35+ Years Criminal Defense Experience in California


Understanding California Felony Prison Terms

If Convicted of a Felony in California, Will I Serve a Jail or Prison Sentence?

Being convicted of a felony is one of the scariest things that could happen to you. You will likely be wondering what will happen after you have been convicted. What type of felony prison terms will you face? Will you be able to avoid prison time for a felony conviction?

Your case is not over after your conviction. The next step is felony sentencing, and an experienced felony attorney may be able to help you during this process so that you can obtain a favorable sentence. To understand why you should hire a criminal lawyer to represent you during your sentencing, let’s dive deeper into felony prison terms and how felony sentencing works.

Felony Prison Terms Under Realignment

The Criminal Justice Realignment Act, which went into effect in California on Oct. 1, 2011, made significant changes to the sentencing and supervision of persons convicted of felony offenses.

felony prison terms
A number of factors will determine your felony prison terms.

This legislation changed the laws regarding sentences for felony convictions. Due to the high population in California prisons, the goal of realignment was to make people convicted of some felony offenses eligible to serve time in jail. In addition to shifting some non-serious felony offenders to jails instead of prisons, realignment also changed how offenders are supervised if supervision is required as part of a sentence.

Although realignment changed the place where sentences for certain crimes are served, the legislation did not change the basic rules regarding probation eligibility. Courts retain the discretion to place people on probation unless otherwise specifically prohibited under the law that existed prior to the realignment legislation.

There was no intent to change the basic rules regarding the structure of a felony sentence contained in California Penal Code Sections 1170 and 1170.1. Furthermore, there was no change to the length of term or sentencing tier for any crime. Realignment comes into play when the court determines the defendant should not be granted probation, either at the initial sentencing or as a result of a probation violation.

Realignment Legislation Divided Felonies into 3 Categories for Sentencing

As part of realignment, there are three categories for felonies for the purposes of sentencing. This helps courts determine the type of sentence you will face based on the circumstances of your felony conviction. The three categories are:

1. Felonies that Require a Jail Sentence (PC 1170(h)(5))

California Penal Code Section 1170(h) state that people who commit the following felony crimes must be sentenced to county jail if probation is denied:

  • Crimes where a penal statute specifies you “shall be punished by imprisonment pursuant to subdivision (h) of Section 1170” without the designation of a particular term of punishment. In such circumstances, the crime is punished by 16 months, two or three years in county jail (PC1170(h)(1)). Crimes in this category include most wobbler offenses (where the crime may be punished either as a misdemeanor or a felony).
  • Crimes where the statute now requires punishment in accordance with PC 1170(h) with a designated term. The length of the term is not limited to 16 months, two or three years, but will be whatever tier or punishment is specified by the statute (PC1170(h)(2)).

It is important to note that there are some exceptions to this law that would allow a judge to sentence you to prison. Under California Penal Code Section 1170(h), if a sentence enhancement that carries a mandatory prison sentence is attached to your felony crime, you could face a prison sentence. That is because the base term and the enhancement are all considered to be part of the same sentence.

2. Felonies that Require a Mandatory Prison Sentence (PC 1170(h)(3))

Under California Penal Code Section 1170(h)(3), if denied probation, you must be sentenced to state prison if the circumstances of your felony conviction involved one of the following:

  • You have a prior or current serious felony conviction under PC 1192.7(c)
  • You have been convicted of a violent felony under PC 667.5(c)
  • You have been convicted of a felony in another state that would qualify as a serious or violent felony under California law
  • You are required to register as a sex offender under PC 290, or
  • Your felony conviction includes an enhancement for aggravated theft under PC 186.11

These exclusions do not include juvenile strikes. Thus, if you were found guilty as a juvenile (under the age of 18) of any serious or violent offense, that strike does not count against you for the purposes of sentencing under realignment.

3. Felonies Specifying Punishment in State Prison and Felonies without a Designated Housing

California law states that except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, two or three years in state prison.

