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.
How do courts decide the sentence for a felony?
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.
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).)