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    Criminal Defense Division

    California Felony Sentencing Guidelines – How It Works

    Under the California felony sentencing guidelines, felony penalties can include:

    1. felony (or formal) probation,
    2. a term of at least 1 year in state prison, or
    3. at least 16 months in county jail (only for felonies that are not serious, violent, or sexual).

    Our California criminal defense attorneys will highlight the following in this article:

    sign that reads "felony"

    Felony probation is an alternative to a term of imprisonment.

    1. What is felony (or formal) probation?

    Felony probation, also known as “formal probation,” is an alternative to prison in California. It allows you to serve all or part of your felony sentence:

    • in the community, and
    • under supervision.

    Felony probation typically lasts between three and five years. You must report on a regular basis to a probation officer. Other conditions of probation can include paying victim restitution, performing community service, and doing some jail time.

    Probation eligibility

    Ineligible for probation Presumptively ineligible for probation
    • You have a prior conviction for a violent felony or a serious felony
    • You were convicted of a violent felony or a serious felony while on probation
    • You have a prior conviction for a felony that is non-serious and non-violent
    • The felony you were convicted of involved great bodily injury, a deadly weapon, furnishing PCP, and/or a drive-by-shooting that resulted in injury or death

    When probation is presumptively prohibited, judges can still grant probation “in the interest of justice.” Factors that might influence a judge to opt for probation instead of imprisonment include:

    • The specific circumstances surrounding the offense are significantly less severe than those typically associated with the crime, and you do not have a recent history of committing similar offenses or violent crimes.
    • If the probation restriction is due to a previous felony conviction, the current offense is not as severe as the prior felony, and you have remained free from imprisonment and have not committed any serious violations for a considerable period before the current offense.
    • The judge, using their discretion, decides that the outcome of your risk/needs evaluation suggests probation is suitable.
    • Your culpability is lessened because:
      • You committed the offense under extreme provocation, coercion, or duress, and have no recent history of engaging in violent crimes;
      • The offense occurred due to a mental condition, and there is a high probability that you would benefit from mental health treatment; or
      • You are either young or elderly and do not possess a substantial history of prior criminal offenses.

    Once the general disqualification for probation is overridden, the judge takes into account mitigating or aggravating factors (discussed below) when deciding whether to grant or deny probation.

    Probation violations

    If law enforcement arrests you for violating the conditions of felony probation, the judge can revoke probation and send you to jail or prison for up to the maximum term. (You are entitled to a hearing to contest the probation revocation.)

    A judge will consider several factors in deciding whether to place you on probation. These are specified in California Rule of Court 4.414. Probation eligibility factors include:

    • the seriousness and circumstances of the crime,
    • whether you were armed,
    • whether you threaten public safety,
    • the vulnerability of the victim, and
    • your prior record, if any, as an adult or juvenile.1

    2. Will I go to jail or prison for a felony?

    If probation is not awarded in your California felony case, you may be sentenced to a county jail or state prison. The length of this term is set forth by:

    • California criminal laws, and
    • aggravating and mitigating factors.

    Example: Penal Code 261 PC is the California statute on the crime of rape. Penal Code 264 PC is the California law that sets forth the penalties for PC 261 violations. These penalties include three, six, or eight years in state prison. A judge will look to aggravating and mitigating factors to determine which specific prison term is the most appropriate.

    Note that aggravating factors are ones that make a crime appear harsher or more serious. Mitigating factors or circumstances make an offense seem less serious.

    Possible sentencing terms

    Most California felonies have three possible sentencing terms. These are:

    1. an upper term (for example, eight years for rape),
    2. a middle term (for example, six years for rape), and
    3. a lower term (for example, three years for rape).

    When the statute does not specify a penalty range, by default the sentencing terms are sixteen months, two years, or three years.

    3. What are aggravating and mitigating factors?

    Aggravating factors

    California Rules of Court Rule 4.421 sets forth the aggravating factors that a judge may consider in determining a felony sentence. Some of these include:

    • did the crime involve great violence or great bodily injury,
    • did you use a deadly weapon in committing the crime,
    • was the victim particularly vulnerable,
    • did you have prior convictions,
    • was a minor involved, and
    • the manner in which the offense was committed.2

    As a general sentencing law rule:

    • the greater the number of aggravating factors present in a case,
    • the harsher the sentence.

    Mitigating factors

    California Rules of Court Rule 4.423 sets forth the mitigating factors that a judge may consider in determining a sentence. Some of these include:

    • did you play a minor role in the offense,
    • was the victim an initiator of a violent offense or force,
    • did you believe you owned any property taken,
    • were you suffering from a mental illness at the time the crime was committed, and
    • did you make restitution to the victim.3

    As a general rule:

    • the greater the number of mitigating factors present in a case,
    • the less severe the final sentence that is imposed.
    judge presiding over a courtroom - California felony sentencing guidelines give judge's a great deal of discretion

    Wobblers can be felonies or misdemeanors.

    4. What is a sentencing hearing?

    A sentencing hearing is when a judge determines what sentence to impose for a crime. The hearing is held after you either:

    1. enter a guilty plea or a nolo contendere (or “no contest”) plea to at least one criminal charge, or
    2. are convicted of at least one charge by a judge or jury

    At this hearing, the defense presents mitigating circumstances as to why the ultimate punishment should be minimized. Conversely, the prosecution presents aggravating circumstances to demonstrate why the sentence should be harsh.

    A judge rules on the most appropriate sentence after hearing both sides. Note that if the defense attorney and prosecutors come to a plea bargain, the judge will usually rubber-stamp the negotiated terms with a court order.

    5. What if I am convicted of multiple crimes?

    If you are convicted of more than one crime, then you will receive multiple sentence terms. A judge then has to decide whether to sentence you to consecutive terms or concurrent terms.

    • “Consecutive terms” mean that the terms are served separately. When one sentence ends, the other begins.
    • “Concurrent terms” mean that the terms are served at the same time. You are released from custody when the longer of your two sentence terms ends.

    See our related article on the Three Strikes law.

    6. What about supervision?

    Supervision refers to a period of time after you are released from jail or prison. It can take the form of either:

    • parole, or
    • post-release community supervision.

    Once “paroled,” you agree to abide by certain terms and conditions.4 Parole eligibility and its length are determined by:

    1. the crime for which you were convicted, and
    2. when you were convicted.

    “Post-release community supervision” is the term for parole if you served your sentence in the local county jail. It is basically supervision by the probation department.

    7. What is “Realignment?”

    Realignment refers to Assembly Bill 109 (AB 109). This law aims to reduce prison overcrowding by diverting you to county jail instead of state prison if you are convicted of lower level felonies.

    State prison is still mandatory for:

    8. What about enhancements?

    Enhancements are sentence-lengtheners that the court has to impose if the crime involved a specific aggravating circumstance, such as:

    As with the underlying offense, the prosecutor has to prove an enhancement beyond a reasonable doubt before the judge can sentence you to it.

    Additional resources

    For more information, refer to the following:

    Legal References:

    1. California Rule of Court Rule 4.414.
    2. California Rule of Court Rule 4.421.
    3. California Rule of Court Rule 4.423.
    4. California Penal Code 3000 PC.
    5. See also California Penal Code section 1170 PC.

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