Prosecutors’ Analysis
of the 2011
Criminal Justice Realignment
(AB 109, AB 116, AB 117, AB 118, ABX1 16, ABX1 17)
September 2011
by Kathryn B. Storton
Santa Clara County District Attorney’s Office
and
Lisa R. Rodriguez
San Diego County District Attorney’s Office
Gregory D. Totten
W. Scott Thorpe
© 2011 by the Calforna Dstrct Attorneys Assocaton (CDAA). Ver. 1 publshed September 23, 2011 All rghts reserved. No part of ths document may be reproduced n any manner wthout wrtten permsson. Ths document has been publshed to ad prosecutors and others n regard to the subject matter covered. It s produced wth the understandng that CDAA s not renderng legal or other professonal servces. Readers are advsed not to legally rely on ths publcaton n substtuton for ther own professonal judgment and legal research. Calforna Dstrct Attorneys Assocaton 921 11th Street, Sute 300 Sacramento, CA 95814-2882 (916) 443-2017 • (916) 443-0540 Fax www.cdaa.org Prnted n the Unted States of Amerca.
Acknowledgments
September 2011 Ths most recently concluded legslatve sesson has unleashed sgnficant changes to the laws n Calforna governng the sentencng of felony convctons and the treatment of felons released post-convcton. These changes, whch have collectvely become known as Realgnment, take effect begnnng on October 1, 2011. But Realgnment wll have repercussons for years to come. Of necessty, Calforna’s prosecutors wll be nvolved n many aspects of ths fundamental shft n our crmnal justce system. To prepare our members for the changes and challenges that Realgnment wll ntroduce nto ther work as prosecutors, CDAA convened an ad hoc commttee, co-chared by the Honorable Gerald T. Shea of San Lus Obspo County, the Honorable Mark Peterson of Contra Costa County, and the Honorable Nancy O’Malley of Alameda County, to develop resources for understandng and respondng to these new crcumstances. Ths gude, the Prosecutors’ Analysis of the 2011 CriminalJustice Realignment, s an ntal effort to provde Calforna prosecutors, as well as our alled partners n publc safety, wth a comprehensve and practcal tool for dealng effectvely wth the mpact of Realgnment n managng felony cases gong forward. Other resources may be found at www.cdaa.org. These resources wll contnue to be updated. Ths publcaton s the product of several meetngs and much dedcated work by the ad hoc commttee, but I want to partcularly thank the authors, Santa Clara County Deputy Dstrct Attorney Kathy Storton and San Dego County Deputy Dstrct Attorney Lsa Rodrguez. Thers was a herculean task completed n a matter of days and weeks wth the unrelentng approach of October 1 drvng them. You have ths excellent resource because of ther exceptonal dedcaton and professonalsm. CDAA s most grateful for Kathy and Lsa’s contrbutons. Specal thanks to Cory Salzllo, CDAA’s Drector of Legslaton. Over the last nne months he has developed an n-depth knowledge of the Realgnment legslaton, whch has been nvaluable to the commttee and the authors durng the course of ths project. I would also lke to recognze and thank the swft and skllful work of our Publcatons Department n edtng and formattng ths gude. Publcatons Drector Tom Toller, Publcatons Producton Coordnator Laura Bell, Senor Edtor Kathy Sheehan, and Edtor Lauren Kng, all worked dlgently to brng the work that you are readng to fruton as a CDAA publcaton. Because of its
electronic format, periodic updates to this guide will be available as Realignment evolves.
W. Scott Thorpe
Chef Executve Officer
Calforna Dstrct Attorneys Assocaton
Ad Hoc Committee Members
The Honorable Nancy O’Malley (Alameda County) – Co-chair The Honorable Mark Peterson (Contra Costa County) – Co-chair The Honorable Gerald Shea (San Lus Obspo County) – Co-chair The Honorable Gregory D. Totten (Ventura County) - CDAA President Mchelle Contos (Ventura County) John Daughtery (Solano County) Gary Fagan (San Bernardno County) Dan Felzzatto (Los Angeles County) The Honorable Brgt Fladager (Stanslaus County) The Honorable Dean Flppo (Monterey County) Steve Grpp (Sacramento County) Dan Hlford (San Lus Obspo County) Dave Howe (Santa Clara County) The Honorable Bob Lee (Santa Cruz County) Mchael Knowles (Tuolumne County) Karen Meredth (Alameda County) Doug McMaster (Contra Costa County) The Honorable Patrck McGrath (Yuba County) The Honorable Clfford Newell (Nevada County) Jm Provenza (Los Angeles County) The Honorable Mchael Ramsey (Butte County) Lsa Rodrguez (San Dego County) Jeff Rubn (Alameda County) Karyn Snunu-Towery (Santa Clara County) Kathryn Storton (Santa Clara County) Laura Tanney (San Dego County) Tmothy Ward (Tulare County) CDAA Staff: W. Scott Thorpe, Chef Executve Officer Cory Salzllo, Drector of Legslaton Tom Toller, Publcatons Drector Jean Jordan, VAWA Project Drector Carly Barulch, Legslaton AssstantProsecutors’ Analysis
of the 2011
Criminal Justice Realignment
(AB 109, AB 116, AB 117, AB 118, ABX1 16, ABX1 17)
September 2011
Preamble
Calforna stands at the precpce of the bggest challenge to publc safety n generatons. Crmnal justce realgnment, as emboded n AB 109 and related legslaton, wll dramatcally change Calforna’s current judcal and correctonal systems. The new felony sentencng structure wll be radcally dfferent. Specfied felons wll now serve ther custody n county jals or n alternatve programs nstead of prson. Many nmates released from state prson wll be supervsed by local probaton officers nstead of state parole agents. Avalable custody sanctons for many offenses and parole volatons wll be markedly reduced under ths comprehensve reform. And local law enforcement wll be tasked wth developng and mplementng new programs to reduce recdvsm rates and protect publc safety. Whle the focus on rehabltaton nstead of ncarceraton has enjoyed mxed results n the past, t has never been used on the scale envsoned n current Realgnment. Ths experment n crmnal justce polcy poses a huge challenge for prosecutors and a sgnficant rsk of ncreased crme rates throughout Calforna. As mplementaton moves forward, fundng remans an area of sgnficant concern for prosecutors and all law enforcement. The state’s long-term plan for fundng has not been formalzed, and the current fundng formulae only apply to fiscal year 2011–12. However, t s clear that ths fundng wll not be adequate to ncarcerate nmates for the same length of tme they prevously served under Calforna’s determnate sentencng scheme. Inevtably, ths means more crmnal offenders out of actual custody and subject to local supervson n our communtes, and ncreased workload demands upon already straned local law enforcement. CDAA dd not support ths legslaton, and ths document s not ntended to fully address the larger polcy ssues related to the reform. The Assocaton wll reserve ths polcy dscusson for a later date when prosecutors can better assess the strengths and weaknesses of Realgnment. To ensure accurate measurement of the mpact of the laws n the future, CDAA wll be developng data-collecton recommendatons. In releasng ths document, our purpose s to provde prosecutors wth a comprehensve legal overvew of the laws’ provsons. CDAA and the authors of ths document hope that t wll assst prosecutors n mplementng ths very challengng crmnal justce reform. Gregory D. Totten Ventura County Dstrct Attorney CDAA PresdentTable of Contents
I. Bills and Chapter Numbers ... 1
II. Title and Operative Date ... 1
III. Overview ... 1
A. Realgnment ...1
B. Marsy’s Law and Vctms’ Rghts ...2
