Felony Versus Misdemeanor
The difference between a felony and a misdemeanor is the punishment. Felonies are punishable by prison, either State Prison or “Local Prison” (a prison commitment served in County Jail). Misdemeanors are punishable by County Jail only. The maximum jail sentence for a misdemeanor is one year.
Felony Sentence Ranges
Most felony offenses in California fall into a three-tiered sentencing scheme: low term; middle term; and upper term. For example, many felonies are punishable at a low end of 16 months in prison, two years at the middle term, and three years at the upper term.
Determining Maximum Sentences: Principle Term
One of the first things you need to know is how much time you are facing. Determining this can become fairly complex due to some of California's sentencing schemes. But in most cases it's pretty easy to determine the maximum time you are facing. First, you need to determine if you are facing a determinant or in-determinant term.
A determinant sentence is one that has a fixed period. For example, a sentence of three years is a determinant sentence. An in-determinant sentence has no specific end. A sentence, of say, of 25 years-to-life is an in-determinant sentence: you may be eligible for parole after 25 years, but you may wind up serving the rest of your life in prison. If a sentence carries the word "life" you know it's an in-determinant sentence.
Determining Maximum Sentences: Subordinate Term
If you are facing only one felony, you can easily determine the maximum punishment you face by looking at the three-tiered sentence your crime carries. But it gets a little more complicated if you are facing multiple crimes. In those situations, you will be facing punishment on a "principle term" and then on "subordinate terms."
Where you are facing punishment on multiple crimes, the court will select one of those--typically the one that carries the most time--as the principle term. You will be sentenced on the remaining crimes as "subordinate terms" at the rate of 1/3rd of the middle-term.
Determining Maximum Sentences: Concurrent versus Consecutive
If you are facing multiple counts, you need to know if the punishment for each count will be imposed concurrent or consecutive to the principle term. "Concurrent" means the time for two or more counts run at the same time. "Consecutive" means that the punishment for two or more crimes is stacked upon each other. Take this example: Count 1 (principle term) carries a maximum of 3 years. Count 2 (subordinate term) carries 8 months. If Count 1 and Count 2 are run concurrently, the maximum time you face is 3 years. If the counts run consecutive, you face 3 years, 8 months.
Determining Maximum Sentences: Special Allegations
In addition to the principle/subordinate term sentencing scheme, California allows prosecutors to file "special allegations." Special allegations attach to certain crimes and increase the punishment. For example, if you are charged with a violation of Penal Code section 245 (Assault with a Deadly Weapon or with Force Likely to Create Great Bodily Injury) the prosecutor may file a special allegation of Penal Code section 12022.7, actually inflicting great bodily injury. That "GBI" enhancement increases the punishment by an additional three years. The Penal Code contains numerous special allegations that can affect the maximum sentence. You must consider any special allegations when calculating the maximum time you face if convicted.
Determining Maximum Sentences: Priors
If you have a prior criminal record you may be facing additional time in prison. The nature and occurrence of your prior will determine whether additional punishment will be added to your sentence. An experienced criminal defense attorney will be able to tell you the effect your prior record will have on your case.
Determining Maximum Sentences: Wobblers
Some felonies are considered "wobblers," meaning they can be classified as either a felony or a misdemeanor. In other words, they "wobble" between being a felony or a misdemeanor. You can tell if a felony is a wobbler by looking at the way the Penal Code expresses the punishment for the crime. If the Penal Code says the crime is punishable by State Prison, the crime is a straight felony and can never be reduced to a misdemeanor. But if the code says the crime is punishable by State Prison or by County Jail, the crime is a "wobbler" and can be either a felony or a misdemeanor.
Various factors determine whether you will be able to have your wobbler felony reduced to a misdemeanor. Some typical factors that weigh in favor of the crime being a misdemeanor are: lack of criminal record, relatively inoffensive conduct, mitigating circumstances (such as mental illness, drug-induced behavior, post-offense rehabilitation, and any other creative arguments you can present to the prosecutor and judge).
Even if you are initially sentenced to a felony for a wobbler offense, it may be possible to later have the court reduce the conviction to a misdemeanor. Courts are frequently willing to do this if you can show that you have successfully taken care of the problem that led to the conviction and that you have gotten your life on the right track.
Determining Maximum Sentences: Collateral Consequences
Felony convictions carry innumerable consequences apart from prison time. These consequences are referred to as "collateral consequences." Depending on the nature of the crime, some of the more common consequences include consecutive sentences; loss of driving privileges; lifetime registration as an arson, sex, narcotic, or gang offender; prohibition against owning or possessing firearms or ammunition; requirement to give a blood test or saliva sample; prior-ability, (meaning increased punishment for future offenses); prior-prior, (meaning additional time for future crime based on the fact that you have been to prison before); mandatory imprisonment; mandatory State Prison; presumptive State Prison); Sexually Violent Predatory Law; possible or mandatory hormone suppression treatment; reduced conduct or work credits while in custody; loss of public assistance; and AIDS education.
Determining Maximum Sentences: Strike Offenses
Under California law, certain felonies are considered to be "strikes." Strikes are either serious or violent crimes. The law lists exactly which crimes are "serious" and which crimes are "violent."
For someone who has no prior felony record, a "serious" strike has no practical offense on the case. The "serious" strike only comes into play for someone who commits another felony in the future. But a first-time "violent" strike does have immediate consequences: loss of custody credits. Custody credits refer to the time a person actually serves in State Prison. Ordinarily, a prisoner is entitled to "good time credits" of up to 50% of their time. So, for example, someone sentenced to six years in the State Prison could be released after serving only three years. But if that person had been sentenced to prison for a first-time "violent" strike, he would be entitled to a maximum of 15% good time credits. So on that same six year sentence; he would have to serve just over five years.
If you have a prior strike conviction--either "serious" or "violent" (referred as "strike priors")--the consequences are significant. First of all, State Prison is mandatory. Second, the possible sentence you are facing on the current case is doubled. For example, for a crime that carried a maximum punishment of three years imprisonment, you would be facing six years. And you would have to serve at least 80% of that sentence before being eligible for release.
The effects of the Three Strikes law is most dramatic if you have two strike priors and are now facing a third strike. In that case you are facing a sentence of 25 years-to-life.
Determining Maximum Sentences: Obtain Discovery
"Discovery" refers to the process where the both sides provide each other with the evidence it intends to use at trial. The DA has a constitutional and ethical duty to provide you with all of the evidence that supports the case against you if they intend to use that evidence at trial. But they also have an obligation to provide you with any evidence they have that is helpful to your case. For example, if the DA has evidence indicating that you are innocent, they are required to give that evidence to you. Or if they have evidence that negatively affects the credibility of their witnesses, they must likewise give that evidence to you.
The defense is also required to disclose to the prosecution any evidence it intends to use at trial. One exception concerns impeachment evidence. Impeachment evidence is evidence that affects the credibility of a witness. Let's say that one of the prosecution’s witnesses testify at trial that they are sure that you were the one who committed the crime because they were there at the time and saw you do it. Now let's say that your lawyer has uncovered another witness who says that she was with that same witness at the time the crime was committed and that the two of them were somewhere else at the time. This witness, and any documents that may support the witnesses claim, such as airline tickets, hotel, and restaurant charges, would be impeachment evidence that the defense is not required to provide to the prosecution before their witness testifies. Impeachment evidence can be very powerful for your case.