Felony Sentencing Guidelines in California


Under California's felony sentencing guidelines, a person convicted of a felony can be punished with:

Felony probation is an alternative to prison. It allows a convicted felon to serve all or part of his sentence:

  • in the community, and
  • under supervision.

If a judge denies probation, then the felon is placed in custody in county jail or state prison. The specific length of a jail term is determined by:

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

A judge decides what the most appropriate sentence for a crime is at a sentencing hearing.

If a judge decides to put a defendant in jail or prison, then he may have to face supervision following his release. This can take the form of either:

  1. parole, or
  2. post-release community supervision.

Note that “realignment” was a law was passed in California in 2011. The law was Assembly Bill 109 (AB 109). The main result of realignment is that:

  • a defendant convicted of a “non-serious” felony is now sentenced to a term in county jail,
  • whereas before he could have been sentenced to California state prison.

Realignment did not change how things work for:

People convicted of these offenses are still sentenced to state prison.

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

felony sign
Felony probation is an alternative to prison.

1. What is felony (or formal) probation?

Felony probation, also known as "formal probation,” is an alternative to prison in California. It allows someone convicted of a felony to serve all or part of his sentence:

  • in the community, and
  • under supervision.

Felony probation typically lasts between three and five years. The probationer must report on a regular basis to a probation officer. Other conditions of probation can include paying victim restitution and doing some time in county jail.

If the probationer violates the conditions of felony probation, the judge can revoke probation and send the probationer to jail or prison for up to the maximum term.

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

  • the seriousness and circumstances of the crime,
  • whether the defendant was armed,
  • the vulnerability of the victim, and
  • the defendant's prior record, if any, as an adult or juvenile.1

2. Will a defendant face jail or prison time for a felony?

If probation is not awarded, a convicted California felon 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 make an offense seem less serious.

Also note, that like the crime of rape, there are often three possible sentencing terms for most California felonies. These are:

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

The upper term sets forth the most severe jail or prison sentence. The lower term is the least severe.

A judge considers aggravating and mitigating factors to determine the most appropriate sentence for an offense.

3. What are aggravating and mitigating factors?

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

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

As a general rule:

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

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 the accused play a minor role in the offense,
  • was the victim an initiator of violence or force,
  • did the defendant believe he owned any property taken,
  • was the defendant suffering from a mental illness at the time the crime was committed, and
  • did the defendant 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.
sentencing hearing felony crimes
A sentencing hearing is when a judge determines what sentence to impose for a crime.

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 a defendant either:

  1. enters a guilty plea or a nolo contendere (or "no contest") plea to at least one criminal charge, or
  2. is 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.

5. What if a person is convicted of multiple crimes?

If a defendant is convicted of more than one crime, then he will receive multiple sentence terms. A judge then has to decide whether to sentence the defendant to:

  • consecutive terms of sentence, or
  • concurrent terms of sentence.

Consecutive terms” mean that the terms are served separately. When one sentence ends, the other begins. This means:

  • if an accused received consecutive sentences of three and eight years,
  • then he would have to serve 11 total years in jail.

Concurrent terms” mean that the terms are served at the same time. A defendant is released from custody when the longer of the two sentence terms ends. This means:

  • if an accused received concurrent sentences of three and eight years,
  • then he would serve eight total years in jail.

6. What about supervision?

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

  • parole, or
  • post-release community supervision.

Once "paroled", an inmate agrees to abide by certain terms and conditions.4

Parole eligibility and its length are determined by:

  1. the crime for which the inmate was convicted, and
  2. when the inmate was convicted.

Post-release community supervision” is the term for parole for defendants that served a prison sentence in the local county jail. It is basically supervision by the probation department.

7. What is “Realignment?”

Realignment refers to a law that was passed in California in 2011. The law was Assembly Bill 109 (AB 109).

The aim of the law was to reduce prison overcrowding.

The effect of this bill was to:

  • divert people convicted of certain classes of less serious felonies,
  • from state prison to local county jails.

Thus, after realignment, some less serious felonies will result in imprisonment in county jail as opposed to state prison.

Realignment does not change how things work for:

  • serious crimes,
  • violent crimes, or
  • sex crimes.

People convicted of these offenses still serve prison time in California state prison.

For additional help...

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For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.


Legal References:

  1. California Rule of Court Rule 4.414.

  2. California Rules of Court Rule 4.421.

  3. California Rules of Court Rule 4.423.

  4. California Penal Code 3000 PC.

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