California's New Sentencing Guidelines- "Realignment"

California's New Sentencing Guidelines- "Realignment"

Posted By Mark Raymond McDonald || 19-Jan-2012

REALIGNMENT

December 3, 2011

(Replaces previous editions)

by

Garrick Byers, Statute Decoder *

What's New in This Edition?

  • Legislative Findings and Declarations Highlighted
  • New Rules of Court 4.450 and 4.451 For Petitions to Revoke PostRelease Community Supervision.
  • Additional Discussion of Split Sentences
  • The Lists of County Jail Felonies and State Prison Felonies Updated
  • Certificate of Rehabilitations Discussed
  • Links to other Realignment resources

This paper is an aid to understanding Realignment, but is not legal advice or a substitute for the reader's own professional judgment and legal research. Laypeople should seek advice from a lawyer.

Copyright © 2011 Garrick Byers

Permission is granted to reproduce these materials, provided the copyright is properly noted, the materials are not altered, and, because Realignment law is rapidly changing, the date of this edition, October 17, 2011 is properly noted.


Table of Contents

O. Definitions.............................................................................................................. 9

I. Summary............................................................................................................... 13

A. The Main Features of Realignment................................................................... 13

1. Realignment fundamentally changed California's felony sentencing and postrelease law; Legislative Findings and Declarations............................................................ 13

2. The Legislative Findings and Declarations Supporting Realignment; The Main Realignment Bills. 14

3. Executed Sentences for Hundreds of Lower-Level Felonies, Will be Served in County Jail. Split Sentences......................................................................................................... 16

4. Sentences for Serious, Violent, and PC-290-Registerable Offenses, or Where Defendant Has Those Priors, and About 80 Other Felonies, Will Still Be Served in Prison... 17

5. County Jail Conduct Credits Will Be 50% For Almost All............................ 17

6. Counties Can Authorize Involuntary Home Detention, Counting as Jail Time, Including Toward Mandatory Minimums..................................................................................... 18

7. Counties Can Authorize Electronic Monitoring In Lieu of Bail..................... 18

8. Postrelease Community Supervision Replaces Parole in Many Cases; Sanctions Include Flash Incarceration; Revocations by Court Revocation Hearing Officers............... 18

9. Parole Limited to Certain Offenders. Changes on July 1, 2013: Flash Incarceration; Court Revocation Hearing Officers.......................................................................... 19

10. The Parole Reentry Accountability Program................................................... 20

B. The Operative Date for Most of Realignment was October 1, 2011; Exceptions. 20

C. What Event-Date Counts? Date of Incident; Date of Conviction; Date of Sentence; Date of Release? 20

1. For County Jail Felonies: Sentenced On or After October 1.......................... 20

2. For 4–for–2 County Jail Credits: Crimes Committed on or After October 1, 2011. 21

3. For Eligible Prisoners: Postrelease Community Supervision Instead of Parole: Released On or After October 1, 2011..................................................................................... 21

4. Revocations of Postrelease Community Supervision Heard By the Court's Revocation Hearing Officer: On and after October 1..................................................................... 21

5. Flash Incarceration, and Other Intermediate Sanctions, for Parolees; Petitions to Revoke to Be Heard the Court's Revocation Hearing Officer: On and After July 1, 2013.. 21

6. For the County Board of Supervisors to Adopt the Community Corrections Partnership's local plan for implementation.................................................................................. 21

D. Implementing Realignment............................................................................... 22

E. How to Read the Amended Statutes Analyzed in this Paper............................... 23

II. The Realigned Categories of State Prison Felonies and County Jail Felonies. 23

A. The Realigned Definition of, and Punishment For, a Felony: Penal Code §§ 17 and 18; Related Provisions; Triads and Wobblers............................................................................................... 23

1. Penal Code sections 17 and 18....................................................................... 23

2. Related Provisions........................................................................................... 26

3. Triads, and Felony – Misdemeanor Wobblers................................................. 28

B. The Statutory Word–Formulas For a County Jail Felony; Caution................. 28

C. Analysis of new Subdivision (h) of Penal Code section 1170............................. 29

0. The text of Pen. Code § 1170, subdivision (h), in full.................................... 29

1. Paragraph (h)(1): The sentence –length of County Jail Felonies when no other sentence-length is stated or provided............................................................................................ 31

2. Paragraph (h)(2): The general rule for the length of sentence for Subd. (h) felonies, unless otherwise stated or provided............................................................................ 32

3. Paragraph (h)(3): The Categorical Exceptions Requiring a Person To Serve a County Jail Felony Sentence in State Prison.................................................................................. 32

4. Paragraph (h)(4) Other Dispositions, Such as Diversion, DE.J., and Probation Remain Available. 36

5. Paragraph (h)(5): Full Terms and Split Sentences.......................................... 37

i. A normal full term under (h)(5)(A)................................................................. 37

ii. Split Sentences under (h)(5)(B)...................................................................... 37

iii. Criteria For Imposing a Split Sentence; Is a Statement of Reasons Required?... 38

iv. Are Split Sentences Probation? Is it "Material"?............................................. 39

v. Does the court retain jurisdiction over the defendant during the split sentence? 43

vi. Can the Court Impose, e.g., DUI and DV Probation-Conditions When Pronouncing a Split Sentence?..................................................................................................................... 44

vii. Can the Court Grant Pen. Code § 1203.4 Relief to a Person Given a Split Sentence? 45

viii. Can the Court Give a Split Sentence on a Probation-Ineligible County Jail Felony............. 45

ix. Can the Defendant Refuse a Split Sentence?.................................................. 46

x. When the Supervision Begins and Ends; Can Supervision Be Transferred to a Different County, or to a Different State?.......................................................................................... 47

xi. On Violation, How Much of the Suspended Portion Can be Imposed?............. 48

6. Paragraph (h)(6): The County Jail Felony Sentence Rules Apply To Sentences Given On or After October 1, 2011............................................................................................... 49

D. The Subdivision (h) Felonies (almost all are County Jail Felonies), are listed in Appendix, and almost all of the Non-non-non State Prison Felonies (the Excluded Felonies), are listed in Appendix 2. 50

E. Consecutive and Concurrent Sentences............................................................ 52

1 Two or more County Jail Felonies................................................................... 52

2 A County Jail Felony and a State Prison Felony............................................ 53

F. Enhancements and Additional Terms, Including One Year Prison – and County Jail Felony – Priors, and the On-Release Enhancement, Pen. Code § 12022.1................................... 53

G. Misdemeanor Reductions Under Pen. Code § 17, subd. (b)................................ 57

H. The Court Cannot Dismiss Allegations Requiring a Person To Serve a County Jail Felony in State Prison; But Romero Discretion To Dismiss Prior Strikes Otherwise Remains Intact............ 58

I. Illustrative Felonies That Are Not Serious, Not Violent, and Not Registerable, But That Are Still State Prison Felonies....................................................................................................... 59

J. Illustrative Felonies With a Maximum For Longer Than Four Years That Are County Jail Felonies. 59

K. Juvenile Adjudications...................................................................................... 60

1. Adjudications That Do Not Qualify as "Strikes".............................................. 60

2. Prior Juvenile Adjudications That Do Qualify as "Strikes."............................. 61

L. Attempted Crimes: Conforming Statutory Changes......................................... 62

M. The Statutes of Limitations: Conforming Statutory Changes.......................... 63

N. The Pregnant and Parenting Woman's Alternative Sentencing Program ("Family Foundations Program"): Conforming Statutory Changes to Eligibility Requirements......... 64

O. Prisoner's Rights: Conforming Statutory Changes.......................................... 64

P. The Commitment Documents: Conforming Statutory Changes........................ 65

Q. What of Sentence Recalls and Compassionate Release?.................................. 65

R. The Sentencing Rules: California Rules of Court 4.401 to 4.480..................... 66

1. Do the Sentencing Rules Apply to County Jail Felonies?................................. 66

2. Mandatory or Persuasive Application of Selected Sentencing Rules of Court............... 70

S. Appellate Review of County Jail Felony Sentences............................................ 72

1. Appeal by the Defendant................................................................................ 72

2. Appeal or Review by the Prosecution............................................................. 73

U. Certificates of Rehabilitation for County Jail Felons....................................... 73

V. The Right to Vote After Realignment............................................................... 73

III. County Jail Conduct Credits, and Jail Alternatives............................... 77

A. County Jail Sentence Reduction Credit Under Penal Code § 4019 Increased to 50% For Almost All Inmates. Conservation Camp..................................................................................................... 78

B. Counties Can Expand the Existing Voluntary, and Involuntary, Home Detention Programs. 80

C. Counties Can Authorize a Program of Electronic Monitoring in Lieu of Bail.. 82

D Types of Quasi–Custody That Can Earn Custody Credits Expanded.................. 83

E. Loss of County Jail Credits............................................................................... 84

IV. Postrelease Community Supervision, Instead of Parole, For Most Prisoners 85

A. Which Prisoners Will Be Realigned to Postrelease Community Supervision: New Pen. Code §3000.08. 85

B. The Postrelease Community Supervision Act of 2011....................................... 86

1. Findings, Declarations, Definitions, and Permissible Sanctions..................... 86

2. The Supervising Local Agency; County Postrelease Strategy; CDCR's Notice Requirements. 88

3. The Postrelease Community Supervision Agreement..................................... 88

4. The PRCS Programs, Including Sanctions...................................................... 92

5. How Long Does Postrelease Community Supervision Last?.......................... 93

6. Transfer to Other Counties.............................................................................. 94

7. Revocation Petitions and Hearings; Right To Counsel................................... 95

C. Place of Release of People on the New Postrelease Community Supervision is the Same As It Was For Parolees............................................................................................................... 100

D. The Reentry Court.......................................................................................... 101

V. State Parole: Soon To Be Only For the Higher Level Offenders........ 102

A. People Already on Parole as Of October 1, 2011: New Pen. Code § 3000.09. Non-Revocable Parole. 102

B Release On and After Oct. 1, 2011: Who Will Be On Parole? New Pen. Code § 3000.08. 104

C. Return to Prison Prohibited For Most Parolees............................................ 105

D. Changes in Parole Supervision on July 1, 2013; Flash Incarceration; the Court's Revocation Hearing Officer; Right to Counsel............................................................................... 106

E. The Basic Parole Periods, and the Maximums Including Violation Times, Are Largely Unchanged; Possible Early Discharge...................................................................................... 108

1. The Basic Parole Periods............................................................................... 108

2. The Maximums, Including Violation Time.................................................... 109

3. Possible Early Discharge Under Pen. Code § 3001....................................... 109

F. Lifetime Parole For Murderers and Certain Sex Offenders; Possible Discharge From Parole. 110

G. What Will Happen to the "Valdivia" Injunction Giving Appointed Counsel to Parolees Facing Violations?.................................................................................................... 110

VI. Implementing Realignment.......................................................................... 111

A. Realignment Became Operative on October 1, 2011; "Operative Date" and "Effective Date" Explained. 111

1. Most Realignment Features Became Operative October 1, 2011................. 111

2. The Difference Between "Operative Date" and "Effective Date"; Contingency; Other Reasons 111

B. The Complex Funding Mechanisms for Realignment....................................... 112

C. The Local Community Corrections Partnership Must Recommend to the Board of Supervisors A Local Implementation Plan............................................................................ 114

D. Establishing Adequate County Jail Facilities................................................... 117

E. Courts: (1) Amending Change of Plea Forms. (2) The Court's New Revocation Hearing Officers for PRCS and Parole.................................................................................................. 118

1. Amending Change of Plea Forms................................................................. 118

2. The Court's New Revocation Hearing Officers............................................ 118

F. The District Attorney's and Public Defender's Implementation....................... 119

Appendices................................................................................................................... 120

Appendix 1: Table of "Subdivision (h)" Sentencing Statutes........................................ 120

Appendix 2: Selected Non-Non-Nons That Are Still State Prison Felonies (the "Excluded Felonies"). 133

Appendix 3 Realignment Resources........................................................................... 137

O. Definitions

AB 109. Realignment is often also called "AB 109." Assembly Bill 109 (Stats. 2011, Ch. 5) was the first, and major, realignment bill, enacted April 4, 2011. It was followed by AB 117 (June 30, 2011), AB 118 (June 30, 2011), AB 116 (July 27, 2011), and ABX1 17 [passed Legis. Sept. 8, 2011, awaiting the Gov.'s signature].

Blended Sentence See "Split Sentence."

CDCR The California Department of Corrections.

Community Corrections Partnership Established by Pen. Code § 1230, chaired by the county Chief Probation Officer, and consisting of, the Presiding Judge, the district attorney, the public defender, some 8 additional local officials, and 2 community members. The CCP implements an enhanced probation program. This is sometimes called the SB 678 program, after the Senate Bill that enacted it.

County Jail Ineligible Also called "State Prison Eligible." A defendant who must serve an executed felony sentence for a County Jail Felony in the state prison because of having a current or prior serious or violent felony, being PC-290-registerable, or whose crime is PC-186.11-enhanced.

County Jail FelonyA felony whose executed sentence is more than one year in county jail pursuant to Pen. Code § 1170, subd. (h)(1) or (h)(2), and not excepted by Subd. (h)(3).

County Correctional Administrator; Correctional AdministratorThe sheriff, probation officer, or director of the county department of corrections. Pen. Code §§ 1203.016, subd. (h); and 1203.018, subd. (k)(1).

County Department of Corrections; County Correctional Department This can be established by the county board of supervisors, to have jurisdiction county functions, personnel, and facilities relating to institutional punishment, care, treatment, and rehabilitation of prisoners, including county jails. Gov. Code § 23013.

Director of the County Correctional Department The officer designated by the county board of supervisors to direct to County Correctional Department.

Effective Date "An act is a law on its effective date … in the sense that it cannot be changed except by legislative process.…" People v. Palomar (1985) 171 Cal.App.3d 131, 134.

Executive Committee of the Community Corrections Partnership. Established by Realignment, Pen. Code § 1230.1, composed of specified members of the Community Corrections Partnership, to propose to the county board of supervisors, a plan to implement realignment.

Excluded Felony A felony that is a non-non-non, but that nonetheless is not a County Jail Felony. See State Prison Felony

Flash Incarceration A period of jail due to a violation of postrelease supervision, or of parole supervision. The length can range between one and ten consecutive days. Pen. Code §§ 3454, subd. (c) (postrelease), and the version of 3000.08 that is operative July 1, 2013, at its Subd. (e); see also Pen. Code §§ 3453, subd. (q) and 3450, subd. (a)(8)(A).

N3 An abbreviation for non-non-non.

Non-non-non The informal name given to a felony that is not serious, not violent, not PC-290 Registerable, and not enhanced under Pen. Code § 186.11. (That is four "nons," but since § 186.11 is rarely used, and the other three show up in many other contexts.) This name is also give to a person who does not have any serious, violent, or PC-290- registerable offenses.

Operative Date` "… [T]he rights of individuals under [an Act's] provisions are not substantially affected until the provision operates as a law." People v. Palomar (1985) 171 Cal.App.3d 131, 134.

Parole Reentry Accountability Program Established by Pen. Code § 3015. The Reentry Court Program of Subd. (d) of § 3015 is expanded by Realignment to include those on postrelease community supervision.

PC-186.11-enhanced Pen. Code § 186.11, the "aggravated white collar crime enhancement", enhances certain great takings of $50,000 or more, by one-to-five years in State Prison. Under Pen. Code section 1170, subd. (h)(3), a defendant convicted of a felony enhanced by Pen. Code § 186.11, is state prison eligible, and county jail ineligible.

PC-290-registerable; PC-290-Registrant A sex offense requiring registration under Chap. 5.5 (commencing with § 290) of Tit. 9 or Pt. I of the Penal Code. Under Pen. Code section 1170, subd. (h) (3), a person who is required to register as a sex offender under Pen. Code §§ 290 et seq. is county jail ineligible.

Postrelease Community Supervision; Postrelease Supervision; PRCS. All qualified persons (including those with a paper commitment) released from prison after Oct. 1, 2011, are subject to community supervision provided by a designated county agency under the Postrelease Community Supervision Act, Tit. 2.05 (commencing with § 3450) of Pt. 3 of the Penal Code. All counties have, reportedly, designated the Probation Department to provide this supervision.

Realignment The many changes to California's criminal punishment laws made by the "2011 Realignment Legislation addressing public safety" enacted AB 109, and amended by AB 116, 117, 118, and ABX 17. The main features are (1) the creation of County Jail Felonies, including possible split sentences, (2) increased sentence reduction credits from almost all county jail inmates, and (3) most persons released from prison will not be on parole but will be on postrelease community supervision, pursuant to a local realignment plan.

Revocation Hearing Officer Court-appointed persons (or, judges or commissioners), to conduct parole revocation hearings pursuant to Pen. Code §§ 3000.08 and 3000.09 (beginning July 13, 2013), and postrelease supervision hearings pursuant to Pen. Code § 3455 (beginning October 1, 2011). Established by new Gov. Code § 71622.5.

Reentry Court Program Established by the Parole Reentry Accountability Program of Pen. Code § 3015, subd. (d). Similar to a drug court for parolees, this has been expanded by Realignment to include those on postrelease community supervision.

Split SentenceA County Jail Felony sentence that includes a period of mandatory supervision by the probation officer, under Pen. Code § 1170, subd. (h)(5). Also called a "blended sentence."

State Prison Eligible Also called County Jail Ineligible. A defendant who is not a non-non-non, and who, therefore, must serve an executed sentence, even for a County Jail Felony, in the state prison.

State Prison Felony A felony whose executed sentence must be served in State Prison. There are two types: the first type is one that is serious, violent, PC-290-registerable, or PC 186.11-enhanced. The second type is one that is a non-non-non but whose sentencing statute nonetheless specifies that its sentence is to be served in state prison.

Subdivision (h) Felony A felony whose sentencing statue says it is punishable pursuant to Subdivision (h) of Penal Code section 1170.

I. Summary

A. The Main Features of Realignment.

1.Realignment fundamentally changed California's felony sentencing and postrelease law; Legislative Findings and Declarations.

Realignment's biggest change was creating 'County Jail Felonies': felony sentences served in county jail through sentences of more than a year.

Realignment became operative October 1, 2011, but implementation began the summer before, and the first County Jail Felony convictions occurred in September.

The same triads as before are used, e.g., 16 months or two or three years. Thus, a County Jail Felony sentence can be longer than a year, often much longer.

The court can execute the entire selected County Jail Felony term, or can execute only part of the selected term, and for the concluding portion place the person under the supervision of the county probation officer.

Realignment's second biggest change is that most people released from prison will be released not on parole, but on county-supervised Postrelease Community Supervision.

Most of those still released on parole, who violate parole, cannot be returned to prison. Additional parole changes take place on July 1, 2013.

County jail credits for most county jail inmates whose crime was committed on or after October 1, 2011,will be 4 days deemed served for every two actual days.

County supervisors can authorize a program of electronic monitoring in lieu of bail.

There are many other changes as well.

2.The Legislative Findings and Declarations Supporting Realignment; The Main Realignment Bills.

The legislative findings and declarations supporting Realignment are stated in new Pen. Code § 17.5:

(a) (1) The Legislature reaffirms its commitment to reducing recidivism ….

(2) Despite the dramatic increase in corrections spending over the past two decades … reincarceration rates … have worsened….

(3) … [B]uilding … more prisons … [is] not sustainable, and will not result in improved public safety.

(4) California must reinvest its criminal justice resources to support community-based corrections programs ….

(5) Realigning low-level felony offenders who [are non-non-nons], to locally run community-based corrections programs, … through community-based punishment, evidence-based practices, improved supervision strategies, and enhanced secured capacity, will improve public safety … and facilitate [offenders'] reintegration back into society.

(6) …. Each county's Local Community Corrections Partnership as [defined] should play a critical role in developing programs and ensuring appropriate outcomes for-level offenders.…

(b) The provisions of this act are not intended to alleviate state prison overcrowding.

It is widely claimed that realignment's purpose is to reduce prison overcrowding, but Pen. Code § 17.5, subdivision (b), quoted immediately above, contradicts that.

These findings and declarations, plus the option of Split Sentences under Pen Code § 1170, subd. (h)(5)(B), show that the advent of County Jail Felonies is not just a change in location where the sentence is served. County Jails are not transformed into little State Prisons; rather the entire method of handling low-level felony offenders is being changed.

These findings and declarations (except Subd. (b)) are repeated nearly exactly at the first Section of the new Postrelease Community Supervision Act, Pen. Code § 3450, subd. (b)(1) to (b)(7). Postrelease Community Supervision is for what we might call mid-level felony offenders, that is, those not qualified for a County Jail Felony sentence, but not high-level enough to warrant state parole supervision. This shows, likewise, that Postrelease Community Supervision is not just "local parole" but is an entire different method of providing postrelease supervision for those felony offenders at the mid-level.

Shortly after AB 109, passed in April 2011, new urgency was given to California's need to relieve prison overcrowding, by Brown v. Plata (May 23, 2011) __ U.S. __, 131 S.Ct. 1910, 179 L.Ed.2d 969.

To relieve unconstitutional conditions of inadequate medical and mental health care, caused primarily by overcrowding, and, the U.S. Supreme Court ordered California to reduce its prison population from "nearly double the number that California's prisons were designed to hold, [down to] 137.5% of design capacity.¼ [which could mean that a] reduction of 37,000 persons could be required."

The main legislative enactments of Realignment, to date, are in:

[1] Assembly Bill (AB) 109 (Stats. 2011, Ch. 15, Apr. 4, 2011).

[2] Assembly Bill (AB) 117 (Stats. 2011, Ch. 39, June 30, 2011).

[3] Assembly Bill (AB) 118 (Stats. 2011, Ch. 40, Jun. 30, 2011),

[4] Assembly Bill (AB) 116 (Stats. 2011, Ch. 136, July 27, 2011)

[5] Assembly Bill, First Extra Session (ABX1) 17(Stats. 2011 – 2012 First Extraordinary Session, Ch. 12, Sept. 21, 2011)

Those five bills are massive, totaling about 1,000 pages total. Most of those pages are sentencing changes to hundreds of statutes. But, even discounting those pages, there are still scores of pages with other substantive content.

There are also a small number of related bills, one of the most important being the budgetary bill ABX1 16 (Stats. 2011 – 2012 First Extraordinary Session, Ch. 13, Sept. 21, 2011).

Other related bills have included AB 100 (Stats. 2011, Ch. 5), primarily concerning mental health; SB 89 (Stats. 2011, Ch. 35), primarily concerning vehicle license and registration fees; SB 92 (Stats. 2011, Ch. 36), primarily concerning criminal justice boards, state and community corrections; and AB 114 (Stats. 2011, ch. 43), primarily concerning education. March 17 Mental health.

3.Executed Sentences for Hundreds of Lower-Level Felonies, Will be Served in County Jail. Split Sentences

Sentences for most felonies that are non-serious, non-violent, non PC 290 felonies (the so-called "non-non-nons)[1], where the defendant also is a "non–non–non" (that is, also has no prior strikes or registerable sex offenses), will now be served by terms exceeding one year in county jail.

These are called County Jail Felonies.

This is the first time in California's history that (1) some executed felony sentences will be served in county jails, and (2) county jail sentences are allowed for a single offense of more the one year.

It is also the first time in California that a portion of an imposed sentence can be split, with only part executed, and, for the concluding portion the person is released under supervision of the probation officer.

The triad sentencing system of the Determinate Sentencing Law is preserved, and the triads from almost all of these felonies is unchanged. Most County Jail Felonies carry county jail terms of 16 months, 2years, or 3 years, but there are also many whose triad is 2, 3, or years, and some whose triad states even longer terms.

Almost all felonies that were wobblers (that is, punishable in the court's discretion as felonies or misdemeanors) before Realignment remain wobblers under Realignment.

The hundreds of felonies that are now "punishable pursuant to Subdivision (h) of [Pen. Code] Section 1170" are listed in Appendix 1. Almost all of these are County Jail Felonies But the legislature included (perhaps by accident) a small number of PC-290 registerable offenses, and a small number of offenses that are always, or almost always, serious or violent felonies in the Subdivision (h) list; despite that inclusion, those remain, by operation of Pen. Code § 1170, subdivision (h)(3), State Prison Felonies. So while almost all "Subdivision (h) Felonies" are County Jail Felonies, they are not all.

Counties can also contract with CDCR to accept County Jail Felons.

4.Sentences for Serious, Violent, and PC-290-Registerable Offenses, or Where Defendant Has Those Priors, and About 80 Other Felonies, Will Still Be Served in Prison.

The categorical disqualification for serious, violent, or PC 290-Registerable felonies, is found in Pen. Code § 1170, new Subdivision (h)(3).

Priors in other jurisdictions that have all the elements of California serious and violent felonies also count as categorical disqualifiers from county jail.

Juvenile adjudications to serious and violent felonies do not count; future legislation may change that.

Over seventy-five felonies that are not serious, not violent, and not PC-290 registerable, still have sentences that, when executed, must be served in state prison.

And at least sixteen felonies are that are not serious, not violent, and not PC-290-registerable are stated only to be "felon[ies]" without a specification of being sentenced under Pen. Code § 1170, subd. (h), or in state prison. By operation of amended Pen. Code § 18, executed sentences for these must also be served in state prison.

Collectively, these are called "State Prison Felonies." The non-non-nons that still get state prison subgroup are also called Excluded Felonies."

Most of these excluded felonies are listed in Appendix 2.

5.County Jail Conduct Credits Will Be 50% For Almost All.

Where all days are earned by good conduct and performing assigned work, four days county jail will be deemed to have been served for every two actual days, for almost all crimes committed after October 1.

Conduct credits cannot be earned for periods of flash incarceration under Postrelease Community Supervision, or, after July 1, 2013, flash incarceration under parole.

Those convicted of violent felonies who go to prison are still limited to 15% conduct credit, and convicted murderers continue to get no conduct credit.

Conduct credits can be lost through an administrative disciplinary system that each county jails have long been required to have under Cal. Code Regs. tit. 15, §§ 1080 to 1084. That system's structure is unchanged by Realignment, but counties may wish to revise their implementation to consider Realignment.

