Big Changes in California Felony Sentencing

california penal code section 1170

There have recently been some substantial changes in the way most people convicted of felonies will serve their sentences. In June, 2011 the California Legislature enacted  Assembly Bill 109 (AB 109), popularly known as “Sentencing Realignment.”  In the past, there were two sentencing options for people convicted of most felonies: Formal probation, or state prison. Sentencing Realignment now creates a third option, called “split sentencing,” and also requires that people who are convicted of felonies which are not serious, violent, or registerable as a sex offense to be sentenced to county jail instead of state prison if they are sentenced to a term of incarceration. Although the most important changes can be found in California Penal Code Section 1170(h), AB 109 effects substantial and far ranging changes to literally hundreds of sections of the Penal Code, Business and Professions Code, Insurance Code and many others.

Intended primarily as a state government cost-cutting measure, this new law contains some substantial benefits for people accused or convicted of certain felonies which do not fall into the “serious” or “violent” category, and which are not sex offenses which require registration under Penal Code Section 290.

Sentencing Realignment applies to most felonies, except for: Violent felonies, as listed in California Penal Code Section 667.5(c); Serious felonies as listed in California Penal Code Section 1192.7; any felony in which as gang enhancement is found under Section 186.22 of the California Penal Code; and felonies which require registration under Section 290 of the California Penal Code. There is also a list of 80 felonies which, although they are not serious, violent, or sex offenses, are specifically excluded from being eligible for Sentencing Realignment.

Sentencing Realignment allows people who are eligible and who do not receive probation to serve their time in county jail instead of prison. The new law also creates a “third alternative” to probation or an extended jail sentence, called a “split sentence.”

Under a a split sentence, the defendant would serve some time in county jail, then be released under supervision, similar to probation. However, there are some differences. Like probation, you can be sent back to jail if you violate the terms of your release. Unlike probation, you accumulate time credits while you are out on release, which means the farther you are in the release period when you violate, the less time you can be sentenced to. A split sentence does have one disadvantage: If you are sentenced to probation on a felony which is also chargeable as a misdemeanor (a “wobbler”), you can seek reduction to a misdemeanor, dismissal or expungement when you complete probation. However, a split sentence is legally the same as a prison sentence, which means you cannot seek reduction or expungement. You must instead apply for a certificate of rehabilitation.

While no one wants to be convicted of a crime, much less a felony, it is always best to be prepared for the worst possible outcome.

In the old days, being denied probation meant being sent to prison.  Prison usually means a more hostile and difficult environment than county jail, and may mean few or no visits from family due to the long distances involved.  Under the new law, if a defendant is denied probation, but is eligible under the new law, then the defendant would be sentenced to serve some of his time in county jail, and then would be released for community supervision at the end of his sentence. If a defendant is sentenced to serve the entire sentence in jail, as of this writing, there is no parole or supervision at the end of the sentence.

In the event a defendant is convicted of a felony, first the judge will determine whether the defendant is eligible for probation.  This is important in the context of the new law, because most crimes that are eligible for probationary sentencing, are also eligible for sentencing under the new law.

If the defendant is not eligible for probation, but is eligible for sentencing under the new law, then the judge will sentence the defendant to serve the remainder of his time in county jail, or will impose a split sentence.

If you are charged with a felony crime, contact the Law Office of Charles Mashburn for a free consultation about whether the new sentencing law applies to your case.