California law defines a felony as a crime that carries a penalty of death, incarceration in state prison, or—for certain lower-level felonies—incarceration in county jail. Other less-serious offenses are considered misdemeanors in California, which are generally punishable by fines and/or up to 364 days in county jail, or infractions, which result only in fines. (Cal. Penal Code §§ 17, 18.5 (2019).)
Many crimes, however, may be treated as either felonies or misdemeanors, and courts may change felony convictions to misdemeanors in some circumstances. This article gives an overview of the basic sentencing rules for felonies under California law.
For most felonies in California, the law sets out three determinate (or fixed) sentences that are specific for that crime. If it’s not spelled out in the statute, the options will be 16 months, two years, or three years.
At the sentencing hearing following a conviction, the judge must choose one of those fixed periods of incarceration as the base sentence, unless the law allows an alternative such as a fine, probation, or mandatory supervision for part of the sentence. When deciding among the possible terms, the judge may consider evidence of mitigating or aggravating circumstances (including victim statements). Beyond the base sentence for each felony conviction, some defendants will have to serve additional time based on the nature of their crimes and their criminal histories (more on that below).
While most felony sentences are for a fixed term, California law does call for “indeterminate” sentences (such as 25 years to life) in a few circumstances, including a conviction for murder. (Cal. Penal §§ 18, 667, 1170.)
County Jail or State Prison: “Realignment” in California
As part of a law known as the “Public Safety Realignment Act,” California requires that felons serve their sentences in county jail rather than state prison, unless (1) they were convicted of serious or violent felonies, either in the current case or previously; (2) they have to register as sex offenders; or (3) their current convictions include a sentencing enhancement for aggravated white collar crime. Examples of serious or violent felonies include murder, voluntary manslaughter, rape, robbery, carjacking, and any felony where the defendant used a gun. (Cal. Penal Code § 1170 (2019).)
Many crimes in California are “wobblers,” meaning they can be treated as either a felony or a misdemeanor. For instance, most forms of sexual battery carry a penalty of (1) up to 364 days in county jail and/or a maximum fine of $2,000 (the misdemeanor sentence); or (2) incarceration for two, three, or four years, plus a maximum fine of $10,000 (the felony sentence). Other common wobblers include assault with a deadly weapon, grand theft auto, and some forms of vehicular manslaughter.
Also, some crimes—like violating a domestic violence protective order—are straight misdemeanors for a first offense but may be treated as either a misdemeanor or a felony under some circumstances, including when the defendants have certain types of prior convictions.
Prosecutors can decide to charge wobblers as felonies or misdemeanors. But even if felony charges have been filed and the defendant has been convicted, the judge may reduce the crime to a misdemeanor by:
(Cal. Penal Code §§ 17, 18, 193, 243.4, 245 (2019).)
Under California’s "three strikes" law, defendants with prior convictions for serious or violent felonies must serve alternative, lengthy sentences in state prison for their latest felony conviction. The rules are complicated, depending on the number of previous convictions and the nature of the current crime. With two or more previous convictions, some defendants could find themselves facing 25 years to life in prison—unless the current conviction isn’t for a serious or violent felony.
In addition, convicted felons must serve an extra five years as a sentence “enhancement” for each previous conviction for a serious felony. (Cal Penal Code §§ 667, 1170.12 (2019).)
If you've been charged with a felony in California, you should seek help from an experienced criminal defense attorney as soon as possible. Felony convictions have serious long-term consequences, even after you've served your sentence. A lawyer can help you prepare the best possible defense and, if it’s appropriate, negotiate a favorable plea bargain—which could include having the charges reduced to a misdemeanor.
And if you’ve already been convicted of a felony, you may want to speak with a criminal defense lawyer about trying clear your criminal record with a dismissal or, if the crime was a wobbler, applying to have it reduced to a misdemeanor.
Look Out for Changes in the Law
California frequently changes its criminal laws, but you can check the current statutes by using the state legislature’s code search tool. Court decisions may also affect how the laws are applied and interpreted—another good reason to speak with a lawyer if you’re concerned about actual or potential criminal charges.