6.Counties Can Authorize Involuntary Home Detention, Counting as Jail Time, Including Toward Mandatory Minimums.

Counties are authorized to offer an expanded voluntary home detention program; and, additionally, are authorized to order involuntary participation in a home detention program. Amended Pen. Code § 1203.016.

This will count toward mandatory minimum sentences. Pen. Code § 2900.5, subd. (f).

7.Counties Can Authorize Electronic Monitoring In Lieu of Bail

The county board of supervisors can authorize a program under which qualified inmates held in lieu of bail may be placed on electronic monitoring. Pen. Code § 1203.018

This will count toward jail time, including toward mandatory minimums. Pen. Code § 2900.5, subds. (a) and (f).

8.Postrelease Community Supervision Replaces Parole in Many Cases; Sanctions Include Flash Incarceration; Revocations by Court Revocation Hearing Officers.

The new Postrelease Community Supervision Act provides that persons released from prison who are not required to be on parole, are released on up to three years of Postrelease Community Supervision (PRCS).

Persons on (PRCS) are supervised by a designated county agency; all counties have, reportedly, designated the Probation Department. The supervision will be according to an overall implementation strategy adopted by each county.

Intermediate sanctions for violations can include a wide variety of options, one of which is flash incarceration for up to ten days.

The supervising county agency can file a petition to revoke and terminate PRCS. This will be heard and decided by the court's new Revocation Hearing Officers.

When PRCS is revoked, the Revocation Hearing Office can impose a county jail sentence of up to 180 days. The person can be returned to PRCS after a jail sentence, but total revocation time still cannot exceed 180 days.

9.Parole Limited to Certain Offenders. Changes on July 1, 2013: Flash Incarceration; Court Revocation Hearing Officers.

Parole for persons released from prison on and after October 1 is limited to persons

  • Whose term was for a serious felony
  • Whose term was for a violent felony
  • Whose term was for a third strike,
  • Who are classified as High Risk Sex Offenders, and
  • Who is required to undergo treatment as a Mentally Disordered Offenders
  • Who, while on certain long-term paroles, commit new felonies.

All others will be released from prison on Postrelease Community Supervision.

Revocation for most parolees cannot result in return to prison, but can result in county jail terms of up to 180 days. After the jail sentence, if the parole term is not expired, the person is returned to parole.

Starting July 1, 2013, flash incarceration and other intermediate sanctions are permitted. Petitions to revoke parole will be decided by the court's new Revocation Hearing Officers.

10.The Parole Reentry Accountability Program.

This program's main feature is a Reentry Court, somewhat on the drug court model. It was established for parolees, in a limited form, effective January 25, 2010. Realignment has expanded it to include those on Postrelease Community Supervision.

B. The Operative Date for Most of Realignment was October 1, 2011; Exceptions.

One exception is that the county agency designated to implement postrelease supervision must have been named, and CDCR notified, by August 1, 2011. Reportedly, every county chose the Probation Department.

Another exception is that the court's new Revocation Hearing Office does not begin hearing violations of parole until July 1, 2013.

C. What Event-Date Counts? Date of Incident; Date of Conviction; Date of Sentence; Date of Release?

1.For County Jail Felonies: Sentenced On or After October 1.

Pen. Code § 1170, subd. (h)(6): "The sentencing changes … shall be applied prospectively to any person sentenced on or after October 1, 2011."

The first convictions to County Jail Felonies, however, occurred earlier than October 1. That is because of the lead-time that usually occurs between the conviction and the sentencing.

2.For 4–for–2 County Jail Credits: Crimes Committed on or After October 1, 2011.

Pen. Code § 4019, subd. (h) states this increase "shall apply prospectively ¼for …. crime[s] committed on or after October 1, 2011."

For an argument that the 4-for-2 credits should also apply to County Jail Felons whose crimes were committed prior to October 1, 2011, but who are sentenced after October 1, 2011, see Part III, below.

3.For Eligible Prisoners: Postrelease Community Supervision Instead of Parole: Released On or After October 1, 2011.

New Pen. Code § 3451, subd. (a), states that eligible persons released from prison "on an after October 1, 2011" are released on postrelease community supervision.

Certain persons already on parole before October 1, 2011 who violate, can also end up on Postrelease Community Supervision.

4.Revocations of Postrelease Community Supervision Heard By the Court's Revocation Hearing Officer: On and after October 1.

Since no other date is specified, this will be the case on and after October 1, 2011.

5.Flash Incarceration, and Other Intermediate Sanctions, for Parolees; Petitions to Revoke to Be Heard the Court's Revocation Hearing Officer: On and After July 1, 2013.

Commencing July 1, 2013, these will apply to all parolees, regardless of when they were released from prison. Pen. Code § 3000.08, subd. (c) et seq. (version operative Jul. 1, 2013).

6.For the County Board of Supervisors to Adopt the Community Corrections Partnership's local plan for implementation.

This plan is required by new Pen. Code § 1230.1.

Each county local Community Corrections Partnership (CCP) must recommend a local plan (developed by the CCP's Executive Committee) to the county board of supervisors for the implementation of the 2011 public safety realignment

Section 1230.1 does not set a date for this plan to be done.

Section 1230.1 also does not prohibit an interim plan, or phasing in the plan, or amending it later.

Reportedly, some counties had not yet adopted an implementation plan as of October 1. It seems desirable for counties to have at least an interim plan in place when the first Postrelease Community Supervisee's arrive.

D. Implementing Realignment.

Implementation began last summer, and is still ongoing after October 1, 2011.

The sheriff or custodial department director has to ensure adequate jail facilities for County Jail Felons, and for those who violate Postrelease Community Supervision (both flash incarceration and revocations), and Parole. This has been difficult in many counties.

Postrelease community supervision is implemented by the Community Corrections Partnership, the board of supervisors, and a designated county agency. All counties have, reportedly, designated the probation department.

Many courts have promulgated amended change of plea forms. Courts may hire or appoint Revocation Hearing Officers for violators of parole or of postrelease community supervision; many courts are simply designating existing judges or commissioners.

The Judicial Council has promulgated, effective October 28, 2011, new rules (4.540 and 4.541) and a form (CR-300) for revocation of postrelease community supervision. Perhaps, also, the Judicial Counsel should consider new sentencing rules of court concerning suspending execution of a portion of a County Jail Felony term, and releasing the person for the remainder under the probation officer's supervision, under Pen. Code § 1170, subd. (h)(5)(B).

District Attorneys and Public Defenders (or other county-designated defenders of indigents) will prosecute and defend postrelease community supervisees, and, after July 1, 2013, parolees, who are facing revocation.

CDCR has to notify counties of PRCS releases, and make the many adjustments required by limiting prisoners to the more serious offenders.

E. How to Read the Amended Statutes Analyzed in this Paper.

New statutory language is in regular Arial font like this; amendments are in italics and, where amendments are interlineated into unamended text, the amendments are underlined.

Amendments are shown to statutes as they existed before Realignment, that is, before AB 109, even if the statute was amended by two or more Realignment bills.

All statutes cited and quoted are current as of ABX1 17, Stats. 2011 – 2012 First Extraordinary Session, Ch. 12 (Sept. 21, 2011).

II. The Realigned Categories of State Prison Felonies and County Jail Felonies.

A. The Realigned Definition of, and Punishment For, a Felony: Penal Code §§ 17 and 18; Related Provisions; Triads and Wobblers.

1.Penal Code sections 17 and 18.

Penal Code section 17, subdivision (a), first sentence now states that there are three types of felonies: first, those punishable by death, second, those punishable by imprisonment in the state prison, and third, those punishable under Pen. Code § 1170, subd. (h), that is, generally, by imprisonment in the county jail for more than a year.

Note that on a felony cannot be punished by a judgment of fine alone; where that sentence is permitted, it automatically reduces the felony to a misdemeanor, under Pen. Code § 17, subd. (b)(1), discussed below; see also the discussion below of Pen. Code § 18.

Boiled down to its essence (since death penalty convicts are in state prison), Pen. Code § 17, subd. (a) really says there are now two types of felonies: (1) State Prison Felonies, and (2) County Jail Felonies.

Penal Code section 17: Defining "Felony."

(a) A felony is a crime that is punishable with death, by imprisonment in the state prison, or by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.

Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions.

(b) When a crime is punishable … by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor … under the following circumstances:

(1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170.

(2) When the court, upon committing the defendant to the Division of Juvenile Justice, designates the offense to be a misdemeanor.

(3) When the court grants probation … without imposition of sentence and at [that] time …, or on application ¼ thereafter, the court declares the offense to be a misdemeanor.

(4) When the prosecuting attorney files … a complaint specifying that the offense is a misdemeanor….

(5) When, at or before the preliminary examination … the magistrate determines that the offense is a misdemeanor.…

(c) When a defendant is committed to the Division of Juvenile Justice for a crime punishable …, either by … state prison or … county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail not exceeding one year, the offense shall, upon the discharge … from the Division of Juvenile Justice, thereafter be deemed a misdemeanor for all purposes.

(d) [This subdivision discusses only infractions.]

(e) [This subdivision states that Section 17 does not authorize a court to end PC 290 registration].

Penal Code section 18: Prescribing Punishment.

(a) Except … where a different punishment is prescribed… , every … felony is punishable by imprisonment for 16 months, or two or three years asprovidedin the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170.

(b) Every … felony punishable by imprisonment or by a fine, but without an alternate sentence to the county jail for a period not exceeding one year, may be punishable by imprisonment in the county jail not exceeding one year or by a fine, or by both.

Subdivision (a) states that a felony is punishable in state prison (i.e., prison is the default place of punishment) unless the sentencing statute expressly states, or convincingly implies, that the felony is a County Jail Felony.

Some offenses are stated to be punishable by state prison, without stating a length. An example is Veh. Code § 2800.2, recklessly evading a peace officer. This offense is stated to be "punished by imprisonment in the state prison, or by … county jail [for up to a year]."

And some offenses are stated only to be "a felony" also without stating a sentence length, and also without specifying a location. An example is Pen. Code § 4573.8, possessed of drugs in prison or jail, which is simply stated to be "a felony."

Under Pen. Code § 18, subd. (a), both of the above offenses are punishable by 16 months, or two or three years in the state prison.[2]

Pen. Code § 18, subd. (b) is very difficult to understand, but its essence it is unchanged by Realignment.

Pen. Code § 18, subd. (b) applies only to those felonies that expressly permit a fine-only as an alternative to state prison. In those cases, Subd. (b) provides that the court can give a sentence of less than a year in county jail. By operation of Pen. Code § 17, subd. (b)(1), that reduces the case to a misdemeanor. P. v. Mauch (2008) 163 Cal.App.4th 669, called these "stealth wobblers," and cited as an example Pen. Code § 148.3, subd. (b) (false report of emergency). Many "stealth wobblers" appear in Codes other than the Penal, Health and Safety, and Vehicle Codes; they are often financial crimes and the alternate fine permitted is often quite large.

2.Related Provisions

Veh. Code § 42000

Unless a different penalty is expressly provided by this code, every person convicted of a felony for a violation of any provision of this code shall be punished by a fine of not less … $1,000 … or more than … $10,000…, or by imprisonment pursuant to subdivision (h) of Section 1170of the Penal Code, or by both such fine and imprisonment.

This section now provides that all felonies in the Vehicle Code that do not specify a term in state prison are Subdivision (h) Felonies, and so normally County Jail Felonies.

This is a different than Pen. Code § 18, which provides that, unless the offense is punishable under Pen. Code § 1170, subd. (h), the sentence is to state prison.

Pen. Code § 19.2: The Length of Time That Can Be Served in County Jail.

Penal Code section 19.2 now states when a county jail sentence can be longer than one year:

In no case shall any person sentenced to [custody] … on conviction of a misdemeanor, or as a condition of probation [for] … either a felony or a misdemeanor, or … for any reason except upon conviction of a crime that specifies a felony punishment pursuant to [Pen. Code § 1170, subd. (h)]or a conviction of more than one offense when consecutive sentences have been imposed, be committed [to county jail] for [over] one year….

County jail time is still, except for consecutive sentences, limited to one year for misdemeanors.

Penal Code section 1168:

(a) Every person who commits a [felony], for which any specification of three time periods of imprisonment in any state prison or imprisonment pursuant to [Pen. Code § 1170, subd. (h)] is … prescribed … or for which only a single term of imprisonment in state prison or imprisonment pursuant to [Pen. Code § 1170, subd. (h)] is specified shall, unless … placed on probation, a new trial granted, or the … sentence suspended, be sentenced [under the Determinate Sentencing Law, Pen. Code §§ 1170 et seq.]

(b) For any person not sentenced under [the Determinate Sentencing Law], but who is sentenced to be imprisoned in the state prison or imprisonment pursuant to [Pen. Code § 1170, subd. (h)], including imprisonment not exceeding one year and one day, the court … shall not fix the term or duration of the period of imprisonment.

The inclusion of Pen. Code § 1170, subd. (h) in Pen. Code § 1168 means that the general Determinate Sentencing Law applies to County Jail Felonies.

Heath and Safety Code sections 11356, 11362, and 11381.

These three statutes define a felony as one that, prior to realignment, was punishable by state prison, and that, after Realignment, is punishable by state prison or pursuant to Subdivision (h) of Pen. Code § 1170.

3.Triads, and Felony – Misdemeanor Wobblers.

The traditional triad system of the Determinate Sentence Law (e.g., 16 months, or two or three years; or 2, 3, or 4 years, etc.) is unchanged. The lengths of these triads is unchanged for almost all felonies.

Almost all felonies that were wobblers (i.e., that could be filed as, or reduced to, misdemeanors) remain wobblers under Realignment.

The rules for the court to reduce a felony to a misdemeanor under Pen. Code § 17, subd. (b), are essentially unchanged. This is fully discussed below.

There are no felonies for which the court has discretion to impose state prison or county jail; they are all either one or the other, and the court cannot choose between them.

B.The Statutory Word–Formulas For a County Jail Felony; Caution.

A felony that is a County Jail Felony has a sentencing statute saying the sentence is "pursuant to Subdivision (h) of [Pen. Code] § 1170."

The sentencing statutes for hundreds of felonies have been amended by language that is identical or similar that wording.

But because a very small number of such felonies are PC-290-registerable, or are serious or violent felonies, and therefore State Prison Felonies, Subdivision (h) felonies must always double checked to make sure they are indeed County Jail Felonies. See Appendix 1 for a complete discussion.

Typical wording for a straight County Jail Felony is found in Health and Safety Code section 11350, subdivision (a), as amended by AB 109, § 151:

¼ [E]very person who possesses [a listed controlled substance] shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.

Typical wording for a wobbler County Jail Felony, that is, a felony alternately punishable as a felony or a misdemeanor, is found in Pen. Code § 496, subd (a):

Every person who [receives stolen property] ¼ shall be punished by imprisonment in a county jail for not more than one year, or imprisonment pursuant to subdivision (h) of Section 1170¼."

Jargon that the bench and bar might adopt, other than "County Jail Felony", include "Subdivision (h) felony", or "a non-non-non felony."

Terms such as "local prison" or "county prison" give the incorrect impression that county jail is no different than state prison. That is contrary to the findings and declarations concerning Realignment in Pen. Code § 17.5.

C. Analysis of new Subdivision (h) of Penal Code section 1170.

0.The text of Pen. Code § 1170, subdivision (h), in full.

For reasons unrelated to Realignment, there are several versions of Pen. Code § 1170 in the bills, and on the books, some that sunset on January 1, 2012, with others taking affect January 1, 2012. [3] For example, because of the need to cross-reference so many other bills are involved, ABX1 17 actually has 8 enactments of Pen. Code § 1170.

The critical new Subdivision (h) is the same in all versions and all enactments.

Penal Code section 1170, subdivision (h), as amended by ABX 17:

(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.

(2) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision shall be punishable by imprisonment in a county jail for the term described in the underlying offense.

(3) Notwithstanding paragraphs (1) and (2), where the defendant (A) has a prior or current felony conviction for a serious felony described in subdivision (c) of Section 1192.7 or a prior or current conviction for a violent felony described in subdivision (c) of Section 667.5, (B) has a prior felony conviction in another jurisdiction for an offense that has all of the elements of a serious felony described in subdivision (c) of Section 1192.7 or a violent felony described in subdivision (c) of Section 667.5, (C) is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime and as part of the sentence an enhancement pursuant to Section 186.11 is imposed, an executed sentence for a felony punishable pursuant to this subdivision shall be served in state prison.

(4) Nothing in this subdivision shall be construed to prevent other dispositions authorized by law, including pretrial diversion, deferred entry of judgment, or an order granting probation pursuant to Section 1203.1.[4]

(5) The court when imposing a sentence pursuant to paragraphs (1) and (2) of this subdivision, may commit the defendant to county jail as follows:

(A) For the full term as determined in accordance with the applicable sentencing law; or

(B) For a term as determined in accordance with applicable sentencing law, but suspend execution of a concluding portion of the term selected in the court's discretion, during which time the defendant shall be supervised by the county probation officer in accordance with the terms, conditions and procedures generally applicable to persons placed on probation, for the remaining unserved portion of the sentence imposed by the court. The period of supervision shall be mandatory, and may not be earlier terminated except by court order. During the period when the defendant is under such supervision, unless in actual custody related to the sentence imposed by the court, the defendant shall be entitled to only actual time credit against the term of imprisonment imposed by the court.

(6) The sentencing changes made by the act that added this subdivision shall be applied prospectively to any person sentenced on or after October 1, 2011.

1.Paragraph (h)(1): The sentence –length of County Jail Felonies when no other sentence-length is stated or provided.

Pen. Code § 1170, subd. (h), par. (1) re–states the general rule of Penal Code section 18, subdivision (a), that unless a different penalty is prescribed for a Subdivision (h) felony, the sentence is 16 months, 2 years, or 3 years.

For example, Pen. Code § 666, subd. (a), as amended, states that any person who has previously been convicted and imprisoned three or more times of petty theft or certain other theft offenses, who is convicted again of petty theft, is punishable by imprisonment in the county jail not exceeding one year, or imprisonment pursuant to subdivision (h) of Section 1170.

Thus, Pen. Code§ 666, subd. (a), because it does not prescribe a different felony penalty, has a felony sentence under Pen. Code § 1179, subd. (h), paragraph (1) of 16 months or two or three years.

Pen. Code § 1170, subd. (h), par. (1), also states that, unless an exception listed in Pen. Code § 1170, subd. (h), par. (3), applies, the sentence is served in the county jail.

2.Paragraph (h)(2): The general rule for the length of sentence for Subd. (h) felonies, unless otherwise stated or provided.

Pen. Code § 1170, subd. (h), par. 2, states that if the statute specifying the sentence for an offense specifies both a particular triad, and states that the sentence is "pursuant to Subdivision (h) of [Pen. Code] Section 1170" (or similar words) then, (unless an exception listed in Subd. (h)(3) applies), the sentence specified is served in county jail.

For example, Pen. Code § 520, as amended, punishes certain extortions "pursuant to subdivision (h) of Section 1170" for two, three, or four years." Pen. Code § 520 is thus punishable under Subd. (h)(2), by a county jail sentence of 2,3, or 4 years.

Some felonies punishable" pursuant to Subd. (h)" state their term is 16 months, or two or three years. An example is violation of Pen. Code § 600, subd. (a) (interference with peace officer's horse or dog), which, as amended by AB 109 § 414, is "punished by imprisonment pursuant to subdivision (h) of Section 1170for 16 months, two or three years…." Because a term is stated, even though it is the same as the generic sentence, this felony is, technically, punishable not under Subd. (h)(1), but under Subd. (h)(2).

3.Paragraph (h)(3): The Categorical Exceptions Requiring a Person To Serve a County Jail Felony Sentence in State Prison.

Pen. Code § 1170, subd. (h), par. (3) states several exceptions to the rule in paragraphs (1) and (2), that if the sentence for a particular felony is stated to be "pursuant to [Pen. Code § 1170, subd. (h)]", then it must be served in county jail.

If the defendant falls in one of these exceptions, then the provision in paragraphs (1) and (2) do not apply, and the sentence must be served in state prison.

The exceptions are:

  • The defendant has a prior or current felony conviction for a serious felony described in Pen. Code § 1192.7.
  • The defendant has a prior or current felony conviction for a violent felony described in Penal Code section 667.5, subdivision (c).
  • The defendant has a conviction in another jurisdiction that for an offense that has all of the elements of a serious or violent felony.
  • The defendant is a PC-290-registrant,[5] and
  • The defendant's sentence is enhanced pursuant to Pen. Code § 186.11.[6]

It is often said that the defendant is eligible for state prison unless the conviction is a "non–non–non." That is jargon for "non–serious, non–violent, and non–registerable." The fourth exception, Pen. Code § 186.11 is rare, but the first three are common.

Must the "Eligibility–For–Prison Factors" Be Pled and Proven at Trial, and at Preliminary Examination?

Realignment-law does not specify if the Pen. Code § 1170, subd. (h), para. (3) factors (that is, the present or prior conviction, or registration, facts that mean a sentence cannot be served in county jail) must be pled and proven to apply.

Compare, enhancements, which, by statute, generally must be plead and proved. See, e.g., Pen. Code § 1170.1, subd. (e) (all enhancements must be pled and proved).

There is no clear answer to this question; it can be argued both ways.

We may get firm guidance when the California Supreme Court decides People v. Brown (S181963), Rev. granted Jun. 9, 2010 (fully briefed; unofficially reported at 107 Cal.Rptr.3d. 286). That case mainly concerns the retroactivity of previous changes in Pen. Code § 4019, the local conduct credit section. The court may, however, also comment on, or even decide, whether a requirement, to get lower credits, that the defendant is a non-non-non (similar to that in Realignment, as discussed above) in that prior version of Pen. Code § 4019, must have been pled and proved. The court has granted review in many other cases with the same issues, and is holding those cases pending its decision in Brown; several of those "grant and hold" cases present pleading and proof questions.

Pen. Code § 1170, subd. (f), fully discussed below, states that the court cannot dismiss an state prison eligibility allegation. Why would the legislature have added that provision if the legislature did not intend a plead and prove requirement?

The California Supreme Court has stated, in In re Varnell (2003) 30 Cal.4th 1132, 1141, "when a pleading and proof requirement is intended, the Legislature knows how to specify the requirement."

However, the fact that no plead-and-prove requirement was stated in realignment is not necessarily dispositive of legislative intent. Varnell, 30 Cal.4th at 1140, acknowledged that "There is authority for finding an implied pleading and proof requirement in criminal statutes", citing. People v. Lo Cicero (1969) 71 Cal.2d 1186. Another such case cited by Varnell 30 Cal.4th, passim, is People v. Hernandez (1988) 46 Cal.3d 194[[7]]

In re Varnell, supra, 30 Cal.4th at 1141, held that there is no "due process [right] to notice in the accusatory pleading of [defendant's] ineligibility for less restrictive alternate punishments." Accordingly, the supreme court held, the trial court could not dismiss an allegation of a prior strike to make the defendant eligible for Prop. 36 probation.

The Varnell court, 30 Cal.4th at 1135, fn 3, defined a "sentencing factor, as, "a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury's finding that the defendant is guilty of a particular offense." The court went on to hold that in that context, the prior strike was only a sentencing factor, and so not subject to plead-and-prove requirements.

That reasoning could apply to Subdivision (h) felonies if the prison eligibility factors do not increase the sentence beyond the maximum, but only change the location at which the sentence is served.

Query, however, if county jail is simply an alternative, perhaps less restrictive, punishment to prison?

All prison terms under realignment are followed by a period of parole or postrelease community supervision. Pen. Code § 3000.08. Only in the case of Split Sentences are County Jail Felonies followed by a period of supervision, and (1) that means the actual custody time is actually less, and (2) the supervision is only within the time of the sentence; it is not time after the sentence as is parole and postrelease community supervision.

But is parole part of punishment in California? It is not a listed punishment in Pen. Code § 15, but it is mandatory for those who are on it, and unlike the mandatory supervision of the non-custodial portion of a split sentences, parole is not given in lieu of a longer period of actual custody.

Query, also, if postrelease community supervision will be considered punishment. See, generally, Witkin & Epstein, California Criminal Law (3d ed., 2000), Ch. IX, § 610: "… [P]arole [in California, currently] … occurs after the completion of … incarceration and is intended … to prepare the freed prisoner for the transition that he or she faces."

The legislature perhaps has concluded in Realignment legislation that parole is punishment. The legislature amended Pen. Code § 3000, subd. (b)(4)(A) to increase the parole period for persons convicted of specified sex crimes against children under age 14, from 20 years to 20 years six months. This increase may have been done to amend Pen. Code § 3000 without a 2/3 vote; section 33 of Prop. 83 (Nov. 8, 2006 gen. elect.; Jessica's law)) required a 2/3 vote to amend its provisions, unless the amendment increases punishment or penalties.

Query if Cunningham v. California (2007) 549 U.S. 270 applies to this question. Cunningham held California's Determinate Sentencing Law unconstitutional to the extent that it permitted the court to increase a sentence from the presumptive middle term to the aggravated term based on facts not found by the jury, admitted by defendant, or that are prior convictions. But Cunningham did not prohibit increasing a sentence based on prior convictions, even though they were not admitted by the defendant or found true by a jury.

If state prison eligibility factors must be plead in the accusatory pleading, and proved, must they also be proven at the preliminary examination?

The general rule is that while prior convictions used as enhancements need not be and proved at the preliminary examination, enhancement allegations that are directly or transactionally related to the charged offense must be. See, e.g., Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 148 – 150.