IV. New Penal Code Section 1170(h)(1) and (2) Provide For a Term of Imprisonment in County Jail Instead of State Prison ... 3
A. Penal Code Secton 1170(h) Dsqualfiers ...4 1. Current or Pror Serous Felony Convcton (Penal Code § 1192.7(c)) or Current or Pror Volent Felony Convcton (Penal Code § 667.5(c)) ...4 2. Defendant s Requred to Regster as a Sex Offender ...4 3. Penal Code Secton 186.11 Whte Collar Crme Enhancement s Imposed ...5 B. Excluded Offenses ...5 C. Penal Code Secton 1170(h)(5) Sentencng Optons ...5 1. Full Term of Imprsonment (Penal Code § 1170(h)(5)(A)) ...5 2. Splt Sentence (Penal Code § 1170(h)(5)(B)) ...5 D. Prospectve Applcaton Only (Penal Code § 1170(h)(6)) ...7 E. Other Dspostons Permtted: Dverson, DEJ, Probaton (Penal Code § 1170(h)(4)) ...7 F. Language of Penal Code Secton 1170(h) ...7
V. List of Felonies Punishable Pursuant to Penal Code Section 1170(h), Excluded Felonies, and Disqualifiers ... 8
VI. Definition of a Felony (Penal Code § 17) ... 9
A. Definton of a Felony ...9
B. No Penal Code Secton 17 Authorty to Reduce a Crme Sentenced Pursuant to Penal Code Secton 1170(h) to a Msdemeanor ...9
VII. Punishment for a Felony (Penal Code § 18) ... 9
VIII. Felony Sentencing ...10
A. Exstng Prson Sentence Calculaton Rules Apply ...10 B. If a State Prson Term s Imposed for Any Count, All Terms are Served n State Prson (Penal Code § 1170.1) ...10 C. Prson Prors (Penal Code § 667.5(b)) ...11 D. Foregn Convctons (Penal Code § 668) ...12 E. Tradtonal Probaton s Stll Avalable (Penal Code § 1170(h)(4)) ...12 F. Probaton Inelgblty ...13 G. Volatons of Probaton ...13 H. Other Custodal Alternatves ...14 1. Penal Code Secton 1174.4 (Prson Program for Pregnant or Parentng Women
2. Home Detenton/Electronc Montorng ...14 3. Calforna Rehabltaton Center (CRC) ...15 I. Penal Code Secton 1170(d) Sentence Recalls and Penal Code Secton 1170(e) Compassonate Release: Not Affected by Penal Code Secton 1170(h)...15 J. Vctm Resttuton and Fnes ...16 K. Msdemeanors ...17 L. Penal Code Secton 654 ...17 M. Gulty Plea Vor Dre ...17 N. Penal Code Secton 1203.4 Relef s Not Avalable to Defendants Sentenced Pursuant to Penal Code Secton 1170(h) ...18
IX. Pleading and Proving Penal Code Section 1170(h) Ineligibility ...18
X. Credit for Time Served ...20
A. Penal Code Secton 2900.5 Actual Credts ...20 1. Penal Code Secton 1170(h) Sentences ...20 2. Home Detenton ...21 B. Conduct Credts ...21 1. Amended Penal Code Secton 4019 Conduct Credts ...21 2. Penal Code Secton 2933: Conduct Credts for Prson-Bound Defendants ...23 3. Exceptons ...23 4. Prospectve Applcaton ...24 5. Penal Code Secton 4019 Conduct Credts Apply to Penal Code Secton 1170(h) Terms of Imprsonment, and Postrelease Communty Supervson or Parole Revocatons ...24 6. Penal Code Secton 4019 Conduct Credts Do NOT Apply to Flash Incarceratons ..24 7. Conservaton Camp Credts (Penal Code § 4019.2) ...24 8. Vctms’ Rghts Implcatons ...25
XI. Statutes of Limitation (Penal Code §§ 800, 801, 803) ...25
A. Penal Code Secton 800 ...25
B. Penal Code Secton 801 ...25
C. Penal Code Secton 803 ...25
XII. Postrelease Community Supervision Act of 2011 (Penal Code §§ 3450–3458) ...26
A. Felons Released From Prson On or After October 1, 2011 (New Penal Code § 3451) ...26 B. Exceptons to Postrelease Communty Supervson (New Penal Code § 3451(b)) ...26 C. Length of Postrelease Communty Supervson (New Penal Code § 3451(a)) ...26 D. Informaton from the Calforna Department of Correctons and Rehabltaton (CDCR) (New Penal Code § 3451(c)) ...26 E. Postrelease Communty Supervson Agreement and Condtons: Resttuton and Sanctons (New Penal Code §§ 3452, 3453, 3454) ...27 F. Postrelease Communty Supervson Arrest and Revocatons (New Penal Code § 3455 and New Government Code § 71622.5) ...29 G. Lmtatons on the Length of Postrelease Communty Supervson (New Penal Code § 3456) ...30 H. Search and Sezure (Penal Code §§ 3465 and 3067) ...31
I. Transfer of Postrelease Supervsees to Other Countes (New Penal Code § 3460) ...31 J. CDCR Has No Jursdcton Over an Offender on Postrelease Communty Supervson (New Penal Code § 3457) ...32 K. Volator Cannot Be Returned to Prson for Volaton of Postrelease Supervson Condtons (New Penal Code § 3458) ...32 L. Notficaton of Hgh-Rsk Offenders to Report Wthn Two Days (Penal Code § 3060.7) ...32 M. Legslatve Fndngs and Declaratons (New Penal Code §§ 17.5 and 3450) ...32
XIII. Community Corrections (New Penal Code § 1230.1) ...33
XIV. Parole (Penal Code §§ 3000-3061) ...34
A. Penal Code Secton 3000: A Sentence to State Prson Must Include a Perod of Parole or Postrelease Communty Supervson ...34 B. Felons Released on Parole Before October 1, 2001 (New Penal Code § 3000.09) ...34 C. CDCR Remans the Supervsng Authorty for Specfic Felons Released On or After October 1, 2011, and Before July 1, 2013 (New Penal Code § 3000.08) ...35 D. County Courts Wll Handle Parole Revocatons for Specfied Felons Released From State Prson On or After July 1, 2013, Who Are Supervsed by Parole ...36 E. Post-July 1, 2013, Parole Revocaton Procedures (Penal Code § 3000.08) ...37 1. Parole Agent and Peace Officer Authorty ...37 2. Intermedate Sanctons ...37 3. Revocaton Hearngs and Revocaton Hearng Officers ...37 4. Murderers and Specfied Sex Offenders...38 F. Lfetme Parole for Murderers and Specfied Sex Offenders (Penal Code § 3000.1) ...38 G. Dscharge from Parole (Penal Code § 3001) ...39 H. Parolees and Postrelease Supervsees are Returned to the County of Last Legal Resdence (Penal Code § 3003) ...39 I. Parole Reentry Court Program (Penal Code § 3015) ...40 J. Most Parole Revocaton Terms to Be Served n County Jal (Penal Code § 3056) ...40 K. One-Year Parole Revocaton Term Apples Only to Parolees Sentenced to a Lfe Term (Penal Code § 3057) ...41 L. Powers of Parole Authorty are n Effect Only Untl July 1, 2013 (Penal Code § 3060) ....41 M. Peace Officer’s Duty to Execute Parole Warrant s Repealed (Penal Code § 3061) ...41
XV. Parole and Probation Officer Powers Extended to Postrelease Supervision (Penal Code § 830.5) ...41
XVI. Juveniles: No Change in How Counties Commit Juveniles to DJJ ...41
XVII. Contracts with Other Agencies to House Inmates Serving Jail Sentences (New Penal Code §§ 2057 and 4115.55) ...42
A. Contractng wth CDCR to House Inmates Sentenced Pursuant to Penal Code Secton 1170(h) (Penal Code § 2057) ...42
XVIII. Counties No Longer Reimbursed by CDCR for Housing Parole Violators (Penal Code § 4016.5) ...43 XIX. Miscellaneous ...43 A. Petty Theft wth Theft-Related Prors (Penal Code § 666) ...43 B. Escape (Penal Code § 4532) ...43 C. Felon or Specfied Person wth a Frearm (Penal Code §§ 12021 and 12021.1) ...44 D. CDCR May Contract wth Countes to House State Prsoners for the Last 60 Days of a Prson Sentence n Local Custody (Penal Code § 4115.56) ...44 E. Contractng wth CDCR for Clncal Servces (New Penal Code § 3073.1) ...44
Key Terms and Definitions ...45
Resources ...49 APPENDIX A
Crimes That Disqualify a Defendant From Sentencing Pursuant to Penal Code Section 1170(h) APPENDIX B
Excluded Offenses APPENDIX C
California Code Sections Affected by Realignment’s Penal Code Section 1170(h) APPENDIX D
I. Bills and Chapter Numbers
AB 109 (Stats. 2011, Chapter 15); AB 117 (Stats. 2011, Chapter 39); AB 118 (Stats. 2011, Chapter 40); AB 116 (Stats. 2011, Chapter 136): ABX1 16 (Stats. 2011, Chapter 13); and ABX1 17 (Stats. Chapter 12). [AB 117, AB 116, and ABX1 17 are correcton and clean-up blls. AB 118 and ABX1 16 are fundng blls.]
