Understanding the Criminal System: A Guide to California Laws

A felony is a much more serious offense than a misdemeanor. For felonies, the general rule is if you are charged with a felony, you could be sentenced to State Prison. While researching the crime that you were charged with, if your Penal Code section simply states that your punishment is State Prison, without indicating how long your sentence could be, then the general rule is that you would serve the minimum time in custody. However, the minimum time for custody for a felony charge, is sixteen months, two years or three years in State Prison.

Felonies can be extremely confusing and complicated, and can be made worse with prior records, prior strikes, or probation violations. A felony offense can lead to a sentence of as little as sixteen months, to as much as 25 years-to-life (PC 187 (Murder); PC 288.7(a) (Sex with a Minor under 10 years of age). Because of this wide range of possible penalties, you must understand that if you have been arrested for a felony offense, it is extremely serious. Not only could you suffer from a Felony conviction, you could face significant loss of freedom for receiving a felony offense.

Sentencing is also different for Felony cases. I will not go into too much detail in this brief guide, but do understand that if you are charged with multiple felony charges, you would most likely be sentenced for each offense charged. When a person comes into my office facing two charges, the first question they always ask me is: What am I facing? To better explain this answer, I will break down the very, very, basic way California handles sentencing.

If a person has been charged with two violations of PC 288(a), they would know through a quick search that they could face upwards of 3, 6 or 8 years in a state prison. However, under this specific count, the charges would not run “full consecutive”. Instead, they would be run what is commonly referred to as “One Third the Mid Term”. In laments terms, this person’s max exposure would be 8 years from the first charge, and what one third of the middle term of the other count would be – here, is 2 years (6 divided by 3 = 2). Thus, someone facing two counts of a violation of PC 288(a) is looking at 10 years in State Prison. It is not a requirement that any non-attorney know this information, but I do feel it is helpful in getting the basic understanding of what kind of time you are facing. Hiring an experienced Criminal Defense Attorney will help allow them to take the burden of the extremely complicated California Criminal Sentencing rules, and explain them to you in a way that makes sense.

As you also probably noticed, the difference also in a felony case is that there are three potential sentences. In the example above, the first amount, 3 years, would be considered the “low term”. The 6 years would be considered the “mid term”, and the 8 years would be considered the “high term”. Generally speaking, the default amount to assume for yourself is the “mid term” if you were to go to a Jury Trial and be convicted of those offenses. This is unless there are certain aggravating or mitigating factors that could move to towards the high term or the low term.

Aggravating factors generally fall outside of the facts that lead to the charge itself, and usually include outside factors, such as prior record, whether a weapon was used, whether you use a position of power, etc. These would be called aggravating factors that would push your case closer to a “high term” sentence. Mitigating factors involve things about yourself personally, such as if you have a family, have no prior record, have a good job and education, feel remorse for your actions, among others. This would push your case more towards the “low term” of a sentence.

However, it should be noted, that it is possible for you to avoid prison entirely on a negotiated plea deal with a District Attorney to quickly resolve your case. This would put you on Felony Probation (explained below), and would have you out of custody much faster than if you were sentenced to State Prison. In addition to being sentenced to State Prison, you would be put on Parole (explained below) from anywhere from 3 to 7 years, depending on the charge.

If you are convicted of a felony, you would unable to ever purchase or possess a firearm. Failing to abide by that restriction would involve a new criminal offense (PC 29800). You would also face much more severe Immigration and Professional License restrictions than you would if you had only a misdemeanor.

Similar to a misdemeanor offense, your first Court Date is the date of your Arraignment, where a Judge will read your charges to you as well as your rights, enter a Not Guilty plea on your behalf, and set Bail. In Felony cases, bail is almost always an issue. If you post bail after you have been arrested, understand that if your “arrest” charges from Police are different than the filed charges against you by the Prosecutor, then a Judge could, and likely would raise your bail amount at your Arraignment, and the money you spent would be exonerated, and you would be forced to sit in jail for your case.

How can this happen? Generally Police do not understand as much about the Law as we would like them to, and they do not put the correct offense for the bail, or even set the bail at the appropriate amount. Other times, information comes in later, new evidence, that means other crimes may have been committed. And sometimes, for example in a sex case, they may arrest you for a single charge of PC 288(a)(Lewd/Lascivious Acts on a Minor under 14). There, if in San Bernardino County, you would be required to post a bail of $250,000 to be released. But, lets say as your case gets filed after your release, it is determined that you did more than the single charge, and are in fact alleged to have committed a violation of PC 288.5 (Continuous Sexual Abuse of a Minor), where the bail is $350,000. You could arrive at your Arraignment, and have your original bail exonerated, meaning it would go away, and your new bail could be set at $350,000.

As an Attorney that handles mostly serious felony cases, I argue bail at least 1-2 times per week in a case. I understand that simply because the bail that is posted is below the amount based on the charge, there is always an argument to fight to keep your bail as is, so hiring the right attorney for your felony case, is absolutely crucial to keep you out of jail.

In a Felony case, after your Arraignment, and bail setting, you set different Court Dates, generally called different names based on what County or Courthouse you are in. The names of what those hearings are is not important, as they are simply terms of art based on where you are located. Your attorney will have time to review the evidence against you, including the reports and audio/video evidence to help you find a defense to your charges, or to find the best possible result if the evidence is overwhelming.