Suppose, however, that state prison eligibility factors are analogous to prior convictions that elevate some misdemeanors to felonies. The courts of appeal are split on whether there must be proof of prior convictions that are used to elevate a misdemeanor to a felony. Compare, e.g., People v. Casillas (2001) 92 Cal.App.4th 171, 174 (pleading and proof at preliminary hearing of three prior driving under influence misdemeanor convictions is condition precedent to prosecution and punishment of fourth violation as felony), and Thompson, supra, 91 Cal.App.4th at 149 (prior petty theft must be proven at prelim to elevate a current petty theft to a felony under Pen. Code § 666; people's concession) with People v. Robinson (2004) 122 Cal.App.4th 275, 281 (in prosecution under Pen Code § 666, evidence of the prior need not be adduced at preliminary hearing.)

Accordingly, prior statutes and caselaw do not provide a definite answer to whether these allegations must be pled and proved, and when. Many county District Attorney offices have instituted interim policies requiring pleading and proof.

4.Paragraph (h)(4) Other Dispositions, Such as Diversion, DE.J., and Probation Remain Available.

Pen. Code § 1170, subd. (h), paragraph (4), states that Realignment does not prevent other dispositions authorized by law, including diversion, deferred entry of judgment, or probation.

Language of enlargement is used in Pen. Code § 1170, subd. (h), par. (4): the phrase is "other dispositions authorized by law, including …." The California Supreme Court in Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1101 has said that "the word 'includes,' [is] ordinarily a term of enlargement rather than limitation."

The Ornelas court continued, 4 Cal.4th at 1101, "the principle of ejusdem generis provides that 'when a statute contains a list or catalogue of items, a court should determine the meaning of each by reference to the others, giving preference to an interpretation that uniformly treats items similar in nature and scope.' " Here, the organizing term is "authorized by law." Accordingly, if the disposition is authorized by law, then Pen. Code § 1170, subd. (h), par. (4), says that Realignment does not prevent it.

For example, clearly the specialized probation of Pen. Code § 1210.1, Prop. 36 probation, is not prevented by realignment.

What about the California Rehabilitation Center (CRC) under the Civil Addict Program, Welf. & Inst. Code §§ 3051 et seq? The CRC statutes were not amended by Realignment. Seemingly, CRC is still "authorized by law," but it certainly does not fit the "community based punishment" findings of Realignment.

Two points, however, must be noted about CRC commitments. The first point is that Welf. & Inst. Code § 3052, subd. (a)(2) states that a person is ineligible for CRC if the person's sentence "exceeds six years imprisonment in state prison." Query if a sentence exceeding six years for a County Jail Felony disqualifies the person.

The second point is that under Welf. & Inst. Code § 3053, subd. (b), the court must "terminate" the CRC commitment if the defendant is committed "to the Director of Corrections" on another case. This Section has not been amended to account for commitment to county jail for a County Jail Felony. The legislature should consider an appropriate amendment to cover that situation. Until then, defendants wishing to be excluded from CRC because of County Jail Felony commitments may have to try an equal protection or due process attack.

Note on Pen. Code § 1203.03 diagnostic evaluations. These appear not to be available for the court to decide on whether to impose a County Jail Felony sentence. Sec. 1203.03, subdivision (a), specifies "… state prison…."

5.Paragraph (h)(5): Full Terms and Split Sentences.

i.A normal full term under (h)(5)(A)

Pen. Code § 1170, subd. (h), par. (5)(A) permits the court to impose the "full term as determined in accordance with the applicable sentencing law." Reading (A) together with (B), discussed below, it becomes clear that "full term" does not mean "maximum term." Instead, it means the full lower, middle, or upper term in the triad.

ii.Split Sentences under (h)(5)(B)

Pen. Code § 1170, subd. (h) par. (5)(B) permits the court to impose a term (lower, middle or upper), and "suspend execution of a concluding portion" of that term. These are commonly called split sentences, or blended sentences.

The length of the concluding portion that is suspended is not stated, and so it appears to be a length that is "selected in the court's discretion."

It appears, for example, if the court imposes the middle term of two years, the court could execute a beginning portion, and suspend the "concluding portion," that is, the concluding year. The length of the beginning portion appears to be in the court's discretion. For example, the court could execute the first year, or the first 18 months of the two years, and suspend the concluding portion of, respectively, 1 year, or 6 months. Or the court could, in its discretion, choose another mix of executed and suspended portions.

While in custody, the defendant is entitled to the normal conduct credits under the applicable version of Pen. Code § 4019.

For a crime committed after Oct. 1,2011, the version of Pen. Code § 4019 operative on that date would apply, and the conduct credits would be 4 days deemed served for every 2 actual. Thus, if one year of the two year term was executed, and all conduct credits were earned, the one year would be deemed served after 6 actual months.

For a crime committed between Sept. 28, 2010 and Oct. 1, 2011, the applicable version of Pen. Code § 4019 is found, inter alia, at Stats. 2020 Ch. 426 (SB 76, § 2), and the conduct credits would be 6 days deemed served for every four actual. If one year of the two year term was executed, and all conduct credits were earned, that year would be deemed served after 8 actual months. See, however, Part III below: many courts are awarding 4-for-2 credits when those crimes are sentenced after October 1, 2011.

The calculation of conduct credits for crimes committed before Sept. 28, 2010, and sentenced after Oct. 1, 2011, are beyond the scope of this paper.

When the defendant is released from the executed portion of the term, the "remaining unserved portion of the sentence imposed by the court" would be "supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation."

During the time the defendant is released from actual custody, the defendant is still entitled to actual (sometimes called day-for-day) credit for time on mandatory supervision. This is discussed in detail below, in considering a violation of the mandatory supervision.

Many more questions are raised by Split Sentences than can be dealt with in this treatise. Only selected topics are being discussed.

iii.Criteria For Imposing a Split Sentence; Is a Statement of Reasons Required?

Realignment legislation provides almost no guidance, no standards and criteria, by which the court decides to suspend a concluding portion of the term, or decides upon the length of that suspended portion.

Certainly the court's decisions should be consistent with the findings and declarations of realignment, as stated in Pen. Code §17.5, discussed in Part I, subpart A, above.

One of those declarations that seems particularly important for split sentences is Pen. Code § 17.5, subd. (a)(5)'s declaration to "… facilitate their [i.e., 'low level felony offenders'] reintegration back into society."

The court can also consider the existing Sentencing Rules, California Rules of Court, such as Rule 4.435,"Criteria Affecting Probation."

Pen. Code § 1170, subd. (c), first sentence, says "The court shall state the reasons for its sentence choice on the record at the time of sentencing."

The decision to split the sentence is obviously a sentencing choice. "Sentence choice" is defined at Calif. Rules of Court 4.405(7) as "… the selection of any disposition of the case that does not amount to a dismissal, acquittal, or grant of a new trial."

It has been said that "The most fundamental duty of a sentencing court is to state reasons justifying the sentencing choices it makes." People v. Fernandez (1990) 226 Cal.App.3d 669, 678 (citing, inter alia, Pen. Code § 1170, subd. (c)).

This "fundamental duty" is particularly important right now, at the very beginning of Realignment. We all, bench and bar alike, need all the guidance we can get!

iv.Are Split Sentences Probation? Is it "Material"?

This paper does not answer this question; instead it shows that there are strong arguments both for and against the opinion that this, is, or is not, probation.

The introductory phrase to Pen. Code § 1170, subd. (h), is "The court when imposing a sentence pursuant to paragraphs (1) and (2) of this subdivision, may commit the defendant to county jail as follows: …."

Does the use of the phrase "when imposing a sentence" mean that a Split Sentence in not probation? Some statutes do distinguish between a "sentence," on the one hand, and, on the other, "an order granting probation." See, e.g., Pen. Code § 1237, subd. (a), stating that both are considered a "final judgment" for purposes of deciding if the defendant can appeal from them.

But common parlance, legal jargon, and many cases, do not make that distinction. See, e.g., most recently (at this writing) People v. Parodi (2011) 198 Cal.App.4th 1179, 1182: "Defendant entered into the plea agreement with the understanding that he would either be sentenced under Proposition 36 or be sentenced to probation …." (emphasis added).

See also California Rules of Court, 4.406, subd. (b), introductory phrase and item (1), referring to the decision to grant probation as a "sentencing choice."

Pen. Code § 1170, subd. (h)(5)(B) does not expressly say whether its supervision by the probation officer is or is not probation. It says "supervised by the county probation officer," and it refers to "the period of supervision."

Taking just the bare words of the statute, one could say that if the legislature intended this to be probation it would have said so more plainly.

Or one could point out that this language tracks closely the definition of probation in Pen. Code § 1203, subd. (a), first sentence and the basics of probation stated in Pen. Code § 1203.1, subd. (a).

Pen. Code § 1203, subd. (a): As used in this code, 'probation' means the suspension of the … execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.

In both we have "supervision by a probation officer."

In both we have "conditions."

In both the "release" is "revocable", because revocation upon violation seems implied in Pen. Code § 1170, subd. (h)(5)(B).

In both the length of supervision will often be the same. Pen. Code § 1203.1, provides that "The court … may direct that the suspension may continue for a period … not exceeding the maximum possible term of the sentence…. [or, in the case of a shorter sentence, up to 5 years]"

And in both, after the court imposes the sentence, the court can execute a portion of it, or do the equivalent of executing a portion of it: Pen. Code § 1203.1, subd. (a):

"The court … as a condition … may imprison the defendant in a county jail for a period not exceeding the maximum time fixed by law …."

So the statute itself is unclear and ambiguous on whether this is or is not probation.

This is the Realignment legislature's third try at split sentences, and both of the previous tries were signed into law, and then amended.

Split sentences were not a part of the first Realignment bill, AB 109. In AB 117, the legislature amended Pen. Code 1170, subd. (h)(5) to provide that "when imposing a sentence pursuant to this section [the court can split the sentence to] include[ ] a period of county jail time and a period of mandatory probation …."

That was signed into law as Stats. 2001, ch. 39, on June 30, 2011. But it was too broad because, as written, it included all felonies, not just Subdivision (h) felonies.

The legislature tried to fix it in AB 116 by changing the words "this section" to "paragraph (1) [of Subd. (h)]" The wording of Pen. Code § 1170, subd. (h)(5) was otherwise kept the same, and so this was still expressly called "probation." That was signed into law as Stats. 2011, Ch. 136, on July 27, 2011.

But that fix was too narrow, because it only covered a small portion of all County Jail Felonies. So the passed ABX1 17, settling on the current formulation.

So the legislature changed the wording about probation. In AB 117 and AB 116, this was expressly probation. In ABX1 17, this was not expressly probation.

The classic caselaw formulation about changes in wording is found in such cases as Twin Lock Inc. v. Superior Court (1959) 52 Cal.2d 754, 761:

"… [T[he settled rule [is] that an amendment making a material change in the phraseology of a statute is ordinarily viewed as showing an intention on the part of the Legislature to change the meaning of the provision rather than interpret it…."

Note the requirement that the change must be "material." If the change was not material, then it was merely interpretive.

This settled rule has been applied in the probation context. People v. DePaul (1982) 137 Cal.App.2d 409, 414 (rejecting an interpreting in a probation statute that had no material change, in favor of one that had a material change.)

So the question is whether this change from "mandatory probation" in AB 117 and AB 116 to the words of ABX1 17, namely "supervised by the … probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation" was a material change.

Material: Does it matter? Does it make a difference?

The comparisons above, between Pen. Code § 1170, subd. (h)(5)(B), and Pen. Code §§ 1203 and 1203.1, suggest there is no material change.

The fact that under Pen. Code § 17, subd. (b)(1), the court cannot reduce a case to a misdemeanor after a "judgment … [of] imprisonment in a county jail under [Pen. Code § 1170, subd. (h)]," does not necessarily mean a Split Sentence is not probation. It has long been the law that imposing a prison sentence, suspending its execution, and granting probation, prevents reduction to a misdemeanor. See, e.g., People v. Woods (1998) 62 Cal.App.4th 1262, 1267 (collecting cases).

Pen. Code § 17, subd. (b)(3) is not implicated here, because the court has imposed a sentence.

It does appear that the defendant cannot get a misdemeanor reduction under Pen. Code § 17, subd. (b)(1) after a Split Sentence. But Pen. Code § 17, subd. (b)(1) does not say that is because probation was denied.

On the contrary, People v. Woods, supra, and the cases it cites show that the event the prevents the misdemeanor reduction under Pen. Code § 17, subd. (b)(1) is the imposition of sentence even though probation is in fact granted.

For further discussion of Pen. Code § 17 and misdemeanor reductions, see below, Part II, G.

The fact that a split sentence counts as a one-year prior under Pen. Code § 667.5, subd. (b) also does not mean that it is not probation. The legislature did not state that is why it made a split sentence count as a prior.

The Penal Code is full of things that one might find unexplained or illogical. Why are some felonies "serious" and some not? Why are some sex offenses registerable and some not? The list is endless. So the fact that Split Sentences count as one year priors does not show they are not probation.

Does the phrase "generally applicable", connote a material change? Or does it merely connote that not every single pre-existing probation term, condition, and procedure will necessarily fully apply with no change whatever to this additional method of being placed on probation.?

In Sterling Drug v. Benatar (1950) 99 Cal.App.2d 393, the defendant appealed from an injunction entered under the California Fair Trade Act, which governed trade in commodities. That Act became law in 1941, and the defendant was selling war surplus goods, which were unknown in 1941. The defendant claimed his good were not covered, and pointed out that the legislature had enacted separate statutes in 1945 dealing with war surplus goods.

The court of appeal rejected the defendant's contention. The court said, 99 Cal.App.2d at 397 (internal quote marks and citations omitted; boldface added) that

"Where a statute deals with a genus, and the thing which afterward comes into existence is a species thereof, the language of the statute will generally be extended to the new species, although it was not known and could not have been contemplated by the legislature when the act was passed…. The statute is generally applicable to 'any commodity'…. [T]he fact that the legislature [later] added new provisions [concerning war surplus goods] …, but did not add an exception to the chapter containing the Fair Trade Act may well indicate the legislature … desire[d] [they be covered by the Act]."

v.Does the court retain jurisdiction over the defendant during the split sentence?

This is important for several reasons. E.g., Does the court have to set the length of the Split Sentence right away, or can the court set that length at a later review hearing? Does the court have to state the terms and conditions of the Split Sentence right away, or can the court set those at a later review hearing?

If the split sentence is probation, then obviously, yes, the court's continuing jurisdiction is "well nigh plenary in character." People v. Banks (1959) 53 Cal.2d 370, 384.

If the split sentence is not probation, then does the court retain jurisdiction because that is in "accordance with the term, conditions, and procedures generally applicable to persons placed on probation"? Pen. Code § 1170, subd. (h)(5)(B).

Or does the court lose jurisdiction after the judgment, in accordance with the usual sentencing and commitment rules. See, e.g., People v. Karaman (1992) 4 Ca;/4tj 335, 344 ("Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced.")

Or does the court somehow regain jurisdiction when the unexecuted concluding portion commences?

Or does the court regain jurisdiction only if the probation officer files a petition in the court concerning this matter. Note that Pen. Code § 1170, subd. (h)(5)(B) contains no express provision for such a petition, only the general statement that the normal terms, conditions and procedures of probation apply. Compare Postrelease Community Supervision, discussed below, where no court jurisdiction appears unless a petition to revoke that supervision is filed.

If the court does retain, or regain, jurisdiction, what does it retain or regain jurisdiction to do? Is it only to revoke the concluding portion of release?

If it is the "well nigh plenary jurisdiction" of normal probation, People v. Banks, supra, then the question arises again, was there a "material" change of law when the legislature changed the wording of Pen. Code § 1170, subd. (h)(5)(B) from "probation" to "supervised by the … probation officer in accordance with the terms … and procedures generally applicable [to] … probation."

vi.Can the Court Impose, e.g., DUI and DV Probation-Conditions When Pronouncing a Split Sentence?

Veh. Code § 23550, 4th offense felony drunk driving, is a County Jail Felony. If the court grants probation to the defendant, Veh. Code § 23552 requires a number of terms and conditions.

Pen. Code § 1203.097 requires a number of terms and conditions of a person placed on probation for a domestic violence offense. Felony vandalism, Pen. Code § 594, subd. (b), is a County Jail Felony, and the victim is often the defendant's former cohabitant.

If the court gives a split sentence to one of the above defendants, can the court impose the probation-conditions during the unserved concluding portion of the sentence?

If a Split Sentence is probation then, yes of course, those terms and conditions can be given, at least assuming that the time out of custody permits completion of the conditions. For example, Pen. Code § 1203.097, subd. (a)(6) requires a one-year long batterer's program that must be completed within 18months; unless that program is offered in the county jail, the unexecuted concluding portion must be long enough to permit completion of that program.

If a Split Sentence is not probation, then those terms and conditions can only be given if they are considered "generally applicable to persons placed on probation."

Are they? Or are they not "generally applicable", because they only apply to a small subgroup of all probationers.

If a Split Sentence is not probation, but these conditions can be given anyway, then what is the "material" difference, as discussed above, between a Split Sentence and probation?

vii.Can the Court Grant Pen. Code § 1203.4 Relief to a Person Given a Split Sentence?

Pen. Code § 1203.4 permits the court to re-enter a not-guilty plea for a person who has successfully completed probation, and then dismiss the case. This relieves the person of some of the harsh consequences of a felony conviction.

Typically, this relief makes it much easier for the person to get a job.

If a Split Sentence is probation, then, of course, the court can grant this relief.

If a Split Sentence is not probation, then the court can still grant this relief.

The reason the court can still grant this relief even if a Split Sentence is not probation is because Pen. Code § 1203.4 is obviously a "term[ ], condition[ ], and procedure[ ] generally applicable to persons placed on probation." It applies to all probationers at the outset, and to all probationers at the end who do successfully complete.

Surely the legislature, in Realignment, has not said that that a defendant must abide by all other terms, conditions, and procedures of probation, but, having done so, cannot get the relief afforded by this term, condition, and procedure of probation.

One of the legislative declarations of Realignment, at Pen. Code § 17.5, subd. (a)(5) is to "… facilitate their reintegration back into society."

Granting Pen. Code § 1203.4 relief furthers this declaration. Denying it defeats that declaration.

viii.Can the Court Give a Split Sentence on a Probation-Ineligible County Jail Felony

A common example is Pen. Code § 1203.07, which states that:

"probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any of the following persons (1) Any person who is conviction of violating [Health & Saf. Code §] 11351 by possessing for sale 14.25 grams of … heroin…."

Health & Saf. Code § 11351 is a County Jail Felony.

If a Split Sentence is not probation, it still involves suspending a concluding portion of the execution of a sentence.

Has Pen. Code § 1170, subd. (h)(5)(B) made an exception to the probation-ineligibility?

If a Split Sentence is probation, has Pen. Code § 1170, subd. (h)(5)(B) made an exception to the probation ineligibility?

Should these answers be consistent, that is the same regardless of whether a Split Sentence is or is not probation.

One of the declarations of Realignment does weigh in favor of finding that, yes, Split Sentences have carved out an exception, and yes, the court can grant a Split Sentence in these cases.

Pen. Code § 17.5, subd. (b)(5) last phrase, is that one declaration of Realignment is to "facilitate their reintegration back into society." That declaration is furthered by granting a split sentence, and is defeated by denying a split.

ix.Can the Defendant Refuse a Split Sentence?

Pen. Code § 1170, subd. (h)(5)(B), says "The period of supervision shall be mandatory, and may not be earlier terminated except by court order."

If a Split Sentence is probation, does the "mandatory" phrase constitute an exception to the well-known rule that a defendant can always refuse probation? Cases stating that rule usually turned on the fact, or can usually be traced back to cases that turn on the fact, that the probation statutes are silent on whether or not the defendant can refuse probation. See, e.g., In re Osslo (1958) 51 Cal.2d 371, 381. So those cases may be of limited utility.

Whether or not a Split Sentence is probation, a better analogy is to parole; Realignment has not changed parole in the respect discussed now.

Parole under the Determinate Sentencing Law is also mandatory. But the prisoner can still refuse it!

People v. Burgener (1986) 41 Cal.3d 505, 529 fn 12, pointed out the following about parole under the Determinate Sentencing Law:

"…. The prisoner neither applies for nor has the right to reject release on parole. [It] is a mandatory 'kick-out' … [a]t the expiration of a term of imprisonment .... [But] the board must revoke parole if the prisoner refuses to sign the parole agreement ([Pen. Code] § 3060.5)….

Realignment does not contain a statute like Pen. Code § 3060.5, stating that the release for the suspended concluding portion can be revoked for refusal to abide by the terms and conditions.

But Pen. Code § 1170, subd. (h)(5)(B) does provide that the "supervision … may … be earlier terminated … by court order."

If the court were to refuse to terminate the Split Sentence, and, if necessary, remand into custody, a defendant who is refusing a Split Sentence, the court would be in the unseemly position of telling that person that he or she must violate a court order, or even violate the law, to show the court that the refusal is heartfelt. The court would probably abuse its discretion if it put itself in that position.

If the court does grant the defendant's refusal of a Split Sentence, however, the court must execute the portion the court intended originally to suspend; the court cannot increase the sentence beyond that. People v. Brown (2001) 96 Cal.App.4th Supp. 1 (upholding a maximum misdemeanor sentence where the evidence showed it was not given in retaliation for defendant's refusal of probation.).

x.When the Supervision Begins and Ends; Can Supervision Be Transferred to a Different County, or to a Different State?

The court has, under Subd. (h)(5) (B), "… suspend[ed] execution of a concluding portion of the term … during which time the defendant shall be supervised by the county probation officer…."

And Subd. (h)(5 )(B) states that "During the period [of] supervision … the defendant shall be entitled to only actual time credit against the term of imprisonment imposed by the court."

A logical and grammatically correct, construction of Subd. (h)(5)(B), is that the period of "supervision" begins when the concluding suspended portion begins, and ends when the time period of that suspended portion ends.

Can the court extend the period of supervision, perhaps if the defendant agrees? Can the court require or accept a time credit waiver from the defendant to effectively extend the period of supervision, and increase the defendant's incarceration exposure for violations?

While those might be considered "conditions [or] procedures" that are "generally applicable" to probationers, Subd. (h)(5)(B) also may be considered a vintage example of a later-enacted specific statute that the legislature intended should apply instead of an older, general one. See, generally, People v. Murphy (2011) 52 Cal.4th 81, 86 (holding that a misdemeanor Vehicle Code statute into which the defendant's conduct clearly fell, controlled over a felony Penal Code statute.)

What if the county jail, because of a federal overcrowding order or other reason, releases a person with a Split Sentence early; does the mandatory supervision begin at that time, or only when the "concluding portion" of the sentence was supposed to begin? If a Split Sentence is probation, it seems straightforward, that the supervision begins upon actual release. That may also be the rule used by the courts even if a Split Sentence is not probation.

If a Split Sentence is probation, then Penal Code section 1203.9 provides authority for transferring the supervision to another county, and Penal Code section 11175 et seq. provides authority for transferring supervision to another state. If a Split Sentence is not probation, then no such express statutory authority exists.

xi.On Violation, How Much of the Suspended Portion Can be Imposed?

Upon a violation of the terms and conditions,, how much of the suspended concluding portion can the court order into execution? Subd. (h)(5)(B), last sentence, says "During the period [of] supervision … the defendant shall be entitled to only actual time credit against the term of imprisonment imposed by the court." That sentence only makes sense if the defendant receives actual time credit against the term imposed while not in actual custody.

Because the defendant has been receiving actual time credit against the term of imprisonment, that necessarily subtracts from the suspended time that the court can impose. For example, if, after six months, the defendant violates; the defendant has six months actual time credit against the year, so the court could impose, at most, only those remaining six months.

Can the court impose only a portion of the remaining portion? For example, if the defendant has six months to go, can the court impose 30 days of that, leaving five months of supervision to go? That does seem a "procedure [that is] generally applicable to persons on probation".

6.Paragraph (h)(6): The County Jail Felony Sentence Rules Apply To Sentences Given On or After October 1, 2011.

Paragraph (h)(6) The sentencing changes of realignment apply only to sentences given on or after October 1, 2011. Realignment is expressly stated to be prospective only; it is not retroactive.

What of people on probation, whose probation is revoked and terminated on or after October 1, 2011?

Probation is granted, in California, in one of two ways [[8]]:

  • Imposition of sentence suspended, or
  • Sentence imposed, and execution suspended.

A logical construction of the first method, suspending the imposition of sentence, is that under the first method, the person has not been sentenced.

And a logical construction of the second method, imposing sentence and suspending its execution, is that under the second method, the person has been sentenced.

If that logical construction is used, the persons in the first group, who have not already been sentenced, will be sentenced under Pen. Code § 1170, subd. (h), and, on County Jail Felonies, will be going to county jail for more than a year.

Also, if that logical construction is used, after October 1, 2011, the persons in the second group, who already have been sentenced, will be going to state prison.

It has been said, however, that those people should get the County Jail Felony sentencing because within the meaning of Realignment they have not yet been sentenced: the process of revoking and terminating probation, is itself a sentencing proceeding, and, therefore, they are being sentenced after October 1.

If, however, it is considered that they have been sentenced, still, the court is not be foreclosed from sentencing to county jail. People v. Howard (1997) 16 Cal.4th 1081 held that " sentencing courts retain their statutory authority under [Pen. Code] section 1170, subdivision (d), …, to recall a sentence and to resentence the defendant to an equal or lesser term…"

What about people sentenced to prison, say on Friday, September 30, 2011, on what, come Monday, will be a County Jail Felony? Should that person get the ameliorating benefit of what Pen. Code § 17.5, subd. (a)(5) calls "community-based punishment … [that will] facilitate [the person's] reintegration back into society"?

Likewise, should the September person have been allowed the ameliorating possibility of getting a split sentence that would reduce the time that must actually be served?

In re Estrada (1965) 63 Cal.2d 740, 747 – 748, when read together with Subd. (h) (6), presents an obstacle to that contention. Estrada was considering when an ameliorating statute must be applied retroactively, and, in particular, was considering the effect of a "savings clause," that purports to limit retroactivity. Estrada wrote," if the saving clause expressly provided that the old law should continue to operate as to past acts, so far as punishment is concerned that would be the end of the matter.

