being charged with :
23153(b) driving with BAC .08% or more causing injury or death to another
23153(a) under the influence of alcohol...causing injury or death to another on highway...
191.5 (a) gross vehicular manslaughter while intoxicated
If sentenced for these, will I have to serve 85% or 50%. Will I know at my sentencing or when I arrive at jail and talk to counselor?I was under the impression that 191.5 (a) GVMI under California Penal Code Section 1192.8, gross vehicular manslaughter while intoxicated is a violent crime. So if charged with 191.5 (a) , a strike goes on record disqualifying from serving 50% time??
If you are working out a plea bargain and you have counsel these are matters you should address with your attorney, assuming, you have one already before striking a deal. These issues are always discussed before a plea and you need to understand what you are agreeing to. If you have gone to trial and lost then you should find out at sentencing, not when you surrender. If youd like a more thorough consult give a call any time.
You have a bunch of different legal concepts jumbled together and you should ask your attorney to straighten it out.
The 85% figure only applies to people sent to prison for violent felonies listed in Penal Code 667.5(c). Neither Vehicle Code 23153 nor Penal Code 191.5 is listed in 667.5(c), so the 15% limit on credits would not apply. However, if you were convicted of either charge PLUS a great bodily injury (GBI) enhancement, it would be considered a violent felony and you would have to serve 85% of any state prison time.
Without the GBI enhancement, you would be eligible for parole after serving 50% of the sentence, UNLESS you have a prior conviction for a felony listed in the Three Strikes law. Then your sentence would be doubled and you would have to serve 80% (unless it became a violent felony with a GBI enhancement and 85% would apply).
If you are granted probation and ordered to serve jail time as a condition of probation, you would serve 50% of the sentence UNLESS you have a strike conviction or are a registered sex offender. Then you would have to serve two-thirds of the jail time.
Again, your attorney knows all of the circumstances of your case and is in a better position to answer your questions than a stranger on the Internet.
Please understand that this is a general discussion of legal principles by a California lawyer and does not create an attorney/client relationship. It's impossible to give detailed, accurate advice based on a few sentences on a website (and you shouldn't provide too much specific information about your legal matter on a public forum like this site, anyway). You should always seek advice from an attorney licensed in your jurisdiction who can give you an informed opinion after reviewing all of the relevant information.
Mr. Marshall is correct. This is a serious crime that you are looking at and you need a good lawyer to assist you. If your current attorney is unable to answer a question like this you may want to look into getting another attorney to assist you.
Let's try this one more time.
The Legislature enacted Penal Code 1192.8 to state that 191.5(a) is a SERIOUS felony, in response to a court decision.
SERIOUS felonies are not necessarily VIOLENT felonies, but both are strikes under the Three Strikes law.
Under California's Three Strikes law, the sentence is increased if you are convicted of ANY new felony and the prosecution proves you have prior "strike" convictions.
Serious felonies are listed in Penal Code §1192.7(c) and violent felonies are listed in Penal Code §667.5(c). People sent to prison for a violent felony have to serve 85% whether they have a prior "strike" or not.
If you are convicted of ANY new felony and ONE prior "strike" conviction is charged and proven:
1) You are not eligible for probation.
2) Your sentence will be doubled.
3) If your new offense is a non-violent felony, you will have to serve 80% of your sentence, instead of half, before being paroled (unless the offense is a violent felony and the 85% credit rule applies).
If you are convicted of ANY new felony with TWO prior strike convictions, the sentence is 25 years to life.
Please understand that this is a general discussion of legal principles by a California lawyer and does not create an attorney/client relationship. It's impossible to give detailed, accurate advice based on a few sentences on a website (and you shouldn't provide too much specific information about your legal matter on a public forum like this, anyway). You should always seek advice from an attorney licensed in your jurisdiction who can give you an informed opinion after reviewing all of the relevant information.
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