This means the sentence must be served in prison if you are convicted of a felony offense that does not spell out a specific punishment. In California, there are more than 70 felony crimes where this default punishment would apply.

Alternatives to Felony Prison Time (PC 1170(h)(4))

Realignment in California did not alter the court’s authority to provide alternative sentencing for certain felony offenses. California Penal Code Section 1170(h)(4) specifically provides that “[n]othing 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 you may be eligible for alternative sentencing that will allow you to serve your sentence without spending time in custody. Some of those options include:

Felony Probation Terms and Split Senten cing (PC 1170(h)(5))

Another possible type of sentence the court can consider is a split sentence. In a split sentence, you are allowed to serve some of your sentence in custody, then be released from custody to serve felony probation.

So, for example, let’s say you are sentenced to three years in prison for your felony offense. If you receive a split sentence, you may be able to serve one year in custody and then serve two years under mandatory supervision.

How Does Felony Probation Work?

The supervised portion of a split sentence has many names. It is often called “felony probation,” but a more common term is “mandatory supervision.” It is referred to as “mandatory” because this term of supervision can never be terminated early except by specific court order. In other words, you will most likely have to complete your entire sentence if you receive a split sentence.

felony probation
You may be eligible for felony probation.

As part of mandatory supervision, you will likely be required to follow many terms and conditions. These terms could include checking in with a probation officer often and staying away from certain people. If you fail to meet any of the terms of your mandatory supervision, you could be ordered to return to custody to serve the remainder of your sentence.

However, you receive “actual credit” for any time you are out of custody under mandatory supervision. This means that you will only have to serve the remainder of your sentence if you are ordered to go back into custody for violating the terms of your mandatory supervision.

For example, let’s say your split sentence includes two years of mandatory supervision. After one year, the court finds that you violated the terms of your supervision. If the court decides to send you back into custody to serve the remainder of your sentence, you will only have to serve one year because you get credit for your year on mandatory supervision.

Am I Eligible for Split Sentencing?

Split sentencing benefits you because you could serve a portion of your sentence out of custody, where you will have the support of family members and close friends. However, not everyone is eligible for split sentencing in California.

Under California Rules of Court 4.415, the judge will consider the following factors when considering your eligibility for mandatory supervision:

  • How much of your sentence is remaining after applying any pre-sentence custody credits
  • Your probation status and performance on probation
  • Factors that indicate you may not need treatment or supervision upon release from custody, and
  • Whether the nature of the case and your past performance on supervision substantially outweigh the benefits of supervision in promoting public safety and your successful reentry into the community

When determining the length of your mandatory supervision, the court considers the following criteria:

  • Whether there are corrections programs available to you in your community
  • Whether you owe victim restitution and whether supervision is necessary to promote the collection of court-ordered restitution
  • The length of time it may take to successfully reintegrate you into the community
  • Public safety, including protection of any victims and witnesses
  • Probation status and past performance on probation, supervision or parole
  • How much of your sentence is remaining after imposing any pre-sentence custody credits
  • Any specific needs and risk factors identified by a validated risk/needs assessment, and
  • The effect that extended prison time will have on you and any dependent

If the court decides to deny mandatory supervision in your case, it must state the reasons why on record.

Contact an Experienced Felony Sentencing Attorney at Wallin & Klarich Today

Felony Attorneys
Our skilled felony attorneys can help you obtain a favorable sentence.

If you are convicted of a felony in California, you face severe consequences. Depending on the circumstances of your case and your criminal history, you could be facing many years in prison. That is why you should speak to an experienced criminal defense attorney right away if you are accused of a felony.

Our skilled lawyers at Wallin & Klarich have been successfully defending clients accused of serious felony crimes in California for more than 35 years. Contact our law firm today so we can discuss how we may be able to help you avoid prison time or obtain a favorable outcome that involves the lightest sentence possible in your case.

With offices in Orange County, Riverside, San Bernardino, Victorville, West Covina, Torrance, Los Angeles and San Diego, our skilled and knowledgeable felony defense lawyers are available to help you no matter where you work or live.

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

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