California Penal Code 18.5 PC specifies that the maximum misdemeanor jail sentence is 364 days. So when a statute for a misdemeanor crime claims that the maximum penalty is one year, the most the defendant can be jailed for is 364 days – not 365 days.
The full text of the statute reads as follows:
18.5 PC. (a) Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days. This section shall apply retroactively, whether or not the case was final as of January 1, 2015.
(b) A person who was sentenced to a term of one year in county jail prior to January 1, 2015, may submit an application before the trial court that entered the judgment of conviction in the case to have the term of the sentence modified to the maximum term specified in subdivision (a).
California Penal Code 18.5 PC defines misdemeanors as having a maximum county jail sentence of 364 days. This is true even when misdemeanor crime statutes impose a maximum county jail sentence of one year (which is 365 days).
The purpose of PC 18.5 is to distinguish misdemeanor sentences from felony sentences. Prior to 2015, the maximum misdemeanor sentence was the same as the minimum felony sentence – one year (365 days). Now, the maximum misdemeanor sentence is 364 days – one day less than the minimum felony sentence of 365 days.1
Most California misdemeanors have a maximum county jail sentence of six months. The 364-day maximum jail sentence is for misdemeanors considered more serious, such as DUI and violating a restraining order (Penal Code 273.6 PC).
- California Penal Code 18.5 PC – Misdemeanors; Maximum sentence. SB 1310 (2014). Velasquez-Rios v. Wilkinson (9th Cir., 2021), 988 F.3d 1081. People v. Shropshire (2021) 70 Cal. App. 5th 938.