D. The Subdivision (h) Felonies (almost all are County Jail Felonies), are listed in Appendix, and almost all of the Non-non-non State Prison Felonies (the Excluded Felonies), are listed in Appendix 2.

Appendix 1.

Appendix 1 lists all of the felonies that the five realignment bills to date have expressly made punishable under Pen. Code § 1170, subd. (h). Almost, but not quite, all of these are County Jail Felonies.

These are found in 23 of California's 29 Codes, the three main Codes being the Health and Safety, Penal, and Vehicle Codes.

Appendix 1 must be used with caution, because several of the felonies that the legislature amended to be sentencable under Subdivision (h) are always, or normally, PC 290-registerable, or are serious felonies. Many, but not all, of these offenses are noted where they appear in Appendix 1. Even thought these are Subdivision (h) felonies, by operation of Subd. (h)(3), they are State Prison Felonies.

The most common such PC 290-registerable offense is Pen. Code § 288.2, was amended to be a Subdivision (h) felony. Because it is PC-290-registerable, however, under Pen. Code § 1170, Subd. (h)(3), that is still a State Prison Offense.

The most common such serious felony is Pen. Code § 246.3, subd. (a), grossly negligent firearm discharge. Caselaw holds this is a serious felony under Pen. Code § 1192.7, subd. (8), if it is shown that D personally used a gun. Basically, this has to be See, e.g., People v. Golde (2008) 163 Cal. App.4th 101; and People v. Bautista (2005) 125 Cal.App.4th 646.

In addition to those two specific instances, the lists of serious and violent felonies (Pen. Code §§ 1192.7, subd. (c) and 667.6, subd. (c)) contain some generic provisions, so it is also possible that a particular felony, under the circumstances of its commission, is serious or violent. If so, that felony while punishable "pursuant to Subdivision (h)", would also be, by operation of Par. (h)(3), still a State Prison Felony.

In addition, any felony in which discretionary registration is ordered under Pen. Code § 290.006 remains punishable "pursuant to Subdivision (h)", but by operation of Pen. Code § 1170, subd. (h) (3), is also not a County Jail Felony.

Appendix 2.

All serious, violent, PC-290-registerable, and PC 186.11 enhanced felonies are categorically State Prison Felonies. Those categorical State Prison Felonies are not listed in Appendix 2.

What is listed in Appendix 2 are about 80 felonies that are not serious, violent, PC 290-registerable, or PC 186.11 enhanced, and thus not Categorical State Prison Felonies, but that are still punishable by State Prison.

Most of these are felonies whose statutes expressly state they are punishable by state prison.

Some of these are offenses that state only that they are "felon[ies]" without stating a sentence-length and without stating whether they are punishable under Pen. Code § 1170, subd. (h), or by state prison. By operation of Pen. Code § 18, as amended (quoted and analyzed above), a felony that does not expressly state it is punishable under Pen. Code § 1170, subd. (h) is a State Prison Felony. Accordingly those 18 felonies are also State Prison Felonies.

Collectively, these are often called the Excluded Felonies.

E. Consecutive and Concurrent Sentences.

1Two or more County Jail Felonies

When two County Jail Felonies are to be served concurrent to each other, the sentencing is straightforward.

When two County Jail Felony terms are consecutive to each other, it appears that the normal consecutive sentencing rules of Pen. Code § 1170.1 apply, and the total sentence is served in county jail.

Pen Code § 1170.1 speaks only of "imprisonment", and does not require that to be in state prison.

Likewise, Pen. Code § 19.2, as amended by AB 109 § 231, permits county jail sentences of more than a year both when a county jail felony sentence is being imposed, and also when "consecutive" sentences are being imposed.

If the two felonies are committed in different counties, Realignment legislation is silent about the county jail, or jails, in which the sentences are to be served. This may be a subject of additional legislation.

2A County Jail Felony and a State Prison Felony.

When one of the terms is for a County Jail Felony, and another term is for a State Prison Felony, Pen. Code § 1170, subd. (f), amended by AB 117, states:

Whenever a court imposes a term of imprisonment in the state prison, whether … a principal or subordinate term, the aggregate term shall be served in the state prison, regardless as to whether … one of the terms [is for a County Jail Felony].

In other words, when one term is for a State Prison Felony, and the other is for a County Jail Felony, then the entire consecutive term must be served in state prison.

That is clearly consecutive sentence language, and it appears in the consecutive sentencing statute.

What if the sentences are concurrent?

The statutes do not state where the sentence is served if they are concurrent.

Perhaps the courts will treat such concurrent sentences as they do misdemeanor sentences that are concurrent with felonies: executed sentences are served in state prison.

Perhaps, however, courts should use their sound discretion to decide on a case-by-case basis whether a concurrent term should be served in county jail.

F. Enhancements and Additional Terms, Including One Year Prison – and County Jail Felony – Priors, and the On-Release Enhancement, Pen. Code § 12022.1.

Enhancements apply to County Jail Felonies.

Pen. Code § 1170.1, subd. (e), which requires all enhancements to be pled and proved is amended to eliminate the word "prison," and substitute the word "sentence."[[9]]

When the court imposes a sentence for a felony pursuant to Section 1170 …, the court shall also impose … the additional terms … for any … enhancements.… The court shall also impose any other additional term that the court determines … [it] shall run consecutive to the term imposed under Section 1170.…

The change from "prison" to "sentence", clarifies that enhancements apply not just to State Prison Felony sentences, but also to County Jail Felony sentences:

The prison-prior statute, Pen. Code § 667.5, subd. (b), has been amended so that

(1) County Jail Felony priors will also enhance future sentences by one year,

(2) County Jail Felony sentences are enhanced by both Prison Priors and County Jail Felony Priors, and

(3) Split sentences under Pen. Code § 1170, subd. (h) (5), also count as County Jail Felony one-year enhancement priors.

Here is the relevant current text of Pen. Code § 667.5, subd. (b).[10] Text- breaks have been added, for ease of reading.

(b) … [W]here the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended,

in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail [felony] termor when sentence is not suspended for any felony;

provided that no additional term shall be imposed under this subdivision for any prison term or county jail [felony] term … or when sentence is not suspended prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of [county jail [felony] custodyor any felony sentence that is not suspended.

A term imposed under the provisions of paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the term is suspended by the court to allow postrelease supervision, shall qualify as a prior county jail term for the purposes of the one-year enhancement.

Corresponding changes have been made Pen. Code § 667.5, subds. (e) and (f), so they also include the phrase "or in a county jail under subdivision (h) of Section 1170."

The situation is much more difficult, however, with Pen. Code § 12022.1.

Penal Code section 12022.1 requires an additional term when the defendant is convicted of two felonies, one of which was committed while the defendant was released on bail or an own recognizance on the other.

Subdivision (b) of § 12022.1 specifies that the additional term is "a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court."

When the defendant has been convicted of two County Jail Felonies (i.e., felonies sentenced under Pen. Code § 1170, subd. (h)(1) or (h)(2)), and is not ineligible under Pen. Code § 1170, subd. (h)(3) to serve them in county jail, but an enhancement is also found true and imposed under Pen. Code § 12022.1, where is the resulting sentence served: county jail or state prison?

Realignment legislation does not provide an answer. Sec. 12022.1 was not amended by this legislation.

There are at least four possible answers: (1) the entire sentence is served in county jail; (2) the entire sentence is served in state prison; (3) the sentence for the felonies themselves are served in county jail and the person is then transferred to state prison; and (4) Sec. 12022.1 does not apply to two County Jail Felonies.

Answer (1), that the entire sentence is served in county jail, requires a finding that it was a drafter's oversight not to expressly amend Pen. Code § 12022.1, subd. (b), to either eliminate the phrase "in state prison," or to substitute for it (making appropriate other grammatical changes), the word "term" or the word "sentence", as was done with Pen. Code § 1170, subd. (e).

It is not surprising in a change as massive as Realignment, which required over four separate bills, numbering over 1,000 pages total, and amending hundreds of statutes, that some drafter's errors and oversights were committed.

The California Supreme Court has previously found implied amendments, at least one of which was said to be probably a drafter's oversight, in two criminal sentencing cases.

The first such case was People v. Pieters (1991) 52 Cal.3d 894, 902, which found that "the Legislature impliedly created an exception to former Penal Code section [1170.1, subdivision (g) ] when it enacted [Health and Safety Code] section 11370.4".

The second such case was People v. Jackson (1985) 37 Cal.3d 826, 838,[11] where the court "read [Penal Code] section 1170.1, subdivision (g), as if it contained an exception for enhancements for serious felonies pursuant to [former Penal Code] section 667." The court noted, Jackson, 37 Cal.3d at fn 15, that the statute's failure to contain an express amendment "appears to be a draftsman's oversight."

Implied amendments "are disfavored but are allowed to preserve statutory harmony and effectuate the intent of the legislature." McLaughlin v. State Bd. of Educ. (1999) 75 Cal.App.4th 196, 219-220.

Implying this amendment does preserve statutory harmony and effectuate the intent of the legislature, as expressed in its findings and declarations for Realignment in Pen. Code § 17.5, to realign low-level felons to community based punishment.

Because implied amendments are disfavored, however, the other possibilities must also be considered.

The argument for Answer (4), that § 12022.1 does not apply to two County Jail Felonies, is based by noting the amendments that were made to Pen. Code § 667.5, subd. (b), the one year prior enhancement. Because Pen. Code § 667.5, subd. (b) was amended to accommodate Realignment, while Pen. Code § 12022.1 was not, the argument goes, the legislature must have intended that § 12022.1 only apply to State Prison Felonies. This answer seems unsatisfactory, however, because the legislature did not change any other enhancement or added term so that it once applied to all felonies, but now only applied to State Prison Felonies. Would not the legislature have spoken more clearly if that was intended here?

Answer (3), that the person serves the felony sentences in county jail and is then transferred to state prison, has some plausibility. A small number of cases, such as People v. Erdelen (1996) 46 Cal.App.4th 86, 90, noted that a misdemeanor sentence was given consecutive to a county jail sentence. That seems to make possible answer (3) here. But those few case are rare, and they do not expressly state where the sentence or sentences were actually served. They seem anomalous.

Possibility (2), the entire sentence is served in state prison, goes against Pen. Code § 1170, subd. (h)(3), which states when a § 1170, subd. (h)(1) or (h)(2) felony cannot be sentenced to County Jail, and listing only one enhancement, Pen. Code § 186.11. This, plus the listing of serious and violent felonies, both in and out of state, and PC 290-registration, do not seem to allow for other exceptions.

G. Misdemeanor Reductions Under Pen. Code § 17, subd. (b).

Pen. Code § 17 is set out above, at Part II A 1.

The rules on misdemeanor reductions are essentially the same, mutatis mutandis, with the changes changed.

If a Split Sentence is given under Pen. Code § 1170, subd. (h)(5)(B), then, regardless of whether that is probation or not (See Part II, C, 5, iv, above), the person cannot get a misdemeanor reduction.

The reason is that Pen. Code § 17, subd. (b)(1) prohibits a misdemeanor reduction if the person has been imprisoned under Pen. Code § 1170 subd. (h). Even though a portion of that sentence was suspended, and regardless of whether that is probation or not, the person has been imprisoned under Pen. Code § 1170, subd. (h).

There are no other significant changes to the traditional operation of misdemeanor reductions under Pen. Code § 17, subd. (b).

The court can still suspend the imposition of judgment and declare the case to be a misdemeanor at the time or later, under Pen. Code § 17, subd. (b)(3).

The district attorney can still file wobblers as misdemeanors under Pen. Code § 17, subd. (b)(4).

And the magistrate can still reduce a felony to a misdemeanor at the preliminary hearing under Pen. Code § 17, subd. (b)(5).

H. The Court Cannot Dismiss Allegations Requiring a Person To Serve a County Jail Felony in State Prison; But Romero Discretion To Dismiss Prior Strikes Otherwise Remains Intact.

Subdivision (f) of Pen. Code § 1170, subd. (f) is amended very carefully:

(f) … [F]or purposes of paragraph (3) of subdivision (h), any allegation that [D] is eligible for state prison due to a prior or current conviction, sentence enhancement, or because he or she is required to register as a sex offender shall not be subject to dismissal pursuant to Section 1385.

It seems plain that the court's "1385 discretion" is not affected except for purposes of state prison eligibility allegations. It seems plain that the court fully retains discretion to dismiss prior "strikes" for purposes of doubling or life-terming, prison sentences under People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

By its express terms, Pen. Code § 1170, amended subd. (f), is not a general prohibition against dismissing such allegations. By its express terms, this is a prohibition only against dismissing such allegations for purpose of state prison eligibility.

It is settled law that a statute prohibiting the court from dismissing a prior serious or violent felony conviction for some purposes, does not prohibit the court from dismissing that allegation for other purposes. Romero itself, 13 Cal.4th at pages 525 to 530 considered this question at length.

Romero held, at those pages, that even though the court cannot dismiss a prior serious felony for purposes of enhancing a new serious felony by five years under Pen. Code § 667, subd. (a), it can dismiss the prior conviction under strike law itself Pen. Code §§ 667, subd. (b) to (i) and Pen. Code § 1170.12.

Romero relied on, both the lack of a clear legislative prohibition against dismissing prior strikes, and on the fact that Strike Law expressly permits dismissals under Pen. Code § 1385. That same reasoning seems completely applicable here.

I. Illustrative Felonies That Are Not Serious, Not Violent, and Not Registerable, But That Are Still State Prison Felonies.

These can be called the "Non-non-non State Prison Felonies", or the Excluded Felonies. Many carry maximum terms of only 3 years. There are some 80 of these. Most are listed in Appendix 2.

Examples of non-non-non felonies that are not County Jail Felonies include:

  • Pen. Code § 273.5 (corporal injury in certain domestic violence situations);
  • Pen. Code § 417, subd. (c) as amended by AB 109 § 347 (brandishing at a peace officer);
  • Pen. Code § 646.9 [stalking, a wobbler; under specified circumstances];
  • Veh. Code § 2800.2, subd. (a),
  • Veh. Code § 23550.5 (felony multiple-offense DUI with a felony DUI prior) (This offense is a wobbler.)

All of the above statutes expressly specify state prison.

There are also some offenses that specify merely that they are "a felony," without stated a sentence, and without mentioning state prison. Some 16 of these are also listed in Appendix 2.

An example is the statute proscribing possession of drugs in prison, Pen. Code § 4573.8, which states, simply that the violator "is guilty of a felony."

Under Pen. Code § 18, as amended by ABX1 17, because the statute does not state it is punishable under Subd. (h) of Pen. Code § 1170, it too is punished by state prison.

J. Illustrative Felonies With a Maximum For Longer Than Four Years That Are County Jail Felonies.

Tens of felonies with a maximum of four years are County Jail felonies.

Felonies with maximum sentences longer than four years that are County Jail felonies are less frequent. Examples include:

Health & Saf. Code § 11379, subd. (b), as amended: transportation for sale between non–contiguous counties of specified controlled substances "shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for three, six, or nine years.

Perhaps the longest term for a county jail felony is in Pen. Code § 11419, subd. (a), possessing specified restricted biological agents) as amended, which prescribes a term "pursuant to subdivision (h) of Section 1170 for 4, 8, or 12 years."

K. Juvenile Adjudications

1.Adjudications That Do Not Qualify as "Strikes"

Persons currently required to register under Pen. Code § 290 as a result of a juvenile adjudication are excluded from County Jail Felony sentencing under Pen. Code § 1170, subd. (h)(3).

Only those juvenile adjudications that meet all of the criteria in Pen. Code § 667, subd. (d)(3) (accord, Pen. Code § 1170.12, subd. (b)(3)) qualify as prior strikes. Those are dealt with in Subpart 2, below.

Other juvenile adjudications, even to serious or violent felonies, are not excluded from County Jail Felony sentencing by Pen. Code § 1170, subd. (h)(3), so the person can be sentenced to county jail under Subds. (h)(1) and (h)(2).

An attempt to included all such juvenile adjudications was made in the latest clean-up bill, ABX1 17; an amendment took that provision out. See the history of that bill.[12] This is expected to be reconsidered during the next legislative session.

Welf. & Inst. Code sec. 203 provides that "An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose."

In People v. West (1984) 154 Cal.App.3d 100, 106, the court considered the question of whether an adult defendant's "two prior juvenile adjudications of burglary of a residence" (West, p. 103) were prior serious felony convictions for purposes of Pen. Code sec. 667, subd. (a).

Pen. Code sec. 667, subd. (a) [now, Subd. (a)(1), with amendments not relevant here] read:

"Any person convicted of a serious felony who previously has been convicted of a serious felony … shall receive … a five-year enhancement for each such prior conviction…."

The court held, People v. West, supra, 154 Cal.App.3d at 106, that "because defendant's prior juvenile adjudications are not 'felony convictions' they are not within the purview of Penal Code section 667, subdivision (a)." Accord, People v. Sanchez (1985) 170 Cal.App.3d 216, 218 – 219 (collecting cases).

It thus appears that a prior juvenile adjudication generally is not a conviction unless the legislature has clearly – in that instance, expressly – intended to include juvenile adjudications.

In Realignment legislation, the legislature did not speak thus-expressly, and, indeed, spoke in similar language to, and with no more detail than, the language in Pen. Code sec. 667, subd. (a). Accordingly, there is no reason to think that the legislature included juvenile adjudications Subd. (h) as finally amended.

2.Prior Juvenile Adjudications That Do Qualify as "Strikes."

A prior juvenile adjudication that meets all four criteria of Pen. Code § 667, subd. (d)(3) (accord, Pen. Code § 1170.12, subd. (b)(12)) qualifies as a prior strike. People v. Garcia (1999) 24 Cal.4th 1.

This does not mean we could see people doing life in county jail on a third-strike case based on juvenile priors.

Strike-sentencing-law applies "notwithstanding any other law," and so still requires a state prison sentence, unless the later-enacted Realignment law has superseded strike law in this regard.

Does Realignment law supersede Strike Law in this regard? It is the later-enacted statute. But Strike law, Pen. Code section 667, subd. (f), states that it, including, therefore, its sentencing provisions at Subd. (e), apply "Notwithstanding any other law…." So it seems unlikely that Realignment law controls over strike law in this regard, and the person would be sent to State Prison for the doubled or tripled term.

It also follows, that if the court dismisses the prior strikes for strike-law purposes, then the defendant can be sentenced to county jail on a County Jail Felony. What had made the defendant ineligible for County Jail was not a prior serious or violent felony conviction per se, but was a prior strike under strike law's specialized definition; with the dismissal of the prior strike, that restriction no longer applies.

L. Attempted Crimes: Conforming Statutory Changes.

The general sentencing statutes for attempted crimes is Pen. Code § 664.

As amended by AB 109, § 439, Pen. Code § 664, subd. (a), now provides, in relevant part:

If the crime attempted is punishable by imprisonment in the state prison or by imprisonment pursuant to subdivision (h) of Section 1170, the person guilty of the attempt shall be punished by imprison in the state prison or in a county jail, respectively, for one-half the term of imprisonment prescribed upon a conviction of the offense attempted.

The remainder of Pen. Code § 664 is unchanged.

Query if an attempted wobbler County Jail Felony, such as receiving stolen property in violation of Pen. Code § 496, given an executed sentence of one-half the low term of 16 months, that is, eight months county jail, is thereby reduced to a misdemeanor? Note that is could be said to have been sentenced pursuant to Pen. Code § 1170, subd. (h), which, under Pen. Code § 17, subd. (a) is the hallmark of a felony.

M. The Statutes of Limitations: Conforming Statutory Changes.

Pen. Code § 800 as amended by ABX 17 § 11

Except as provided in Section 799, prosecution for an offense punishable by imprisonment in the state prison for eight years or more or by imprisonment pursuant to subdivision (h) of Section 1170 for eight years or more shall be commenced within six years after commission of the offense.

Penal Code section 801 as amended:

[For felony offenses with terms of less than eight years], prosecution for an offense punishable by imprisonment in the state prison or pursuant to [Pen. Code § 1170, subd. (h)] shall be commenced within three years after commission of the offense.

Penal Code section 803 as amended:

(a) and (b): [both Unchanged].

(c) [The] limitation of time … does not commence to run until the discovery of an offense described in this subdivision. This subdivision applies to an offense punishable by imprisonment in the state prison or imprisonment pursuant to [Pen. Code § 1170, subd. (h)], [involving] fraud or [related crimes] … or … misconduct in office by a public officer, employee, or appointee, including … the following offenses: [There follows a list of offenses that AB 109 has not changed].

(d) through (h): [All, unchanged.]

N. The Pregnant and Parenting Woman's Alternative Sentencing Program ("Family Foundations Program"): Conforming Statutory Changes to Eligibility Requirements.

The program had required, inter alia, a prison sentence. Realignment now permits entry into that program for qualified women who receive a County Jail Felony.

Penal Code section 1174.4 as amended:

(a) to (c) [Unchanged].

(d) If the court determines that the defendant may benefit from … this program, the court may impose a sentence of imprisonment pursuant to [Pen. Code § 1170, subd. (h)] with the recommendation that the defendant participate in the program ….

(e) to (h) [Unchanged].

(i) …. Women who do not successfully complete the program shall be returned to imprisonment pursuant to [Pen. Code § 1170, subd. (h)] where they shall [complete] their original sentences.….

The program itself, however, is contracting. Fresno's branch will close in November, 2011.

O. Prisoner's Rights: Conforming Statutory Changes

The Penal Code has specified certain rights retained by state prisoners. These are now extended to those serving time for County Jail Felonies.

Penal Code section 2600:

A person sentenced to imprisonment in a state prisonor to imprisonment pursuant to [Pen. Code § 1170, subd. (h] may during that period of confinement be deprived of such rights, and only such rights, as is reasonably related to legitimate penological interests.…

Penal Code section 2650:

The person of a prisoner sentenced to imprisonment in the state prisonor to imprisonment pursuant to [Pen. Code § 1170, subd. (h)is under the protection of the law, and any injury to his person, not authorized by law, is punishable in the same manner as if he were not convicted or sentenced.

Query if people in county jail for less than a year are similarly protected?

P. The Commitment Documents: Conforming Statutory Changes.

Penal Code section 1213 states what documents must be "furnished to the officer whose duty it is to execute the probationary order or judgment [that orders confinement in jail or prison]."

What is required is "a copy of the minute order or an abstract of the judgment as provided in [Pen. Code §] 1213.5 …, and a Criminal Investigation and Identification (CII) number.…"

AB 109 § 457 adds the requirement that these documents also be furnished to the executing officer if "the judgment is for … imprisonment pursuant to [Pen. Code § 1170, subd. (h)]."

Q. What of Sentence Recalls and Compassionate Release?

Sentence Recalls. Pen. Code § 1170, subd. (d), permits the court, within 120 days of sentencing a person to "state prison" to recall the sentence and pronounce a new sentence that is no greater.

The wording of Pen. Code § 1170, subd. (d) is unchanged by Realignment. So it does not appear that Subd. (d) gives the court authority to recall a county jail felony sentence.

Query if denial of a sentence recall to a County Jail Felon would amount to a violation of Due Process or Equal Protection.

Compassionate Release Pen. Code § 1170, subd. (e), permits the court, under certain circumstances, including that, either, the prisoner is terminally ill and within six months of death, or is permanently incapacitated and requires 24-hour total care, to recall the sentence. The wording of Pen. Code § 1170, subd. (e) is unchanged by realignment. It speaks of the Secretary of CDCR, of the Board of Parole Hearings it seems plain that is contemplates a person who is in state prison.

So, likewise, it does not appear that Subd. (e) gives the court authority to order a compassionate release from a county jail felony sentence.

A different type remedy is available in county jails. Under Gov. Code § 26605.5, the sheriff, after determining certain facts, and notifying the court, can transfer "to a medical facility or residential care facility, a prisoner whose physical condition, in the opinion of [an] examining physician, is such that he or she is rendered incapable of causing harm to others upon or after release from custody."

R. The Sentencing Rules: California Rules of Court 4.401 to 4.480.

1.Do the Sentencing Rules Apply to County Jail Felonies?

Penal Code section 1170 states, in part, that

(a)(3) In any case in which the punishment ¼ is a term of imprisonment in the state prison of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified … In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council.

Was it the Legislature's intent that after Realignment the court need apply the Sentencing Rules only to prison sentences, and not to County Jail Felony sentences?

The Rules of Court, generally, were promulgated by authority of Cal.Const. art.. art. VI, § 6:

To improve the administration of justice, the [Judicial] council shall ¼ adopt rules for court administration, practice and procedure, and perform other functions prescribed by statute. The rules adopted shall not be inconsistent with statute.

The Determinate Law Sentencing Rules were promulgated, additionally, by authority of Pen. Code § 1170.3:

"The Judicial Council shall seek to promote uniformity in sentencing … by:

(a) The adoption of rules … for the consideration of the trial judge at … sentencing regarding the court's decision to:

(1) Grant or deny probation.

(2) Impose the lower, middle, or upper prison term.

(3) Impose concurrent or consecutive sentences.

(4) Determine whether or not to impose an enhancement where that determination is permitted by law.

(b) The adoption of rules standardizing the minimum content and the sequential presentation of material in probation officer reports submitted to the court.

(c) ¼.

Note that Pen. Code § 1170.3, subd. (a)(2) states "Impose the lower, middle, or upper prison term."

By not changing Pen. Code § 1170.3, subd. (a)(2), in the Realignment legislation, did the Legislature intend that for County Jail Felonies, the Sentencing Rules of Court do not apply in choosing the lower, middle, or upper term?

By not adding the restriction to "prison terms" in the other three paragraphs of Pen. Code § 1170.3, subd. (a), did the Legislature mean that the Sentencing Rules do apply to the other aspects of County Jail Felony sentencing?

What did the Legislature mean by specifying in Pen. Code § 1170,subd. (h)(5), both in paragraphs (A) [full term sentences] and (B) [split sentences], that the term must be selected "in accordance with applicable sentencing law"?

