asks the court to place your sentencing on hold while you enter a rehabilitation program.

This is somewhat like a probation program in that you will have to fulfill a number of conditions, such as enrollment in a treatment program and completion of a number of hours of community service. Failure to do so will lead to the case beginning again. However, if you successfully complete diversion, it will result in the case against you being dismissed without a conviction on your record.

To be eligible for deferred entry of judgment, you must meet the following qualifications:

  • It is your first conviction
  • The offense must not have involved violence
  • Your record must show that you have not had any previous revocations of probation or parole

A determination will be made by the prosecution on whether the program will be appropriate for you.

Prop 36 for Felony Offenses (PC 1210.1)

Under California Penal Code Section 1210.1, you may be eligible for treatment if you:

  • Are a first time offender of any non-violent simple drug possession or drug use crimes
  • Do not have any serious or violent felony convictions on your record OR you have been out of prison for at least five years with no felony or misdemeanor convictions involving violence
  • Prop. 36 may be available for an offender with a violent felony conviction if the offender has been out of prison for at least five years with no felony or misdemeanor convictions involving violence for five years
  • You were charged with a drug possession or use charge

Under Prop 36 drug diversion, you agree to plead guilty to the charges against you. The judge will place on you on formal probation and require you to complete a drug treatment program lasting up to one year. The court may order additional conditions, including random drug tests, court appearances and check-ins with a probation officer.

If you complete the treatment program and comply with all other conditions of your sentence, the conviction will be set aside and the charges will be dismissed.

Contact the Criminal Defense Attorneys at Wallin & Klarich Today

If you are charged with a felony offense, you are facing the real possibility of a state prison sentence. You should speak to an experienced criminal defense law firm that knows how to win cases. Our skilled attorneys at Wallin & Klarich have over 40 years of experience successfully defending clients in serious felony cases. We will work hard to help you obtain a favorable outcome in your case.

With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you are located.

Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

Practice area

  • Contact Us Now

    If you or a loved one have been accused of a crime, now is the time to contact us.

  • This field is for validation purposes and should be left unchanged.

SCHEDULE YOUR free consultation

If you or a loved one have been accused of a crime, this is the time to contact us.

  • This field is for validation purposes and should be left unchanged.