Realignment Cheat Sheet
[Effective October 1, 2012] I. Introduction:
Realignment has significantly changed our felony practice. The changes can be grouped into three basic categories:
Sentencing for defendants convicted of non serious, non violent, non 290 registrable felonies who are denied probation (Penal Code § 1179(h));
Conduct credits (Penal Code §§ 2933, 4019);
Postrelease community supervision for prisoners released from state prison after October 1, 2011. (Penal Code § 3450 et. seq.).
What follows is a capsule summary of these changes, augmented by an annotated version of the statutes themselves [Appendix C], a list of felonies common to our practice which are punishable in the county jail, even when probation is denied [Appendix A], and a list of felonies common to our practice which – although not necessarily serious, violent or registrable under Penal Code § 290 – nevertheless mandate a state prison commitment when probation is denied. [Appendix B.]
II. Sentencing (Penal Code § 1170(h)):
The General Rule:
Penal Code § 17(a) now divides felony offenses into three categories: Those punishable by death;
Those punishable by imprisonment in state prison; and, Those punishable under Penal Code § 1170(h).
Over the past year, the Legislature has amended hundreds of felony statutes to specify that “imprisonment [shall be] pursuant to subdivision (h) of Section 1170.” Starting October 1, 2011, a defendant sentenced for one of these offenses can only be imprisoned “in a county jail for the term described in the underlying offense.” (Penal Code § 1170(h).)1
1 The court has no discretion here. The crime is either a state prison or county jail felony. For Penal Code offenses, the default
position remains state prison. In other words, a felony is punishable in state prison unless it explicitly says that it is “punishable pursuant to subdivision (h) of section 1170.” (See Penal Code § 18.) Ironically, the presumption cuts the other way for Vehicle Code violations. Vehicle Code § 42000 states that “unless a different penalty is expressly provided. . . every person convicted of a felony. . . [under] this code shall be punished by a fine. . . or imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code. . . .”
Most – but not all -- of these so-called “county jail felonies” carry terms of 16-2-3.2 [See
Appendix A for a list of these felonies that are common to our practice].
When sentencing under this subdivision, the sentencing judge typically has two options:
(1) Deny probation and impose a county jail sentence, not to exceed the maximum for the underlying felony offense;
(2) Grant probation and impose [or not] a county jail sentence as a condition of probation.3
Exceptions to the General Rule:
The general rule is subject to four exceptions. If the defendant [or the crime] falls within any of these “exclusions”– and the court denies probation – the sentence must be served in state prison.
Here are the four exclusions:
(1) Def. has a past or present serious felony conviction4
(2) Def. has a past or present violent felony conviction5
(3) Def. is required to register as a sex offender6
(4) Def. is convicted of Penal Code § 186.11 -- the so-called “aggravated white collar crime enhancement” for fraud and embezzlement of more than $100,000.00.
These four exceptions cannot be dismissed by the court pursuant to Penal Code § 1385. (See Penal Code § 1170(f).)7
2 Penal Code § 1170(h)(1) states that “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.”
Presumably, the district attorney retains the right to dismiss them for purposes of sentencing.
3 It appears that a judge can no longer use Penal Code § 1203.03 to inform this decision. That section authorizes a 90 day
commitment to prison to permit the Department of Corrections to evaluate a defendant’s probation-worthiness. By its terms, the statute appears limited to “case[s] in which a defendant is convicted of an offense punishable by imprisonment in the state prison.”
4 This includes foreign convictions (Penal Code § 1170(h)(3)), but not -- so far -- most juvenile adjudications. We use the term
“most” because there is a narrow strip of juvenile priors that qualify as “serious” felonies because: the juvenile was 16 years or older at the time of the adjudication; the court deemed him fit to be tried as a juvenile; he was adjudged a ward, and the crime was listed in Welfare & Inst. Code § 707(b). (See Penal Code § 667(d)(3).)
5 See footnote 4, supra.
6 Unlike the exclusions for serious and violent felonies -- which explicitly say that both present and past convictions are
disqualifying -- section 1170(h) does not specify whether a prior conviction for a registrable offense disqualifies a defendant from receiving a county jail sentence. Nor is it clear whether a duty to register arising from a misdemeanor triggers the exclusion.
There are also about 80 other felonies for which the Legislature has mandated a state prison sentence even though they are neither serious, violent or registrable.8
Penal Code § 273.5(a) and (e) [domestic violence];
Here are some common examples:
Penal Code § 417(c) [brandishing at a police officer];
Penal Code § 489(a) [grand theft of a firearm; most other grand thefts have become “county jail felonies”];
Penal Code § 646.9 [stalking];
Penal Code § 12021 [ex felon with gun];
Health & Safety Code § 11370.1 [possession of certain drugs with gun]; Health & Safety Code § 4573.8 [possession of drugs in prison];
Vehicle Code § 20001 [hit and run with injury];
Vehicle Code § 2800.2(a) [evading arrest; note that Vehicle Code § 2800.4 has become a “county jail felony”];
Vehicle Code § 23554 [DUI with injury];
Vehicle Code § 23550.5 [felony DUI with specified priors.] (See Appendix B for an
expanded list of these felonies that are common to our practice.)
What About Enhancements?
Some conduct enhancements transform the underlying charge into a serious felony. This precludes a county jail commitment if probation is denied. But other enhancements do not have this impact and still others have been amended to bring them within the ambit of Penal Code § 1170(h). In these situations, the enhancement can be added to a county jail sentence. By way of example, here are three enhancements that can be added to a county jail sentence:
One year prison priors (Penal Code § 667.5)9
One year arming enhancements (See Penal Code § 12022(a)(1), (a)(2), (c) and (d).) Personal use of a deadly weapon (Penal Code § 12022(b)) is punishable in state prison,
but arming enhancements (Penal Code § 12022(a)) are punishable in the county jail; Penal Code § 12022.1 imposes a “penalty enhancement of an additional two years” for
crimes committed while a defendant is on bail or O.R. If both the underlying charges
7 While this provision eliminates the court’s authority to strike a prior conviction or other sentencing allegation for purposes
of state prison eligibility, it probably does not affect its power to strike the same allegations for other purposes. (See People v. Romero (1996) 13 Cal.4th 497, 525-530.)
8 Some are actually wobblers - which means that the court could reduce them to a misdemeanor in order to sentence the
defendant to the county jail.
are county jail felonies, the two years is served locally. Otherwise, the defendant must serve the enhancement in prison;
Health & Safety Code § 11370.2 states that certain recidivist drug offenders shall receive a “full, separate and consecutive three year term.” Because the statute does not specify where that term must be served, some trial courts say that it can be served in the
county jail when the defendant is convicted of a county jail felony. Concurrent and Consecutive Sentences:
The realignment legislation does not appear to have altered the calculation of consecutive sentences. A defendant sentenced consecutively for two county jail felonies still receives one third of the mid-term for the subordinate term. (See Penal Code § 1170.1; see also Penal Code § 19.2.)
If any one of the convictions is a state prison felony, the entire term must be served in state prison. (Penal Code § 1170.1(a).) This rule applies perforce to concurrent sentences. (Penal Code § 669.)
Some Important Rules To Remember:
These sentencing changes are prospective; they apply only to those sentenced after October 1, 2011.