The only place in Realignment legislation that expressly states a sentence is in the court's discretion is Pen. Code § 1170, subd. (h)(5)(B), the "concluding portion of the term [that will be suspended is] selected in the court's discretion¼." That sentence stands in contrast to the sentences in the paragraph above, requiring that "term[s]" be selected "in accordance with applicable sentencing law."

Would absurd consequences result if the Sentencing Rules did not apply to County Jail Felonies?

See, e.g., this portion of Pen. Code § 1170, subd. (c):

The court shall state the reasons for its sentence choice …

The Judicial Council did not read that provision as restricted to prison terms. Sentencing Rule 4.406; Item (b)(1) requires the court to state its reasons for "granting probation." Granting probation is not a prison term.

So the Judicial Council did not believe that the legislature meant that the reasons for a sentencing choice need be stated only when a prison term is imposed.

Did the Legislature intend that the court need not state the reasons for its decision to impose the lower, middle, or upper County Jail Felony term? How about reasons to split a county jail felony sentence?

Would it be absurd to require a statement of reasons for all of the 7 categories in Rule 4.406(a), and not to state them for County Jail Felonies?

Sentencing Rule 4.403 states

"These rules apply only to criminal cases in which the defendant is convicted of one or more ¼ felon[ies] punishable ¼ by a determinate sentence imposed under Penal Code part 2, title 7, chapter 4.5 (commencing with section 1170)."

The text of the Rule itself plainly covers all Determinate Sentencing Law sentences; and the Legislature placed Realigned sentences deep in the heard of the main Determinate Sentencing Law statute, Pen. Code § 1170.

The Advisory Committee Comment to the Sentencing Rules of Court states

The operative portions of section 1170 deal exclusively with prison sentences; and the mandate to the Judicial Council in section 1170.3 is limited to criteria affecting the length of prison sentences and the grant or denial of probation. Criteria dealing with jail sentences, fines, or jail time and fines as conditions of probation, would substantially exceed the mandate of the legislation.

But the "operative portions" of Pen. Code § 1170 no longer deal exclusively with prison sentences.

And the Advisory Committee Comments are not Rules themselves, but only explanations, or guides, for interpreting the Rules. That is most clearly stated at Witkin, Calif. Procedure (5th Ed., 2008) Ch. II, § 187, item (6): "Many of the Rules of Court are followed by advisory committee comments or drafter's notes, which explain various changes in the rules."

See Calif. Rules of Court 10.22 (Rule-making procedures); see generally, Calif. Rules of Court 10.30 to 10.70 (Judicial Council Advisory Committees…"); see also

The Sentencing Rules obviously could be updated to expressly reflect realignment.

But it also appears that, for the most part, the existing Rules can be utilized without "changing" anything, to Realignment. As required by Cal. Const. art. VI, § 6, they are "not inconsistent with statute."

If, however, the Sentencing Rules of Court do not necessarily apply, then surely they can be used a persuasive guidelines, worthy of consideration.

See, e.g., 74 Cal. Ops. Atty. Gen. (Mar. 20, 1991), using the felony determinate sentencing statutes, and the Sentencing Rule of Court on aggravating and mitigating statements (then, Rule 437, today Rule 4.437, as aids in deciding whether the district attorney can file a statement in aggravation at a misdemeanor sentencing, and what that statement can contain.

2.Mandatory or Persuasive Application of Selected Sentencing Rules of Court

In applying these presently-unamended Rules under Realignment, court and counsel should keep in mind Rule 4.408(a):

The enumeration … of some criteria … does not prohibit the application of additional criteria reasonably related to the decision being made…

Rule 4.414 "Criteria affecting probation." An expansion of this Rule to encompass criteria for probation along with a County Jail Felony sentence also seems in order.

R. 4.414(b)(5) requires the court to consider "The likely effect of imprisonment on the defendant and his or her dependents[.]" Under Realignment, courts should consider "The likely effect of [prolonged county jail incarceration] on the defendant and … [his or her] dependents."

The Judicial Council should also consider a rule to guide the court in deciding whether to suspend execution of a portion of a County Jail Felony term and release the person under the probation officer's supervision.

Rule 4.421 "Circumstances in aggravation." R. 4.421(b)(3) states as an aggravating factor that the defendant "served a prior prison term." Presumably, courts will also consider as aggravating services of a prior County Jail Felony term.

Rule 4.423. "Circumstances in mitigation" R. 4.423(b)(6) requires the court to consider that "The defendant's prior performance on probation or parole was satisfactory." The court should also consider whether release on a County Jail Felony split sentence, or on Postrelease Community Supervision was satisfactory.

Rule 4.433 "Matters to be considered at time set for sentencing." R. 4.433(e) provides :

"When a sentence of imprisonment is imposed … the sentencing judge must inform the defendant, … of the parole period provided by section 3000 … in addition to any period of incarceration for parole violation."

This rule comes from Pen. Code § 1170, subd. (c), which requires the court "to inform the defendant of parole that as part of the sentence … he or she may be on parole … as provided in Section 3000." Section 1170, subd. (c) is not amended by Realignment.

Pen. Code § 3000, however, has been amended (by AB 117 § 36) to mention Postrelease Community Supervision. Its Subd. (a)(1), last sentence now states that "A sentence resulting in … state prison … shall include a period of parole supervision or postrelease community supervision …."

So it does appear that the court is already required to, or at least should, advise the defendant of the release on, and major terms of, postrelease community supervision.

But it seems better to revise both Pen. Code § 1170, subd. (c), and Rule 4.433 (e), to expressly require such advise.

Rule 4.435 "Sentencing on revocation of probation." This Rule was written with imposition of a prison term in mind: Subdivision (b) expressly speaks of being "committed to prison," and of the" Department of Corrections and Rehabilitation."

Query, if this rule stretches enough to include revocation of supervision that was imposed along with a County Jail Felony Split Sentence: "When the defendant violates the terms of probation or is otherwise subject to revocation of probation, the sentencing judge may make any disposition of the case authorized by statute."

If a Split Sentence is not considered probation, then it does not fall within Rule 4.435's literal scope.

Perhaps Rule 4.435 comes within the rubric of "procedures generally applicable to persons placed on probation." But that applies to the "supervis[ion] by the county probation officer", and this is not such supervision.

S. Appellate Review of County Jail Felony Sentences.

1.Appeal by the Defendant

The statutes concerning appeal have not been amended by Realignment.

Pen. Code § 1237, subd. (a) provides that the defendant can appeal

"From a final judgment of conviction, except as provided by [Pen. Code §] 1237.1 and [Pen. Code §] 1237.5. A sentence, [or] an order granting probation … shall be deemed to be a final judgment…."

A County Jail Felony Split Sentence is surely either a sentence or an order granting probation.

Penal Code section 1237.1 provides that the defendant cannot appeal on the ground of an error in calculating presentence custody credits unless the defendant has first presented the claim in the trial court, or, upon late discovery, make a motion for record-correction in the trial court.

The change in local conduct credits in Pen. Code § 4019 is likely to be a common ground of appeal. Defendants should use care to bring up any issues in the trial court.

An appeal from a plea of guilty or no contest, or following an admission to a probation violation, requires a certificate of probable cause under Pen. Code § 1237.5. The defendant must file a written declaration showing "reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings."

But a certificate of probable cause is not required to appeal on "Grounds that arose after entry of the plea and do not affect the plea's validity." Calif. Rule of Court 8.304(b)(4)(B).

Determining whether a particular County Jail Felony sentence is a ground that arose after entry of the plea, or, on the contrary, goes to the validity of the plea itself, is, in many cases, surely going to be difficult. See generally, Witkin & Epstein California Criminal Law (3d Ed., 2000) Ch. XVI, Subpart 1, D, 2 "[Right to Appeal] After Guilty … Plea", §§ 8, et seq.

Accordingly, the defense is well advised to seek a certificate of probable cause whenever appealing concerning a County Jail Felony sentence, at least until there is firm guidance on what issues do, and what do not, require a certificate of probable cause.

If the court wrongly denies a petition for a certificate of probable cause, the defendant's remedy is to seek a writ of mandate from the court of appeal. See, e.g., People v. Johnson (2009) 47 Cal.4th 668, 676.

2.Appeal or Review by the Prosecution.

The prosecution's right to appeal or seek review is found at Pen. Code § 1238.

The most likely ground will be under Subd. (a)(10), "The imposition of an unlawful sentence, whether or not the court suspends the execution of the sentence"

If a County Jail Felony Split Sentence is considered probation, the prosecution cannot appeal from that, but can seek review by a petition for a writ of mandate, under Pen. Code § 1238, subd. (d).

U. Certificates of Rehabilitation for County Jail Felons.

Penal Code section 4852.01 et seq., authorizes the court to award a Certificates of Rehabilitation to qualified felons who served a state prison sentence.

Can these now be awarded to persons who were denied probation and who served a full term, or a split sentence, under Pen. Code § 1170, subd. (h)(5)(A) or (B)?

Pen. Code § 4852.01, subd. (b) provides that a petition can be filed by "… [A]ny person convicted of a felony after [May 13, 1943] who is committed to a state prison or other institution or agency …."

A person who served a County Jail Felony sentence, is obviously eligible if county jail comes within the meaning of "… other institution or agency…." Subdivision (b) does not expressly require that the "institution or agency" be a State institution or agency, so it appears that a county jail qualifies.

Moreover, permitting County Jail Felons to obtain such relief, furthers the legislative finding and declaration in Pen. Code § 17.5, subd. (a)(5), that Realignment will "facilitate [low-level felony offenders'] reintegration back into society."

V. The Right to Vote After Realignment

Cal. Const. art. 2, § 4, provides:

The Legislature… shall provide for the disqualification of electors while … imprisoned or on parole for the conviction of a felony.

Elec. Code § 2101 provides:

A person entitled to register to vote shall be … not in prison or on parole for the conviction of a felony … at the time of the next election.

See, likewise, Elec. Code §§ 2106 (voting literature) and 2300, subd. (a)(1)(B) (part of the voter's "bill of rights".).

These provisions, "imprisoned [or in prison] for … a felony" and "on parole for … a felony" were not changed by Realignment.

Consider, first, the phrase "on parole for … a felony".

The Legislature, in making a second type of post-prison-release supervision, did not call it, e.g., "community parole," calling it, instead, "post release community supervision." Pen. Code §§ 3000.08 and 3450.

The supervision provided by postrelease community supervision (PRCS) is quite different than the supervision provided by parole, and is governed by a different set of statutes. Parole is Pen. Code §§ 3000 et seq., and PRCS is governed by Pen. Code §§ 3450 et seq.

So PRCS is clearly not parole.

If the Legislature had intended that persons on PRCS would be disenfranchised, the Legislature would surely have said so. It could have expressly said so by amendment to the Elections Code, or, as already noted, it could have called PRCS something like "community parole" The Legislature did none of those things.

The settled rule, as restated by McPherson v. League of Women Voters of Calif. (2006) 145 Cal.App.4th 1469, 1482. is that

"… in the absence of any clear intent by the Legislature or the voters, [the courts] apply the principle that " '[t]he exercise of the franchise is one of the most important functions of good citizenship, and no construction of an election law should be indulged that would disenfranchise any voter if the law is reasonably susceptible of any other meaning [citation omitted].' "

So it seems clear that a person on PRCS can register and vote.

A similar analysis applies also to the concluding unexecuted portion of Split Sentences under Pen. Code § 1170, subd. (h)(5)(B), although there is no extensive set of statutes discussing them.

But the Legislature did not call this "parole," community or otherwise, and did not say that the "terms, conditions, and procedures" are those "generally applicable to parole"; instead terms and procedures are those generally applicable to "probation."

So it seems, likewise, clear that a person released on Split Sentence supervision also can register and vote.

Not as clear is whether a person actually in custody serving a County Jail Felony sentence, particularly a Split Sentence, can register and vote.

McPherson v. League of Women Voters of Calif. (2006) 145 Cal.App.4th 1469, 1486, interpreting the Constitutional and Elections Code provisions, issued

"a … writ of mandate directing … the [California] Secretary of State, to … inform[ ] the county clerks and elections officials that the only persons disqualified from voting by reason of article II, section 4 are those who [are] imprisoned in state prison or who are on [felony] parole…."

County jail is manifestly not state prison. That is what Realignment is all about.

Accordingly, if McPherson, the Constitutional provision, and the Election Code statutes, all together, are all applied to Realigned felonies without reinterpretation, persons actually in county jail for County Jail Felonies, are entitled to register and vote.

But is McPherson applicable to persons in county jail by reason of a sentence under Pen. Code § 1170, subds. (h)(1), (h)(2), and (h)(5)(A) and (h)(5)(B)? And are the Constitutional and statutory provisions, ripe for reinterpretation under Realignment?

The central question in McPherson was whether people in county jail as a condition of felony probation were considered "imprisoned" "for the conviction of a felony."

The court decided they were not. After examining the statutes and caselaw concerning probation, the court stated, 145 Cal.App.4th at 1485,

"The defendant who has been placed on probation, therefore, is imprisoned by the court in a local facility as a condition of probation, not as a result of the conviction of a felony."

For persons serving a full term under Pen. Code § 1170, subd. (h)(5)(A), that conclusion is not applicable. They are not serving the term as a condition of probation.

So for persons in county jail serving a full term County Jail Felony sentence, that sentence of McPherson does not show they can vote.

If a Split Sentence under Pen. Code § 1170, subd. (h)(5)(B) is probation, then McPherson's conclusion is applicable to them.

If a Split Sentence is not probation, then query if McPherson is, or represents, a "term, condition, or procedure generally applicable to persons placed on probation" If it is, then seemingly the person on a Split Sentence is still eligible to vote.

If neither of those two are correct, that is if a Split Sentence is not probation, and the relevant elections provisions are not generally applicable probation terms and procedures, then, as with those serving a full term, the above-quoted sentence of McPherson does not mean they can vote.

The next question is whether "imprisoned," or "in prison" under the election provisions means state prison and does not include county jail at all.

The answer is not as obvious as perhaps it might seem at first blush.

McPherson stated, 145 Cal.App.4th at 1482:

"… [I]n the absence of any clear intent by the Legislature or the voters, we apply the principle that " '[t]he exercise of the franchise is one of the most important functions of good citizenship, and no construction of an election law should be indulged that would disenfranchise any voter if the law is reasonably susceptible of any other meaning [citation omitted].' "

To that end, McPherson concluded, 145 Cal.App.4th at 1485, that even though "where the court suspends imposition of sentence and [grants] probation, the crime is a felony", still, "the defendant has not been convicted for purposes of [Cal. Const] article II, section 4…."

Because the courts can, and do, conclude that a felony conviction with probation granted is a conviction for criminal purposes but is not a conviction for election purposes, it is not a stretch to wonder if the courts might also conclude that "imprisonment" and "in prison" might mean jail and prison for criminal purposes, but mean only state prison for election purposes.

McPherson pointed, 145 Cal.App.4th 1484, out that "[t]he term 'imprisonment' has no fixed meaning in practice." As examples, McPherson pointed out that, on the one hand, Pen. Code § 19 says that a misdemeanor is "punishable by imprisonment in the county jail not exceeding six months." But, on the other hand, "it also has been held that serving a probationary period in the county jail does not amount to serving a term of imprisonment in a penal institution. (People v. Wallach (1935) 8 Cal.App.2d 129, 133 …."

Accordingly, McPherson concluded that "there is no 'ordinary meaning' of the term that would be violated by limiting it to confinement in state prison for purposes of article II, section 4."

Note, also that the Constitutional provision, and the Statutes, include "prison" and "parole" in the same sentence. McPherson also pointed out, 145 Cal.App.4th at 1483, "[o]nly persons who have been sentenced to a term in state prison can be 'on parole' for the conviction of a felony."

Leaving enfranchised to vote those actually serving time on a County Jail Felony would further the Legislative finding and declaration in Pen. Code § 17.5, subd. (a)(5), that "Realigning low-level felony offenders … will improve public safety outcomes … and facilitate their reintegration back into society."

The conclusion is that persons on PRCs, or Split Sentence supervision can vote, but the situation is unclear for those incarcerated on a Split Sentence, and also unclear for those serving a full County Jail Sentence.

III. County Jail Conduct Credits, and Jail Alternatives.

A. County Jail Sentence Reduction Credit Under Penal Code § 4019 Increased to 50% For Almost All Inmates. Conservation Camp.

The amendments increased the conduct credits that can be earned from 6–for-4 (6 days deemed served for every 4 actual) to 4-for-2 (four days deemed served for every 2 actual).

The amendments also expressly awards these credits people serving time for County Jail Felonies, and also to people serving parole or Postrelease Community Supervision revocation time.

A new Subdivision (i), however, denies conduct credit to those parolees and Postrelease Community Supervisees whose time is being served for flash incarceration.

Penal Code section 4019:

(a) … [T]his section … appl[ies] [when]:

[(1) to (4) are unchanged: It applies when a prisoner is confined in, or committed, to a county jail (or other local actual custody), from the day of arrest to the day of sentence, or day of granting probation.]

(5) When a prisoner is confined in a county jail, [or other local actual custody] as part of custodial sanction imposed following a violation of postrelease community supervision or parole.

(6) When a prisoner is confined in a county jail [or other actual local custody] as a result of a sentence imposed pursuant to subdivision (h) of Section 1170.

(b) Subject to … subdivision (d), for eachfour-dayperiod in which a prisoner is confined in or committed to a [county jail or similar] facility ¼, one day shall be deducted from [the] period of confinement unless ¼ the prisoner has refused to … perform labor ¼.

(c) For eachfour-dayperiod in which a prisoner is confined in or committed to a [county jail or similar] facility ¼, one day shall be deducted from [the] period of confinement unless ¼ the prisoner has not … complied with the ¼ [facility's] rules ¼.

(d) ¼ [A]ssign[ment] [of] labor … [is not required] if ¼ the prisoner has refused to … perform labor ¼ or ¼ has not … complied with the … rules ¼.

(e) No deduction may be made … unless the person is committed for a period offourdays or longer.

(f) It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody.

(g) ….

(h) [This version of § 4019] ¼shall apply prospectively ¼to prisoners who are confined to a county jail [or other local actual custody] for a crime committed on or after October 1, 2011. Any days earned by a prisoner prior to October 1, 2011, shall be calculated at the rate required by the prior law.

(i) This section shall not apply, and no credits can be earned, for periods of flash incarceration pursuant to sections 3000.08 [parolees, after July 1, 2013] or 3454 [Postrelease Community Supervision].

The second sentence of Subd. (h) makes most sense if it is read as though it applies to crimes committed before October 1. The legislature did not word it that way, however, leaving some room for ambiguity.

Query if there is an equal protection violation by the award of greater conduct credits to those whose offense was committed after October 1. An expected decision from the California Supreme Court in People v. Brown (S181963), Rev. granted Jun. 9, 2010, fully briefed; unofficially reported at 107 Cal.Rptr.3d. 286, concerning retroactivity of the January 25, 2010 change to Pen. Code § 4019, which was similar to this one, may shed some light on that question.[13]

Query, also, if there was a "rate required by the prior law" in the case of County Jail Felonies, on the grounds that there was no applicable such law prior to October 1.

Many courts are awarding 4-for-2 credits for County Jail Felonies committed before October 1, but not sentenced until after October 1. A well known televised instance of this occurred recently when the court awarded Dr. Conrad Murray 4-for-2 credits when Dr. Murray was sentenced on the County Jail Felony of grossly negligent manslaughter for the death of entertainer Michael Jackson.

Excepted from this 50% rule are those convicted of violent felonies, or of murder, whose sentence reduction credits are limited to 15% for violent felons, (under Pen. Code § 2933.1). And convicted murderers cannot earn any conduct credits (under Pen. Code §2933.2).[14]

Pen. Code § 2933, subd. (e), has also been repealed by Realignment. That Subdivision had stated special rules to re-calculate conduct credits awarded under Pen. Code § 4019, for some persons arriving at state prison. The repeal of Subd. (e) makes it clear that Pen. Code § 4019 governs the conduct credits that a person except a violent offender or a murderer) receives for credit prior to arriving at the state prison.

A new section, 4019.2 is added by AB 17X, § 36, that provides two days of credit for every one day served in a "conservation camp."

B. Counties Can Expand the Existing Voluntary, and Involuntary, Home Detention Programs.

This is an expansion of the existing voluntary Home Detention program under Pen. Code § 1203.016, that the county board of supervisors may authorize.

The program is expanded in two ways. First, it is no longer limited to minimum security inmates and low-risk offenders. It can now be offered to "inmates" generally.

And second, it can now be involuntary. Presumably it is the "county correctional administrator" who imposes that.

Penal Code section 1203.016 reads, as amended:

(a) … [T]he board of supervisors … may authorize the correctional administrator, [defined in Subd. (h)] …, to offer a program under which inmates committed to … county [custody] … may voluntarily participate or involuntarily be placedin a home detention program … in lieu of … county jail [custody] ….

(b)…. As a condition … the inmate shall … consent in writing to participate … or, for involuntary participation, the inmate shall be informed in writing that he or she shall comply, with the [program's] rules….

(c) to (g) [Unchanged].

(h) … "Correctional administrator" means the sheriff, probation officer, or director of the county department of corrections.

(i) … [T]he police department of a city where an [electronic monitoring] office is located] … may request the county correctional administrator to provide [specified] information concerning those persons….

(j) [Certain terminology is updated. For example, at Subd. (j)(30(B)(i), the title ""Board of Corrections" is changed to "Corrections Standard Authority."]

There is already an existing involuntary Home Detention program at Pen. Code § 1203.017. That program is unchanged by Realignment, and remains limited to situations where overcrowding or other jail conditions would require releasing sentenced misdemeanor inmates.

C. Counties Can Authorize a Program of Electronic Monitoring in Lieu of Bail

This program is described by the Legislative Counsel's Digest for AB 109:

… [T]he board of supervisors of any county may [under this new law] authorize the correctional administrator to offer a program under which inmates being held in lieu of bail may be placed in an electronic monitoring program, as specified. The bill would establish criteria for inmates to be eligible for the electronic monitoring program.

This is new Pen. Code Section 1203.018; at further amended, it now reads:

(a) … [T]his section shall only apply to inmates being held in lieu of bail and on no other basis.

(b) … [T]he board of supervisors … may authorize the correctional administrator, as defined [below]…, to offer a program under which inmates being held in lieu of bail in … county [custody] … may participate in an electronic monitoring program ….

(c)(1) … [T]he inmate must be an inmate with no holds or outstanding warrants to whom one of the following circumstances applies:

(A) The inmate has been held in custody for at least 30 calendar days from … arraignment pending disposition of only misdemeanor[s].

(B) The inmate has been held in custody pending disposition of charges for at least 60 calendar days from the date of arraignment.

(2) All participants shall be subject to discretionary review for eligibility and compliance by the correctional administrator ….

(d) to (f) [These subdivisions further describe the program's operations, but do not deal with eligibility. The program operates similarly to the electronic monitoring home detention program of Pen. Code § 1203.016.]

(g) (1) … A person shall be eligible … only if … the person meets the criteria … established under this section including] [the program's] rules … [and] administrative polic[ies].

(2)…. All persons approved by the correctional administrator … who are denied participation [or] removed from [the] program … shall be notified in writing of the specific reasons for the denial or removal. The notice … include[s] … appeal rights ….

(h) The correctional administrator may permit … participants to seek and retain employment …, attend psychological counseling sessions or educational or vocational training classes, or seek medical and dental assistance.

(i) Willful failure … to return to the place of home detention [as scheduled] … and unauthorized departures from the place … is punishable pursuant to [Pen. Code §] 4532.[[15]]

(j) The board of supervisors may prescribe a … fee….

(k) … [Definitions]:

(1) "Correctional administrator" means the sheriff, probation officer, or director of the county department of corrections.

(2) "Electronic monitoring program" includes, but is not limited to, home detention programs, work furlough programs, and work release ….

(l) to (n) [These subdivisions further describe the program. The program is similar to the electronic monitoring home detention program of Pen. Code § 1203.016.]

Fee waivers are provided by the complicated system prescribed in Pen. Code § 1208.2, as amended by AB 109, § 456.

D Types of Quasi–Custody That Can Earn Custody Credits Expanded.

Penal Code section 2900.5 is amended to allow custody credit for the expanded Home Detention Program and for Electronic Monitoring in lieu of bail.

It also now allows credit for both Home Detention and for electronic monitoring in lieu of bail, toward minimum mandatory sentences.

Penal Code section 2900.5, as amended, now reads:

(a) In all … convictions …, all days of custody … including days … credited … pursuant to Section 4019, and days served in home detention pursuant to Section 1203.018,[[16]]shall be credited upon[the] term of imprisonment …

(b) to (e) [Unchanged]

(f) If a defendant serves time in a … work furlough facility, halfway house, rehabilitation facility, … similar residential facility, or home detention program pursuant to Section 1203.016, 1203.017, or 1203.018, …, and the [sentencing] statute … requires a mandatory minimum … time in jail, the time spent in these facilities … qualif[ies] as mandatory time in jail.

(g) [Unchanged].

E. Loss of County Jail Credits

ABX1 17 eliminated a requirement in AB 109, that County Jails adopt a disciplinary system similar to that of the state prison.

County jail discipline and loss of time credits, therefor, continues to be governed by Cal. Code Regs., tit. 15, §§ 1080 to 1084. Sheriffs may wish to revise their procedures for Realignment.

IV. Postrelease Community Supervision, Instead of Parole, For Most Prisoners

A. Which Prisoners Will Be Realigned to Postrelease Community Supervision: New Pen. Code §3000.08.

Two statutes in the Penal Code state this, one from the new Postrelease Community Supervision (PRCS) Act, and the other a new parole statute.

The new parole statute lists an additional two small groups of inmates that are released on parole rather than PRCS.

From the Postrelease Community Supervision Act, Pen. Code § 3451:

(a) … [E]xcept for persons [imprisoned for a] crime described in subdivision (b), all persons released from prison on and after October 1, 2011, … shall … for [up to] three years …, be subject to community supervision provided by a [designated] county agency ….

