Penal Code 1170(h) and Avoiding Prison Time on a Felony Conviction

Felony criminal charges carry the potential for significant penalties, including a prison sentence. However, California Penal Code section 1170(h) allows for individuals who are convicted of certain felonies to be sent to county jail instead of state prison. This change was made possible by the passage of California Assembly Bill (AB) 109, the California Public Safety Realignment Act, which aimed to shift the responsibility for implementing sentences for certain types of crimes from the State of California to the counties where the crime was committed. This change in the law gives the Court more discretion to implement and structure a sentence that more appropriately fits the individual person and the particular facts of their case, and ultimately provides an opportunity for a person convicted of certain felony charges to serve less time than they would otherwise have served if ordered to serve their time in prison.

California Penal Code section 1170(h) applies to non-violent, non-serious, and other felonies in which Penal Code section 290-sex offender registration is not required. Moreover, a defendant cannot be sentenced to jail instead of prison pursuant to Penal Code section 1170(h) if they have a prior strike conviction, a prior Penal Code section 290-registerable offense, or has been convicted of an aggravated white-collar crime.

Eligible felonies under California Penal Code section 1170(h) include, but are not limited to the following:

• Accessory after the fact, Penal Code section 32
• Resisting an Executive Officer, Penal Code section 69
• False Imprisonment, Penal Code sections 236 and 237
• Statutory Rape, Penal Code section 261.5(c)
• Theft from Elder, Penal Code section 368
• Grand Theft, Penal Code section 487(a)
• Commercial Burglary, Penal Code section 459
• Forgery, Penal Code section 470(a)
• Grand Theft Auto, Penal Code section 487(d)(1)
• Receiving Stolen Property, Penal Code section 496(a)
• Embezzlement, Penal Code section 503
• Extortion, Penal Code section 520
• Identify Theft, Penal Code section 530.5
• False Pretenses, Penal Code section 532
• Auto Insurance Fraud, Penal Code section 550
• Welfare Fraud, WI 10980(c)
• Felony DUI, due to prior offenses, Vehicle Code section 23152

California Penal Code section 1170(h)(5)(a) allows the Court to sentence an individual convicted of certain felonies to a straight jail term. If sentenced to a straight jail term, the individual would serve their entire sentence in custody in the county jail.

The Court also has discretion, pursuant to 1170(h)(5)(b), to order the individual to serve a portion of their sentence in custody with the remainder on Mandatory Supervision. The period of Mandatory Supervision would be supervised by the Probation Department in the county for which the person was sentenced. However, the individual could apply to have their Mandatory Supervision transferred to a different county.

If you or a family member is facing a felony charge out of Los Angeles, Orange County, Riverside County, San Bernardino County, or Ventura County, it is imperative that you hire the best attorney that you can. Attorney Michael Kraut has extensive experience representing clients facing felony charges and will provide an aggressive defense and explore all options to get the absolute best result.

For more information about Penal Code section 1170(h) and how it can affect you, and to schedule your free consultation, contact attorney Michael Kraut at the Kraut Criminal & DUI Lawyers located at 6255 Sunset Boulevard, Suite 1520, Los Angeles, CA 90028. Mr. Kraut can be reached 24/7 at 888-334-6344 or 323-464-6453.