Nothing in See Penal Code § 1170(h) prevents the court from ordering any “other dispositions authorized by law, including:”
Probation;
Pretrial diversion
Deferred entry of judgment.
If a felony carries only one determinate sentence [instead of three], the defendant must be sentenced to state prison (See Penal Code § 1170(g)).
If the court chooses to grant probation, the term of probation cannot exceed the “maximum possible sentence.” This will generally [but not always] be three [3] years. [See Appendix A.] If the defendant is not state prison eligible, and the court chooses not to grant probation, it
has essentially two choices. (See Penal Code § 1170(h)(5).) It can sentence the defendant to the low, middle or aggravated term, to be served in the in the county jail. (Penal Code § 1170(h)(5)(B)(i).) In this situation, the defendant will not be subject to parole or supervised
community release after he finishes his sentence. (See Penal Code §§ 3450, 3458.)10
10 It is easy to imagine how this provision will create a “Hobson’s choice” for many of our clients. For example, while it will
often be better in the long term for a defendant to take 16 months in the county jail and no post-release supervision, it will be hard – in the short term – to resist the temptation of probation and a shorter county jail stint.
Alternatively, the court can impose what it sometimes called a “split sentence.” In this scenario, the court selects a term [say 3 years, the aggravated term] but suspends a portion of that sentence [say, 12 months]. When the defendant is released from custody, he is subject to “mandatory supervision” (Penal Code § 19.9) for the remainder of the three year term [in this
case, one year]. (Penal Code § 1170(h)(5)(B)(ii).)11
Mandatory Supervision: The period of mandatory supervision cannot be shortened or terminated without a court order. (Penal Code § 1170(h)(B)(i).)12 Violations of this hybrid form of
supervision are treated like probation violations. Indeed, the Legislature has explicitly expressed its intention “to incorporate the procedural due process protections held to apply to probation revocations. . .” into mandatory supervision. (See Senate Bill 1023, uncodified section 2, subd. (b); citing Morrissey v. Brewer (1972) 408 U.S. 471; People v. Vickers (1972) 8 Cal.3d 451; see also Penal Code § 1170(h)(B)(i); see Penal Code §§ 1203.2, 1203.3.)
Postrelease Community Supervision [PRCS]: Most state prisoners will be released at the end of their term on “Postrelease Community Supervision.” The program is administered by
probation. The maximum term of supervision is three years, but it can be shortened for good behavior. (Penal Code § 3456.) . Parole will be limited to defendants whose underlying
offense is:
A serious felony; A violent felony; A 3rd strike;
High risk sex offender crimes [whatever that is];
Mentally disordered offenders. (Penal Code §§ 3000.8, 3451.)
Commitment to the California Rehabilitation Center (CRC) is no longer a sentencing option. (Welfare & Inst. § 3050, 3051, 3100, 3100.6.) The CRC facility at Norco is slated to close in 2016.
“Compassionate release” and “sentence recalls” are probably not available to defendants who receive county jail commitments. Penal Code §§ 1170(d) and (e) refer only to “state prison” sentences. Likewise, Vehicle Code § 41500 – which provides that a defendant’s non-felony Vehicle Code violations must be dismissed when he receives a state prison sentence -- appears limited to defendants actually “commit[ed] to the Department of Corrections.”
11 The statute does not require that the period of mandatory supervision must be for the entire remainder of the term. It could
conceivably be for a shorter period. (See Penal Code § 1170(h)(5)(b)(i) [the court may “suspend execution of a concluding portion of the term. . .”].)
12 It is probable that a defendant who receives a split sentence on a “wobbler” cannot thereafter seek to have his conviction
reduced to a misdemeanor under Penal Code § 17(b). (See People v. Woods (1998) 62 Cal.App.4th 1262, 1267 [17(b) reduction unavailable when execution of a portion of the sentence is suspended].)
However, both restrictions would seem ripe for a challenge on equal protection grounds. (See generally, People v. Freeman (1987) 225 Cal.App.3d Supp. 1, 4, fn. 2.)
The California Secretary of State takes the position that a defendant serving a
non-probationary sentence for a county jail felony is ineligible to vote. (See County Clerk/Registrar of
Voters Memorandum #11134 (Dec. 5, 2011).) This seems at odds with McPherson v. League of Women’s Voters of California (2006) 145 Cal.App.4th 1469, 1486 which ruled that “the only
persons disqualified from voting by reason of article II, section 4 are those who have been imprisoned in state prison or who are on parole.”
Unanswered Questions:
Three of the four exclusions which prevent a defendant from receiving a county jail sentence must be plead and proven in order to increase a defendant’s sentence:
Present serious felony; Present violent felony;
Enhancement per Penal Code § 186.11.
What is unclear is whether these exclusions must be plead and proven in order to exclude the def. from receiving a county jail sentence. The issue is currently before the California Supreme Court in a quartet of cases: People v. Lara [Review Granted; formerly 193 Cal.App.4th 1393], People v. Jones [Review Granted; formerly 188 Cal.App.4th 165], People v. James [Review
Granted; formerly 196 Cal.App.4th 1102 and People v. Voravongsa [Review Granted; formerly
197 Cal. App. 4th 657.] Jones and Lara found a pleading and proof requirement. James and
Voravongsa did not.
If there was no need to plead and prove these exclusions, it is unclear why the Legislature specified that they could not be dismissed under section 1385. (See generally In re Varnell (2003) 30 Cal.4th 1132, 1141 [power to dismiss under 1385 extends only to charged
allegations and enhancements not to uncharged sentencing factors].)
It is likewise unclear whether the exclusion for 290 registrants applies to defendants who are required to register as a result of a prior conviction.
There is still some doubt about whether “mandatory supervision” mirrors probation in all respects. The Legislature has expressed its intent that the “procedural due process
protections” are the same. (See Senate Bill 1023, uncodified section 2, subd. (b).) And Penal Code § 1170(h)(5)(b) says that “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.” But it remains to be seen whether the scope of “mandatory supervision” is the same as probation when it comes to:
Imposing conditions to which the supervisee must abide; Collecting restitution;
Transferring supervision to another county (Penal Code § 1203.9); Penal Code § 1203.4 relief.
III. Conduct Credits (Penal Code §§ 2933, 4019)
Postsentence Conduct Credits for State Prisoners:
The General Rule: As a general rule state prisoners receive day for day credits in state
prison. (Penal Code § 2933(b).) The computation is described as follows:
“For every six months. . . a prisoner shall be awarded credit reductions. . . six months.” “A lesser amount of credit based on this ratio shall be awarded for any lesser period of
continuous incarceration.” (Penal Code § 2933(b).)
Presentence Credits for State Prisoners:
The General Rule: As a general rule, state prisoners get day for day credit for custody time served from the date of arrest until “until state prison credits pursuant to this article are applicable.” (Penal Code § 2933(e)(1).)These credits can be forfeited for the refusal to perform work or to follow jail rules ((Penal Code § 2933 (e)(2).)
