California Consecutive Misdemeanor Sentencing- Is it Harsher than Felony Sentencing?

Jun 13, 2014


Recently, a situation arose regarding a client who had multiple misdemeanor and felony cases.  The court was inclined to grant probation, but wanted a lengthy prison term hanging over his head just in case he re-offended in the future.  As a Fresno criminal defense laweyr, where there are multiple cases, you always want to try to run the sentencing concurrent- where the defendant gets no further time for the additional cases, they just run side by side as far as time goes.  However, the man wearing the black robe would have none of that.  He wanted it to run consecutive.  The problem was that we had multiple misdemeanor cases, not just the felony case. So what now?  What do you advise the client regarding his custody exposure when you have multiple misdemeanor cases in California?  The answer is that you have to advise the client that the misdemeanor sentences can run fully consecutive. (People v. Fowler (1980) 109 Cal.App.3d 557; Heandigas v. Superior Court (1983) 120 Cal.App.3d 782.)   

Example 1: if the sentence is on a resisting arrest (Penal Code section 148) where the sentence is a maximum of one year and they are pleading guilty to a first time DUI (Vehicle Code section 23152) where the sentence is a maximum of six months.  The possible sentence they could receive is a year and a half (18 months).

Example 2: Defendant is pleading guilty to a 2nd degree burglarly (Penal Code section 459/460(b) and the exposure is a maximum of 3 years and he is also pleading guility to a misdemeanor battery on his wife (Penal Code section 243(e)(1), where the exposure is one year in jail.  The possible sentence in this scenario is 4 years- 3 years for the burglary and a possible full consecutive year on the misdemeanor battery. 

It is important to note that this precedent has been followed in California’s Fifth District Court of Appeal as well, see People v. Pearson 120 Cal.App.3d 782, 790.  The Fifth District Court of Appeal overseas nine counties in the Central California Area, including, Fresno.  So this rule definitely impacts Fresno Criminal Attorneys handling any type of misdemeanor sentencing involving multiple offenses. 

While not many judges would ever sentence someone to a year and a half on such a charge, they have the power to do so.  Where this comes into play is when you have a defendant who has habitually broken the law or the judge really wants to set an example, for instance, due to particularly egregious behavior.  However, it is critical that when the client pleads on multiple cases, to make sure they know what they are facing.   Interestingly enough, this anomaly applies only to adult cases.  The California Supreme Court stated in In re Eric J. (1979) 25 Cal.3d 522 that consecutive terms for juveniles are reduced pursuant to Penal Code section 1170.1 (which now provides for a reduction to 1/3rd of the term on consecutive offenses).  (see also In re Claude J. (1990) 217 Cal.App.3d 760.)

So the short answer is that misdemeanor sentences run consecutively can be worse than a felony sentence, so watch out the next time you advise a client on consecutive misdemeanor sentences that they could be facing full term sentences with no reduction if they violate their probation. 

Category: Criminal Defense

Michael Mitchell


Michael Mitchell is a Fresno attorney who practices in the areas of DUI, personal injury & criminal law. Visit his Google+ profile.