Avoiding State Prison in Felony Cases in California

California’s Public Safety Realignment Act (Assembly Bill 109, 2011) fundamentally reshaped felony sentencing by adding subdivision (h) to Penal Code § 1170. Instead of channeling every prison-eligible defendant into the state system, Realignment redirected many “low-level” felons, those whose offenses are non-serious, non-violent, and non-sexual, to county jurisdictions. The reform was designed to alleviate overcrowding in state facilities, promote local accountability, and provide trial courts with new tools aimed at avoiding state prisons in felony cases in California, as well as crafting proportionate, evidence-based sentences.

Because I spent fourteen years prosecuting felony cases for the Los Angeles County District Attorney’s Office before founding Kraut Law Group Criminal & DUI Lawyers, I have seen Realignment from both sides of the aisle. What follows is a practitioner’s guide, grounded in statute, case law, and frontline experience, on how Penal Code § 1170(h) can help a defendant navigate the criminal process, serve significantly less time (and often serve it at home), without sacrificing accountability or public safety.

Before 2011, any straight-felony conviction that did not explicitly mandate local time resulted in a commitment to the California Department of Corrections and Rehabilitation (CDCR). Today, judges can keep many offenders in the county system, where rehabilitative programming, work-release, and electronic monitoring are far more accessible, and where sentences are usually credited at “half-time,” offering a practical path for avoiding state prison in felony cases in California while promoting rehabilitation and accountability.

Local custody under § 1170(h) offers several concrete advantages:

• No state parole tail. When a straight county-jail term is fully served, the defendant walks free, whereas a CDCR term is followed by either parole or Post-Release Community Supervision.
• Greater conduct credits. Most county inmates earn two days of credit for every two days served (the “half-time” formula of Penal Code § 4019), shrinking a 16-month baseline term to as little as eight actual months inside.
• Local re-entry resources. Los Angeles County funds a robust menu of treatment, education, and job-training slots for AB-109 clients. These placements are typically unavailable to CDCR inmates until they are released under parole.
• Probation to the family and counsel. Serving time is a short drive from the downtown courthouse, facilitating attorney visits, family support, and court-ordered programs.

Subdivision (h)(1)–(2) lists the felony statutes that now carry a county-jail triad instead of a state prison. If the charging statute’s penalty clause says the offense “shall be punishable under subdivision (h),” the sentencing court ordinarily must impose a local term unless disqualification rules apply.

Subdivision (h)(3) sets the exclusions. A defendant is not eligible for local commitment if:

• The current offense is serious (Pen. Code § 1192.7(c)) or violent (Pen. Code § 667.5(c));
• The offense requires lifetime sex-offender registration under § 290(c);
• The defendant has a prior “strike” under the Three-Strikes law;
• The offense includes an aggravated white-collar enhancement under § 186.11 involving losses over $100,000.

When a case clears the eligibility hurdles, the court chooses between two basic sentencing structures under (h)(5):

• Straight local term (h)(5)(A)
  • Entire term served in county jail
  • No supervision component after release
  • Comments: Full custody credits apply; no supervision after release. Ideal when programming is unnecessary or when credit time gives the defendant “actual time served.”
• Split sentence (h)(5)(B)
  • Portion (often 50%) served in jail
  • Remainder served on Mandatory Supervision (MS), overseen by the county probation department.
  • Comments: Conditions can mimic those of felony probation, including participation in treatment programs, employment requirements, GPS monitoring, and random search terms. Violations are heard in court but do not trigger CDCR parole revocation.

Courts may also suspend the jail term and place a defendant directly on MS or formal probation if the statute allows. This hybrid disposition can help avoid state-prison commitments in felony cases in California by providing clients with a probation-like framework while preserving the shorter MS violation sanctions of Realignment.

Below is a non-exhaustive snapshot of offenses commonly sentenced under § 1170(h) in the Los Angeles Superior Court. Because statutory triads occasionally change, verifying the current penalty section is essential:

• Pen. Code § 32: Accessory After the Fact
• Pen. Code § 69: Resisting an Executive Officer
• Pen. Code §§ 236–237: False Imprisonment (non-violent variant)
• Pen. Code § 261.5(c): Statutory Rape (21+ defendant, minor under 16)
• Pen. Code § 368: Elder Theft/Abuse (non-violent)
• Pen. Code § 487: Grand Theft (over $950)
• Pen. Code § 470: Forgery
• Vehicle Code § 23152: Felony DUI (three prior misdemeanors)

If the offense is a wobbler (chargeable as either a felony or a misdemeanor), persuading the District Attorney to file it as a misdemeanor or to reduce it at sentencing remains the fastest route to avoid any custody term altogether.