When any one of the following exclusions apply, credits are calculated under Penal Code § 4019:
(1) Defendant is required to register as a sex offender; or,
(2) Has been committed for a serious felony;
(3) Has a prior conviction for a serious felony;
(4) Has a prior conviction for a violent felony
Although this sounds ominous, it is essentially a distinction without a difference. The new version of section 4019 also provides for day for day credits. The only difference is in the method of calculation. A def. who is sentenced to an odd number of days serves an extra day under section 4019.
Other Exceptions to the General Rule:
State prisoners convicted of “violent” felonies continue to receive only 15% credits. (Penal Code § 2933.1(a); see also People v. Caceras (1997) 52 Cal.App.4th 106; People v.
Palacios (1997) 56 Cal.App.4th 252, 255-256 [15% limitation applies to entire sentence]);
Since there has been no change to Penal Code § 1170.12(a)(5) (or Penal Code §§ 667(c)(5)), a defendant sentenced as a 2nd striker still must serve 80% of his sentence. But the limitation does not kick in until he “is physically placed in state prison.” (See
3rd strikers do not receive any credit against the mandatory indeterminate term of life imprisonment. (See Penal Code §§ 667(c)(5), 1170.12(a)(5); In Re Cervera (2001) 24 Cal.4th 1073; People v. Stofle (1996) 45 Cal.App.4th 417);
Prisoners serving life sentences for murder are also denied all conduct credits. (See Penal Code § 2933.2.)
Conduct Credits for County Jail Inmates
The General Rule: For most offenses committed after October 1, 2011, a defendant will receive day for day credit for confinement in the county jail (Penal Code § 4019(f).)This includes pre and post sentence confinement for:
(1) Misdemeanors (subd. (a)(1)(2));
(2) Felonies (subd. (a)(3));
(3) Probation violations (subd. (a)(2));
(4) Violations of Postrelease Community Supervision (subd. (a)(5)); or
(5) Parole (subd. (a)(5).)
This means that, for a defendant who is sentenced to four [4] days in the county jail, two days are deducted from that sentence, as follows:
(1) 1 day unless he “refused to satisfactorily perform labor as assigned by the sheriff. . .” (Penal Code § 4019(b)); and,
(2) 1 day unless he “has not satisfactorily complied with the reasonable rules and regulations established by the sheriff” (Penal Code § 4019(c).)
Exceptions to the General Rule:
Under the statute, day for day credits apply only to crimes committed “on or after October 1, 2011.” The California Supreme Court has upheld this limitation in another context, ruling that an earlier version of section 4019 was prospective only. (People v.
Brown (2012) 54 Cal. 4th 314.) The precise issue is presently before the court in People v. Olague [Review Granted; formerly 205 Cal.App.4th 1126] and People v. Borg [Review Granted; formerly 204 Cal. App. 4th 1528].)
The credit reduction takes effect only after a defendant serves or is sentenced to four [4] or more days in county jail;
Day for day credits are not available for periods of “flash incarceration.”
Penal Code § 2933.1(c) seems to say that prisoners convicted of “violent” felonies (Penal Code § 667.5) continue to receive only 15% county jail credits. But some
analyses of the realignment statutes [including the one by Judge Couzens prepared for the
judges] suggests that section 4019 contains no exclusions;
Presumably, a defendant sentenced as a 2nd striker under Penal Code § 1170.12 will now receive day for day county jail credits. (People v. Hill (1995) 37 Cal.App.4th 220 [80% credit limitation does not kick in until the prisoner reaches state prison);
3rd strikers still do not receive any credit against the mandatory indeterminate term of life imprisonment. (See Penal Code §§ 667(c)(5), 1170.12(a)(5); In Re Cervera (2001) 24 Cal.4th 1073; People v. Stofle (1996) 45 Cal.App.4th 417);
Prisoners serving life sentences for murder also receive no conduct credits. (See Penal Code § 2933.2.)
Expansion of Home Detention/Electronic Monitoring:
Starting October 1, 2011, the board of supervisors can authorize the sheriff to create a program of electronic monitoring or home detention as a substitute for jail time. (Penal Code § 1203.016.) Such a program is available to all inmates [not just low risk offenders] and can be either:
Voluntary, or
Involuntary. (See Penal Code §§ 1203.016, 1203.017.)
The board can also authorize the sheriff to create a home detention/electronic monitoring program as a substitute for bail. (Penal Code § 1203.018.) Participation in the program is discretionary and participants must meet the following conditions:
No holds or outstanding warrants; and,
In custody on a misdemeanor and has been for at least 30 calendar days; or Has been in custody for at least 60 calendar days from arraignment.
Note that participants in these programs will be entitled to receive the same day for day credits as county jail inmates. (See Penal Code §2900.5(a).)13
Early Release:
When necessary to ease overcrowding, Penal Code § 4024.1 authorizes the sheriff to release an inmate up to 30 days before his sentence is completed. In the alternative, the inmate can be transferred to less crowded jail in another county. (Penal Code § 4115.5.) This option is available for both sentenced prisoners and pretrial detainees.
13 The program is available to any inmate so long as his release “would be consistent with public safety interests of the
III. Post Release Community Supervision
Introduction:
Penal Code § 3450, the enabling legislation for Postrelease Community Supervision [PRCS], contains some unexpected concessions regarding the efficacy of the criminal justice system. For example, the Legislature now seems to recognize that jailing parolees “for technical violations” does not reduce recidivism or “improve[] public safety.” (Penal Code § 3450(b)(3).) A better solution lies in:
“Community-based punishment;”14 “Evidence-based practices;”
15
“Improved supervision strategies.” (Penal Code § 3450(b)(5).) and
Perhaps even more surprising, the Legislature has chose the public defender to be a part of the “Community Corrections Partnership” whose “critical role” is to develop programs based on these three principles and “ensurp[e] appropriate outcomes for persons subject to postrelease community supervision.” (Penal Code § 3450(b)(6).)
The General Rule:
Most state prison inmates released on or after October 1, 2011 will be placed on
“Postrelease community supervision” (Penal Code § 3450) instead of parole. Although the
maximum term is 3 years (Penal Code §§ 3451, 3456(a)), supervisees can be released earlier for good behavior. (Penal Code § 3456(a) [see below].)
Parole will be limited to persons convicted of serious or violent felonies or who qualify as “High Risk Sex Offenders” or Mentally Disordered Offenders [see below].
14 "Community-based punishment" seems to mean alternatives to traditional county jail sentences and includes the following:
(1) “Flash” incarceration [for not more than 10 days]; (2) Intensive community supervision.
(3) Home detention w/ electronic or GPS monitoring; (4) Mandatory community service;
(5) “Restorative justice” programs [e.g., restitution and “victim-offender reconciliation”]; (6) Work, training, or education in a furlough program (Penal Code § 1208).
(7) Work release program (Penal Code § 4024.2); (8) Day reporting;
(9) Mandatory residential or nonresidential substance abuse treatment programs; (10) Mandatory random drug testing;
(11) Mother-infant care programs;
(12) “Community-based residential programs offering structure, supervision, drug treatment, alcohol treatment, literacy programming, employment counseling, psychological counseling, mental health treatment, or any combination of these and other interventions.” (Penal Code § 3450(b)(8).)
15 "Evidence-based practices" refers to supervision programs and practices that are “demonstrated by scientific research to
The Parole Authority will administer parole violations until July 1, 2013. After that, local probation offices will take over supervision and and parole violations will be heard by the courts. (Penal Code § 3000.08.)