II. Title and Operative Date
Title: The 2011 Realgnment Legslaton Addressng Publc Safety Operative Date: October 1, 2011, and only f: (1) a communty correctons grant program s created to assst n mplementng AB 109; and (2) there s an appropraton to fund the grant program. III. Overview A. Realignment On Aprl 4, 2011, Governor Brown sgned AB 109, whch redefined felones and shfted responsblty for both supervsng and housng certan convcted felons and parolees from the state to the county. Three peces of clean-up legslaton were subsequently passed: AB 117, AB 116, and ABX1 17. The ntenton of the law was to address both state budget shortfalls and overcrowdng n the Calforna Department of Correctons and Rehabltaton (CDCR). However, the ramficatons on the crmnal justce system are farther reachng than just the amendments to crmnal statutes. Implementaton s scheduled to begn on October 1, 2011. The Legslature codfied ts ntent regardng Realgnment n Penal Code sectons 17.5 and 3450. In these sectons, the Legslature noted that the recdvsm rate n Calforna for felons who have served tme n prson s hgher than the natonal average (for persons who have served tme n prson). The Legslature also declared that realgnng “low-level offenders” to locally run communty-based correctons programs, whch are strengthened through communty-based punshment, evdence-based practces, mproved supervson strateges, and enhanced secured capacty, wll mprove publc safety outcomes. And finally, the Legslature mantaned that the provsons of Realgnment are not ntended to allevate state prson overcrowdng. Accordng to the Legslature, “evdence-based practces” refers to supervson polces, procedures, programs, and practces demonstrated by scentfic research to reduce recdvsm. Because evdence-based practces may be used n the courtroom n sentencng and supervsng offenders, prosecutors should consder becomng more educated about these terms and ther applcaton n order to contnue to best protect publc safety. AB 109 and ts companon blls, AB 117, AB 118, AB 116, ABX1 16, and ABX1 17 mandate that felons convcted of approxmately 500 dfferent crmes wll serve ther prson sentence n county jal nstead of state prson. Such felons must be non-volent, non-serous, and non-sex offenders. Offenders sentenced to serve determnate terms, whether n state prson or local custody as the new law requres, must serve a term chosen by the court. However, the new laws also permt a judge to splt a determnate sentence between custody and “mandatory supervson.”
Addtonally, the law requres that a county agency (the Probaton Department n most countes) supervse any felon released from state prson after October 1, 2011, whose commttng offense was non-volent, non-serous, or who s a low- to md-rsk sex offender as determned by CDCR. Ths s called “Postrelease Communty Supervson” (PRCS). The responsblty for ltgatng PRCS volatons that requre court nterventon wll most lkely fall to the dstrct attorney’s office and the publc defender’s office. Sanctons for volatons wll be served n county jal for offenders under PRCS, as well as for most formal parolees, and wll be lmted to 180 days. AB 118 (Chapter 40) was sgned nto law on June 30, 2011, and creates the Communty Correctons Grant Program n new Government Code secton 30026. New Government Code secton 30025 creates the Local Revenue Fund 2011 n the State Treasury, whch wll receve Realgnment money. AB 118 specfies how Realgnment money s to be used. For example, Government Code secton 30025(f)(5) requres that the Dstrct Attorney and Publc Defender Accounts n the Local Revenue Fund be used exclusvely to fund costs assocated wth parole and postrelease communty supervson revocaton proceedngs. Accordng to the legslatve hstory of AB 118, $5.6 bllon s expected to be provded by the state to local governments over the next several years. However, fundng for Realgnment s not guaranteed, as t would be wth a consttutonal amendment that would protect the fundng. There are concerns throughout the law enforcement communty about the stablty and contnuaton of Realgnment fundng. [ABX1 16 amends several sectons of AB 118 and adds some new ones.]
B. Marsy’s Law and Victims’ Rights
Marsy’s Law was passed by the voters of Calforna and became effectve on November 5, 2008. The law, whch amended our state consttuton (art. I, § 28) as well as the Penal Code, created a substantal expanson of exstng vctms’ rghts and mposed certan oblgatons on the part of dstrct attorneys, peace officers, probaton departments, CDCR, parole, the courts, and the Governor. (See Appendx D.) The purpose and ntent n enactng ths ntatve was to provde vctms wth rghts to justce and due process. These rghts nclude the expectaton that felons be approprately detaned n custody, sentenced, and sufficently punshed so that “the publc safety s protected and encouraged as a goal of hghest mportance.” (Cal. Const., art. I, § 28(a)(4).) The Calforna Consttuton now provdes that “Vctms of crmes have a collectvely shared rght to expect that persons convcted of commttng crmes are sufficently punshed n both the manner and the length of the sentences mposed by the courts.” (Art. I, § 28(a)(5).) The Calforna Consttuton enumerates several rghts to whch vctms are enttled, ncludng the rght to: 1. have the safety of the vctm and the vctm’s famly be the prmary consderaton n fixng the amount of bal and settng release condtons for the defendant; 2. reasonable notce, upon request, of all publc proceedngs at whch the defendant and the prosecutor are enttled to be present, and to be present at all parole or other post-convcton release proceedngs; 3. be nformed, upon request, of the scheduled release date of the defendant; 4. seek and secure resttuton;
5. be nformed of all parole procedures, to partcpate n the parole process, to provde nformaton to the parole authorty to be consdered before the parole of the offender, and to be notfied, upon request, of the parole or other release of the offender; and 6. have the safety of the vctm, the vctm’s famly, and the general publc consdered before any parole or other post-judgment release decson s made. Marsy’s Law added a truth-n-sentencng provson to the Calforna Consttuton. (Art. I, § 28(f)(5).) Ths provson states that sentences mposed upon crmnal wrongdoers “shall be carred out n complance wth the courts’ sentencng orders, and shall not be substantally dmnshed by early release polces ntended to allevate overcrowdng n custodal facltes. The legslatve branch shall ensure sufficent fundng to adequately house nmates for the full terms of ther sentences, except for statutorly authorzed credts whch reduce those sentences.” Marsy’s Law also added the publc safety bal provson (art. I, § 28(f)(3)), whch requres that n settng bal or own recognzance release, the protecton of the publc and the safety of the vctm shall be the prmary consderatons. The Realgnment legslaton, whch dd not pass wth sufficent votes to amend the consttutonal mandates of Marsy’s Law, made sea changes to exstng law. Notwthstandng that ths legslaton states that ts purpose s not to address overcrowdng n Calforna’s prsons, the converse seems to be true. Such sweepng changes regardng pre-convcton release of prsoners, conduct credts, sentencng, punshment, and parole may ndeed conflct wth exstng law, as dscussed below n the respectve sectons. Thus, even wth addtonal remedal legslaton, such legal conflcts are lkely to result n sgnficant ltgaton challengng varous applcatons of Realgnment.
IV. New Penal Code Section 1170(h)(1) and (2) Provide For a Term of Imprisonment in County Jail Instead of State Prison
[Added by AB 109, and amended n AB 117, AB 116, and ABX1 17.] The most far-reachng substantve change to the Penal Code was to amend secton 1170, the determnate sentencng law. Through AB 109 and ts companon blls, the Legslature added Penal Code secton 1170(h) to provde that for certan felones, terms of mprsonment would be served n county jal rather than state prson. The Legslature then amended almost 500 crmnal statutes to requre sentencng pursuant to secton 1170(h), absent partcular dsqualfiers. (See Subsecton A below, and Appendx B). These are referred to as “Penal Code secton 1170(h) crmes.” The term for secton 1170(h) crmes remans the same, but the sentence s served n county jal nstead of state prson, and stll operates as a prson pror. Penal Code secton 1170(h)(6) also provdes that these sentencng changes wll apply prospectvely to any person sentenced on or after October 1, 2011. As stated above, hundreds of felony code sectons now contan a cross-reference to Penal Code secton 1170(h), whch provdes for a trad term of 16 months, two years, or three years mprsonment n county jal f the felony code secton does not already specfy ts own trad. Felony code sectons that contan a cross-reference to secton 1170(h) and ther own sentencng trad, retan those trads, but now they refer to a term of mprsonment n county jal rather than prson. On the other hand, f there s no trad specfied n the felony code secton and no cross-reference to Penal Code secton 1170(h), that felony s punshable by 16 months, two years, or three years
mprsonment n state prison pursuant to Penal Code section 18. The term of mprsonment that may be served n local jal s unlmted: Penal Code secton 1170(h) crmes nclude trads of varous ranges, as well as some enhancements that could result n long terms to be served n local jal. Penal Code secton 19.2 has been amended to provde that punshment pursuant to Penal Code secton 1170(h) s an excepton to the general rule that no person may be sentenced to jal for more than one year on a sngle count. Also keep n mnd, Penal Code secton 2057 permts a local correctonal agency, typcally the county sherff, to pay CDCR to house a prsoner sentenced pursuant to secton 1170(h) n the state prson. However, t s unclear how ths process wll work, how much t wll cost, and whether t would meet any due process or equal protecton challenges from a defendant.
