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In Orange County, does time served when you are arrested or before sentenced still count as half time? How likely is house ar?

Irvine, CA |

Looking at likely 1-2 years. No prior criminal history, no violence, white collar with psych problems and extenuating circumstances. How likely is house arrest or pay to stay considering that? Does time served in jail when arrested or before sentenced count as half time?

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Attorney answers 3


On non-violent offenses, time is effectively double the actual time, including pre-arraignment.
OC is having problems with crowding, so you may be able to get electronic monitoring (house arrest). In OC, you need to get the court to OK it because the Sheriff isn't likely to do it on their own.

The opinions rendered herein are based on general principles of law. Laws vary from jurisdiction to jurisdiction and there are often numerous factors which can render advice or an opinion inapplicable. You should NOT make any decisions about the handling of a legal matter without first directly consulting with an attorney about the particulars of your case.


The time credits are the same before and after the actual sentencing. The defendant gets double credits for all the time they die d in custody. This is assuming the crime took place after October if 2011. If it took place before then, the answer is more complicated.


What crime are you charged with? You probably will get two for one credit, but not always. Certain offenses (i.e. strike offenses) do not earn such credit, even for pre-sentence confinement. Penal Code section 4019 and AB109 dictate this.

If one is sentenced to jail, there are various factors that determine how long one will stay in jail as a percentage of one’s actual sentence. The biggest factor is the inmate count, or how filled up is the jail. The higher the inmate count, the more likely the jail will release one early. Other factors include one’s medical condition, if one has prior convictions, if the crime was violent, if the crime involved the use of a weapon and one’s gender.

If one is sentenced to prison, the discussion is somewhat easier once the sentence is determined. If the conviction is for a non-violent felony offense and the client has no prior felony convictions, the client will be eligible for release once he or she has served fifty percent of the total sentence, provided good behavior is maintained (Penal Code § 2933(b)). If the client has served prior prison time, the client will have to serve at least eighty percent of the total sentence (Penal Code § 667(b)(5)). If the crime is a serious or violent felony, the individual must serve eighty-five percent of the sentence (Penal Code § 2933.1). Lastly, with certain crimes such as murder and kidnapping, there is no prison term reduction. The client must serve the entire sentence (Penal Code § 2933.5).

When a client is sentenced to consecutive terms, the client must serve the longest sentence in its entirety, plus one-third of the mid-term for each remaining sentence (Penal Code § 1170.1(a)). For example, if one is sentenced to three consecutive sentences for the same offense and the crime has a minimum term of three years, a mid-term of six years and a maximum term of ten years, the individual would serve the full ten year sentence (the longest sentence), plus four more years, or one-third of six years, twice. The total sentence would be fourteen years.

The tricky part of any determination of how much time one will actually serve is predicting the sentence. The Penal Code may set forth a minimum, mid-term and maximum sentence. The sentence will consequently be one of the three amounts, depending upon factors in aggravation and mitigation. Factors in aggravation may be, in a theft, the position of trust a victim had with the defendant, the defendant’s refusal to cooperate with police and the amount stolen. Factors in mitigation may be the defendant’s youth, his lack of a prior record and the entry into a plea bargain early in the case.

Sentencing enhancements come next. These factors add time to the total sentence. Some of the more common enhancements include a prior conviction for a strike offense, which can double the sentence. Also, if a firearm was used in the commission of the crime, the sentence may be increased by ten years (Penal Code § 186.22 and § 460(a)). Also, if the crime was committed as a gang member for the benefit of the gang, ten years can be added to the sentence (Penal Code § 12202.54).

House arrest and "pay to stay" are discretionary and up to the judge, but most judges are amenable to this, but for a sentence of one to two years, it will be very expensive for you. Moreover, you will serve the entire time, whereas if you went to County Jail, you may very well be released early.