Exceptions to the General Rule:
Notwithstanding Penal Code § 3450 et. seq., state prisoners convicted of the following crimes will continue to be supervised by parole (Penal Code §§ 3000.08, 3451):
Serious felonies (Penal Code § 1192.7(c)); Violent felonies (Penal Code § 667.5(c));
A third strike (Penal Code §§ 667(e)(2), 1170.12(c)(2));
Any crime for which the inmate has been classified as a “High Risk Sex Offender;” Any crime for which the inmate has been classified by a Mentally Disordered Sex
Offender (MDO) (Penal Code § 2962);
Any Penal Code § 290 registrable offense that carries a parole term of more than three years; and,
Any crime which carries lifetime parole. Conditions of Postrelease Community Supervision:
There are 16 mandatory conditions of Postrelease Community Supervision. (Penal Code § 3453.) The list is reproduced in the margin.16
Continuous electronic monitoring (see Penal Code § 1210.7)
Counties may impose additional conditions “consistent with public safety,” including:
“Appropriate rehabilitation and treatment services;” Referral to a reentry court (Penal Code § 3015); and Flash incarceration. (Penal Code § 3454(b).)17
16 The 16 conditions are as follows:
(1) Obey all laws;
(2) Report to probation w/in 2 days of release from custody;
(3) Report as directed;
(4) Follow directives of the probation officer; (5) Submit to search and seizure of your person & residence. [Note there is a broader search condition contained in Penal Code § 3465];
(6)Waive extradition;
(7) Notify probation of any change of address, work or school;
(8) Notify probation after any arrest or citation;
(9) Do not travel more than 50 miles from home without the probation officer’s permission;
(10) Do not leave the state or county for more than two days without a “travel pass;”
(11) Do not “be in the presence of a firearm or
ammunition, or any item that appears to be a firearm or ammunition.” [This condition would appear unconstitutional without a scienter requirement];
(12) Do not “possess, use, or have access to any weapon…”
(13) Do not possess “a knife with a blade longer than two inches.” [There are exceptions for a using such a knife in the kitchen, or at work, provided that probation has given its written approval];
(14) Waive any right to a court hearing prior to "flash incarceration;"
(15) Participate in any “rehabilitation programming” recommended by probation;
(16) Submit to arrest without a warrant upon probable cause of a PRCS violation.
17 These conditions must be “reasonably related” to the underlying offense,” the risk of recidivism, or the
Adjudication of Postrelease Community Supervision Violations [PRCS]:
The rules for adjudicating PRCS violations are now the same as for probation violations. (See Penal Code §§ 1203.2, 1203.3, 3455.) The Legislature has expressed its intention “to incorporate the procedural due process protections held to apply to probation
revocations. . .” into mandatory supervision. (See Senate Bill 1023, uncodified section 2, subd. (b); citing Morrissey v. Brewer, supra, 408 U.S. 471; People v. Vickers, supra, 8 Cal.3d 451.) District attorneys and public defenders are responsible for prosecuting and
defending the violations.
The Judicial Council has proposed two new rules to govern the adjudication of PRCS hearings. If approved, Rule 4.540 and 4.541 would require the probation department to file – under penalty of perjury – a petition to revoke that contains the following:
Probable cause for the violation;
An explanation as to why intermediate sanctions are inappropriate or have been tried and failed; and,
A recommendation for sentencing.
The proposed rules also provide for a probable cause hearing within 5 court days of the filing of the petition and a formal hearing within 45 days – absent a time waiver or good cause. The standard of proof is set at “a preponderance of the evidence.”
Punishment of Postrelease Community Supervisees:
Postrelease community supervisees cannot be returned to prison (Penal Code §§ 3457, 3458).
The punishment alternatives include:
Referral to a reentry court (Penal Code § 3015);
Modification of the terms of Postrelease Community Supervision; “Community based punishment;”18
Revocation followed by a county jail sentence (Penal Code §§ 3450, 3455);
“Flash incarceration” is “encouraged” to punish violations of Postrelease Community
Supervision. (Penal Code § 3454(b).) The maximum length of each incarceration has now
been set at 10 days. (See Penal Code §§ 3450(b)(8)(A), 3454(c), 3453(q).) Day for day conduct credits are not available. The “supervising agency” [typically the probation
department] appears to be the only agency authorized to impose this punishment. (Penal
Code § 3455(b).)
A Postrelease Community Supervisee can be held in custody pending a revocation
hearing upon proof by a preponderance of the evidence that he “poses an unreasonable
risk to public safety,” may not appear in court or “for any reason in the interests of justice.” (Penal Code § 3455(b)
Any sentence after revocation must be served in county jail. The maximum sentence is 180 days for each violation. (Penal Code §§ 3454, 3455(d).) Parolees will be subject to the same maximum sentence after July 1, 2013 (Penal Code § 3000.08; see also Penal Code § 3056.)
Discharge from Postrelease Community Supervision
A postrelease community supervisee must be discharged after:
Three years of supervision (Penal Code § 3456(a));
One continuous year of supervision without a violation (Penal Code § 3456(c));
A postrelease community supervisee may be discharged if:
He’s served six consecutive months without a violation (Penal Code § 3456(b)); The supervising agency recommends it (Penal Code § 3456(f)).19
The standard term for parole is also three years (Penal Code § 3000), but there are exceptions for certain violent crimes and sex offenses.
What About Inmates Who Were Released On Parole Before October 1, 2011?
They remain under the supervision of CDCR. However, they can discharge after 6 months, if,
inter alia:
There have been no violations;
They would have been eligible for postrelease community supervision.
Parolees who are held on a parole violation on October 1st , can still be sent to prison upon revocation. But after their sentence is completed, you look to Penal Code § 3000.8 to
determine whether they should be released on parole or Postrelease Community Supervision. In the event that the inmate is released on Postrelease Community Supervision, the term cannot exceed the length of his remaining parole term. Penal Code § 3000.09(c).)
Some Other Caveats:
Parolees can still be sent back to state prison (see Penal Code § 3000.09), but Penal Code § 3056 sharply curtails the board’s right to do so:
Subdivision (b) states that “for people already released on parole as of Oct. 1, 2011. . . a
parolee may be housed in a county jail for a maximum of 180 days;”
There is an exception for parolees serving lifetime parole (Penal Code § 3000.1.)
19 Parolees are also eligible for early discharge. Those convicted of serious, violent or registrable offenses can be released after
The parole board is also “encouraged” to use “flash incarceration” – a county jail sentence of 1-10 days – to “punish a parolee while preventing the disruption of work or home
establishment;”
Lifetime Parole (Penal Code § 3000.1)
Persons convicted of murder as well as certain kidnapping and sexual offenses are still subject to lifetime parole. (Penal Code § 3000.1.) However, the board has authority to discharge them as well. A defendant convicted of 1871st can be discharged after 7 years and a defendant convicted of 1872nd can be released after 5 years.