(b) This section shall not apply to any person released from prison after having served a prison term for any of the following:

(1) A serious felony [Pen. Code § 1192.7, subd. (c)].

(2) A violent felony [Pen. Code § 667.5, subd. (c)].

(3) A [person with prior "strikes, that is, convictions under Pen. Code §§ 667, subd. (e)(2) or 1170.12, subd. (c)(2)].

(4) Any crime where the person … is classified as a High Risk Sex Offender.

(5) Any crime where the person is [classified as a Mentally Disordered Offender (MDO)] by the State Department of Mental Health pursuant to [Pen. Code §] 2962.

Pen. Code § 3000.08[17], subds. (a) and (b) are, in essence, identical to the above, but ABX 17 added to § 3000.08, a new Subdivision (c), but made no corresponding addition to Pen. Code § 3451.

New Pen. Code § 3000.08, as added by ABX1 17:

(c) [Inmates are also released on parole who are:

  1. [PC-290-registrants who were] on parole with a term over 3 years, when they committed the felony for which they are now being released.
  2. [People were on a specified lifetime parolee whey they committed the felony for which are now being released.]

It is unclear what difference this addition to one statute but not the other will make. Perhaps a person released on parole under § 3000.08, subd. (c) will complain that the release should have been to Postrelease Community Supervision instead.

B. The Postrelease Community Supervision Act of 2011.

This new Act, Pen. Code §§ 3450 to 3458, provides for local postrelease supervision by a designated county agency (all counties have designated the Probation Department) pursuant to an implementation plan adopted by the board of supervisors.

This supervision is only for people released from state prison.

1.Findings, Declarations, Definitions, and Permissible Sanctions.

Penal Code section 3450.

(a) This act [is] the Postrelease Community Supervision Act of 2011.

(b) The Legislature finds and declares all of the following:[[18]]

(1) …. (2) ….

(3) … [T]he reincarceration of parolees for technical violations do[es] not result in improved public safety.

(4) …. (5) …. (6). (7)

(8) "Community-based punishment" means … sanctions and programming encompassing a range of custodial and noncustodial responses to criminal or noncompliant … activity.

Intermediate sanctions may be provided … directly or through public or private correctional service providers and include, but are not limited to, the following:

(A) Short-term "flash" incarceration in jail for a period of not more than ten days.

(B) Intensive community supervision.

(C) Home detention with electronic monitoring or GPS monitoring.

(D) Mandatory community service.

(E) Restorative justice programs, such as mandatory victim restitution and victim-offender reconciliation.

(F) Work, training, or education in a furlough program pursuant to [Pen. Code §] 1208.

(G) Work, in lieu of confinement, in a work release program pursuant to [Pen. Code §] 4024.2.

(H) Day reporting.

(I) Mandatory residential or nonresidential substance abuse treatment programs.

(J) Mandatory random drug testing.

(K) Mother-infant care programs.

(L) Community-based residential programs offering structure, supervision, drug treatment, alcohol treatment, literacy programming, employment counseling, psychological counseling, mental health treatment, or … other interventions.

(9)….

2.The Supervising Local Agency; County Postrelease Strategy; CDCR's Notice Requirements.

Penal Code section 3451, subd. (c)

(c)(1) [This] Postrelease supervision … shall be implemented by a county agency[[19]]according to a postrelease strategy designated by each county's board of supervisors.[20]

(2) [CDCR] shall inform every prisoner… upon release… of the [postrelease] requirements … and of [the] responsibility to report to the [responsible] county agency….

Thirty days prior to the release of any person … [CDCR] shall notify the county of [specified] information ….

3.The Postrelease Community Supervision Agreement.

Penal Code section 3452: The Agreement, Generally

(a) Persons eligible for postrelease community supervision … shall enter into a postrelease community supervision agreement … as a condition of … their release from prison.

Persons on parole transferred to postrelease community supervision shall enter into a postrelease community supervision agreement as a condition of their release from state prison.

(b) A postrelease community supervision agreement shall specify[:]

(1) The person's release date and the maximum period [of] … postrelease supervision….

(2) The name, address, and telephone number of the county agency [providing the] … supervision.

(3) An advisement that if a person breaks the law or violates the conditions …, he or she can be incarcerated in a county jail regardless of whether or not new charges are filed.

Penal Code section 3453: Terms and Conditions In the Postrelease Community Supervision Agreement

A postrelease community supervision agreement shall include the following …:

(a) …. [to] (e) ….

(f) The person, and … residence …, shall be subject to search at any time …, with or without a warrant, by … the supervising county agency['s] [agent] or by a peace officer.

(g) The person shall waive extradition if found outside the state.

(h) The person shall inform the supervising … agency of the person's place of residence, employment, education, or training.

(i)(1) The person shall inform the supervising … agency of any pending or anticipated changes in residence, employment, education, or training.

(2) … [T]he person … shall inform the supervising … agency of [starting any] new employment within three business days ….

(j) The person shall immediately inform the supervising … agency if he or she is arrested or receives a citation.

(k) The person shall obtain … permission … to travel more than 50 miles ….

(l) The person shall obtain a travel pass … before … leav[ing] the county or state for more than two days.

(m) The person shall not be in the presence of a firearm or ammunition, or any item that appears to be [such].

(n) The person shall not possess, use, or have access to any weapon listed in Section 12020 [and over 80 additional sections of the Deadly Weapon's Control Act, Sections 16410 to 33600].

(o)(1) Except as provided in paragraph (2) and subdivision (p), the person shall not possess a knife with a blade longer than two inches.

(2) The person may possess a kitchen knife with a blade longer than two inches if the knife is … kept only in the kitchen….

(p) The person may use a knife with a blade longer than two inches, if … required for … employment, the use has been approved … and the person possesses the document of approval at all times ….

(q) The person agrees to waive any right to a court hearing prior to the imposition of a period of "flash incarceration" in a county jail of not more than 10 consecutive days for any violation of his or her postrelease supervision conditions.

(r) The person agrees to participate in rehabilitation programming ….

(s) The person agrees that he or she [is] subject to arrest with or without a warrant by a peace officer [of] the supervising … agency or, at the [agency's] direction… , by any peace officer when there is probable cause to believe the person has violated the …[release] conditions ….

Comments on item (q), the "agree[ment] to waive any right to a court hearing prior to the imposition of … 'flash incarceration'

This required agreement raises obvious due process and fairness questions. That question is not resolved in this paper.

However, older cases have stated that a similar provision in Pen. Code § 3060 is valid. That provision is:

"The written order of the parole authority shall be a sufficient warrant for any peace officer … to return [the parolee] to actual custody…."

For example, Pope v. Superior Court (1970) 9 Cal.App.3d 636, 640. "This provision is valid and no due process requirement is violated by the absence of notice and hearing."

What if the release refuses to sign the agreement? ABX 17 § 25 amended Pen. Code § 3067 to provide, in that event, for continued incarceration until conduct credits are exhausted.

Pen. Code § 3067:

(a) Any inmate who is eligible for release on parole … or postrelease community supervision shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.

(b) Any inmate who does not [agree] … shall lose worktime credit … on a day-for-day basis [until] … until he or she either complies … or has no remaining worktime credit….

Search and Seizure: Pen. Code § 3465:

Every person placed on postrelease community supervision, and his or her residence and possessions, shall be subject to search or seizure at any time of the day or night, with or without a warrant, by an agent of the supervising county agency or by a peace officer.

4.The PRCS Programs, Including Sanctions

The terms and conditions of the PRCS Supervision Agreement, discussed above, are part of the PRCS programming. Pen. Code § 3454, subd. (b), first sentence.

Penal Code section 3454: County Agency Review and Refinement of the Person's Program, Including County Jail Sanctions.

(a) Each supervising county agency … shall … assess[ ] and refin[e] a person's program of postrelease supervision…. .

(b) Each [supervising] … agency … may determine additional … conditions [i.e., conditions in addition to those in the PRCS Supervision Agreement] …, including:

  • … the use of … electronic monitoring …,
  • rehabilitation and treatment services,
  • determine … incentives, and
  • … order … responses to alleged violations, which can include, but shall not be limited to, …
  • referral to a reentry court pursuant to Section 3015 [the Parole Reentry Court, discussed below], or
  • flash incarceration … … [F]lash incarceration [is] encouraged as … punishment for violations of … postrelease supervision.

(c) "Flash incarceration" is a period of … jail due to a violation of … conditions of postreleasee's supervision. The length … can range between one and 10 consecutive days.… Shorter, but … more frequent, periods … … shall appropriately punish an offender while preventing the disruption in a work or home establishment ….

Comment: Who Can Require Flash Incarceration?

Pen. Code § 3455, subd.(b), quoted above, states that "Each supervising county agency … may … order appropriate responses to alleged violation, which can include, … flash incarceration ….

It does not appear that any other person or entity is authorized to order flash incarceration.

Who Can Arrest the Person for Violation; What Comes After Arrest?

Pen. Code § 3455, subd. (a)(4) permits

… [A]ny peace officer [with] probable cause to believe a person [on] postrelease community supervision is violating any term or condition … , [to] without a warrant …, arrest the person and bring him or her before the supervising county agency ….

Additionally, an officer employed by the supervising county agency may seek a warrant and a court or its designated [revocation] hearing officer … [can] issue a warrant for that person's arrest.

What does that mean, to "bring [the person] before the supervising agency?

Presumably, the arrested person can be taken to jail. But the supervising agency is not a court. Presumably the agency is notified, and an agent come to the jail?

And, what is the time within which the person must be "br[ought] before the supervising agency?

These questions are not answered in the statute.

5.How Long Does Postrelease Community Supervision Last?

Pen. Code § 3456:

(a) The [probation department[21]]…, shall maintain postrelease supervision over a person … until one of the following events occurs:

(1) The person has been subject to postrelease supervision … for three years….

(2) Any person on postrelease supervision for six consecutive months with no violations … that result in a custodial sanction may be considered for immediate discharge ….

(3) The person who has been on postrelease supervision continuously for one year with no violations … that result in a custodial sanction shall be discharged ….

(4) Jurisdiction over the person has been terminated by operation of law.

(5) Jurisdiction is transferred to another supervising county

agency. [See Pen. Code § 3460, below.]

(6) Jurisdiction is terminated by the revocation hearing officer upon a petition to revoke and terminate …

(b) Time during which … the person has absconded shall not be credited toward any period of postrelease supervision.

[Comment: No provision is made for the person to petition the Probation Department or the Court for early termination.]

6.Transfer to Other Counties.

Pen. Code § 3460:

(a) Whenever a supervising agency determines that a person [on PRCS] no longer permanently resides within its jurisdiction, and a change in residence was either approved by the supervising agency or did not violate the terms … of … postrelease supervision, the supervising agency shall transmit …, any information the agency received from [CDCR] [about] the person … to the [Probation Department] in the county in which the person permanently resides.

(b) Upon verification of permanent residency, the receiving supervising agency shall accept jurisdiction and supervision of the person on postrelease supervision.

(c) … [R]esidence means the place where the person customarily lives… A person may have only one residence.

(d) No supervising agency shall be required to transfer jurisdiction to another county unless the person demonstrates an ability to establish permanent residency within another county without violating the terms and conditions of postrelease supervision.

7.Revocation Petitions and Hearings; Right To Counsel

Penal Code section 3455 [some paragraph breaks added]

(a) If the [probation department][22]has determined, following application of its assessment processes, that intermediate sanctions [see Pen Code § 3454, subd. (b)] are not appropriate, the [department] shall petition the [court's] revocation hearing officer … to revoke and terminate postrelease supervision.

At any point during the [revocation] process … a person may waive, in writing, [the] right to counsel, admit the violation of … postrelease supervision, waive a court hearing, and accept the proposed modification of … postrelease supervision.

The petition shall include a written report that contains … [at least] the relevant terms and conditions of postrelease supervision, the circumstances of the … violation, the history and background of the violator, and any recommendations.

The Judicial Council shall adopt forms and rules of court to establish uniform statewide procedures to implement this subdivision, including the minimum contents of supervision agency reports.

Upon a finding that the person has violated the conditions …, the revocation hearing officer [can] do all of the following:

  1. Return the person to postrelease supervision with modifications of conditions, … including a period of incarceration in county jail.
  1. Revoke postrelease supervision and order … confinement in the county jail.
  1. Refer the person to a reentry court pursuant to Section 3015 [discussed below] or other evidence-based program in the court's discretion.

….

[Comment on Reinstatement Under (1), above, the court or hearing officer can order some jail, short of the maximum 180 days, and return to the person to PRCS.]

(b) The revocation hearing shall be held within a reasonable time after the filing of the revocation petition.

[The remainder of Subd. (b) concerns custody, and is discussed below, under both "Arrest", and "Custody"]

(c) Confinement pursuant to paragraphs (1) and (2) of subdivision (a) shall not exceed a period of 180 days in the county jail.

(d) A person shall not remain under supervision or in custody … after three years from the … person's initial entry onto postrelease supervision, except when a bench or arrest warrant has been issued by a court … and the person has not appeared.

[While] the warrant is outstanding the supervision period shall be tolled and when the person appears before the court … officer the supervision … may be extended for … the time tolled.

Penal Code section 3457 and 3458: CDCR Has No Jurisdiction, and the Person Cannot Be Returned to Prison

3457 [CDCR] shall have no jurisdiction over any person who is under postrelease community supervision….

3458. No person … shall be returned to prison for a violation of … postrelease supervision….

Judicial Council Forms and Rules.

Pen. Code § 3466, subd. (a), quoted above, requires the Judicial Council to "adopt forms and rules of court … to implement this subdivision…."

That subdivision governs the contents of the petition, and the revocation hearing.

The Judicial Council's Criminal Law Advisory Committee has, therefore, proposed adoption of California Rules of Court 4.540 and 4.541, and form CR-300, Petition for Revocation of Community Supervision (form CR-300).

These proposals were issued for a public comment period that closed August 17, 2011. They have not been issued as official Rules or Forms.

The Judicial Council describes these proposed rules and form as follows:

"Specifically, proposed rule 4.540 would: …;

" Require the supervising agency, before the petition is filed, to

(a) establish probable cause for the violation,

(b) determine that intermediate sanctions … are not appropriate,

(c) refer the matter to the public defender or … agency responsible for representing supervised persons, and

(d) propose a sanction in response to the alleged violation …;

 … [R]equire[ ] that a formal hearing occur no later than 45 days after the petition is filed unless the deadline is waived or the court finds good cause to continue;

 Require the court to make a probable cause determination within five court days of the filing of the petition;

 Prescribe a standard of proof and basic evidentiary requirements, including the admissibility of hearsay;

 [and] Specify the court's authority to impose sanctions….

Regarding the standard of proof and basic evidentiary requirements, the proposed Rule, at (g)(2) states the following:

Revocation determinations must be based on a preponderance of the evidence …, which may include documentary evidence, direct testimony, and hearsay. Admission of [a] hearsay statement … [does] not … create a right to confront the witness ….

"Proposed rule 4.541 would", according to the Judicial Council's website, "require that all revocation petitions include declarations signed under penalty of perjury and written reports from the supervising agency that include specified minimum contents."

"The Petition for Revocation of Community Supervision (form CR-300) is proposed [for mandatory use] … to initiate the revocation procedure and by courts when determining whether probable cause exists to support the revocation.

When issuing these proposed Rules and Form "The Criminal Law Advisory Committee also "[sought] comments on the applicability, if any, of the Victims' Bill of Rights Act of 2008: Marsy's Law (Cal. Const., art. I, § 28), to [Revocation] proceedings.

Arrest

Pen. Code § 3455, subd. (a)(4) & (5) Concerning Arrest.

(4) … [I]f any peace officer has probable cause to believe a person subject to postrelease community supervision is violating any term or condition of his or her release, the officer may, without a warrant or other process, arrest the person and bring him or her before the [Probation Department].

Additionally, [a Probation Officer] may seek a warrant and a court or its designated hearing officer … shall have the authority to issue a warrant for that person's arrest.

(5) The court or its … hearing officer [can] issue a warrant for any person [pending] a [revocation] petition who has failed to appear …, or for any reason in the interests of justice, or to remand to custody a person who does appear … for any reason in the interests of justice.

Custody Pending the Hearing

Pen. Code § 3455, subd. (b)

…. Based upon … a preponderance of the evidence that a person … poses an unreasonable risk to public safety, or … may not appear if released from custody, or for any reason in the interests of justice, the [Probation Department] [can determine] whether the person should remain in custody pending a revocation hearing, and … may order the person confined pending a revocation hearing.

Comment on Custody. When the person is before the court's revocation hearing officer, that is, before the court, query if the person is entitled to bail. There are no statutes authorizing bail for violation of postrelease community supervision.

Cal. Const. art. I, § 12, subd. (c), last sentence, states "A person may be released on his or her own recognizance in the court's discretion."

The legislature has implemented this at Pen. Code §§ 1318 to 1319.5.

Section 1319.5 prohibits own recognizance releases to those on probation or parole. Postrelease community supervision is neither probation nor parole, so perhaps the court can grant a person facing a revocation an own recognizance release.

C. Place of Release of People on the New Postrelease Community Supervision is the Same As It Was For Parolees.

The placement section of the Penal Code for parolees, Pen. Code § 3003, is amended, so that the rules for place of release on Postrelease Community Supervision are almost the same:

(a) … [A]n inmate who is released on parole or postrelease supervision … shall be returned to the county [of] last legal residence …

(b), (c), and (d) [Unchanged by realignment]

(e)(1) The following information … shall be released by [CDCR] to local law enforcement agencies regarding a paroled inmate or inmate placed on postrelease supervision … released in their jurisdictions:

[There follows list of 13 items and some sub–items of information, unchanged by realignment.]

(e)(2) - (e)(4), and (f) to (i) [Unchanged by realignment]

(j) An inmate may be paroled to another state pursuant to any other law. [CDCR] shall coordinate with local entities regarding the placement of inmates placed out of state on postrelease supervision ….

(k)(1) …. County agencies supervising inmates released to postrelease supervision … shall provide any information requested by [CDCR]… . This … may include the issuance of warrants, revocations, or the termination of postrelease supervision.

(2) …

D. The Reentry Court.

An optional Parole Reentry Court was established by Penal Code section 3015, enacted only in 2009, and not effective until January 25,2010. It is now expanded to include Postrelease Community Supervision.

It is so new that CDCR only adopted final regulations implementing it on April 15, 2011. Cal. Code Regs. tit. 15 §§ 3769 to 3769.6.

Penal Code section 3015, as amended:

(a) [CDCR] shall establish a parole reentry accountability program ….

(b) …. (c) ….

(d) Paroleesand offenders [on] postrelease supervisionwith a history of substance abuse or mental illness who violate their conditions of parole or postrelease supervision are eligible [for] a reentry court program ….

(1) A paroleeor … postrelease supervis[ee]who is deemed eligible … may be referred by [the] parole officer, local supervising agent, or a revocation hearing officer ….

The reentry court [can] determine if the parolee or … postrelease supervis[ee] will be admitted … and … shall consider, among other factors, whether the offender will benefit …, the risk the offender poses …, and the … committing offense.

(2) If the reentry court determines that the parolee or … postrelease supervis[ee] will be admitted…, the court … shall … determine the … conditions of parole or postrelease supervision, order rehabilitation and treatment services …, determine … incentives, order … sanctions, lift parole holds, and hear and determine … responses to alleged violations….

(3) A reentry court … plan shall include [at least] all of the following:

(A) The anticipated number of parolees and … postrelease supervis[ees] who will be [in] the program.

(B) The method by which each [eligible] parolee or … postrelease supervis[ee] … shall be referred to the program.

(C) The method by which each parolee or … postrelease supervis[ee] is … assessed as to … treatment and rehabilitative needs and the level of community and reentry court monitoring ….

(D) The criteria for continued participation in, and successful completion of, the program, [and] the criteria for termination … and referral to the revocation process ….

(E) A description of how the program shall be administered ….

(F) An established method by which to report outcome measures ….

(G) The development of a program team, [and] a plan for ongoing training in … the drug court and collaborative court nonadversarial model.

(e) (1) Subject to funding …, [CDCR] shall [contract] with the Administrative Office of the Courts … [to] establish[ ] … reentry court programs.… These … programs shall … direct the treatment and supervision of participants ….

…. The program shall include key components of drug and collaborative courts … including close supervision and monitoring, dedicated calendars, nonadversarial proceedings, frequent drug and alcohol testing, and close collaboration between the respective entities involved to improve the participant's likelihood of success ….

(2) & (3) The Judicial Council, in collaboration with [CDCR] shall … perform an evaluation of the program …[;] [and] … submit a final report [to] … the Legislature and the Governor [after] 3 years ….

V. State Parole: Soon To Be Only For the Higher Level Offenders

A. People Already on Parole as Of October 1, 2011: New Pen. Code § 3000.09. Non-Revocable Parole.

All persons who paroled from state prison prior to October 1, 2011, are subject to Pen. Code § 3000.09. (Pen. Code § 3000.09, subd. (a))

Parolees remain under CDCR supervision until jurisdiction is terminated by operation of law, or until the supervising agent recommends discharge and the parole authority approves. (Pen. Code § 3000.09, subd. (b)(1) and (b)(2).

If the parolee has completed six violation-free months, is a non-non-non, and had a parole period of only three years, the supervising agent is required to make a recommendation whether to discharge the parolee, and, if the recommendation is favorable, the parole authority can approve. (Pen. Code § 3000.09, subd. (b)(3).)

If the parolee is being held in state prison on a parole violation on Oct. 1, 2011, and completes that term before November 1, 2011, the parolee will be discharged on parole. (Implication from Pen. Code § 3000.09, subd. (c), first sentence; see below.)

If the parolee completes the revocation term after November 1, 2011, then the release from prison will be under new Pen. Code § 3000.08, and will be to either parole or to postrelease community supervision, according to the terms of § 3000.08. (Pen. Code § 3000.09, subd. (c), first sentence.)

If the parolee is in county jail serving a parole revocation term on October 1, 2011, and is released from county jail without returning to prison, the parolee remains on regular parole. (Pen. Code § 3000.09, subd. (c), second sentence.)

A parolee pending final adjudication of a revocation charge prior to October 1, can be returned to state prison. (Pen. Code § 3000.09, subd. (c), third sentence.) That return can be for up to 12 months, or upon further misbehavior even longer, under the complex rules of Pen. Code § 3057, as amended.

Any subsequent parole revocations (except those by convicted murderers and certain sex offenders) are served in county jail, as provided for post-Oct. 1 parolees generally. Pen. Code § 3000.08, subd. (c), last sentence. Revocation procedures, and county jail sanctions for parolees generally, are discussed below.

Persons paroled prior to Oct. 1, 2011, who commit violations are, until July 1, 2013, subject to parole revocation procedures under CDCR regulations. (Pen. Code § 3000.09, subd. (d), first sentence.)

On and after July 1, 2013, they are subject to the procedures established by the version of Pen. Code § 3000.08 that becomes operative on July 1, 2013. (Pen. Code § 3000.09, subd. (d), second sentence.) That procedure, which is discussed below, includes flash incarceration, and provides that revocations can be done only by the court's revocation hearing officer.

Non-revocable Parole is Not Affected by Realignment.

Non-revocable parole is established by Pen. Code § 3000.03. That statute has not been amended by realignment.

It appears that non-revocable parolees will continue their parole terms as before realignment, until they are concluded. No other provisions of law seem applicable. And simply letting these people finish out their terms is consistent with Realignment.

Apparently there will be no new non-revocable parole releases after October 1, 2011. The reason is that the criteria in new Pen. Code § 3000.08 overlap those for being on non-revocable parole, and state that such people are not released on parole at all, but, instead are released on Postrelease Community Supervision.

Parolees Who Commit a Crime Requiring Release on Postrelease Community Supervision.

Except for murderers and certain sex offenders, such parolees are discharged from parole at the time of release from prison to postrelease community supervision. (Pen. Code § 3000.08, subd. (d) [operative until Jul. 1, 2013; and subd. (k) [operative on and after July 1, 2013.]

B Release On and After Oct. 1, 2011: Who Will Be On Parole? New Pen. Code § 3000.08.

There are two versions of Pen. Code § 3000.08, because on July 1, 2013, many parole procedures embodied in § 3000.08, will change, as discussed below.

Subdivisions (a) and (b) of both versions of § 3000.08, are the same, and are the most important for determining who will be on released on parole.

(a) Persons released from state prison on or after Oct[.] 1, 2011, after serving a prison term or, whose sentence has been deemed served pursuant to [§] 2900.5, [a "paper commitment"] for any of the following crimes shall be [released on] … parole…:

(1) A serious felony …

(2) A violent felony…

. (3) A [person who received a Third Strike sentence]

(4) Any crime where the person … is classified as a High Risk Sex Offender.

(5) Any crime where the person is [found to be a mentally disordered offender (MDO)] pursuant to [Pen. Code §] 2962.

(b) …, all other offenders … shall be placed on postrelease supervision ….

An additional small group of people will also be released on parole; that small group is in Subd. (c) of the version of Pen. Code § 3000.08 operative until July 1, 2013, and is he version operative after that, is in Subd. (i)"

… [A]ny of the following … shall be [on parole] for … up to three years or [for] the parole term [that applied] at the time of the … offense, whichever is greater:

(1) The person is [a PC-290-registrant] and was subject to … parole exceeding three years at the time [of] a felony for which they were convicted and … sentenced to state prison.

(2) The person was subject to parole for life pursuant to Section 3000.1 at the time of …the offense that resulted in a conviction and state prison sentence.

C.Return to Prison Prohibited For Most Parolees.

Pen. Code § 3056, as amended:

(a) Prisoners on parole shall … not be returned to prison except as provided in subdivision (b) or as provided by subdivision (c) of Section 3000.09 [concerning people already on parole on Oct. 1, 2011; discussed above].

Except as provided by subdivision (c) of Section 3000.09 [concerning people on parole before Oct. 1, 2011], upon revocation of parole, a parolee may be housed in a county jail for a maximum of 180 days.