A. Penal Code Section 1170(h) Disqualifiers
Pursuant to new Penal Code secton 1170(h)(3), a felon must serve the term of mprsonment n state prson f he or she has a current or pror felony convcton for a serous felony (as defined n Penal Code secton 1192.7(c)); or a current or pror volent felony convcton (as defined n Penal Code secton 667.5(c)); or a pror from another jursdcton f t meets all the elements of a serous or volent pror; or f the defendant s requred to regster as a sex offender pursuant to Penal Code secton 290; or f a Penal Code secton 186.11 aggravated whte collar crme enhancement s mposed. (See Appendx A for dsqualfyng offenses.)
1. Current or Prior Serious Felony Conviction (Penal Code § 1192.7(c)) or Current or Prior Violent Felony Conviction (Penal Code § 667.5(c))
Any offender wth any current or pror serous or volent felony convcton s dsqualfied from servng an executed term of mprsonment n county jal pursuant to secton 1170(h)(3). In addton to a Calforna serous or volent pror operatng as a secton 1170(h) dsqualfier, a pror felony convcton from another jursdcton that meets all the elements of a serous felony pror pursuant to Penal Code secton 1192.7(c) or a volent felony pursuant to Penal Code secton 667.5(c) wll also dsqualfy a defendant from servng an executed term of mprsonment n county jal and requre mprsonment n the state prson. As Penal Code secton 1170(h)(3) s currently worded, juvenle strke prors would not prohbt the applcaton of the new sentencng rules under secton 1170(h) because a juvenle strke s an “adjudcaton” and not a “convcton.” (See Welfare & Insttutons Code § 203, provdng that an order adjudgng a mnor a ward of the juvenle court shall not be deemed a convcton of a crme for any purpose.) Of course, f the strke pror occurred n adult court because the juvenle was prosecuted as an adult, the pror would qualfy as an excepton to Penal Code secton 1170(h).
2. Defendant is Required to Register as a Sex Offender
Pursuant to the plan language of Penal Code secton 1170(h)(3), a current or a pror felony or msdemeanor offense requrng sex regstraton would brng a defendant wthn the Penal Code secton 290 excepton and requres a defendant’s term of mprsonment to be served n state prson.
3. Penal Code Section 186.11 White Collar Crime Enhancement is Imposed The Penal Code secton 1170(h) crmes are sometmes referred to as “non-non-non” felones (non-volent, non-serous, non-sex), but ths shorthand term omts the fourth excepton lsted n Penal Code secton 1170(h)(3): the mposton of a Penal Code secton 186.11 whte collar crme enhancement. B. Excluded Offenses The Legslature also delberately excluded a number of felones, whch would otherwse seem to fall wthn the non-non-non categores, from mprsonment n county jal and requred that mprsonment for those crmes be served n state prson. (See Appendx B.)
C. Penal Code Section 1170(h)(5) Sentencing Options
[Added by AB 117 and amended n ABX1 17. The splt sentence opton was not n the orgnal Penal Code secton 1170(h) added by AB 109.] Penal Code secton 1170(h)(5) provdes that when mposng sentence pursuant to secton 1170(h)(1) or (2), a judge may commt the defendant to county jal “for a full term n custody n accordance wth the applcable law” or “for a term as determned n accordance wth the applcable sentencng law, but suspend the executon of a concludng porton of the term selected n the court’s dscreton, durng whch tme the defendant shall be supervsed by the county probaton officer n accordance wth the terms, condtons, and procedures generally applcable to persons placed on probaton, for the remanng unserved porton of the sentence mposed by the court.” Thus, under ths subsecton, the sentencng court has two possble optons:
1. Full Term of Imprisonment (Penal Code § 1170(h)(5)(A))
Order a full term of mprsonment n the county jal of up to the maxmum possble term (e.g., 16 months, two years, or three years n a Penal Code secton 459–460(b) second-degree burglary case). If a defendant s sentenced to serve the full term of mprsonment n county jal, upon release, the defendant wll not be supervsed or have any condtons or other type of parole supervson; or
2. Split Sentence (Penal Code § 1170(h)(5)(B))
Impose a sentence that s a combnaton of a term of mprsonment n county jal and “mandatory supervson,” but the two perods together cannot exceed the maxmum possble sentence (three years n the case of Penal Code secton 459–460(b) burglary). In addton, upon release to mandatory supervson, a defendant wll be supervsed by the probaton department under the same terms, condtons, and procedures of formal probaton for the unserved porton of the sentence. The perod of supervson s mandatory and can only be termnated by court order. Whle on supervson, the defendant s enttled only to actual tme credt aganst the term of mprsonment mposed.
The two perods of tme, jal and mandatory supervson, added together, could not total more than the maxmum possble sentence. For example, n a second-degree burglary case where the range of sentence s 16 months, two years, or three years, the court could mpose a two-year term n jal and splt the two years between jal and “mandatory supervson” wth the court selectng the length for each. Thus, the court could order that the two-year term be composed of an eght-month term n jal wth 16 months of “mandatory supervson” after, or one year of jal wth one year of supervson, or sx months of jal wth 18 months of supervson. The phrase “mandatory supervson” s a new concept. However, the Legslature ntends that ths perod be handled lke tradtonal probaton. The standard terms, condtons, and procedures of probaton contaned n exstng statutes, case law (e.g., for volatons of probaton), and probaton department polces wll apply here. Thus, exstng probaton and probaton-revocaton procedures and rules should apply to Penal Code secton 1170(h) sentences that nclude a perod of “mandatory supervson.” The types of terms, condtons, and procedures that may apply to mandatory supervson nclude, but are not lmted to, search and sezure condtons, secton 1203.2(a) peace officer arrest powers, the authorty of the dstrct attorney or probaton officer to file a revocaton petton pursuant to Penal Code secton 1203.2(b), the authorty of the court to modfy or revoke pursuant to Penal Code secton 1203.2(b) or 1203.3, and the tollng of the supervson perod when supervson s revoked or the supervsee absconds. Through ths new verson of Penal Code secton 1170(h), the Legslature ensured that the court has the authorty to order a perod of post-jal supervson. The word “mandatory” means that f the court chooses to mpose a splt sentence or hybrd sentence (term of mprsonment n county jal plus mandatory supervson), the defendant may not refuse supervson. By the clear language of ABX1 17, t also means that the length of the supervson perod cannot be termnated except by order of the court. Most lkely, ths wll result n offenders on mandatory supervson calendarng motons to termnate mandatory supervson before the full perod of supervson s completed, partcularly on cases wth longer terms of mandatory supervson. Prosecutors should consder advocatng for an approprate term of supervson and condtons as part of the plea or sentence. Remember, f the court chooses to sentence a defendant to the full term of mprsonment n county jal pursuant to Penal Code secton 1170(h)(5)(A), Realgnment legslaton does not provde for any post-jal supervson. Postrelease supervson provsons, dscussed later n ths outlne, apply only to defendants released from prson on or after October 1, 2011. These provsons do not apply to any defendant who serves a term of mprsonment n county jal pursuant to Penal Code secton 1170(h). Abolton of the perod of parole followng a full term of mprsonment may mplcate a vctm’s rght to expect the defendant be sufficently punshed (Cal. Const., art. I, § 28(a)(5)), and may volate at least the sprt of the vctm’s rght to be nformed and partcpate n the parole process (art. I, § 28(b)(15)).