Appendix A
Crimes for Which a Defendant
“Shall” Receive a County Jail Sentence
20Penal Code Penal Code
69 [felony resisting arrest]21 4530, 4536 [escape; 4532 remains a state prison offense] 71(a)(1) and (a)(2) [threatening public officials] 4573 [smuggling controlled substances into prison; 2-3-4] 182(a) [conspiracy; limited to certain situations] 4573.6 [possession of controlled substances in custody; 2-3-4] 191.5(c)(2) [vehicular manslaughter while intoxicated; 16-2-4] 4573.8 [possession of controlled substances in custody] 193(b) [involuntary manslaughter; 2-3-4] 4574 [possession of firearms in custody; 2-3-4]
193.5(b) [invol. manslaughter with a vessel; 16-2-4] 12021.5(a) [gang enhancement for possession of firearm; 1-2-3] 210.5 [false imprisonment for use as a shield; 3-5-8] 12022(a)(1), (a)(2), (c) and (d) [arming, use of deadly weapon] 237(a) [false imprisonment] 12101(c)(1) [possession of concealable firearm/ammo by minor] 241.1, 241.4, 241.7 [various assaults] 12220(a), (b) [possession of machine gun]
243(c)(1), (c)(2) [battery upon peace officer] 12280(a)(1), (b) [manufacture of assault weapon; 4-6-8] 243(d) [battery with serious bodily injury; 2-3-4] 12280(b) [possession of an assault weapon]
246.3 [discharging firearm or BB gun w/ gross negl.]22 12303.3 [possession of explosive/destructive device; 3-5-7] 261.5(c) and (d) [statutory rape] 12303.6 [sale of destructive device; 2-3-4]
265 [abduction for marriage or defilement] 12312 [possession of bomb making materials; 2-3-4]
266b [abduction to live in illicit relation] 25400(c)(5)-(6) [carrying a concealed firearm; operative 1/1/12] 266g [pimping your wife; 2-3-4] Health & Safety Code
273.6(d) and (e) [violation of stay away order] 11350(a), (b) [possession of narcotics] 273.65(d) and (e) [violation of stay away order] 11351[possession of narcotics for sale; 2-3-4] 273d(a) [corporal punishment of a child; 2-4-6] 11351.5 [possession of cocaine base for sale; 3-4-5] 288.2 [passing harmful matter w/ intent to seduce a minor]23 11352 [sales of narcotics; 3-4-5]
311.9(a),(b) and (c) [possession of child porn] 11353.5 [selling controlled substances on school grounds; 5-7-9] 368(d), (e) and (f) [elder abuse; 2-3-4] 11353.7 [selling to minors in parks or playgrounds; 3-6-9] 417.3 [brandishing a firearm in presence of a car] 11357(a) [possession of concentrated cannabis]
417.6 [brandishing with serious bodily injury] 11358 [cultivation of marijuana]
422.7 [hate crime] 11359 [possession for sale of marijuana; 2-3-4]
20 The list includes only Penal, Health and Safety Code and Vehicle Code violations. There are more than 600 offenses
scattered throughout the Code that qualify under Penal Code § 1170(h). For a comprehensive list, see Garrick Byers’ Realignment article.
21 Except where noted, the punishment for these offenses is 16-2-3 in the county jail.
22 This crime is a registrable offense. (Penal Code § 290.) On that basis, it punishable in state prison – rather than the county
jail.
453(a) [possession of incendiary device] 11360 [sale of marijuana; 2-3-4]
461(b) [punishment for 4592nd] 11377 [possession of controlled substance] 470a [forging driver’s license or ID card] 11378 [possession for sale of controlled substance] 470b [possession of forged driver’s license or ID card] 11378.5 [possession for sale of PCP; 3-4-5] 473, 474 [forgery] 11379 [sale of controlled substances; 2-3-4] 478, 479, 480(a) [counterfeiting; 2-3-4] 11379.5 [sale of PCP; 3-4-5]
484/666 [petty theft] 11380 [inducing a minor to commit drug violation; 3-6-9] 484b [fraud] 11383 [possession with intent to manufacture PCP; 2-4-6]
484i [forgery of credit cards] Vehicle Code
487b [grand theft - real property] 2800.4 [evading arrest- driving the wrong way] 487d [grand theft – gold, amalgam, quicksilver] 4463 [forging DMV documents]
489(b) [grand theft – except theft of a firearm] 10501(b) [filing false vehicle theft report w/ a prior; 2-3-4] 496(a), (b), and (d) [receiving stolen property] 10851(a), (b) [auto theft]
499(c) [theft of trade secrets] 23104 [reckless driving w/ great bodily injury] 496d(a) [receiving/possessing a stolen vehicle] 23105 [reckless driving with specified injury] 530.5(a), (c)(2), (c)(3) and (d)(1) [identity theft] 23109.1 [speed contest with specified injury] 548(a), 549, 550 [insurance fraud] 23550(a) [DUI with three or more priors] 594(b)(1) [felony vandalism]
594.3(a) and (b) [vandalism of church] 594.35 [vandalism of cemetery] 597 [cruelty to animals] 601(d) [felony trespass]
626.9(f)(1), (f)(2)(A) & (B), (f)(3), (h), & (i) [guns at a school; 2-3-5]
626.95 [417, 12025, 12031 at a school; 1-2-3] 647.6 [annoying/molesting a child under 18]24
647.6(c)(2) [annoying/molesting a child w/ a prior; 2-4-6] 25 653f (a), (c), (d)(1), (d)(2) [soliciting various crimes] 26 666.5/10851 [car theft w/ a prior; 2-3-4]
24 This crime is a registrable offense (Penal Code § 290) and therefore punishable in state prison. 25 This crime is a registrable offense (Penal Code § 290) and therefore punishable in state prison.
26 Penal Code § 653f(c) is a registrable offense (Penal Code § 290) and therefore punishable in state prison – rather than the
Appendix B
Crimes for Which a Defendant Still Must Go To State Prison
27 There are about 60 felonies that are not serious, violent, or registrable offenses, but for which any prison sentence must actually be served in state prison. A defendant sentenced for one of these crimes can still get probation, but an executed felony sentence cannot be served in the county jail.Penal Code Penal Code [cont.]
166(c)(4) [violation of DV restraining order w/ prior and “credible threat”]
646.9(a), (b), (c) [stalking (subds. (a)& (c)are wobblers)]
186.11 [white collar crime enhancement] 666(b) [petty theft with specified priors]
186.22 [gang crime] 647.6(b) & (c) [Annoying a child under specified circumstances] 186.33 [recruiting gang members] 653f(b) and probably (c) [soliciting specified crimes (wobbler)] 186.33(b) [gang registration violations] 4532(a) and (b) [escape (subd. (b) is a wobbler)]
191.5 (c)(1) [gross vehicular manslaughter while intoxicated] 12020(b)
243.7 [battery upon a juror (wobbler)] 12021(a)(1), (a)(2) and (b) [ex felon in possession of a firearm] 245 [assault with deadly weapon, force likely to GBI] 12021.1 [possession of firearm by felon convicted of specified
crimes]
266a, 266e, 266f, 266(h), 266i, 266j [pimping] 12303.2 [possession of destructive device in public place] 273a(a) [child endangerment (wobbler)] 4536(a) [escape from state hospital after MDO commitment] 273ab [assault upon a child resulting in death] Health & Safety Code
273.5 (a) and (e) [domestic violence (wobbler)] 11353, 11353.7, 11354, 11361, 11380 [inducing a minor to buy or sell drugs]
368(b) [elder abuse (wobbler)] 11370.1 [possession of certain drugs with gun]
288.2 [distributing obscene material to a minor] (wobbler) 120291 [deliberately exposing another to HIV infection] 417(c), 417.6 [brandishing a firearm (wobbler)] Vehicle Code
417.8 [brandishing a firearm to resist arrest] 2800.2 [evading arrest (wobbler)]
424 [embezzlement by public officials] 2800.3(a) and (b) [evading arrest causing serious bodily injury] 452(a), (b), (c) [arson (wobbler)] 2800.4 [Evading arrest by driving the wrong way] (wobbler) 455 [attempted arson] 20001 [hit and run with injury] (wobbler)
489(a) [grand theft of a firearm] 23550.5 [punishment for felony DUI (wobbler)] 598d [sale of horsemeat (wobbler)] 23554 [punishment for DUI with injury (wobbler)]
27 The list includes only Penal, Health and Safety Code and Vehicle Code violations. There are more than 600 offenses
scattered throughout the Code that qualify under Penal Code § 1170(h). For a comprehensive list, see Garrick Byers Realignment article.
