Under the California felony sentencing guidelines, a defendant convicted of a felony can be sentenced:
- to felony (or formal) probation,
- to serve a term of at least one year in state prison, or
- to serve 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:
- 1. What is felony (or formal) probation?
- 2. Will a defendant face jail or prison time for a felony?
- 3. What are aggravating and mitigating factors?
- 4. What is a sentencing hearing?
- 5. What if a person is convicted of multiple crimes?
- 6. What about supervision?
- 7. What is “realignment?”
- 8. What about enhancements?
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 their 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, doing community service, and doing some jail time.
|Ineligible for probation||Presumptively ineligible for probation|
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 the defendant does 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 the defendant has remained free from imprisonment and has not committed any serious violations for a considerable period before the current offense.
- The judge, using their discretion, decides that the outcome of a risk/needs evaluation of the defendant suggests probation is suitable.
- The defendant’s culpability is lessened because:
- The defendant committed the offense under extreme provocation, coercion, or duress, and has no recent history of engaging in violent crimes;
- The offense occurred due to a mental condition, and there is a high probability that the defendant would benefit from mental health treatment; or
- The defendant is either young or elderly and does 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.
If law enforcement arrests a probationer for violating the conditions of felony probation, the judge can revoke probation and send the probationer to jail or prison for up to the maximum term. (Defendants are entitled to a hearing to contest the probation revocation.)
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,
- whether the defendant threatens public safety,
- 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 or circumstances make an offense seem less serious.
Possible sentencing terms
Most California felonies have three possible sentencing terms. These are:
- an upper term (for example, eight years for rape),
- a middle term (for example, six years for rape), and
- 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?
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 the defendant use a deadly weapon in committing their crime,
- was the victim particularly vulnerable,
- the defendant has 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.
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 a violent offense or force,
- did the defendant believe they 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.
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:
- enters a guilty plea or a nolo contendere (or “no contest”) plea to at least one criminal charge, or
- 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. 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 a person is convicted of multiple crimes?
If a defendant is convicted of more than one crime, then they will receive multiple sentence terms. A judge then has to decide whether to sentence the defendant to consecutive terms of the sentence or concurrent terms of the sentence.
- “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. A defendant is released from custody when the longer of the 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 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:
- the crime for which the inmate was convicted, and
- 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?”
Felons still get incarcerated in state prison for:
- serious felonies,
- violent felonies (including domestic violence), or
- sex felonies (see our related article on the California sex offender registry).5
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 the defendant to it.
For additional help…
For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact us at Shouse Law Group. We have law offices in Los Angeles, San Diego, San Francisco, and more. We practice in both state court (including the California Supreme Court) as well as United States federal courts. We defend against all types of infraction, misdemeanor and felony offense charges.