Unlike a misdemeanor case, if it gets to a point where the District Attorney will not make an offer you are willing to accept, or they are unwilling to make any offer (in the most serious cases), you do not automatically proceed to a Jury Trial. For a Felony case, your case would be set for what is called Preliminary Hearing. At this hearing, the Officers involved, generally the most important Officers, and the ones who investigated the case, you, and spoke with the alleged victims, get to testify. They get to testify as to what they did in their investigation, what they found, and what evidence that exists to point to you as the person who did the offense.

Under Prop 115, an alleged victim is not required to testify at a Preliminary Hearing. We do this in order to protect victims, generally the younger ones, from having to go to Court twice (For this hearing, and the Jury Trial). This allows the Officers to testify to what is called “hearsay”, but only one-level of hearsay. So, an Officer can dictated what someone told them, but not a quote from a second party.

• Example 1: “The victim told me the Defendant then punched her in the face” = Good
• Example 2: “The friend of the victim told me she heard Defendant punched the victim in the face” = Bad

At the Preliminary Hearing, a Judge will determine whether there is Probable Cause that you committed the crimes alleged against you. This is a much lesser standard than what we typically hearing where at a Jury Trial, you must be proven guilty “Beyond a Reasonable Doubt”. Here, it is essentially 51% likelihood that you are the person who committed the offenses, something the prosecutor can very easily do. However, after the Officer testifies, if you have a skilled Attorney, they can Cross-Examine the Officer as to the investigation, mistakes they made, and whether victims/witnesses changed their statements. We poke holes in their case, not just to attempt to have the case dismissed, but to make sure the prosecutor knows that this case is not as easy as they may think. Sometimes that alone can push a case to settle before a Jury Trial, for a much more favorable result.

After the testimony closes, the Judge allows both your attorney and the prosecutor to argue whether the case should be dismissed or to proceed to a Jury Trial. If the Judge agrees with your attorney, your case could be dismissed. If your case is a Wobbler Offense (discussed below), your attorney can also ask that your case be reduced do a Misdemeanor Offense under PC 17b. If the Judge instead agrees with the District Attorney, then your case would be considered “bound over” and you would be “held to answer” for the offenses against you. Your next Court Date would generally be 15 business days from the date of your Preliminary Hearing.

That date is called the Arraignment on the Information. From there, you again enter a Not Guilty Plea, and your case would proceed to various Pre-trials until a date is set for your Jury Trial. Jury Trial’s in Felony cases usually take longer time to investigate and work, so some cases could take over 1 year to proceed to the actual Jury Trial.

Because of the serious nature of Felony cases, you need an experienced attorney that not only is aware of how Felony cases work, but understand the right arguments and Defenses to argue for you to try to get your case dismissed. The slight benefit to a Felony case, is that you have a chance to argue the evidence well before a Jury Trial, and if done correctly, could save you the large expense of a Jury Trial. Call me today, and I will walk you through your Felony case, step by step.

Sometimes people when speaking about the differences between Probation and Parole use them interchangeably, however, this is not accurate. Parole occurs only when a person has been sentenced to State Prison. A parole term is generally between 3 years to 7 years, depending on the offense. What parole means, is that once you are released from Prison, you would be required to check in with a Parole Agent, and keep them updated on where you are, and what you are doing. They can also make you do additional items, such as wear an ankle bracelet, or get a job or go to school. If you do not report to your Parole Officer, you could be subject to a one year sentence for each violation. Being sentenced to State Prison also does not relieve you of certain offenses, such as having to Register as a Sex Offender pursuant to PC 290.

Probation is granted generally for any person who has not been sentenced to State Prison. This could mean a misdemeanor or a felony conviction could grant you with a term of probation. Probation is typically between 3-5 years. You usually are required to check in with Probation upon your release from custody, or within 2 business days of your conviction date. You could be required to attend counseling, classes, or wear an ankle bracelet as a term of Probation. Probation also does not free you from your obligation, if required by your convicted offense, to Register as Sex Offender pursuant to PC 290.

However, if granted Probation, you can move to have your case Expunged from your record, pursuant to PC 1203.4. Speak with an experienced Expungement Attorney for more information.

A wobbler is an offense that can be charged as a Felony or a Misdemeanor. Sometimes cases are filed as felonies, with no real indicators as to why that is. Generally, you would need some kind of aggravating factors to move a case to a felony, otherwise, it should be charged as a misdemeanor. For example, I handled a case recently where my client was charged with a violation of PC 287a (Oral Copulation on a Minor). This offense can be charged as a misdemeanor or a felony. If convicted as a misdemeanor, he could have served up to one year in County Jail; if convicted of a felony, he could be sentenced to sixteen months, two or three years in a State Prison.

This case was charged as a felony, and I argued to the assigned prosecutor that it should be instead, at worst, a misdemeanor. However, a sex charge such as this, even as a misdemeanor, would require him to register as a Sex Offender. I made my arguments that my client had no prior record, was young, was only two years older than the other party, that it was factually consented to (because minors cannot legally consent), and that my client had known the other party for 14 years, growing up together. The prosecutor had wanted my client to instead, plead to a felony strike offense, as well as an added sex charge, and serve one year in county jail (but not register).

Because of this, we forced the case into a Preliminary Hearing, and a supervising District Attorney took the case, agreed with my arguments, and my client ended up pleading to a reduced charge of a misdemeanor Battery (PC 242), with no registration, and no jail time. I bring up this example to note the importance of why mitigating factors can move a case not just from a felony to a misdemeanor, but from a misdemeanor to a better, less serious misdemeanor.

It is always in the discretion of the District Attorney to file a wobbler case as a felony or a misdemeanor, but if you have an experienced attorney by your side, the chances are even if filed as a felony, an argument can be made to reduce it to a lesser misdemeanor charge.