Appendix C
The Realignment Statutes:
Penal Code §§ 1170(h), 2933, 4019, 3000.08 et. seq., 3450 et. seq.
Examined & Analyzed
Penal Code 1170
Ananysis§ 1170(f-h) (Operative until January 1, 2014)
(f) Notwithstanding any other provision of this section, for purposes of paragraph (3) of subdivision (h), any allegation that a defendant 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.
(g) A sentence to state prison for a determinate term for which only one term is specified, is a sentence to state prison under this section.
(h)(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 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,
(a) Introduction
(a)(1) Purpose of imprisonment remains “punishment.”
Purpose of the sentencing changes contained in
subdivision (h) “are not intended to alleviate state prison overcrowding.” (Penal Code § 17.5.)
(a)(2) Nonetheless, the Legislature “encourages” educational programs for “non-violent felony offenders.” Dept of Corrections [DCR] should give priority enrollment in these programs to short timers.
(a)(3) Court must sentence a def. to one of the terms specified in the statute defining the crime – unless he is given probation or another “disposition provided by law…”
In doing so, it must follow the sentencing rules of
the Judicial Council
(h) Realignment Sentencing Changes
General Rule: Starting October 1, 2011 hundreds of felonies will be punishable only with a county jail sentence.
The Legislature has amended hundreds of felony statutes to specify that “imprisonment [shall be] pursuant to subdivision (h) of Section 1170.” For these crimes, the def. can only be imprisoned “in a county jail for the term described in the underlying offense.”
Most – but not all -- of these so-called “county jail felonies” carry terms of 16-2-3. [See Appendix A for a partial list of these felonies];
There are also some felonies that do not specify a particular term. Often, these statutes say that a person who commits the crime “is guilty of a felony.” These offenses are now punishable by “imprisonment in a county jail for 16 months, or two or three years.” (See subd. (h)(1); Penal Code § 18.)
Other statutes say that their violation is punishable by “state prison” (see e.g. Penal Code § 422.) This is probably due a drafter’s error. Our position should be that these are also punishable by “imprisonment in a county jail for 16 months, or two or three years.” (See subd. (h)(1); Penal Code § .)
(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. (5) [Mandatory Supervision] The court, when imposing a sentence pursuant to paragraph (1) or (2) of this
subdivision, may commit the defendant to county jail as follows:
(A) For a full term in custody as determined in accordance with the applicable sentencing law.
(B)(i) For a term as determined in accordance with the 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. Any proceeding to revoke or modify mandatory supervision under this subparagraph shall be conducted pursuant to either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3. 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. Any time period which is suspended because a person has absconded shall not be credited toward the period of supervision.
(ii) The portion of a defendant's sentenced term during which time he or she is supervised by the county
sentencing judge has two options:
(1) Impose a county jail sentence, not to exceed the maximum for the underlying offense;
(2) Grant probation and impose [or not] a county jail sentence as a condition of probation.
Exceptions: The general rule is subject to four exceptions. If the def. falls within any of these exceptions – and the court decides to impose a prison term – that sentence must be served in state prison.
Here are the four exceptions
(5) Def. has a past or present serious felony conviction
(6) Def. has a past or present violent felony conviction
(7) Def. is required to register as a sex offender (8) Def. is convicted of an enhancement under PC
§ 186.11[the so-called “aggravated white collar crime enhancement” for fraud and embezzlement of more than $100,000.00]
There are also approximately 60 felonies for which the
Legislature has mandated a state prison sentence. [See Appendix B for a partial list of these crimes.]
Some caveats:
The four criteria [or exclusions] cannot be dismissed (subd. (f));
If a felony carries only one determinate sentence [instead of three], the def. must be sentenced to state prison (subd. (g));
Nothing in subdivision (h) prevents the court from ordering any “other dispositions authorized by law, including:”
Probation; Pretrial diversion
Deferred entry of judgment
The term of probation cannot exceed the “maximum possible sentence.” This will generally [but not always] be three [3] years.
The Legislative Counsel’s Digest to A.B. 116
suggests that probation can only be imposed for those felonies for which no specific prison term is specified;
If the court chooses not to grant probation and simply sentences a def. to 16-2-3 in county jail, there will be no parole or supervised release after he finishes his sentence (see Penal Code §§ 3450, 3458);
Defs. who are sent to state prison certain qualifying felonies will be released at the end of their term on “Postrelease Community Supervision” for up to three years. This program will be administered by the counties, and violations will be prosecuted in the courts – starting in 2013;
Parole will be limited to defs. whose underlying
probation officer pursuant to this subparagraph shall be known as mandatory supervision.
(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.
(i) This section shall remain in effect only until January 1, 2014, and as of that date is repealed, unless a later
enacted statute, that is enacted before that date, deletes or extends that date.
A serious felony; A violent felony; A 3rd strike;
High risk sex offender crimes;
Mentally disordered offenders.
These sentencing changes are prospective; they apply only to those sentenced after October 1, 2011;
This section will expire on January 1, 2012 unless the Legislature acts to extend it.
Enhancements:
Many conduct and sentencing enhancements
transform the underlying charge into a serious felony. This precludes a county jail commitment. But there are others which do not have this effect and still others which have been amended so that they can be added to a county jail sentence.
The following enhancements can be added to a county jail sentence:
County jail felonies can be enhanced pursuant to
Penal Code § 667.5 [prison priors] and a county jail sentence which exceeds one year constitutes a prison prior. It does not appear that the
imposition of the enhancement transforms the sentence into one that must be served in state prison. It just adds another year in county jail. (See Penal Code § 667.5(b).)
The one year arming enhancement can also be
served in county jail (See Penal Code § 12022(a)(1), (a)(2), (c) and (d).)
Enhancements for the use of a deadly weapon
(Penal Code § 12022(b)) can transform a crime into a serious felony, punishable in state prison. But Penal Code § 12022(b) also permits sentencing in county jail.
Unanswered Questions:
It is clear that some of exceptions which preclude a def. from receiving a county jail sentence must be plead and proven:
Present serious felony; Present violent felony;
Enhancement per Penal Code § 186.11.
