In California, consecutive sentences are prison terms that are served one after the other. Concurrent sentences are prison terms that are served at the same time.
Serving consecutive sentences means more time in prison. They are a factor if you are convicted of multiple crimes. California judges have lots of discretion in which type of sentence to impose.
When Judges Decide
Judges decide whether to impose consecutive or concurrent sentences for your misdemeanor or felony convictions at the sentencing hearing. This hearing follows your guilty plea or the criminal trial in which you were convicted.
Factors California Judges Use
California judges are typically given lots of discretion in whether to impose consecutive or concurrent sentences on criminal charges. State law only provides examples of what factors can be used.1 These factors can be:
- aggravating factors, which call for consecutive sentences, or
- mitigating factors, which call for concurrent sentences.
However, some criminal convictions carry mandatory consecutive sentences. In these cases, the judge has no discretion and must comply with the applicable sentencing guidelines.
Aggravating Factors
Some aggravating factors that California law allows judges to apply, or that judges have used in past court cases, have included:
- the crimes and their objectives were independent of each other,
- the offenses involved separate acts of violence or threats of violence,
- the crimes were committed at different times or separate places, or were distinct instances of criminal behavior,
- your criminal history, particularly if you show a history of recidivism after prior convictions,
- the fact that you planned the crime in advance or were the one who coordinated multiple people in a criminal scheme,
- the victims of the crime were vulnerable, like the elderly or children, or there was more than one victim,
- you tried to obstruct justice,
- you used weapons, particularly if you used a firearm or another deadly weapon,
- there was gratuitous violence causing bodily injury,
- you intended to cause more harm than you were able to inflict,
- the crime was gang-related,
- the crime was an abuse of your power, such as if you used your position as an investment manager to embezzle client funds, and/or
- you were on probation or parole or some other type of supervised release when you committed the crime.
These enhancements in your case may lead the judge to impose consecutive sentences.
Mitigating Circumstances
Some mitigating factors that can lead the judge to impose concurrent sentences are:
- the crimes and their objectives were related to one another,
- the offenses did not involve separate acts or threats of violence,
- the crimes were a part of a single period of criminal behavior,
- your age, such as if you are still young or are a senior,
- you have a mental or physical disability,
- mental health or substance abuse issues led to you committing the crime,
- you were under the influence of a controlled substance at the time of the offense,
- your remorse for committing the offense,
- your good character, apart from the criminal offense,
- whether you are a strong member in the community and a role model to others,
- whether you only committed the crime out of duress,
- you only played a small role in the crime, such as that of a lookout or a driver,
- you cooperated with law enforcement after the crime,
- you have made an effort to rehabilitate yourself in the time between the crime and the sentencing hearing, such as if you went to drug rehab,
- your need to provide restitution to the victims,
- this is your first criminal conviction or you do not have a bad criminal record, and/or
- you have a troubled past that turned you towards criminal activity, such as a difficult childhood.
These factors can lead the judge to a more lenient determination.
Factors Judges Cannot Use in California
California criminal law forbids judges from using the following facts when deciding which type of sentence to impose:
- an aggravating factor that was used to justify the imposition of the upper term of the sentencing range,
- one used to enhance your sentence in state prison or county jail under California Penal Code 1170(h), or
- one that is already an element of the criminal offense.2
Having aggravating factors ups the odds for a consecutive sentence.
Mandatory Consecutive Sentences
In California, judges must impose consecutive sentences when there are multiple convictions for violent sex crimes if:
- they were committed against different victims, with a consecutive sentence for each victim, or
- they were committed against the same victim but on separate occasions, with a consecutive sentence for each occasion.3
These violent sex crimes are certain types of:
- rape,
- rape or sexual penetration in concert with another,
- sodomy,
- lewd or lascivious acts,
- continuous sexual abuse of a child,
- oral copulation,
- sexual penetration,
- assault with intent to commit a sexual assault or offense, or
- any similar offense in another jurisdiction.4
Many would also require sex offender registration. Some are also a strike under California’s three strikes law.
Good Time Credit
California law provides the possibility for “good time credit.” Inmates who do not receive disciplinary infractions while in prison can have their time in confinement reduced. They can be released from prison well before their sentence has run.5
Note that this only reduces your time in confinement. Your term of imprisonment would still continue. However, you would serve it on supervised release, such as parole or probation.
Consecutive Life Sentences
In severe criminal cases, such as those for first-degree murder, you can receive consecutive life sentences. These often seem excessive or illogical. They are meant to reduce the possibility that you get released early by, for example, earning good time credit.
Certain sentences must be served consecutively.
Additional Resources
For more in-depth information on sentencing hearings, refer to these scholarly articles:
- The Payne of Allowing Victim Impact Statements at Capital Sentencing Hearings – The Vanderbilt Law Review.
- Due Process Comes Due: An Argument for the Clear and Convincing Evidentiary Standard in Sentencing Hearings – Iowa Law Review.
- Victim Impact Videos: The New-Wave of Evidence in Capital Sentencing Hearings – Queensland Law Reporter.
- The Emergence of Sentencing Hearings – Punishment & Society.
- The Standard of Proof at Sentencing Hearings under the Federal Sentencing Guidelines: Why the Preponderance of the Evidence Standard Is Constitutionally Inadequate – University of Illinois Law Review.
