Suppose you are convicted for multiple offenses during the same trial in California. In that case, whether for separate crimes or multiple counts of the same violation, the judge must decide during your sentencing whether to impose the sentences consecutively (served one after the other) or concurrently (served simultaneously).

In other words, a consecutive sentence does not start running until the prior sentence ends. Thus, since consecutive sentences follow each other, they increase the overall length of your time in jail.

Consecutive jail sentences are served one after the other and concurrent is served simultaneously.

Consecutive sentences are often called “stacked sentences,” as one term is stacked on top of another. A judge might impose back-to-back life sentences, two or more life sentences.

On the other hand, concurrent sentences run simultaneously and allow you to be released after the longest term ends.

It's in your best interest to get a concurrent sentence rather than a consecutive one. Judges ultimately determine which sentences to impose, but getting a concurrent punishment as part of a plea bargain might be possible.

Both sentences are used when you are found guilty on multiple criminal charges and a judge imposes two or more terms of imprisonment. However, they can lead to a different total amount of time you will spend in prison.

This decision can significantly impact your time incarcerated, so a good California criminal defense attorney will likely negotiate and try to make compelling arguments for concurrent sentencing. Let's discuss the difference between consecutive and concurrent sentencing and the factors considered when making this decision.

What Are Consecutive Sentences?

If a defendant is sentenced consecutively, they must serve time for each separate offense one after the other.  This is also called "cumulative" or "stacked" sentences.

For instance, if you are sentenced to five years for one crime and three years for another, you would serve a total of eight years if the judge imposes consecutive sentencing. Your second begins immediately following your first.

What Are Concurrent Sentences?

With concurrent sentences, multiple terms of confinement are served concurrently or at the same time, and you are released from prison after the longest term ends.

In other words, in concurrent sentencing, the sentences for multiple offenses overlap, meaning you only serve the total time of the longest sentence imposed.

Using the previous example, you would serve the five-year and the three-year sentences simultaneously, resulting in a total of five years served.

What is the Determination Process?

The decision as to whether sentences are served consecutively or concurrently primarily lies within the discretion of the presiding judge, who could order you to be confined in a county jail or state prison.

After your trial ends, the judge will hold a sentencing hearing, a criminal proceeding where the judge decides how to punish your misdemeanor or felony convictions. This hearing will occur after the following:

• You have pled guilty or no contest; or
• You were found guilty at a jury trial or bench trial.

The defense lawyer and prosecution can present arguments about how long sentencing should be and whether sentences should be concurrent or consecutive.  Several factors, including the following, influence the decision by the judge:

• Nature and severity of the crimes committed;
• The defendant's past criminal history;
• The need to protect the public;
• The need to provide victim restitution;
• The sentencing guidelines;
• Avoid sentence disparities among defendants;
• Any aggravating and mitigating circumstances;
• The overall objectives of the punishment.

For federal criminal cases, judges typically order concurrent sentences unless the offense statute requires consecutive sentences or the judge determines that consecutive sentences are more appropriate.

What Are Aggravating Factors?

Aggravating factors can increase the severity or culpability of a criminal act. The presence of one or more aggravating factors can cause the judge to be more inclined to impose consecutive sentencing. Some common aggravating factors include:

• Multiple Victims: If the crime involved multiple victims, this could be considered an aggravating factor as it demonstrates a larger scale of harm.
  Mastermind: If the crime involved multiple defendants and you are identified as the one who planned it, the judge may weigh this against you.
• Violation of Parole or Probation: If you were already serving parole or probation at the time of the offense, consecutive sentencing is more likely.
• Gang Affiliation: Any involvement with a criminal gang at the time of the offense can be seen as an aggravating factor as it indicates potential ongoing illegal activity.
• Repeat Offender: If you have a history of similar offenses or recidivism, this could be seen as an aggravating factor as it suggests a pattern of criminal behavior.
• Violence or Cruelty: If the crime was particularly violent or cruel, this could be viewed as an aggravating factor.
• Vulnerable Victims: Crimes committed against vulnerable individuals, such as children, the elderly, or disabled persons, can be considered an aggravating factor. Committing the crime in the presence of a minor—even if the minor was not a victim—is also aggravating.
• Use of a Deadly Weapon: If a deadly weapon was used to commit the crime, either to harm or to threaten, the judge will likely impose more severe sentencing.

What Are Mitigating Factors?

Mitigating factors are circumstances that might decrease the severity or culpability of a criminal act, often causing the judge to lean toward concurrent sentencing. Some examples include:

• No Priors: If this is your first criminal offense, the judge is more likely to impose leniency.
• Remorse: Showing genuine remorse for the crime you committed can be beneficial to your case.
• Cooperation: If you have fully cooperated with law enforcement and the court.
• Minor Role in the Offense: If you played a minor or passive role in the commission of the crime, this could be considered.
• Duress or Coercion: It could be seen as a mitigating circumstance if you committed the crime under duress or coercion.
• Mental Health Issues: If you were suffering from a mental health issue at the time of the offense, it might be considered a mitigating factor.
• Substance Abuse Issues: Similar to mental health issues, substance abuse problems may also be considered mitigating, particularly if you seek treatment.
• Positive Social Contributions: Evidence of positive contributions to society, such as volunteer work, can be beneficial.
• Age or Health Concerns: If you are elderly or suffering from serious health issues, this could be considered a mitigating factor.
• Rehabilitation Efforts: Any efforts you have made towards rehabilitation since the crime was committed can be beneficial.

California Penal Code 2933 PC allows for “good time credit,” which will always depend on your convicted crime.  Good time credit is awarded if you behave well while confined. This means it could decrease your total time in jail, but after getting released, you would still be on parole or supervised probation. Contact us for a case review. Eisner Gorin LLP is based in Los Angeles, CA.

Related Content:

• What is a "No Contest" Plea Under California Law?
• Sentencing Hearings in California Criminal Courts
• Alternative Sentencing in California
• Consecutive Sentence
• California Rules of Court Rule 4.425
• Pros and Cons of Waiving a Criminal Jury Trial