It is unclear whether a prior serious or violent felony must be plead and proven in order to exclude the def. from receiving a county jail sentence. The issue is currently before the California Supreme Court in People v. Lara [formerly 193 Cal.App.4th 1393], and People v. Jones [formerly 188 Cal.App.4th 165]. Both cases found a pleading and proof requirement. More recently People v. James (2011) 196 Cal.App.4th 1102 [no petition for review yet], and People v. Voravongsa (2011) 197 Cal. App. 4th 657 [no petition for review yet] have ruled that there is no pleading and proof requirement. If there was no need to plead and prove
these exclusions, it is unclear why the Legislature specified that they could not be dismissed under section 1385. (See generally In re Varnell (2003) 30 Cal.4th 1132, 1141 [power to dismiss under 1385 extends only to charged allegations and
enhancements not to uncharged sentencing factors].)
It is likewise unclear whether the exclusion for 290 registrants applies to defs. who are required to register as a result of a prior conviction.
Penal Code § 2933
Ananysis§ 2933. Worktime credit; Receipt; Forfeiture; Regulations
(a) It is the intent of the Legislature that persons
convicted of a crime and sentenced to the state prison under Section 1170 serve the entire sentence imposed by the court, except for a reduction in the time served in the custody of the Secretary of the Department of
Corrections and Rehabilitation pursuant to this section and Section 2933.05.
(b) For every six months of continuous incarceration, a
prisoner shall be awarded credit reductions from his or her term of confinement of six months. A lesser amount of credit based on this ratio shall be awarded for any lesser period of continuous incarceration. Credit should be awarded pursuant to regulations adopted by the secretary. Prisoners who are denied the opportunity to earn credits pursuant to subdivision (a) of Section 2932 shall be awarded no credit reduction pursuant to this section. Under no circumstances shall any prisoner receive more than six months' credit reduction for any six-month period under this section.
(c) Credit is a privilege, not a right. Credit must be
earned and may be forfeited pursuant to the provisions of Section 2932. Except as provided in subdivision (a) of Section 2932, every eligible prisoner shall have a
reasonable opportunity to participate.
(d) Under regulations adopted by the Department of
Corrections and Rehabilitation, which shall require a period of not more than one year free of disciplinary infractions, credit which has been previously forfeited may be restored by the secretary. The regulations shall provide for separate classifications of serious disciplinary
(a) Intent: It is the Legislature’s intent that state prisoners should serve their entire sentence – except for reductions for work in prison and the completion of specific
“approved rehabilitative program[s]” described in Penal Code § 2933.05.
(b) Credits for State Prisoners: As a general rule state prisoners receive day for day credits in state prison
“For every six months. . . a prisoner shall be awarded credit reductions. . . six months.”
“A lesser amount of credit based on this ratio shall be awarded for any lesser period of continuous
incarceration.
(c) Credits are a privilege, not a right, and can be forfeited. On the other hand, “every eligible prisoner” must be given the opportunity to earn them.
(d) Restoration of credits: Most [but not all] credit which has been previously forfeited may be restored by the secretary of the DCR. This section spells out the conditions for restoration.
infractions as they relate to restoration of credits, the time period required before forfeited credits or a portion thereof may be restored, and the percentage of forfeited credits that may be restored for these time periods. For credits forfeited as specified in paragraph (1) of
subdivision (a) of Section 2932, the Department of Corrections and Rehabilitation may provide that up to 180 days of lost credit shall not be restored and up to 90 days of credit shall not be restored for a forfeiture resulting from conspiracy or attempts to commit one of those acts. No credits may be restored if they were
forfeited for a serious disciplinary infraction in which the victim died or was permanently disabled. Upon
application of the prisoner and following completion of the required time period free of disciplinary offenses, forfeited credits eligible for restoration under the regulations for disciplinary offenses other than serious disciplinary infractions punishable by a credit loss of more than 90 days shall be restored unless, at a hearing, it is found that the prisoner refused to accept or failed to perform in a credit qualifying assignment, or
extraordinary circumstances are present that require that credits not be restored. "Extraordinary circumstances" shall be defined in the regulations adopted by the secretary. However, in any case in which credit was forfeited for a serious disciplinary infraction punishable by a credit loss of more than 90 days, restoration of credit shall be at the discretion of the secretary.
The prisoner may appeal the finding through the Department of Corrections and Rehabilitation's review procedure, which shall include a review by an individual independent of the institution who has supervisorial authority over the institution.
(e)(1) Notwithstanding Section 4019 and subject to the
limitations of this subdivision, a prisoner sentenced to the state prison under Section 1170 for whom the sentence is executed shall have one day deducted from his or her period of confinement for every day he or she served in a county jail, city jail, industrial farm, or road camp from the date of arrest until state prison credits pursuant to this article are applicable to the prisoner.
(2) A prisoner may not receive the credit specified in
paragraph (1) if it appears by the record that the prisoner
(e) Presentence Credits for State Prisoners:
As a general rule, state prisoners get day for day
credit for custody time served from the date of arrest until “until state prison credits pursuant to this article are applicable.”
These credits can be forfeited for the refusal to perform work or to follow jail rules (subd. (e)(2));
When any one of the following four exclusions apply, credits are calculated under Penal Code § 4019: (5) Is required to register as a sex offender; (6) Has been committed for a serious felony; (7) Has a prior conviction for a serious felony; (8) Has a prior conviction for a violent felony
This is essentially a distinction without a difference.
The new version of section 4019 also provides for day for day credits. The only difference is in the method of
has refused to satisfactorily perform labor as assigned by, or has not satisfactorily complied with the reasonable rules and regulations established by, the sheriff, chief of police, or superintendent of an industrial farm or road camp.
(3) Section 4019, and not this subdivision, shall apply if
the prisoner is required to register as a sex offender, pursuant to Chapter 5.5 (commencing with Section 290), was committed for a serious felony, as defined in Section 1192.7, or has a prior conviction for a serious felony, as defined in Section 1192.7, or a violent felony, as defined in Section 667.5.
(f) The provisions of subdivision (d) shall also apply in
cases of credit forfeited under Section 2931 for offenses and serious disciplinary infractions occurring on or after January 1, 1983.
calculation. A def. who is sentenced to an odd number of days serves an extra day under section 4019.
Defs. convicted of “violent” felonies continue to receive only 15% credits. (Penal Code § 2933.1(a); see also People v. Caceras (1997) 52 Cal.App.4th 106; People v. Palacios (1997) 56 Cal.App.4th 252, 255-256 [15% limitation applies to entire sentence]);
Since there has been no change to Penal Code § 1170.12(a)(5) (or Penal Code §§ 667(c)(5)), a def. sentenced as a 2nd striker still must serve 80% of his
sentence. But the limitation does not kick in until he “is physically placed in state prison.” (See People v. Hill (1995) 37 Cal.App.4th 220);
3rd strikers do not receive any credit against the
mandatory indeterminate term of life imprisonment. (See Penal Code §§ 667(c)(5), 1170.12(a)(5); In Re Cervera (2001) 24 Cal.4th 1073; People v. Stofle (1996) 45 Cal.App.4th 417);
Prisoners serving life sentences for murder are also denied all conduct credits. (See Penal Code § 2933.2.)
