In yet another positive development in the State of California, the maximum potential sentence to imprisonment for misdemeanors is now 364 days. It accomplishes this by adding section 18.5 to the Penal Code, which provides:
Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days.
Governor Brown signed the bill, SB 1310, on July 21, 2014. Since the text of the bill does not specify otherwise, criminal defense attorneys should assume that the change does not go into effect until January 1, 2015. Until then, attorneys should pursue other strategies to protect their clients.
There are three major benefits for non-citizens convicted of a misdemeanor that carries a 364 day maximum potential sentence. First, the conviction could not meet the federal definition of an aggravated felony based on a 365 day sentence to imprisonment (be careful, though, because some aggravated felonies do not require any sentence to imprisonment).
Second, a California misdemeanor conviction would no longer make an immigrant deportable for conviction of a single crime involving moral turpitude (CIMT) committed within 5 years of admission, since that ground of deportability only applies if the conviction carries a maximum potential sentence to imprisonment of one year or more.
Third, a single misdemeanor CIMT conviction that results in a sentence to imprisonment of 6 months or less would no longer automatically disqualify a non-permanent resident from cancellation of removal. Cancellation of removal is discretionary relief from removal based on continuous physical presence of 10 or more years and exceptional and extremely unusual hardship to a citizen or permanent resident family member.