D. Prospective Application Only (Penal Code § 1170(h)(6)) Penal Code secton 1170(h)(6) provdes that the sentencng changes made by secton 1170(h) apply prospectvely to any person sentenced on or after October 1, 2011. Therefore, these new provsons wll not apply to any defendant sentenced before October 1, 2011. However, they wll obvously apply to crmes commtted before October 1, 2011. [Note: Ths effectve date s dfferent from the new conduct credt rules under Penal Code secton 4019, whch apply only to crmes committed on or after October 1, 2011. Therefore, there wll be cases where a defendant s sentenced on or after October 1, 2011, pursuant to Penal Code secton 1170(h), but the calculaton of secton 4019 conduct credts s governed by the less generous credt rules n effect before October 1, 2011.]
E. Other Dispositions Permitted: Diversion, DEJ, Probation (Penal Code § 1170(h)(4))
Penal Code secton 1170(h)(4) provdes that other dspostons authorzed by law are not prevented, ncludng pretral dverson, deferred entry of judgment, or an order grantng probaton pursuant to Penal Code secton 1203.1. Secton 1203.1(a) provdes that the court may suspend the mposton or executon of sentence for a perod of tme not exceedng the maxmum term of the sentence, and mpose terms and condtons of probaton. One of those condtons could be servng tme n jal. Thus, unless probaton s prohbted, a defendant who qualfies for sentencng pursuant to secton 1170(h), may nstead be placed on tradtonal probaton and ordered to serve a jal sentence (of typcally no more than one year) as a condton of that probaton. Ultmately, a defendant sentenced to probaton who volates the terms and condtons of probaton could be sentenced to a term of mprsonment to be served pursuant to Penal Code secton 1170(h).
F. Language of Penal Code Section 1170(h)
[Added by AB 109, and then amended by AB 117, AB 116, and ABX1 17.] The followng s the language of new Penal Code secton 1170(h) n ts entrety: (h)(1) Except as provded n paragraph (3), a felony punshable pursuant to ths subdvson where the term s not specfied n the underlyng offense shall be punshable by a term of mprsonment n a county jal for 16 months, or two or three years. (2) Except as provded n paragraph (3), a felony punshable pursuant to ths subdvson shall be punshable by mprsonment n a county jal for the term descrbed n the underlyng offense. (3) Notwthstandng paragraphs (1) and (2), where the defendant (A) has a pror or current felony convcton for a serous felony descrbed n subdvson (c) of Secton 1192.7 or a pror or current convcton for a volent felony descrbed n subdvson (c) of Secton 667.5, or (B) has a pror felony convcton n another jursdcton for an offense that has all of the elements of a serous felony descrbed n subdvson (c) of Secton 1192.7 or a volent felony descrbed n subdvson (c) of Secton 667.5, (C) s requred to regster as a sex offender pursuant to Chapter
5.5 (commencng wth Secton 290) of Ttle 9 of Part 1, or (D) s convcted of a crme and as part of the sentence an enhancement pursuant to Secton 186.11 s mposed, an executed sentence for a felony punshable pursuant to ths subdvson shall be served n state prson. (4) Nothng n ths subdvson shall be construed to prevent other dspostons authorzed by law, ncludng pretral dverson, deferred entry of judgment, or an order grantng probaton pursuant to Secton 1203.1. (5) The court, when mposng a sentence pursuant to paragraph (1) or (2) of ths subdvson, may commt the defendant to county jal as follows: (A) For a full term n custody as determned n accordance wth the applcable sentencng law. (B) For a term as determned n accordance wth the applcable sentencng law, but suspend executon of a concludng porton of the term selected n the court’s dscreton, durng whch tme the defendant shall be supervsed by the county probaton officer n accordance wth the terms, condtons, and procedures generally applcable to persons placed on probaton, for the remanng unserved porton of the sentence mposed by the court. The perod of supervson shall be mandatory, and may not be earler termnated except by court order. Durng the perod when the defendant s under such supervson, unless n actual custody related to the sentence mposed by the court, the defendant shall be enttled to only actual tme credt aganst the term of mprsonment mposed by the court. (6) The sentencng changes made by the act that added ths subdvson shall be appled prospectvely to any person sentenced on or after October 1, 2011.
V. List of Felonies Punishable Pursuant to Penal Code Section 1170(h), Excluded Felonies, and Disqualifiers See the appendces at the end of ths analyss for a lstng of: 1. Crmes and pror convctons that dsqualfy a defendant pursuant to secton 1170(h)(3) [Appendx A]; 2. crmes that are excluded from punshment pursuant to Penal Code secton 1170(h), .e., felony code sectons that the Legslature determned are elgble for state prson although they dd not fall wthn a dsqualfier n secton 1170(h)(3) [Appendx B]; and 3. crmes that are now punshable pursuant to Penal Code secton 1170(h) [Appendx C]. Keep n mnd that the lst of crmes exempted from sentencng pursuant to Penal Code secton 1170(h) s not exhaustve, because t would be very dfficult to create a lst of all Calforna crmes n all code sectons that were not amended to cross-reference secton 1170(h). If a sentencng statute does not specfically requre punshment pursuant to Penal Code secton 1170(h), then an executed term wll be served n state prson per Penal Code secton 18. It is up to the individual prosecutor to
determine whether or not the crime and defendant are eligible to serve a term of imprisonment in county jail pursuant to Penal Code section 1170(h).
VI. Definition of a Felony (Penal Code § 17) [AB 109/ABX1 17] A. Definition of a Felony Pror to AB 109, a felony was defined as “a crme punshable by death or mprsonment n the state prson.” If a crme was punshable by mprsonment n state prson or mprsonment n the county jal, and probaton was mposed, the crme retaned ts nature as a felony. AB 109 amended Penal Code secton 17 to redefine a felony as a crme punshable wth death, or mprsonment n the state prson, or imprisonment in a county jail for more than one year. However, ths definton was amended n ABX1 17: A felony s now a crme punshable wth death, or mprsonment n the state prson, or imprisonment in a county jail under the provisions
of subdivision (h) of Section 1170. Ths amendment avods the unntended effect of reducng
certan crmes punshable pursuant to Penal Code secton 1170(h) for less than one year n mprsonment to a msdemeanor, ncludng attempted crmes per Penal Code secton 664.
B. No Penal Code Section 17 Authority to Reduce a Crime Sentenced Pursuant to Penal Code Section 1170(h) to a Misdemeanor Penal Code secton 17(b)(1) now reads: When a crme s punshable, n the dscreton of the court, ether by mprsonment n the state prson or mprsonment n the county jal under the provsons of subdvson (h) of Secton 1170, or by fine or mprsonment n the county jal, t s a msdemeanor for all purposes under the followng crcumstances: (1) After a judgment mposng a punshment other than mprsonment n the state prson or mprsonment n the county jal under the provsons of subdvson (h) of Secton 1170. Therefore, just as a state prson sentence on a felony-msdemeanor (wobbler) crme prohbts that crme from beng reduced to a msdemeanor, a judgment of mprsonment n the county jal pursuant to Penal Code secton 1170(h) also prohbts a wobbler crme from beng reduced to a msdemeanor.
VII. Punishment for a Felony (Penal Code § 18)
[AB 109/ABX1 17] Penal Code secton 18 was amended to provde that except where a dfferent punshment s prescrbed, every offense declared to be a felony s punshable by mprsonment for 16 months, two years, or three years n state prson unless the offense s punshable pursuant to subdvson (h) of secton 1170. Vehcle Code secton 42000 was amended n AB 109 to provde that unless a dfferent penalty s expressly provded, a felony for a volaton of the Vehcle Code s punshable by mprsonment
pursuant to Penal Code secton 1170(h). Ths secton was not amended to correspond wth the final language of Penal Code secton 18 propounded n ABX1 17. Whle these two provsons may seem nconsstent, Penal Code secton 18 provdes the default punshment for “any law of ths state” when a punshment s not prescrbed, and thus, should supersede any ssues that may arse under the Vehcle Code. However, a number of Vehcle Code sectons, such as 23153, 23550.5, and 23110, expressly provde for the term of mprsonment to be served n state prson, so these felones are not subject to Penal Code secton 1170(h), and the punshment for the majorty of felony volatons of the Vehcle Code were addressed wthn the provsons of the Realgnment legslaton. Moreover, Penal Code secton 18 was also amended subsequently to Vehcle Code secton 42000, and thus, s the clarfyng expresson of legslatve ntent.