Penal Code § 4019
Ananysis§ 4019. (Second of two; Operative October 1, 2011) Deductions from period of confinement
(a) The provisions of this section shall apply in all of the
following cases:
(1) When a prisoner is confined in or committed to a
county jail, industrial farm, or road camp, or any city jail, industrial farm, or road camp, including all days of custody from the date of arrest to the date on which the serving of the sentence commences, under a judgment of imprisonment, or a fine and imprisonment until the fine is paid in a criminal action or proceeding.
(2) When a prisoner is confined in or committed to the
county jail, industrial farm, or road camp or any city jail, industrial farm, or road camp as a condition of probation after suspension of imposition of a sentence or
suspension of execution of sentence, in a criminal action or proceeding.
(3) When a prisoner is confined in or committed to the
county jail, industrial farm, or road camp or any city jail, industrial farm, or road camp for a definite period of time for contempt pursuant to a proceeding, other than a
General Rule: For most offenses committed after October 1, 2011, a def. will receive day for day credit for
confinement in the county jail (subd. (f).)
This includes pre and post sentence confinement for: (1) Misdemeanors (subd. (a)(1)(2));
(2) Felonies (subd. (a)(3));
(3) Probation violations (subd. (a)(2));
(4) Violations of Postrelease Community Supervision
(subd. (a)(5)); or (5) Parole (subd. (a)(5).)
Thus, for example, for a def. who is sentenced to four [4] days in the county jail, two days are deducted from that sentence, as follows:
(1) 1 day unless he “refused to satisfactorily perform labor as assigned by the sheriff. . .” (subd. (b)); and,
(2) 1 day unless he “has not satisfactorily complied with the reasonable rules and regulations established by the sheriff” (subd. (c).) Exceptions:
Day for day credits apply only to crimes committed
“on or after October 1, 2011;”
This credit reduction takes effect only after a def. serves or is sentenced to four or more days in county jail;
Penal Code § 2933.1(c) seems to say that prisoners convicted of “violent” felonies (Penal Code § 667.5) continue to receive only 15% county jail credits. But some analyses of the realignment statutes [including the one by Judge Couzens prepared for judges] suggests
criminal action or proceeding.
(4) When a prisoner is confined in a county jail,
industrial farm, or road camp, or a city jail, industrial farm, or road camp following arrest and prior to the imposition of sentence for a felony conviction.
(5) When a prisoner is confined in a county jail,
industrial farm, or road camp, or a city jail, industrial farm, or road camp as part of custodial sanction imposed following a violation of postrelease community
supervision or parole.
(b) Subject to the provisions of subdivision (d), for each
four-day period in which a prisoner is confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of
confinement unless it appears by the record that the prisoner has refused to satisfactorily perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial farm or road camp.
(c) For each four-day period in which a prisoner is
confined in or committed to a facility as specified in this section, one day shall be deducted from his or her period of confinement unless it appears by the record that the prisoner has not satisfactorily complied with the reasonable rules and regulations established by the sheriff, chief of police, or superintendent of an industrial farm or road camp.
(d) Nothing in this section shall be construed to require
the sheriff, chief of police, or superintendent of an
industrial farm or road camp to assign labor to a prisoner if it appears from the record that the prisoner has refused to satisfactorily perform labor as assigned or that the prisoner has not satisfactorily complied with the reasonable rules and regulations of the sheriff, chief of police, or superintendent of any industrial farm or road camp.
(e) No deduction may be made under this section unless
the person is committed for a period of four days or longer.
(f) It is the intent of the Legislature that if all days are
that section 4019 contains no exclusions;
Presumably, a def. sentenced as a 2nd striker under
Penal Code § 1170.12 will now receive day for day county jail credits. (People v. Hill (1995) 37 Cal.App.4th 220 [80% credit limitation does not kick in until the prisoner reaches state prison);
3rd strikers still do not receive any credit against the
mandatory indeterminate term of life imprisonment. (See Penal Code §§ 667(c)(5), 1170.12(a)(5); In Re Cervera (2001) 24 Cal.4th 1073; People v. Stofle (1996) 45 Cal.App.4th 417).
Prisoners serving life sentences for murder also receive no conduct credits. (See Penal Code § 2933.2.) Expansion of Home Detention/Electronic Monitoring:
The board of supervisors can authorize the sheriff to create a program of home detention electronic monitoring or home detention as a substitute for jail time. (Penal Code § 1203.016.) Such a program can be:
Voluntary, or Involuntary
The board can also authorize the sheriff to create a home detention/electronic monitoring program as a substitute for bail. (Penal Code § 1203.018.)
Participation in the program is discretionary and participants must meet the following conditions:
No holds or outstanding warrants; and,
Has a misdemeanor case and has been in custody
for at least 30 calendar days; or
Has been in custody for at least 60 calendar days
from arraignment.
Participants in these programs will be entitled to receive the same day for day credits as county jail inmates. (See Penal Code §2900.5(a).)
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) The changes in this section as enacted by the act that
added this subdivision shall apply to prisoners who are confined to a county jail, city jail, industrial farm, or road camp for a crime committed on or after the effective date of that act.
(h) The changes to this section enacted by the act that
added this subdivision shall apply prospectively and shall apply to prisoners who are confined to a county jail, city jail, industrial farm, or road camp 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.
Penal Code § 3000.08
Ananysis§ 3000.08. (First of two; Operative October 1, 2011; Inoperative July 1, 2013; Repealed January 1, 2014) Parole supervision for enumerated felons;
Postrelease supervision for all other offenders (a) Persons released from state prison on or after October 1, 2011, after serving a prison term or,
whose sentence has been deemed served pursuant to Section 2900.5, for any of the following crimes shall be subject to the jurisdiction of and parole
supervision by the Department of Corrections and Rehabilitation:
(1) A serious felony as described in subdivision (c) of Section 1192.7.
(2) A violent felony as described in subdivision (c) of Section 667.5.
(3) A crime for which the person was sentenced [as a 3rd striker] pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12.
General Rule:
Most state prison inmates released on or after October 1, 2011 will be placed on “postrelease community supervision” pursuant to Penal Code § 3450 instead of parole.
The standard term for this supervision will be 3 years. (Penal Code § 3451.) There appear to be no tolling provisions. (Penal Code § 3455(c));
The standard term for parole is also three years (Penal
Code § 3000.), but there are exceptions for violent crimes and sex offenses;
The Parole Authority will administer “postrelease community supervision” until July 1, 2013. After that, local probation offices will take over supervision and “postrelease” violations will be heard by the courts. Exceptions:
There are five exceptions to the general rule. After October 1, only inmates convicted of the
following crimes will be supervised by parole (Penal Code §§ 3000.08, 3451.):
Serious felonies (Penal Code § 1192.7(c)); Violent
felonies (Penal Code § 667.5(c));
A third strike (Penal Code §§ 1170.12(c)(2)); Any crime for which the inmate has been
classified as a “High Risk Sex Offender;”
Any crime for which the inmate has been
classified by a Mentally Disordered Sex Offender (MDO) (Penal Code § 2962);
The standard term of parole is also 3 years. (Penal Code § 3000.) There are exceptions for violent crimes and sex offenses.