When housed in county facilities, parolees shall be under the legal custody and jurisdiction of local county facilities.

When released from custody, parolees shall be returned to … parole … for the duration of parole.

(b) Inmates paroled pursuant to Section 3000.1 may be returned to prison following the revocation of parole by the Board of Parole Hearings until July 1, 2013, and thereafter by a court pursuant to Section 3000.08.

See also the version of Pen. Code § 3000.08 that becomes operative on Jul. 13, 2013, Subdivisions (f) and (g) (most parolees whose parole is revoked, can do only 180 days in county jail).

People on lifetime parole under Pen. Code § 3000.1, can be returned to prison. See, e.g., the version of Pen. Code § 3000.08, operative July 1, 2013, quoted below.

The maximum length of return to prison for those on lifetime parole, or already on parole on Oct. 1, 2011, is generally no more than 12 months, with a number of qualifications, under Pen. Code § 3057.

D.Changes in Parole Supervision on July 1, 2013; Flash Incarceration; the Court's Revocation Hearing Officer; Right to Counsel.

A new version of Pen. Code § 3000.08, subds. (c) to (h), becomes operative July 1, 2013 The new provisions are similar to many of the provisions for Postrelease Community Supervision.

Excerpts from Pen. Code § 3000.08, subds. (c) to (h), operative July 1, 2013:

(d) Upon … a finding … that the parolee has [violated] … parole, the parole authority may impose additional … conditions …, including

  • rehabilitation and treatment services and
  • appropriate incentives for compliance, and
  • impose immediate, structured, and intermediate sanctions for parole violations, including flash incarceration in a county jail.

Periods of "flash incarceration," as defined in subdivision (e) are encouraged as one method of punishment for violations of a parolee's conditions of parole.

Nothing in this section is intended to preclude referrals to a reentry court pursuant to Section 3015 [the Reentry Court, defined in Pen. Code § 3015; see Part IV].

(e) "Flash incarceration" is a period of detention in county jail due to a violation of … parole. Th[is] … can range between one and 10 consecutive days. Shorter, … more frequent, periods … for violations of … parole shall appropriately punish a parolee while preventing … disruption in a work or home establishment….

(f) If the … parole agency has determined, … that intermediate sanctions … including flash incarceration are not appropriate, the … agency shall petition the [court's] revocation hearing officer … to revoke parole.

… [A] parolee may waive, in writing, [the] right to counsel, admit the parole violation, waive a court hearing, and accept the proposed parole modification.

The petition [to revoke] shall include … the relevant terms and conditions of parole, the circumstances of the alleged underlying violation, the history and background of the parolee, and any recommendations.

The Judicial Council shall adopt forms and rules of court to establish uniform statewide procedures to implement this subdivision, including the minimum contents of supervision agency reports.

Upon a finding that the person has violated the conditions of parole, the revocation hearing officer shall have authority to …[:]:

(1) Return the person to parole supervision with modifications of conditions, if appropriate, including a period of incarceration in county jail.

(2) Revoke parole and order the person to confinement in the county jail.

(3) Refer the person to a reentry court pursuant to Section 3015 or other evidence-based program in the court's discretion.

(g) Confinement pursuant to paragraphs (1) and (2) of subdivision (f) shall not exceed a period of 180 days in the county jail.

(h) … In any case where [the person is on life parole for murder and certain sex offenses] and there is imposed a [violation sanction] of … longer than 30 days, that person shall be remanded to [prison] … for the purpose of future parole consideration.

Until the Court's Revocation Hearing Officer takes over in July 1, 2013, the parole authority has full power to suspend or revoke parole. See, to that effect, the Bill Analysis of June 30, 2011, prepared on this bill for the Assembly Budget Committee.

E. The Basic Parole Periods, and the Maximums Including Violation Times, Are Largely Unchanged; Possible Early Discharge

1.The Basic Parole Periods.

Pen. Code § 3000 is the main length-of-parole statute.

The parole period for most crimes is still three years. Pen. Code § 3000, subd. (b)(2); see also (b)(1).

The parole period of certain life crimes other than murder is five years. Pen. Code § 3000, subd. (b)(1)

For certain violent felonies, the parole period is 10 years (or longer for murders or certain sex crimes). Pen. Code § 3000, subd. (b)(2).

For certain sex crimes that result in a life sentence, the parole period of 10 years (or longer for murders or certain other sex crimes). Pen. Code § 3000, subd. (b)(3).

For certain sex crimes on children under age 14, the parole period can be twenty years, six months; unless the Parole Board determines the person should be retained on parole longer. The extra six months is one of the few changes in the basic length made by Realignment. Pen. Code § 3000, subd. (b)(4).

2.The Maximums, Including Violation Time.

Although a parolee cannot be returned to prison for violations, but can only do up to six months in county jail, "[w]hen released from custody [after a revocation], parolees shall be returned to … parole supervision … for the duration of parole." Pen. Code § 3056, subd. (a), last sentence.

Under Pen. Code § 3000, subd. (b)(6)(A), (B), and (C), the maximums are:

Where the parole period is 3 years, the maximum time of supervision or custody (except for time absconding) is 4 years;

Where the parole period is 5 years, the maximum under supervision or custody (except for time absconding) is 7 years. and

Where the parole period is 10 years, the maximum time of supervision or custody is 15 years.

No maximum duration is listed when the parole period is 20 years 6 months.

3.Possible Early Discharge Under Pen. Code § 3001.

A non-non-non person paroled after Oct. 1, 2011 for an indeterminate sentence who has been on parole for six months shall be discharged, unless the Board of Parole Hearings determines the person should be retained on parole. Pen. Code § 3001, subd. (a). A longer period applies for persons convicted of violent felonies.

Persons who paroled after Oct. 1, 2011 on a regular three year period of parole, or on parole for 10 years for certain violent felonies can be considered for release after three years. Pen. Code § 3001, subd., (b).

Persons who paroled after Oct. 1, 2011 for certain life-term sex cases can be considered for early discharge after six years, six months. Pen. Code § 3001, subd. (c).

Persons who paroled prior to Oct. 1, 2011, who have been on parole continuously for six months will be discharged unless retained by the Board of Parole hearings for good cause. Pen. Code § 3001, subd. (f) (1).

Persons who paroled prior to Oct. 1, 2011, who have been on parole for one year will be discharged unless retained by the Board of Parole Hearings for good cause. Pen. Code § 3001, subd. (f)(2).

F. Lifetime Parole For Murderers and Certain Sex Offenders; Possible Discharge From Parole.

That is the requirement of Pen. Code § 3000.1, subd. (a).

However, provision is made for discharge from parole, unless the Parole Board determines the person should be retained on parole, after 7 years for first degree murder, and 5 years for second degree. Pen. Code § 3000.1, subd. (b).

Persons on life parole under Pen. Code § 3000.1 can be returned to prison for up to one year, and can be held longer if the Parole Board determines that public safety requires that.

G. What Will Happen to the "Valdivia" Injunction Giving Appointed Counsel to Parolees Facing Violations?

A stipulated permanent injunction, issued by the Eastern District of California on March 9, 2004, requires California to appoint attorneys for all parolees at the beginning of a Return to Custody Assessment, for alleged violations. This injunction, often called the Valdivia injunction, is reprinted in Valdivia v. Schwarzenegger (E.D. Cal. 2008) 603 F. Supp. 1275, vacated and remanded on other grounds in Valdivia v. Schwarzenegger (9th Cir. 2010), 599 F.3d. 984.

Currently, a program for this purpose is operated by McGeorge School of Law in Sacramento.

The effects of this parole realignment on the Valdivia injunction are uncertain.

Surely, the Valdivia program could not simply end, and probably could not be substantially modified, without advance approval from the federal court.

It seems inevitable that Public Defenders will provide the defense in court for person facing postrelease supervision revocation. Indeed, there is, as noted, a fund established to offset increased Public Defender expenses.

If the McGeorge program ends, and possibly even if not, Realignment contemplates that Public Defenders will represent people in court on parole revocations.

VI. Implementing Realignment

A.Realignment Became Operative on October 1, 2011; "Operative Date" and "Effective Date" Explained.

1.Most Realignment Features Became Operative October 1, 2011.

When Realignment was first enacted, April 4, 2011, AB 109, § 636, provided that it would become "operative" "no earlier than July 1, 2011, and "only upon creation of a community corrections grant program ¼ and upon an appropriation to fund the grant program."

That Community Corrections Grant Program was created and funded by AB 118, effective June 30, 2011, to become operative on October 1, 2011.

Both § 636, and several other sections of AB 109 had their operative dates changed by AB 117, from July 1 to October 1.

Still not operative is that the court's Revocation Hearing Officers will not start hearing Parole Revocation Hearings until July 1, 2013. Other parole changes also become operative on that date, including authority for flash incarceration.

2.The Difference Between "Operative Date" and "Effective Date"; Contingency; Other Reasons

Even though the operative date was changed to October 1, 2011, § 639 of AB 109 also stated that because it is related to the budget under Cal. Const. Art. IV, § 12, subd. (e), it "shall take effect immediately." The date on which it was Chaptered by the Secretary of State was April 4, 2011, which is, therefore, the effective date.

Likewise, § 73 of AB 117, which changed the operative date from July 1, 2011 to October 1, 2011, also provided that it "shall take effect immediately." The date on which AB 117 was chaptered by the Secretary of State was June 30, 2011.

So Realignment was "effective" months before its "operative date."

The difference between "operative date" and "effective date" was explained in People v. Palomar (1985) 171 Cal.App.3d 131. In that case, as here, the a Bill provided that it would be "effective" long before it became "operative". The court explained [quotation marks and citations omitted], 171 Cal.App.3d at 134,

The [Act] is a law on its effective date only in the sense that it cannot be changed except by legislative process; [but] the rights of individuals under its provisions are not substantially affected until the provision operates as law."

The court also said, 171 Cal.App.3d at 135, fn 5,"The Legislature may specify … that a statute will become operative upon the occurrence of a contingency."

Some of the reasons that Palomar said, 171 Cal.App.3d at 135 (citations omitted), the legislature might have for a delayed operative date fully applied here:

The later operative date allows persons and agencies … to … comply with its terms.… [T]he earlier "effective" date [lets agencies] take steps necessary to implement the statute on its operative date… A later operative date can also provide time for emergency clean-up amendments and the passage of interrelated legislation.

B.The Complex Funding Mechanisms for Realignment

The legislature created the necessary grant program, and provided funding, on June 30, 2011, in AB 118.

The funding mechanism is dauntingly complex.

The following is an extended excerpt from just the first part of AB 118's Legislative Counsel's Digest:

"This bill … establish[es] the Community Corrections Grant Program for … funding [Realignment]

"The bill … create[s] the Local Revenue Fund 2011 in the State Treasury, and … create[s]

  • the Trial Court Security Account,
  • the Local Community Corrections Account,
  • the Local Law Enforcement Services Account,
  • the Mental Health Account,
  • the District Attorney and Public Defender Account,
  • the Juvenile Justice Account,
  • the Health and Human Services Account,
  • and the Reserve Account within the Local Revenue Fund 2011.

"The bill … require[s] moneys from specified tax sources and other moneys that may be … appropriated to be deposited in the Local Revenue Fund 2011 and … provide[s] that the fund is continuously appropriated….

"The bill … require[s] that moneys in the Local Community Correction Account within the Local Revenue Fund 2011 be used to fund the Community Corrections Grant Program, and … provide[s] [an] appropriation … on October 1, 2011, [to] … [begin] the Community Corrections Grant Program ….

"The bill … require[s] each county treasurer … or other appropriate officer to create a County Local Revenue Fund 2011 for the county or city and county, and to create

  • the Local Community Corrections Account,
  • the Trial Court Security Account,
  • the District Attorney and Public Defender Account,
  • the Juvenile Justice Account,
  • the Health and Human Services Account, and
  • the Supplemental Law Enforcement Account ….

"The bill … require[s] that moneys in each County Local Revenue Fund 2011 … shall be used exclusively for Public Safety Services, as defined, and for specific services, including funding grants solely to enhance the capacity of county probation, mental health, drug and alcohol, and other county departments to provide appropriate rehabilitative, housing, and supervision services to youthful offenders.…

C. The Local Community Corrections Partnership Must Recommend to the Board of Supervisors A Local Implementation Plan.

This requirement is found in new Pen. Code § 1230.1, as amended:

(a) Each county local Community Corrections Partnership [CCP] established pursuant to [Pen. Code § 1230, subd. (b)][[23]] shall recommend a local plan to the county board of supervisors for the implementation of the 2011 public safety realignment.

(b) The plan shall be voted on by an executive committee of each county's Community Corrections Partnership consisting of

  • the chief probation officer of the county as chair,
  • a chief of police,
  • the sheriff,
  • the District Attorney,
  • the Public Defender,
  • the presiding judge of the superior court, or his or her designee, and
  • one department representative [on the local Community Corrections Partnership], as designated by the county board of supervisors….

(c) The plan shall be deemed accepted by the county board of supervisors unless the board rejects [it] by a vote of four-fifths …, in which case the plan goes back to the [CCP] for further consideration."

(d) …. [T]he plan may include …, but not [be] limited to,

  • day reporting centers,
  • drug courts,
  • residential multiservice centers,
  • mental health treatment programs,
  • electronic and GPS monitoring programs,
  • victim restitution programs,
  • counseling programs,
  • community service programs,
  • educational programs, and
  • work training programs.

See also new Pen. Code § 17.5, and Pen. Code § 3450, subd. (b), stating related Legislative findings and declarations. Noteworthy is new Section 17.5's Subdivision (b):

(b) The provisions of this act are not intended to alleviate state prison overcrowding.

To provide for mental health services, Realignment has added Pen. Code § 3073.1:

Counties [can] contract with [CDCR] … to obtain correctional clinical services for inmates with mental health problems who are … on postrelease community supervision ….

County agencies designated to supervise inmates on postrelease supervision were required to notify CDCR of that designation by Aug. 1, 2011. AB 117, § 69.

The realignment legislation does not set a date by statute for this plan to be done.

But the first prisoners released on Postrelease Community Supervision will be on October 1, 2011. If the county has no implementation plan, what will happen to these people. Accordingly, to insure proper supervision of Postrelease Community Supervisees, counties should have at least an interim plan in place by October 1, 2011.

D.Establishing Adequate County Jail Facilities.

The main part of the Sheriff's (or County's Director of Corrections, or Correctional Administrator's) implementation, of course, will be ensuring adequate facilities.

To assist, Realignment adds Pen. Code § 4115.55, to permit counties to contract, at least until Jan. 1, 2015, with "other public agencies" for housing in "community correctional centers". These Centers are established by Pen. Code §§ 6250 to 6266.

The county can also contract with CDCR to house County Jail Felons: Penal Code new section 2057, as amended:

Counties are authorized to contract with [CDCR] for the commitment to the department, of persons who have suffered a felony conviction.…

Query if the word "commitment" in § 2057 should have been "housed"? There are obviously important differences between being committed to prison, as opposed to simply being housed there. For example, under realignment, a person committed to prison is released on parole or postrelease community supervision; but a person released from county jail (who did not receive a split sentence), is released without supervision. See, generally, e.g. People v. Seals (1993) 14 Cal.App.4th 1379 (whether appellant had a "prison prior" depended on whether he was committed there, or merely housed there).

CDCR can, for "reentry … purposes," also contract with counties, to house people within 60 days of release. ABX1 17, § 37, added new Pen. Code § 4115.56:

(a) Upon agreement with the sheriff or director of the county department of corrections, a board of supervisors may enter into a contract with [CDCR] to house inmates who are within 60 days … of release from the state prison to a county jail facility for the purpose of reentry and community transition purposes.

(b) When housed in county facilities, inmates shall be under the legal custody and jurisdiction of local county facilities and not under the jurisdiction of [CDCR].

E. Courts: (1) Amending Change of Plea Forms. (2) The Court's New Revocation Hearing Officers for PRCS and Parole

1.Amending Change of Plea Forms.

The courts should amend or rewrite change of plea forms to take account of realignment. This must include at least the following changes:

  • Stating whether the defendant will serve the executed sentence in state prison or in county jail.
  • Stating whether the executed County Jail Felony sentence could be followed by (or include) a period of probation.
  • Stating whether the executed sentence would be followed by a period of parole or Postrelease Community Supervision.
  • Stating the maximum incarceration consequences that could occur from a violation of parole or Postrelease Community Supervision.
  • Stating the future possible consequences of conviction of serious, violent, or PC 290-registerable offenses, on the place where the defendant would serve future felony executed sentences.
  • Stating the future possible consequences of County Jail Felony sentences, i.e. the one-year enhancement under amended Pen. Code § 667.5, subd. (b).

2.The Court's New Revocation Hearing Officers.

AB 117 § 1 creates these by adding to the Gov. Code, new § 71622.5:

(a)….

(b) … [T]he superior court … may appoint … hearing officers … to conduct parole revocation hearings pursuant to [Pen. Code §§] 3000.08 and 3000.09 … and to determine violations of conditions of postrelease supervision pursuant to [Pen. Code §] 3455….

(c) (1) A person is eligible to be appointed a hearing officer … if …:

(A) He or she has been [a California lawyer] … for at least 10 years ….

(B) He or she is or was a [California] … within the last five years, or is currently eligible for the assigned judge program.

(C) He or she is or was a commissioner, magistrate, referee, or hearing officer authorized to perform the duties of a subordinate [California] judicial officer … within the last five years.

….

Subdivisions (c)(2) to (e) of this new Section specify the qualifications of the hearing officers, their method of appointment, and method of establishing their salaries.

F. The District Attorney's and Public Defender's Implementation.

As noted, the District Attorney and the Public Defender are member of the Executive Committee of the Community Corrections Partnership, and so must be integrally involved in planning Postrelease Community Supervision.

As also noted, AB 118, § 3, has provided a fund for the expenses of the District Attorney and Public Defender. Gov. Code § 30025, subd. (f) (5), provides:

(5) The moneys in the District Attorney and Public Defender Account shall be used exclusively to fund costs associated with [parole and postrelease community supervision] revocation proceedings …. The moneys shall be allocated equally … to the district attorney's office and county public defender's office.

This does not expressly include participation in court programs operated by the Parole Reentry Accountability Program established by Penal Code section 3015. As noted, AB 117 has expanded this program to include Postrelease Community Supervision. Perhaps it could be said that such representation is "associated with … revocation proceedings" within the meaning of Gov. Code § 30025, subd. (f)(5).

Copyright Garrick Byers


Appendices


Appendix 1: Table of "Subdivision (h)" Sentencing Statutes

These statutes state that the felony sentence for the covered offense is "pursuant to Subdivision (h) of Section 1170", or contain equivalent wording.

These are sentencing statutes, not necessarily the statutes that define the crime. For example, Veh. Code § 22350 states the sentence for fourth-offense felony drunk driving, but does not define the crime of drunk driving, which is in Veh. Code § 23152. Likewise, Pen. Code § 476 defines forgery of a check, but the punishment for that forgery is in Pen. Code § 473.

To be a County Jail Felony, the offense must be a Subdivision (h) felony.

But not quite all Subdivision (h) felonies are County Jail Felonies.

At least three mandatory PC 290-registerable offenses are included in this list, Pen. Code §§ 288.2, 647.6, and 653f, subd. (c), all of which AB 109 made Subdivision (h) felonies. However, because it is a PC-290-registerablere offense, under Subdivision (h)(3) an executed sentence must be served in State Prison.

And, several felonies that are normally, or often, serious felonies are included in this list because they were made Subdivision (h) felonies by AB 109. This include, at least, Pen. Code § 12303, and Veh. Code §§ 23104, 23105, and 23109.10.

Also, some felonies that are not ordinarily serious or violent may be so under the particular circumstances of their commission.

Likewise, the court may order PC-290-registration for any offense it finds was committed for certain sexual purposes, and states why it is ordering registration, under Pen. Code § 290.006.

Note, also, that many County Jail Felonies are also wobblers, that is, they can be punished, in the court's discretion, as felonies or as misdemeanors.

Business and Professions Code


§ 585

§ 650 , subd. (g)

§ 654.1

§ 655.5,subd. (f)

§ 729,subds. (b)(3), (4), and (5)

§ 1282.3, subds. (b)(1) and (b)(2)

§ 1701,

§ 1701.1, subd. (a)

§ 1960

§ 2052, subd. (a)

§ 2315, subd. (b)

§ 4324, subds. (a) and (b)

§ 5536.5

§ 6126, subd. (b)

§ 6153

§ 6788

§ 7028.16

§ 7739

§ 10238.6

§ 11020, subd (b)

§ 11023

§ 11286, subd. (b)

§ 11287

§ 11320

§ 16755, subd. (a)(2)

§ 17511.9, subd. (b)

§ 17550.19, subd. (b)

§ 22430, subd. (d)

§ 25618

Civil Code


§ 892, subds. (a) and (b)

§ 1695.8

§ 1812.125, subd. (a)

§ 1812.217

§ 2945.7

§ 2985.2

§ 2985.3

Corporations Code


§ 2255,subd. (c)

§ 2256

§ 6811

§ 6814

§ 8812

§ 8815

§ 12672

§ 12675

§ 22002,subd. (c)

§ 25540, subds. (a), (b), and (c))

§ 25541, subds. (a) & (b)

§ 27202

§ 28880

§ 29102

§ 29550, subds. (a) and (b)

§ 31410

§ 31411

§ 35301

Education Code


§ 7054, subd. (c)

Elections Code


§ 18002

§ 18100, subds. (a) and (b)

§ 18101

§ 18102

§ 18106

§ 18200

§ 18201

§ 18203

§ 18204

§ 18205

§ 18310

§ 18311

§ 18400

§ 18403

§ 18502

§ 18520

§ 18521

§ 18522

§ 18523

§ 18524

§ 18540, subds. (a) & (b)

§ 18544, subd. (a)

§ 18545

§ 18560

§ 18561

§ 18564

§ 18566

§ 18567

§ 18568

§ 18573

§ 18575

§ 18578

§ 18611

§ 18613

§ 18614

§ 18620

§ 18621

§ 18640

§ 18660

§ 18661

§ 18680


Financial Code


§ 3510

§ 3532

§ 5300

§ 5302

§ 5303

§ 5304, subd. (c)

§ 5305

§ 5307

§ 10004

§ 12102

§ 14752

§ 17700

§ 18349.5, subd. (h)(2)

§ 18435

§ 22753

§ 22780

§ 31880

§ 50500


Appendix 1.

Fish and Game Code


§ 12004, subd. (b)

§ 12005, subd. (a)(2)

Food and Agricultural Code


§ 17701

§ 18932

§ 18933

§ 19440

§ 19441

§ 80174

Government Code


§ 1368

§ 1369

§ 3108

§ 3109

§ 5954

§ 6200

§ 6201

§ 8670.64, subd. (a), (c)(1)

§ 9056

§ 27443

§ 51018.7, subd. (a)

Harbors and Navigation


§ 264

§ 310

§ 668, subds (c)(1) & (g)

Health and Safety Code[Abbreviated: HS]


HS § 1390

HS § 1522.01, subd. (c)

HS § 1621.5, subd. (a):

HS § 7051

HS § 7051.5

HS § 8113.5. subds. (b)(2) & (b)(3)

HS § 8785

HS § 11100, subd. (f)(2)

HS § 11100.1, subd. (b)(2)

HS § 11105, subds. (b)(1) & (b)(2)

HS § 11153, subd. (b)

HS § 11153.5, subd. (b)

HS § 11355

HS § 11162.5, subd. (a)

HS § 11350, subds. (a) & (b).

HS § 11351

HS § 11351.5

HS § 11352, subds. (a) & (b)

HS § 11353.5

HS § 11353.6, subd. (c)

HS § 11353.7 Can be serious. PC 1192.7(c)(24)

HS § 11357, subd. (a)

HS § 11358

HS § 11359

HS § 11360, subd. (a)

HS § 11366.5, subds. (a), (b), & (c)

HS § 11366.6

HS § 11366.8, subds. (a) & (b)

HS § 11370.6, subd. (a)

HS § 11371

HS § 11371.1

HS § 11374.5, subd. (a)

HS § 11377, subd. (a)

HS § 11378

HS § 11378.5

HS § 11379, subds. (a) & (b)

HS § 11379.5, subds. (a) & (b)

HS § 11379.6, subds. (a) & (c)

HS § 11380.7, subd. (a)

HS § 11382

HS § 11383, subds. (a), (b), (c), & (d)

HS § 11383.5, subds. (a), (b)(1) to (2), & (c) to (f)

HS § 11383.6, subds. (a), (b), (c), & (d)

HS § 11383.7, subds. (a), (b)(1), (b)(2), & (c) to (f)

HS § 12401

HS § 12700, subds. (b)(3) & (b)(4)

HS § 17061, subd. (b)

HS § 18124.5

HS § 25180.7, subd. (c)

HS § 25189.5, subds. (b), (c), (d), & (e)

§ 25189.6, subds. (a) & (b)

HS § 25189.7, subds. (b) & (c)

HS § 25190

HS § 25191, subd. (a)(2)

HS § 25395.13, subd. (b)

HS § 25515

HS § 25541

HS § 42400.3, subd. (c)

HS § 44209

HS § 100895, subd. (b)

HS § 109335

HS §115215, subds. (b)(1), (b)(2), (c)(1), & (c)(2)

HS § 116730, subd. (b)

HS § 116750, subd. (a) & (b)

HS § 118340, subd. (c) & (d)

HS § 131130, subd. (b)

Insurance Code


§ 700, subd. (b)

§ 750, subd. (b)

§ 833

§ 1043

§ 1215.10,subd. (d) and (e)

§ 1764.7

§ 1814

§ 1871.4, subd.7 (b)

§ 10192.165, subd. (e)

§ 11161

§ 11162

§ 11163

§ 11760, subd. (a)

§ 11880, subd. (a)

§ 12660

§ 12845

Labor Code


§ 227

§ 6425, subd. (a)

§ 7771

Military and Veterans Code


§ 145

§1318

§1672, subd. (b)

§1673

Penal Code[Abbreviated: Pen.]