VIII. Felony Sentencing
A. Existing Prison Sentence Calculation Rules Apply
A term of mprsonment pursuant to Penal Code secton 1170(h) s calculated accordng to the same rules as a felony commtment to state prson. Penal Code secton 1168 was amended to provde that a defendant who commts an offense punshable pursuant to secton 1170(h) shall be sentenced pursuant to Chapter 4.5 of Ttle 7 of Part 2 of the Penal Code (Penal Code §§ 1170–1170.9) unless probaton or a new tral s granted. Sentencng rules n Penal Code secton 1170.1(a) and (b), such as calculatng one-thrd the mdterm for a consecutve subordnate term and full-term consecutve sentences, apply. Sentencng rules regardng the mposton of conduct enhancements pursuant to Penal Code secton 1170.1(d) also apply. ABX1 17 amended Penal Code secton 1170.1(d) to elmnate the word “prson” n order to clarfy that the court shall mpose applcable enhancements for any felony sentence, whether the term s served n state prson or pursuant to Penal Code secton 1170(h) n local custody. For example, a Penal Code secton 12022.6 excessve-takng enhancement, prson prors pursuant to Penal Code secton 667.5(b), and three-year drug prors pursuant to Health and Safety Code secton 11370.2, could all be added to the term of commtment n county jal for the underlyng felony sentence. Pursuant to Penal Code secton 1170(a)(3), the Judcal Councl sentencng rules apply to the calculaton of secton 1170(h) jal sentences.
B. If a State Prison Term is Imposed for Any Count, All Terms are Served in State Prison (Penal Code § 1170.1) [AB 117 and ABX1 17] Penal Code secton 1170.1(a) was amended to provde: Whenever a court mposes a term of mprsonment n the state prson, whether the term s a prncpal or subordnate term, the aggregate term shall be served n the state prson, regardless as to whether or not one of the terms specfies mprsonment n the county jal pursuant to subdvson (h) of Secton 1170.
Thus, f a defendant s sentenced to prson on at least one count, the entre sentence must be served n state prson, even f the other count or counts requre sentencng to a term of mprsonment n county jal pursuant to Penal Code secton 1170(h). However, the analyss s dfferent when a defendant who s servng a term n state prson commts a new crme whle n prson that qualfies for sentencng pursuant to secton 1170(h), as the term for the new crme wll not be part of the aggregate term for the orgnal prson sentence. Pursuant to Penal Code secton 1170.1(c), when a defendant commts a new crme whle n prson or whle a prson escapee, t s mandatory that the new crme be sentenced consecutvely to the prson term the defendant s currently servng. However, t does not become part of the orgnal aggregate term. Rather, the orgnal aggregate term must be completed, and then the n-prson crme starts a new aggregate term. If there s more than one n-prson crme, then those offenses together wll combne nto a new aggregate term, but t wll be a separate aggregate term from the orgnal aggregate term the offender was servng. (See People v. Cardenas (1987) 192 Cal.App.3d 51; People v. Walkkein (1993) 14 Cal.App.4th 1401; People v. White (1988) 202 Cal.App.3d 862; People v. Venegas (1994) 25 Cal.App.4th 1731; People v. Langston (2004) 33 Cal.4th 1237.) Prosecutors should carefully check the statutes when chargng any n-prson crme. Many of the n-prson and escape crmes are not elgble to be sentenced to a Penal Code secton 1170(h) term n county jal. For nstance, gassng (Penal Code § 4501.1) and escape (Penal Code § 4530(a) & (b)) are state-prson elgble. However, possesson of a weapon (Penal Code § 4502) s punshable n the county jal.
C. Prison Priors (Penal Code § 667.5(b))
[ABX1 17 amends AB 117, whch amends AB 109’s verson.] Penal Code secton 667.5(b) was amended to provde that any felony for whch a prson sentence or a sentence of mprsonment n a county jal under Penal Code secton 1170(h) s mposed, qualfies as a prson pror for purposes of ths one-year enhancement. The usual prson pror rules, such as the five-year washout rule, apply. The amendments to Penal Code secton 667.5(b) specfically provde that any term of mprsonment mposed pursuant to secton 1170(h)(5), even f a splt sentence s ordered (local custody plus mandatory supervson), qualfies as a prson pror. Pursuant to amended Penal Code secton 667.5(f), a term of mprsonment n a foregn jursdcton qualfies as a prson pror f the offense would have been punshable n state prson or pursuant to secton 1170(h), f t had occurred n Calforna and the defendant served one year or more n prson n the other jursdcton. Penal Code secton 667.5(g) was not amended to specfically nclude tme served n jal for postrelease communty supervson volatons, so t may be that ths type of custody may not prevent a five-year washout. [Penal Code secton 667.5(g) contnues to provde that remprsonment for revocaton of parole can prevent the washout of a prson pror.] The three-year prson enhancement for volent prson prors pursuant to secton 667.5(a) has not changed. Secton 667.5(a) provdes for a three-year enhancement f the defendant s currently convcted of a volent felony and has served a prson term for a volent felony.
Courts and sherff ’s departments need to produce somethng smlar to a Calforna Department of Correcton and Rehabltaton (CDCR) prson packet so that the prosecutor allegng a secton 1170(h) term of mprsonment n county jal as a prson pror pursuant to Penal Code secton 667.5(b) can prove all of the elements (e.g., the length of the term, when t was completed, the dentty of the defendant). Such a packet would be admssble pursuant to exstng Penal Code secton 969b, whch makes admssble the records of a prson or jal to prove a person has served a term n a penal nsttuton.
D. Foreign Convictions (Penal Code § 668)
[AB 109]
Penal Code secton 668 was amended to cross-reference a term mposed pursuant to Penal Code secton 1170(h), thereby provdng that an offense commtted n another jursdcton (e.g., a federal offense or an offense commtted n another state) can qualfy as a pror convcton for enhancement purposes n a current secton 1170(h) case.
E. Traditional Probation is Still Available (Penal Code § 1170(h)(4))
Penal Code secton 1170(h)(4) provdes for a tradtonal probaton dsposton where the mposton of sentence s suspended, the defendant s placed on probaton, and a perod of tme n jal s served as a condton of probaton. In fact, at the sentencng hearng n every case, the judge must determne whether a defendant who s elgble for probaton should be granted or dened probaton, unless the defendant expressly waves such consderaton before the court consders a prson sentence or a term of mprsonment pursuant to secton 1170(h). (Rule 4.433(a)(2).) Even f the defendant s eligible for probaton, the court must stll determne f probaton s appropriate. (People v. Jeffers (1987) 43 Cal.3d 984, 1000.) In any case, ncludng those cases where the presumpton aganst probaton has been overcome, decdng whether to mpose probaton or prson requres consderaton of facts relatng to the crme and to the defendant. (Rule 4.414.) If the court determnes a defendant s sutable for probaton, the court may place a defendant on tradtonal probaton (mposton of sentence suspended) and order hm or her to serve a jal sentence of one year or less as a condton of probaton. Penal Code secton 19.2, n general, lmts a felony jal sentence to one year mposed as condton of probaton. Of course, f the defendant s convcted of more than one count, the jal sentence served as a condton of probaton could be more than one year f the court chooses to mpose consecutve jal sentences n a multple-count case. However, f the court determnes a defendant s not sutable for probaton, the court must mpose ether a term of mprsonment n state prson or pursuant to secton 1170(h) [a term of mprsonment n jal wth no post-jal supervson or a term of mprsonment n jal plus mandatory supervson], AB 109 amended Penal Code secton 19.2 to provde that punshment pursuant to new Penal Code secton 1170(h) s an excepton to the general rule that no person may be sentenced to jal for more than one year on a sngle count.