A defendant loses § 1170(h) eligibility if any of the following apply:

• Past or present conviction for a serious/violent felony (“strike”).
• Present offense imposes life-top triad (e.g., kidnapping, mayhem, carjacking).
• Registration duty under § 290(c) for any sex offense.
• An “aggravated white-collar crime” enhancement under § 186.11 or a loss exceeding $100,000 in a property crime.
• Enhancement making the new case a “super strike” (e.g., PC § 667.61 One-Strike sexual offenses).

In practice, prosecutors sometimes concede Realignment eligibility when the only disqualifier is a juvenile strike adjudication, because § 1170(h)(3) references adult prior strikes. However, the Three-Strikes law itself may still result in a CDCR sentence, so tactical motion work is crucial.

County jail conduct credits. For most eligible felonies, every 2 days of actual custody yields 2 days of good-conduct/work-time credit (the “day-for-day” or 50 percent formula). Certain violent or sex-offense credit limits (15 percent or zero) still apply if the conviction itself carries those restrictions.

Mandatory Supervision violations. The sentencing judge enforces MS. A violation can lead to a flash incarceration of up to 10 days or a resuspension of the remaining MS term. Because the court retains jurisdiction, defense counsel can request graduated sanctions, program tune-ups, or early termination when objectives are met.

• Charge selection and plea negotiations. Many crime categories (forgery, commercial burglary, certain frauds) contain both Realignment-eligible and ineligible subparts. Early dialogue with the filing deputy can often steer the complaint away from an ineligible subsection.
• Romero motions to strike priors. If the only bar to § 1170(h) is a prior strike, a well-supported Pen. Code § 1385/People v. Romero motion can restore eligibility and reframe the sentence to focus on local rehabilitation.
• Restitution and loss mitigation. For theft and fraud cases, reducing the loss to below $100,000 eliminates the aggravated white-collar enhancement that would otherwise result in CDCR time.
• Sentencing brief with local program plan. Judges are statistically more likely to grant a split sentence when counsel presents a concrete re-entry path (verified bed date in residential treatment, pre-approved employment, or an ankle-monitor vendor).
• Custody-credit audits. Accurate pre-sentence credit tallies can slash the recommended “custody half” of a split sentence, especially for clients who have accumulated significant presentence time.

• Immigration Consequences. For non-citizens, MS violations do not constitute “parole violations,” which can be classified as aggravated felonies under federal law.
• Professional Licensing. Some licensing boards treat county jail terms less harshly than CDCR prison terms when evaluating “substantial compliance” with rehabilitation conditions.
• Clean-Slate Eligibility. A county-jail sentence under § 1170(h) usually allows an expungement under Pen. Code § 1203.42 after completion, whereas many state-prison sentences remain ineligible.
• Reduced Financial Burden. CDCR restitution fine minimums increase from $300 (for felony probation) to $1,200 (for a state prison sentence). Local sentences often preserve the lower range, freeing resources for actual restitution to victims.

Michael E. Kraut’s background as a former Deputy District Attorney provides us with a clear understanding of how prosecutors and judges evaluate Realignment proposals. Kraut Law Group Criminal & DUI Lawyers maintains long-standing relationships with licensed treatment providers, AB 109 probation supervisors, and jail classification officers, enabling us to design split-sentence blueprints that address the court’s public safety concerns while keeping our clients near their families.

Examples include:

• Commercial burglary (Pen. Code § 459) with $42,000 loss. The defendant may receive a 16-month split sentence, consisting of eight months of actual custody and eight months of MS, followed by early MS termination at six months.
• Felony DUI with three priors. The defendant may receive a two-year mid-term sentence, reduced to 12 months of residential treatment, instead of jail time, with the option of state prison—accessoryafter the fact (Pen. Code § 32). The defendant may receive a wobbler reduced to a misdemeanor, with community labor only.

Every case is different, but the strategic principles remain constant: identify eligibility early, neutralize disqualifiers, and package a release plan the court can sign with confidence.

If you or a loved one is facing a felony in Los Angeles, Orange, Riverside, San Bernardino, or Ventura County, please call (323) 464-6453 or use our secure online contact form to schedule a free and confidential consultation. We answer 24/7 because police investigations do not follow business hours, and neither do we.