Pen § 33

Pen § 38

Pen. § 67.5, subd. (b)

Pen. § 69

Pen. § 71, subds. (a)(1) and (a)(2)

Pen. § 72

Pen. § 72.5, subds. (a) and (b).

Pen. § 76, subds. (a)(1) and (a)(2)

Pen. § 95

Pen. § 95.1

Pen. § 96

Pen. § 99

Pen. § 107

Pen. § 109

Pen. § 113

Pen. § 114

Pen. § 115.1, subd. (f)

Pen. § 126

Pen. § 136.7

Pen. § 137, subd. (b)

Pen. § 139, subd. (a)

Pen. § 140, subd. (a)

Pen. § 142, subd. (a)

Pen. § 146a, subd. (b)

Pen. § 146e, subd. (b)

Pen. § 148, subd. (b), (c), and (d)

Pen. § 148.1, subd. (a), (b), (c), and (d)

Pen. § 148.3, subd. (b)

Pen. § 148.4, subd. (b)

Pen. § 148.10, subd. (a)

Pen. § 149

Pen. § 153, items 1 and 2.

Pen. § 156

Pen. § 157

Pen. § 168, subd. (a)

Pen. § 171c, subd. (a)(1)

Pen. § 171d

Pen. § 181

Pen. § 182, subd (a), in various circumstances

Pen. § 186.10, subds. (a) and (c)(1)

Pen. § 186.28, subd. (a)

Pen. § 191.5, subd. (c)(2)

Pen. § 193, subd. (b)

Pen. § 193.5, subd. (b)

Pen. § 210.5

Pen. § 217.1, subd. (a)

Pen. § 218.1

Pen. § 219.1

Pen. § 237, subd. (a)

Pen. § 241.1

Pen. § 241.4

Pen. § 241.7

Pen. § 243, subds. (c)(1), (c)(2), and (d)

Pen. § 243.1

Pen. § 243.6

Pen. § 244.5, subds. (b) and (c)

Pen. § 245.6, subd. (d)

Pen. § 246.3, subd. (a) Normally a serious felony

Pen. § 247.5

Pen. § 261.5, subds. (c) and (d)

Pen. § 265

Pen. § 266b

Pen. § 266g

Pen. § 271

Pen. § 271a

Pen. § 273.6, subds. (d) and (e)

Pen. § 273.65, subds. (d) and (e)

Pen. § 273d, subds. (a & (b))

Pen. § 278

Pen. § 278.5, subd. (a)

Pen. § 280, subd. (b)

Pen. § 284

Pen. § 288.2 a PC-290 crime: not a County Jail Felony]

Pen. § 290.4, subd (c)(1)

Pen. § 290.45, subd. (e)(1)

Pen. § 290.46, subd. (j)(2)

Pen. § 311.9, subds. (a)(b)( and (c)

Pen. § 313.4

Pen. § 337.3

Pen. § 337.7

Pen. § 337b

Pen. § 337c

Pen. § 337d

Pen. § 337e

Pen. § 337f

Pen. § 350, subds. (a)(2), (b), and (c)

Pen. § 367f, subd. (g)

Pen. § 367g, subd. (c)

Pen. § 368, subds. (d), (e), and (f)

Pen. § 374.2, subd. (d)

Pen. § 374.8, subd. (b)

Pen. § 375, subd. (d)

Pen. § 382.5

Pen. § 382.6

Pen. § 386, subds. (a) and (b)

Pen. § 387, subd. (a)

Pen. § 399.5, subd. (a)

Pen. § 404.6, subd. (c)

Pen. § 405b

Pen. § 417.3

Pen. § 417.6, subd. (a)

Pen. § 422.7

Pen. § 453, subd. (a)

Pen. § 461, subd. (b)

Pen. § 463, subds. (a) and (b)

Pen. § 464

Pen. § 470a

Pen. § 470b

Pen. § 473

Pen. § 474

Pen. § 478

Pen. § 479

Pen. § 480, subd. (a)

Pen. § 481

Pen. § 483.5, subd. (f)

Pen. § 484b

Pen. § 484i, subd. (c)

Pen. § 487b

Pen. § 487d

Pen. § 489, subd. (b)

Pen. § 496, subd. (a), (b), and (d)

Pen. § 496a, subd. (a)_

Pen. § 496d, subd. (a)

Pen. § 499c, subd. (c)

Pen. § 499d

Pen. § 500, subd. (b)(2)

Pen. § 502, subd. (d)(1), (d)(2)(B), (d)(3)(C), (d)(4)(B)

Pen. § 506b

Pen. § 520

Pen. § 529, subd. (b)

Pen. § 529a

Pen. § 530.5, subds. (a), (c)(2), (c)(3), and (d)(1)

Pen. § 532a, item 4

Pen. § 532f, subd. (h)

Pen. § 533

Pen. § 535

Pen. § 537e, subd. (a)(3)

Pen. § 538.5

Pen. § 548, subd. (a)

Pen. § 549

Pen. § 550, subd. (c)(1), (c)(2)(A), and (c)(3)

Pen. § 551, subd. (a) and (d)

Pen. § 560

Pen. § 560.4

Pen. § 566

Pen. § 570

Pen. § 577

Pen. § 578

Pen. § 580

Pen. § 581

Pen. § 587

Pen. § 587.1, subd. (b)

Pen. § 591

Pen. § 593

Pen. § 594, subd. (b)(1)

Pen. § 594.3, subd. (a) and (b)

Pen. § 594.35

Pen. § 594.4, subd. (a)

Pen. § 597, subds. (a), (b), (c), and (g)

Pen. § 597.5, subd. (a)

Pen. § 600 subd. (a) and (c)

Pen. § 601, subd. (d)

Pen. § 610

Pen. § 617

Pen. § 620

Pen. § 621

Pen. § 625b, subd. (b)

Pen. § 626.9, subds. (f)(1), (f)(2)(A) & (B), (f)(3), (h), & (i)

Pen. § 626.95, subd. (a)

Pen. § 626.10, subd. (a)(1), and (b)

Pen. § 629.84

Pen. § 631, subd. (a)

Pen. § 636, subd. (a) and (b)

Pen. § 637

Pen. § 647.6, subd. (b), (c)(1) & (c)(2) A PC 290 offense, and so a State Prison Felony

Pen. § 653f, subd. (a), (c), (d)(1), and (e) Subd. (c) is a PC 290 offense, and so a State Prison Felony

Pen. § 653h, subds. (b), (c), (d)(1), and (d)(2)

Pen. § 653j

Pen. § 653s, subds. (g), (h), (i)(1) and (i)(2)

Pen. § 653t, subds. (c) and (d)

Pen. § 653u, subds. (d) and (e)

Pen. § 653w, subds. (b)(1), (b)(2), and (b)(3)

Pen. § 664, subd. (a) [if the crime attempted is a Subd.(h) felony]

Pen. § 666, subd. (a)

Pen. § 666.5, subd. (a)

Pen. § 836.6, subd. (c)

Pen. § 1320

Pen. § 1320.5

Pen. § 2772

Pen. § 2790

Pen. § 4011.7

Pen. § 4131.5

Pen. § 4501.1, subd. (a)

Pen. § 4502, subd. (a) and (b)

Pen. § 4533

Pen. § 4536, subd. (a)

Pen. § 4550, subds. (a) and (b)

Pen. § 4573, subd. (a)

Pen. § 4573.6, subd. (a)

Pen. § 4573.9, subd. (a)

Pen. § 4574, subds. (a) and (b)

Pen. § 4600, subd. (a)

Pen. § 11411, subd. (c) and (d)

Pen. § 11413, subd. (a)

Pen § 11418, subd. (a)

Pen. § 11419, subd. (a)

Pen. § 12021.5, subd. (a)

Pen. § 12022, subds. (a)(1) & (2), (c), and (d)

Pen. § 12025, subds. (b)(1), (2), & (3), (b)(5) & (6)

Pen. § 12035, subd. (d)(1)

Pen. § 12040, subd. (b)

Pen. § 12072, subd. (g)(2) to (g)(4)

Pen. § 12076, subd. (b)(1)

Pen. § 12090

Pen. § 12101, subd. (c)(1)

Pen. § 12220, subd. (a) and (b)

Pen. § 12280, subd. (a)(1) and (b)

Pen. § 12281, subd. (j)

Pen. § 12303.3 (Often serious; PC 1192.7, subd. (c)(15), and not a county jail felony.

Pen. § 12303.6

Pen. § 12304

Pen. § 12312

Pen. § 12320

Pen. § 12355, subds. (a) and (b)

Pen. § 12370

Pen. § 12403.7, subd. (g)

Pen. § 12422

Pen. § 12520

Pen. § 18715, subd. (b)

Pen. § 18720

Pen. § 18725

Pen. § 18730

Pen. § 18735, subd. (c)

Pen. § 18740

Pen. § 20110, subd. (b)

Pen. § 22810, subd. (g)(1) and (g)(2)

Pen. § 22910, subd. (a)

Pen. § 23900

Pen. § 25110, subd. (a)

Pen. § 25300, subd. (b)

Pen. § 25400, subd. (c)(5) and (c)(6)

Pen. § 25850, subd. (c)(5) and (c)(6)

Pen. § 27590, subd. (b), (c), and (d)

Pen. § 28250, sub. (b)

Pen. § 29700, subd. (a)

Pen. § 30315

Pen. § 30600, subd. (a) and (b)

Pen. § 30605, subd. (a)

Pen. § 30725,subd. (b)

Pen. § 31360, subd. (a)

Pen. § 32625, subd. (a) and (b)

Pen. § 33410

Public Contract Code


§ 10283

§ 10873

Public Resources Code


§ 5097.99, subds. (b) & (c)

§ 14591, subd. (b)(2)

§ 25205,subd. (g)

§ 48680, subd. (b)(1)

Public Utilities Code


§ 7680

§ 7724, subd. (a)

§ 7903

§ 21407.6, subd. (b)

Revenue and Taxation Code


§ 7093.6 (subd. (n) or (j), alternate versions

§ 9278 (subd. (n) or (j), alternate versions)

§ 14251

§ 16910

§ 18631.7, subd. (d)(2)

§ 19705, subd. (a)

§ 19708

§ 30459.15 (subd. (p) or (l), alternate versions)

§ 32471.5 (subd. (p) or (l), alternate versions)

§ 32555

§ 38800, subd. (l)

§ 40211.5, subd. (l)

§ 41171.5 (subd.(p) or (l), alternate versions)

§ 43522.5, subd. (l)

§ 43606

§ 45867.5, subd. (l)

§ 45955

§ 46628 (subd. (p) or (l), alternate versions)

§ 46705

§ 50156.18 (subd. (n) or (j), alternate versions)

§ 55332.5 (subd. (p) or (l), alternate versions)

§ 55363

§ 60637 (subd. (p) or(l), alternate versions)


Unemployment Insurance Code

§ 2118.5

Vehicle Code


§ 2478 , subd. (b)

§ 2800.4

§ 4463, subd. (a)

§ 10501,subd. (b)

§ 10752, subd. (c)

§ 10801

§ 10802

§ 10803, subds/ (a) &(b)

§ 10851, subds. (a) & (b)

§ 21464, subd. (d)

§ 21651, subd. (c)

§ 23104, subd. (b) (Usually serious: PC 1192.7 (c)(8)

§ 23105, subd. (a) (Usually serious: PC 1192.7(c)(8)

§ 23109.1, subd. (a) (1192.7(c)(8)

Usually serious)

§ 23550, subd. (a)


Water Code

§ 13387, subds. (b), (c), (d)(1), and (e)

Welfare and Institutions Code


§ 871.5, subd. (a)

§ 1001.5, subd. (a)

§ 1768.7, subd. (b)

§ 1768.85, subd. (a)

§ 3002

§ 7326

§ 8100, subd. (g)

§ 8101, subds. (a)& (b)

§ 8103, subd. (i)

§ 10980, subds. (b), (c)(2), (d), (g), & (h)

§ 14107.2, subds. (a)(2) & (b)(2)

§ 14107.3, item (3)

§ 14107.4, subds. (b) & (e)

§ 17410


Appendix 2: Selected Non-Non-Nons That Are Still State Prison Felonies (the "Excluded Felonies").

Felonies under at least 62 sentencing sections in the various Codes are, under present statutes and caselaw, not serious, not violent, and not PC-290-registerable, but are expressly stated to be punishable in the state prison.

Some of these Sections describe several acts, some of which are serious felonies and some of which are not. For example, whether violation of Health & Saf. Code §§ 11353, 11354, 11380, subd. (a), or 11380.1, subd. (a), are serious felonies or not depends on the drug involved; and whether commission of the enhancements in Health & Saf. Code § 11379.6, subds. (a) and (b) are serious or violent depends on the acts actually done. Some of those sections, that involve both serious and non-serious felonies are specified in this Appendix.

In addition, at least 18 offenses are simply stated to be felonies, without specifying that the sentence is served in state prison. Under Pen. Code § 18, as amended, a felony is punishable in the state prison, unless they are punishable under Pen. Code § 1170, subd. (h). Accordingly, those offenses stated only to be felonies, are also State Prison Felonies.

Another list in wide circulation states that Pen. Code §§ 113, 114, and 272(b) are State Prison Felonies. That is incorrect. Pen. Code § 272 is not a felony at all, and §§ 113 and 114 are County Jail Felonies; see AB 109 §§ 246 and 247.

Legend

SP = the statute expressly states this is punishable by state prison

F = the statute only states the offense is a felony, without specifying whether it is a State Prison Felony or a County Jail Felony (i.e., punishable by Pen. Code § 1170, subd. (h). By default, those are State Prison Felonies.

Elections Code

SP

§ 18501

Government Code


SP

§ 1097 (see Gov. § 1090)

SP

§ 1195

SP

§ 1855

Health & Safety Code


SP

§ 11353 (Often serious PC 1192.7(c)(24)

SP

§ 11354, subd. (a) (sometimes serious)

SP

§ 11361, subds. (a) and (b)

SP

§ 11370.1, subd. (a)

SP

§ 11370.9

SP

§ 11379.7, subds. (a) & (b) (sometimes serious))

SP

§ 11380, subd. (a) (sometimes serious)

SP

§ 120291, subd. (a)

Military and Veterans Code

SP

§ 1672 (covering §§ 1670 and 1671.)

Penal Code (abbreviated: Pen.)


SP

Pen. § 67

SP

Pen. § 68

SP

Pen. § 85

SP

Pen. § 86

SP

Pen. § 92

SP

Pen. § 93

SP

Pen. § 100

F

Pen. § 110

F

Pen. § 115

F

Pen. § 115.5

F

Pen. § 116

F

Pen. § 117

F

Pen. § 132

SP

Pen. § 141, subd. (b)

SP

Pen. § 165

SP

Pen. § 166, subd. (c)(4)

SP

Pen. § 186.22 (sometimes serious or violent)

SP

Pen. § 186.26 (sometimes serious or violent

SP

Pen. § 186.33

SP

Pen. § 191.5(c)(1)

SP

Pen. § 222

SP

Pen. § 243.7

SP

Pen. § 243.9, subd. (a)

SP

Pen. § 245, (sometimes serious or violent.)

F

Pen. § 247, subd. (a) (may be serious; see PC 1192.7, subds. (c)(8) & (23)

SP

Pen. § 266a

SP

Pen. § 266e

SP

Pen. § 266f

SP

Pen. § 266h (All subds.)

SP

Pen. § 266i (All subds.)

SP

Pen. § 266j

SP

Pen. § 273a, subd. (a)

SP

Pen. § 273ab (sometimes serious or violent)

SP

Pen. § 273.4

SP

Pen. § 273.5, subds. (a) and (e) (sometimes serious or violent)

F

Pen. 289.6, subd. (i)

SP

Pen. § 298.2

SP

Pen. § 299.5, subd. (i)(1)(A)

F

Pen. § 337

SP

Pen. § 347

SP

Pen. § 368, subd. (b)

F

Pen. § 399, subds. (a) & (b)

SP

Pen. § 417, subd. (c)

SP

Pen. § 417.8

SP

Pen. § 424, subd. (a)

SP

Pen. § 452, subds. (a), (b), and (c).

SP

Pen. § 455, subd. (a)

F

Pen. § 502.7, subds. (a), (b), (d), and (g).

SP

Pen. § 514 (if that theft permits prison)

F

Pen. § 588a

SP

Pen. § 598c, subd. (c)

SP

Pen. § 598d, subds. (b) and (c)

SP

Pen § 600, subd. (d)

F

Pen. § 625c

SP

Pen. § 646.9, subds. (a), (b), & (c)(all subparts)

F

Pen. § 648

SP

Pen. § 653f(b)

SP

Pen. § 666, subd. (b)

SP

Pen. § 4501.1

SP

Pen. § 4530, subds. (a) and (b)

SP

Pen. § 4532, subds. (a) and (b)(1)

F

Pen. § 4573.5

F

Pen. 4573.8

SP

Pen. § 12020, subd. (a)

SP

Pen. § 12021, subds. (a)(1), (a)(2), & (b)

SP

Pen. § 12021.1, subds. (a) & (c)

SP

Pen. C. 12021.5, subd. (b) [may be serious)

SP

Pen. § 12025, subd. (b)(4)

SP

Pen. § 12303.1

SP

Pen. § 12303.2

Vehicle Code


SSP

§ 2800.2, subd. (a)

SSP

§ 2800.3, subds. (a) and (b)

SSP

§ 20001

SSP

§23110, subd. (b)

SSP

§ 23550.5

SSP

§ 23554 (1st offense DUI w/ injury)

Appendix 3 Realignment Resources

California Court's Criminal Justice Realignment Resource Center

http://www.courts.ca.gov/partners/realignment.htm

California State Association of Counties

http://www.csac.counties.org/default.asp?id=3202

CDCR's Realignment Page

http://www.cdcr.ca.gov/realignment/

California Chief Probation Officers Realignment Page

http://www.cpoc.org/php/realign/ab109home.php

California State Sheriff's Association

http://www.calsheriffs.org/

California Public Defenders Association

http://www.claraweb.us

California Attorneys for Criminal Justice

www.cacj.org

Copyright ©2011 Garrick Byers



* Garrick Byers is a Senior Defense Attorney with the Fresno County Public Defenders Office. He is certified as a Criminal Law Specialist by the Calif. State Bar Bd. of Leg. Spec. He is Asst. Sec./Treas. of the California Public Defenders Assoc. (CPDA), Chair of CPDA's Ethics Comm., and a member of CPDA's Legislative Comm. He is the author of Chs. 12, 17, and 41 in C.E.B.'s California Criminal Law, Procedure and Practice. He is a frequent speaker on Realignment.

[1] There is also a fourth "non." There cannot be an enhancement under Pen. Code § 186.11, subd. (a); "the aggravated white collar crime enhancement." That enhancement can add 1 to 5 years for "two or more related felonies, [involving] fraud or embezzlement, … of … more than … $100,000 …." See Part II, subpart D, below.

[2] As originally amended by AB 109 in April, 2011,, Pen. Code § 18 omitted to state any term at all for a felony that was merely stated to be punishable by state prison. That omission was fixed by ABX1 17 in Sept. 2011. Because the omission was quickly remedied, it is unlikely that courts will hold that prosecution, or sentences, for such felonies was abated during that time. See, e.g., In re Chavez (2004) 114 Cal.App.4th 989 (legislative change inadvertently misstated the intended punishment for particular statute; later correction applied retroactively); People v. Alexander (1986) 178 Cal.App.3d 1250 (Legislative change inadvertently eliminating the crime for which defendant was being prosecuted, and cured 29 days later; held, prosecution not abated); and Henry v. Municipal Court (1985) 171 Cal.App.3d 721 (same).

[3] The reason for the different versions of Pen. Code § 1170 is mainly because of prior amendments to Pen. Code § 1170 that temporarily address Cunningham v. California (2007) 549 U.S. 270. Cunningham held California's Determinate Sentencing Law unconstitutional to the extent that it permitted courts to increase a sentence from the presumptive middle term to the aggravated term based on facts not found by the jury, admitted by defendant, or that are prior convictions. As a temporary measure, the legislature made the middle term no longer the presumptive term, and gave the court "discretion" to choose any of the terms. Pen. Code § 1170, subd. (b), first sentence. The main reason for multiple versions of Pen. Code § 1170 was to take account of the sunsetting of this temporary measure. That sunset date is now Jan. 1, 2014.

[4] Penal Code section 1203.1 is the general probation statute.

[5] Realignment statutes do not expressly state whether the requirement to register must come from the current conviction, or can come from a prior one. Presumably, it can be from either. It is also not stated whether the reason for the PC 290 registration is limited to felonies, so presumably misdemeanors are also included.

[6] See the footnote above for an explanation of Pen. Code § 186.11.

[7] Abrogated on other grounds, in People v. King (1993) 5 Cal.4th 59, 78 fn 5, and superseded by statute on other grounds as stated in People v. Rayford (1994) 9 Cal.4th 1, 9.

[8] Pen. Code § 1203, subd. (a), first sentence; and § 1203.1, subd. (a), first sentence. See also Pen. Code § 1203.2, subd. (c) (Distinguishes, when the court has revoked and terminated probation, between a when the "sentence [is] suspended, on the one hand, and, on the other, "judgment [having been] pronounced."). Accord, Calif. Rule of Court 4.435 (sentencing on revocation of probation).

[9] The amending bill was ABX1 17, §§ 13 to 13.3,

[10] For reasons unrelated to Realignment, there are two versions of Pen. Code § 667.5, one operative until Jan. 1, 2012, and one operative after that. The two versions reflect the recodification of the Deadly Weapons offenses that is operative Jan. 12, 2012. So Pen. Code § 667.5 was amended three times in the Realignment bills, most recently by ABX 1 17, §§ 9 and 10. The final results of these amendments is exactly the same as far as realignment is concerned.

[11] Disapproved on other grounds in People v. Guerrero (1988) 44 Cal.3d 343, 348

[12] That history is found at the California Legislative Information website, http://www.leginfo.ca.gov . Go to "Bill Information"; select the "2011 – 2012 session" and "Search by" "bill number" ABX1 17, and review the bill as introduced, amended, and finally enacted and chaptered.

[13] Key cases to consider include In re Kapperman (1974) 11 Cal.3d 542; In re Estrada (1965) 63 Cal.2d 740; In re Stinnette (1979) 94 Cal.App.3d 800; and People v. Doganiere (1978) 86 Cal.App.3d 237 among others.

[14] The Legislative Counsel's Digest for the realignment bill enacting this change does not mention convicted murderers.

[15] Pen. Code § 4532, as amended provides misdemeanor and felony criminal penalties for violations of various jail alternative and home detention programs.

[16] Listing only § 1203.018, may be a drafter's error. Omitted are Pen. Code §§ 1203.016 and 1203.017, but it is those sections that are "home detention", which is the phrase used in the text, while § 1203.018 is electronic monitoring. Compare § 2900.5's Subd. (f), which does list all three. If all three are not included in Subdivision (a), there may be an equal protection issue.

[17] Two versions of § 3000.08 have been enacted because of changes in parolee supervision that become operative July 1, 2013. Those changes are discussed in the Parole Part V. But in both versions, Subds. (a), (b), and recently added (c), are identical.

[18] Pen. Code § 3451, subd. (b)(1) to (b)(7), largely duplicates Pen. Code § 17.5, stating findings and declarations supporting Realignment. Section 17.5 was fully discussed above.

[19] Reportedly, every county has chosen the Probation Department to supervise Postrelease Community Supervision.

[20] Thus, the board of supervisors "designates" a "postrelease strategy." This postrelease strategy is "implement[ed]" by a "county agency." The statute implies that the board of supervisors designates this agency. The strategy designated by the board of supervisors, under AB 117, sec. 33 (amending P.C. 1230.1), is one "recommend[ed]" by the local Community Corrections Partnership. The plan is voted on by an executive committee of that Partnership. "The Public Defender" is one of the required members.

[21] Every California County has, reportedly, designated the Probation Department to provide Postrelease Community Supervision

[22] Every California County has, reportedly, designated the Probation Department to provide Postrelease Community Supervision

[23] Penal Code section 1230 was added in 2009, and amended by AB 117 § 32. It is part of "The California Community Corrections Performance Incentive Act [CCPI]", Pen. Code §§ 1228 to 1233.8. It is also called the SB 678 program.

Here is the relevant text of Penal Code section 1230:

(a) Each county [can] establish … a Community Corrections Performance Incentives Fund (CCPIF)….

(b) [When] a county receives moneys for ¼ this …, [that] …, shall be made available to the CPO [Chief Probation Officer] ….

(1) The community corrections program shall be developed and implemented by probation and advised by a local Community Corrections Partnership [CCP].

(2) The local [CPP] shall be chaired by the CPO and [have] the following membership:

(A) The presiding judge …, or … designee., (B) …. (C) The district attorney. (D) The public defender. [(E) to (M): other local officials and community members].

(3) Funds … shall … provide supervision and rehabilitative services for … [probationers], and … community corrections practices and programs …, which may include, but are not limited to, the following:

(A) Implementing … evidence-based risk and needs assessments.

(B) … [I]ntermediate sanctions … includ[ing], … electronic monitoring, … community service, home detention, day reporting, restorative justice programs, work furlough …, and … [up to 90 days] jail.

(C) Providing more intensive probation supervision.

(D) Expanding … rehabilitation programs including … drug and alcohol treatment, mental health treatment, anger management, cognitive behavior programs, and job training and employment services.

(E) Evaluating the … programs ….

(4) … (5) [These paragraphs state record–keeping requirements].

On June 8, 2011, the Administrative Office of the Court issued its "SB 678 Year 1 Report.", available at www.courts.gov/SB678-Year-1-Report-FINAL.pdf (accessed Sept. 10, 2011). Here is part of that report's conclusion:

"¼ SB 678 ¼ is having a positive impact on the state's prison population." The Governor's Public Safety Realignment provides an opportunity for counties to build upon the success of SB 678."