F. Probation Ineligibility Rules for probaton nelgblty have not changed. If a defendant s elgble for state prson (and therefore not subject to Penal Code secton 1170(h)), prson may even be mandatory. Absolute probaton-nelgblty provsons such as Penal Code sectons 1203.06 (gun use), 1203.066 (sex offenses), 1203.07 (drug crmes), and 1203.075 (great bodly njury) have not been amended. In the majorty of cases, a defendant who s absolutely nelgble for probaton wll be convcted of a crme or enhancement that s not subject to Penal Code secton 1170(h) (e.g., Penal Code secton 211 robbery wth secton 12022.53 gun use). In other cases, crmes such as Health and Safety Code sectons 11351, 11351.1, and 11352 (possesson for sale, transportaton, and drug sale crmes) have been amended to cross-reference Penal Code secton 1170(h) and wll be subject to the absolute probaton nelgblty provsons of Penal Code secton 1203.07 f they are commtted n a partcular way or f the defendant has a specfied drug pror. Snce the statute prohbts probaton, these defendants are not elgble for tradtonal probaton, and must be sentenced pursuant to Penal Code secton 1170(h), unless they have a secton 1170(h) dsqualfier. The ssue wll then be whether these defendants must be sentenced to a full term n jal (e.g., three, four, or five years) wthout mandatory supervson, or whether the court has the authorty to mpose a splt sentence pursuant to Penal Code secton 1170(h)(5)(B) that ncludes mandatory supervson. If the law s nterpreted to permt reduced sentences wth mandatory supervson, such nterpretaton may volate the state consttuton. Crme vctms, as well as all Calfornans, have a rght to have crme treated serously and to have crmnals be sufficently punshed n order to protect publc safety. (Cal. Const., art. I, § 28(a)(2), (a)(5), (a)(6).) An nterpretaton permttng reduced sentences may also volate the consttutonal mandate for truth n sentencng. (Art. I, § 28(f)(5).) G. Violations of Probation If a defendant s placed on tradtonal probaton nstead of sentenced to a term of mprsonment pursuant to Penal Code secton 1170(h) or s already on tradtonal probaton pror to October 1, 2011, exstng statutes and case law governng volatons of probaton wll apply. However, f a probaton volaton s resolved after October 1, 2011, the ultmate sentence the court may mpose s dependent upon the crme(s) the defendant s convcted of and hs or her crmnal hstory. If all of the crmes a defendant s convcted of are subject to Penal Code secton 1170(h) and the defendant’s crmnal hstory does not nclude a secton 1170(h) dsqualfier, a state prson sentence for volaton of probaton would be prohbted, and the court would have open to t the non-prson dsposton optons dscussed earler n the outlne: • Contnued tradtonal probaton wth a jal sentence served as a condton of probaton; • a term of mprsonment n jal pursuant to secton 1170(h)(5)(A) wthout post-jal supervson; or • a term of mprsonment n jal wth mandatory supervson, pursuant to secton 1170(h)(5)(B).
However, f a probaton volaton s resolved after October 1, 2011, and any one of the current convctons s state-prson elgble or f the defendant’s crmnal hstory falls wthn a Penal Code secton 1170(h)(3) dsqualfier, the defendant can ether be retaned on probaton or sentenced to a term of mprsonment n state prson. Keep n mnd, that f a state prson term s mposed for any sngle crme, then the whole term must be served n state prson. (Penal Code § 1170.1(a).)
H. Other Custodial Alternatives
1. Penal Code Section 1174.4 (Prison Program for Pregnant or Parenting Women with a History of Substance Abuse)
[AB 109] Penal Code secton 1174.4 s a prson program for parentng or pregnant women wth a hstory of substance abuse. It was amended to cross-reference Penal Code secton 1170(h). However, t s unclear how a defendant sentenced to a term of mprsonment n county jal would be able to partcpate n ths state Department of Correctons and Rehabltaton program. Penal Code secton 1174.4 stll requres that the “Drector of Correctons” make the final decson about whether a female defendant s accepted nto the program. And the requred program crtera stll ncludes a sentence to state prson not exceedng 36 months.
2. Home Detention/Electronic Monitoring a. Penal Code Section 1203.016
[AB 109] Pror to AB 109, home detenton pursuant to Penal Code secton 1203.016 was lmted to mnmum-securty and low-rsk offenders. However, AB 109 amended ths secton to elmnate the “mnmum securty nmates and low-rsk offenders” lmtaton, thereby makng all sentenced jal nmates elgble for home detenton. Ths secton also now permts nmates to be involuntarily placed on home detenton. Thus, both sentenced felony and sentenced msdemeanor nmates may be forced out of the jal onto electronc montorng. [Penal Code secton 1203.017 s stll n effect and contnues to provde for nvoluntary home detenton for sentenced msdemeanor nmates.] Ths partcular secton rases sgnficant vctm’s rghts ssues under Marsy’s Law, as the Calforna Consttuton requres vctms be gven notce of a defendant’s change n custody status post-convcton. (Art. I, § 28(b)(12).) The consttuton also requres that the safety of the vctm and the publc be consdered before any release decson s made. (Art. 1, § 28(b)(16).)
b. New Penal Code Section 1203.018 (Pre-Conviction Home Detention)
[AB 117 amends AB 109’s verson.]
Ths new secton was added to permt a county board of supervsors to authorze a home detenton program whereby inmates being held in lieu of bail may partcpate n an
electronc montorng program. In order to qualfy, an nmate cannot have any other holds or outstandng warrants. An nmate wth pendng msdemeanor charges only must be n custody for at least 30 days before beng released on electronc montorng. All other nmates (felony charges or a combnaton of felony and msdemeanor charges) must be n custody for at least 60 days before release. Penal Code secton 1203.018 requres the board of supervsors to consult wth the sherff and dstrct attorney before prescrbng reasonable rules and regulatons for the program. Subdvson () of Penal Code secton 1203.018 s the crme of wllfully falng to return to the place of home detenton after beng authorzed to be away or departng from the home wthout authorzaton. Ths new crme s punshable as a felony and n state prson, pursuant to Penal Code secton 4532. Secton 1208.2 (home detenton and work furlough program fees) s amended to add a cross-reference to new secton 1203.018. Ths partcular secton also rases sgnficant vctms’ rghts ssues. The Calforna Consttuton requres vctms be gven notce of a defendant’s change n bal status and an opportunty to be heard. (Art. I, § 28(b)(8), (f)(3).) The consttuton also dctates that the prmary consderatons n settng bal must be publc safety and the safety of the vctm. (Art. I, § 28(b)(3), (f)(3).)
3. California Rehabilitation Center (CRC)
A judge may stll suspend the mposton of a term of mprsonment and cvlly commt an elgble offender to the Calforna Rehabltaton Center for treatment pursuant to Welfare and Insttutons Code sectons 3051 and 3052, whether the defendant s sentenced to state prson or to local custody per Penal Code secton 1170(h). The court must find that the defendant s ether addcted to narcotcs or n mmnent danger of becomng addcted to narcotcs. If the defendant s not sutable for CRC or s subsequently revoked after release, the commttng court shall termnate the commtment and set the case for further proceedngs n crmnal court. The term of mprsonment wll then be mposed accordng to the applcable sentencng statutes.
I. Penal Code Section 1170(d) Sentence Recalls and Penal Code Section 1170(e) Compassionate Release: Not Affected by Penal Code Section 1170(h)
The provsons of Penal Code secton 1170(d) (sentence recalls wthn 120 days) and 1170(e) (compassonate release) are not amended, and ther procedures contnue to nvolve the Secretary of the Department of Correctons and Rehabltaton and the Board of Parole Hearngs, nether of whch wll be nvolved n a Penal Code secton 1170(h) jal sentence. Therefore, both Penal Code sectons 1170(d) and 1170(e) contnue to apply only to prson sentences and not to secton 1170(h) terms of mprsonment n local custody. The compassonate release provsons of exstng Government Code secton 26605.5 apply to jal nmates, whch should nclude Penal Code secton 1170(h) nmates. Ths secton authorzes the sherff, after conferrng wth a physcan, to transfer a jal nmate to a medcal faclty or resdental care faclty f, n the opnon of the physcan, the nmate s ncapable of causng harm to others upon or after release from custody. Government Code secton 26605.5 requres the
sherff to first determne that all of the followng exst: (1) the prsoner s so severely physcally ncapactated that he or she poses no threat to the safety of others; and (2) the physcan has no reasonable expectaton the prsoner’s physcal condton wll mprove to the extent that he or she could pose a threat to the safety of others; and (3) the prsoner’s medcal needs would be better served n a medcal faclty or resdence other than a county correctonal faclty. Any early release, compassonate or otherwse, has Marsy’s Law and consttutonal mplcatons: “Vctms of crmes have a collectvely shared rght to expect that persons convcted of commttng crmes are sufficently punshed n both the manner and the length of the sentences mposed by the courts.” (Cal. Const., art. I, § 28(a)(5).)
