California Penal Code 1170 is the state’s determinate sentencing law for felonies. It gives each felony three possible fixed terms — a lower, middle, and upper — makes the middle term the starting point, limits when a judge can go higher, requires the lower term for certain defendants, and sends many non-serious felonies to county jail rather than state prison. Everything else in a felony sentencing hearing is built on top of these rules.
The Three-Term Triad and the Presumptive Middle Term
Every felony sentenced under the determinate sentencing law carries three possible terms, commonly called the triad. The specific numbers depend on the offense. Residential burglary, for example, has a triad of two, four, or six years. The court picks one of the three at sentencing.1California Legislative Information. California Code PEN 1170 – Trial Court Sentencing
The middle term is the presumptive sentence. The court begins there and can only move up or down for reasons the statute specifies. That is a meaningful change from the older version of the law, which let judges choose any of the three based on whatever factors they found persuasive.
Prison is not the only possible outcome either. Where the law allows it, the court can impose probation, a fine, county jail time, or a suspended sentence instead of a prison term.
When a Judge Can Impose the Upper Term
Senate Bill 567, effective January 2022, rewrote the upper-term rules. A court may now impose the upper term only when the aggravating facts supporting it have been either stipulated to by the defendant or found true beyond a reasonable doubt by a jury (or by the judge in a bench trial).1California Legislative Information. California Code PEN 1170 – Trial Court Sentencing
There is one carve-out. A defendant’s prior convictions can be considered by the court from a certified record without going to the jury, because the facts behind those earlier convictions were already proven to a jury the first time around.
When the court does go to the upper term, it must state the facts and reasons on the record so an appellate court can review them. The practical effect is that prosecutors now typically allege aggravating factors before trial and present them to the jury alongside the charges, or build the defendant’s admission into a plea agreement.
The constitutional backdrop matters because it shapes how strictly courts apply the rule. In Cunningham v. California, the U.S. Supreme Court struck down the earlier California system for letting judges alone find the facts that justified a harsher sentence, in violation of the Sixth Amendment.2Justia U.S. Supreme Court Center. Cunningham v. California, 549 U.S. 270 That ruling applied the broader Apprendi v. New Jersey rule that any fact raising a sentence above the otherwise-applicable maximum must be found by a jury beyond a reasonable doubt.3Justia U.S. Supreme Court Center. Apprendi v. New Jersey, 530 U.S. 466
When the Lower Term Is Required
The same reform package built in a presumption running the other direction. Under subdivision (b)(6), the court must impose the lower term if any of the following factors contributed to the offense, unless the judge specifically finds that aggravating circumstances outweigh the mitigating ones and a lower term would be contrary to the interests of justice:1California Legislative Information. California Code PEN 1170 – Trial Court Sentencing
- The person experienced psychological, physical, or childhood trauma, including neglect, exploitation, or sexual violence.
- The person was under 26 years old when they committed the offense.
- The person was a victim of intimate partner violence or human trafficking before or at the time of the offense.
A lot of sentencing hearings now turn on this subsection. If defense counsel puts credible evidence of any of these factors in front of the court, the judge faces a real constraint. Choosing the middle or upper term requires an on-the-record explanation of why aggravation outweighs the defendant’s background. Skipping that step hands the defense a strong appellate issue. The evidentiary record is usually built with a forensic mental-health evaluation, testimony from family or treatment providers, and documented history of trauma or abuse.
County Jail or State Prison
A felony conviction in California does not automatically mean state prison. Subdivision (h) routes many felony sentences into county jail instead. The change came from the 2011 Public Safety Realignment (AB 109), which shifted custody of lower-level felons from the state to the counties.4California Department of Justice. 2011 Public Safety Realignment
The general rule: if the felony is not classified as serious, not classified as violent, and does not require sex-offender registration, the sentence is served in county jail. When a subdivision (h) offense does not have its own triad written into the statute, the default is 16 months, two years, or three years in county jail.1California Legislative Information. California Code PEN 1170 – Trial Court Sentencing
Several categories of defendants are excluded from county jail and must serve the time in state prison, even for an offense that would otherwise qualify:
- A current or prior conviction for a serious felony as listed in Penal Code 1192.7(c).
- A current or prior conviction for a violent felony as listed in Penal Code 667.5(c).
- A requirement to register as a sex offender.
- A sentence that includes an aggravated white-collar crime enhancement under Penal Code 186.11.
Where the sentence is served has real consequences beyond the address. County jail sentences often allow split sentencing, with the final portion of the term served on mandatory supervision in the community instead of behind bars. State prison sentences do not.
Consecutive Sentences on Multiple Counts
When a defendant is convicted of more than one felony and the court runs the sentences consecutively, Penal Code 1170.1 controls the math. It works like this:
- The longest individual sentence among all the counts, including any enhancements specific to that offense, becomes the principal term.
- For every additional consecutive count, the court adds one-third of the middle term for that offense, plus one-third of any offense-specific enhancements.
- Enhancements for prior convictions or prior prison terms are then added on top.5California Legislative Information. California Code PEN 1170.1 – Aggregate Determinate Terms
An example makes the formula concrete. A defendant convicted of three felonies gets the full term on the most serious count. The other two counts each contribute only one-third of their middle term. A principal term of six years with two subordinate counts carrying three-year middle terms produces six years plus eight months plus eight months, or seven years and four months before any additional enhancements. The one-third rule is why consecutive sentences in California add up more slowly than many defendants expect.
Credits That Shorten the Actual Time Served
A fixed sentence rarely matches the time a person actually spends locked up. Two credit systems chip away at it.
Presentence Custody Credits
Anyone held in county jail while awaiting trial or sentencing earns credit against the eventual sentence. Under Penal Code 4019, a person in pretrial custody earns the equivalent of one day of credit for each day actually served. The statute uses a four-day cycle: for every four days in custody, two days are deducted (one for good behavior, one for satisfactory work performance), so a four-day period counts as though the person served the full four days after only two in actual custody.6California Legislative Information. California Code PEN 4019 – Conduct Credit Six months of pretrial jail time comes into sentencing already credited.
Conduct Credits in Prison
Once the state prison sentence begins, Penal Code 2933 governs earned-time credits. Eligible prisoners receive six months of credit for every six months of continuous incarceration, which works out to roughly a day-for-day reduction.7California Legislative Information. California Code PEN 2933 – Worktime Credit These credits are a privilege and can be forfeited for rule violations. Prisoners convicted of violent felonies earn credits at a lower rate under separate provisions, and some offenses cap credits even further. For many non-violent offenders, a four-year sentence translates to roughly two years of actual incarceration.
Getting a Sentence Recalled and Reduced
California law lets a court bring someone back after sentencing and impose a different, potentially shorter term. The recall-and-resentencing procedure was originally housed in Penal Code 1170(d) but was moved to its own statute, Penal Code 1170.03, by AB 1540. It applies whether the original sentence came from a trial or a plea.8California Legislative Information. California Code PEN 1170.03 – Recall and Resentencing
A resentencing request can be initiated by the court itself within 120 days of the original commitment, or at any point by the California Department of Corrections and Rehabilitation, the Board of Parole Hearings, the county correctional administrator for someone in county jail, the district attorney, or the Attorney General. Once a request is filed, the court can reduce the sentence, modify individual terms, or vacate the conviction and enter judgment on a lesser offense with the agreement of the defendant and the prosecutor.8California Legislative Information. California Code PEN 1170.03 – Recall and Resentencing
Two hard rules apply. Any new sentence cannot exceed the original one. And the court must apply current sentencing law at resentencing, as though the person had never been sentenced before. That second rule is where the statute gets its real force: if the law changed after the original sentencing to reduce penalties or expand judicial discretion, the person gets the benefit of those changes.
The court must state its reasons on the record for granting or denying the request, and it cannot deny resentencing or reject a stipulated agreement without first holding a hearing where the parties can respond.8California Legislative Information. California Code PEN 1170.03 – Recall and Resentencing A separate compassionate-release program under Penal Code 1172.2 allows resentencing for incarcerated people facing terminal illness or other extraordinary medical circumstances.