J. Victim Restitution and Fines
Whether sentencng a defendant to prson, or pursuant to Penal Code secton 1170(h), or mposng a grant of tradtonal probaton, the court must order vctm resttuton and fines. Realgnment does not change how, or f, resttuton and fines are ordered. For example: 1. Penal Code secton 1202.4(f) contnues to provde that “n every case n whch a vctm has suffered economc loss as a result of the defendant’s conduct, the court shall requre that the defendant make resttuton to the vctm or vctms n an amount establshed by court order …” 2. Penal Code secton 1202.4(b) contnues to provde that “[]n every case where a person s convcted of a crme, the court shall mpose a separate and addtonal resttuton fine …” 3. Penal Code secton 1202.4(a) contnues to provde that “[u]pon a person beng convcted of a crme n the State of Calforna, the court shall order the defendant to pay a fine n the form of a penalty assessment n accordance wth Secton 1464.” 4. Penal Code secton 672 contnues to provde that “[u]pon a convcton for any crme punshable by mprsonment n any jal or prson, n relaton to whch no fine s heren prescrbed, the court may mpose a fine on the offender not exceedng one thousand dollars ($1,000) n cases of msdemeanors or ten thousand dollars ($10,000) n cases of felones, n addton to the mprsonment prescrbed.” In a resttuton case where a defendant s beng sentenced to jal pursuant to secton 1170(h), rather than beng placed on tradtonal probaton, a prosecutor wll want to consder requestng that the sentence be composed of a term n jal and mandatory supervson, so that the resttuton order can be enforced by the crmnal court durng the supervson porton of the sentence. Currently, the statutory authorty for CDCR to deduct resttuton from an nmate’s wages and trust account deposts to pay vctm resttuton (Penal Code § 2085.5) does not extend to local jals. So f a defendant who owes resttuton s sentenced to jal pursuant to Penal Code secton 1170(h) wth no supervson, the defendant wll not be held accountable by the crmnal justce system for payng resttuton. Vctms may be forced to rely solely upon a Penal Code secton 1214 cvl judgment to secure resttuton. The Calforna Consttuton asserts the People’s “unequvocal ntenton” that vctms have the rght to “secure resttuton.” (Art. I, § 28(b)(13).) For ths reason, prosecutors should nsst upon a sentence that provdes the best opportunty for a vctm to collect resttuton.
K. Misdemeanors Snce Penal Code secton 1170(h) apples only to felones, msdemeanor sentencng s not affected drectly by Realgnment. Msdemeanor sentences may contnue to run concurrently or consecutvely to felony sentences, at the court’s dscreton, as they dd before Realgnment. There wll be defendants who are on tradtonal probaton n a msdemeanor case who also are on “mandatory supervson” or no supervson for ther secton 1170(h) felony case. A sngle case nvolvng both a msdemeanor count and a secton 1170(h) felony could result n the defendant beng on tradtonal probaton for the msdemeanor and mandatory supervson or no supervson for the secton 1170(h) felony.
L. Penal Code Section 654
In a case where one act s charged under two dfferent statutes, Penal Code secton 654(a) requres the court to punsh “under the provson that provdes for the longest potental term of mprsonment.” Typcally, crmes that are elgble for state prson wll have potentally longer terms of mprsonment than Penal Code secton 1170(h) crmes. There may be a few cases where the secton 1170(h) crme carres a potentally longer term of mprsonment than a prson-elgble crme. Chargng under those crcumstances should be approached wth cauton. Dong so may avod the few cases, f any, where the court mght have the authorty to stay the sentence on a prson-elgble crme and mpose a Penal Code secton 1170(h) term of mprsonment n county jal on an alternatve count for whch state prson s prohbted. For nstance, consder a felony DUI case wth prors, where the prors can be charged n the alternatve. A defendant who s sentenced to a term of mprsonment after havng been convcted of a volaton of Vehcle Code secton 23152 wth an admsson of three prors pursuant to Vehcle Code secton 23550, wll be sentenced pursuant to Penal Code secton 1170(h)(1) to a term n local jal; however, a defendant convcted of the same code secton but wth the admsson of one felony pror pursuant to Vehcle Code secton 23550.5, wll serve the term n state prson.
M. Guilty Plea Voir Dire
Extra vglance needs to be exercsed when takng a gulty or no contest plea, because all of the possbltes wll need to be explaned to the defendant. A defendant wll need to be nformed correctly about state prson, Penal Code secton 1170(h) mprsonment, and/or tradtonal probaton and jal possbltes, especally n a case where the settlement has no sentencng condtons. Also, a plea to certan felones and msdemeanors could result n state prson sentences n future cases. For nstance, a plea to a msdemeanor secton 314.1 would requre secton 290 regstraton and thus would dsqualfy a defendant from beng sentenced pursuant to secton 1170(h) n future cases. Whle the future use of a convcton s a collateral rather than a drect consequence of a plea, and, therefore, the defendant need not be advsed of t, t s probably the better practce to guard aganst msadvce by the defendant’s attorney and advse the defendant about Penal Code secton 1170(h) nelgblty whenever possble. A defendant should be nformed about the type of supervson he or she wll be subject to upon release (state parole, postrelease communty supervson, secton 1170(h) mandatory supervson, or tradtonal probaton), and the potental ncarceraton consequences that could result from
a volaton of parole, postrelease communty supervson, mandatory supervson, or tradtonal probaton. Of course, the standard vor dre about consttutonal rghts, resttuton and fines, etc. should be gven as well. In order to avod attacks on gulty or no contest pleas, consder askng the defendant to respond affirmatvely to a queston of ths type at the end of vor dre, partcularly where there may be some dsagreement between the defense and the prosecuton about post-ncarceraton consequences and/or the meanng of Penal Code secton 1170(h)(5) “mandatory supervson”: “Do you wsh to resolve ths case and enter ths plea regardless of the type of supervson and consequences you wll be subject to after your release from custody?” Some jursdctons are workng wth the court to amend ther change-of-plea forms to ncorporate new potental consequences.
N. Penal Code Section 1203.4 Relief is Not Available to Defendants Sentenced Pursuant to Penal Code Section 1170(h)
A defendant who serves a term of mprsonment n county jal pursuant to secton 1170(h) wll not be elgble to wthdraw a plea of gulty or nolo contendere and have the case dsmssed pursuant to secton 1203.4. Secton 1203.4 relef s avalable only to defendants who are placed on tradtonal probaton. The cases of People v. Mendez (1991) 234 Cal.App.3d 1773 and People v. Borja (1980) 110 Cal.App.3d 378 hold that Penal Code secton 1203.4 relef apples only to defendants who have been admtted to probaton. The tral courts n Mendez and Borja properly dened secton 1203.4 relef for a robbery convcton for whch the defendant was sentenced to the Calforna Youth Authorty (Mendez) and for convctons for murder and assault on a peace officer for whch the defendant was sentenced to prson (Borja). The defendants based ther arguments on the followng language n Penal Code secton 1203.4: “… n any other case n whch a court, n ts dscreton and the nterests of justce, determnes that a defendant should be granted the relef avalable under ths secton.” Whether a defendant s sentenced to a Penal Code secton 1170(h) jal term wthout a perod of post-jal supervson or wth supervson, relef under secton 1203.4 s not avalable because a defendant sentenced pursuant to Penal Code secton 1170(h) s not placed on probaton. He or she s ether sentenced to a full term n jal or to a term n jal wth mandatory supervson. The wordng of secton 1203.4 clearly pertans to tradtonal probaton. For example, the phrase “as f probaton had not been granted” s used n the secton about release from penaltes and dsabltes, and “dscharged pror to the termnaton of the perod of probaton” s used n the first sentence of secton 1203.4. Under Penal Code secton 1170(h), probaton s not granted. Instead, a perod of supervson s mposed wth probaton-lke terms, condtons, and procedures that start and contnue on after the defendant serves a secton 1170(h) term of mprsonment n local custody. Penal Code secton 1203.4 s not a probaton-lke term or procedure or condton. It s relef that s avalable to a specfied category of probatoner.
IX. Pleading and Proving Penal Code Section 1170(h) Ineligibility
AB 109, AB 117, AB 116, and ABX1 17 contan no express provson requrng the prosecuton to plead and prove the fact that makes a defendant elgble for prson (e.g., a pror or current serous or volent felony, the duty to regster as a sex offender, or a Penal Code secton 186.11 whte collar
