Realignment Cheat Sheet

Transcription

1 1 P age- Summary of Realignment Statutes I. Introduction: Realignment Cheat Sheet [Effective October 1, 2012] 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, (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 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 (See Penal Code 18.) Ironically, the presumption cuts the other way for Vehicle Code violations. Vehicle Code 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....

2 2 P age- Summary of Realignment Statutes Most but not all -- of these so-called county jail felonies carry terms of [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 conviction 4 (2) Def. has a past or present violent felony conviction 5 (3) Def. is required to register as a sex offender 6 (4) Def. is convicted of Penal Code the so-called aggravated white collar crime enhancement for fraud and embezzlement of more than $100, These four exceptions cannot be dismissed by the court pursuant to Penal Code (See Penal Code 1170(f).) 7 Presumably, the district attorney retains the right to dismiss them for purposes of sentencing. 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. 3 It appears that a judge can no longer use Penal Code 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.

3 3 P age- Summary of Realignment Statutes 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 Here are some common examples: Penal Code 273.5(a) and (e) [domestic violence]; 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 [stalking]; Penal Code [ex felon with gun]; Health & Safety Code [possession of certain drugs with gun]; Health & Safety Code [possession of drugs in prison]; Vehicle Code [hit and run with injury]; Vehicle Code (a) [evading arrest; note that Vehicle Code has become a county jail felony ]; Vehicle Code [DUI with injury]; Vehicle Code [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 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, ) 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. 9 Note that a county jail sentence which exceeds one year now constitutes a prison prior. (See Penal Code 667.5(b).)

4 4 P age- Summary of Realignment Statutes are county jail felonies, the two years is served locally. Otherwise, the defendant must serve the enhancement in prison; Health & Safety Code 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 ; 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 (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, 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.) 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.

5 5 P age- Summary of Realignment Statutes 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 , ) 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 3 rd strike; High risk sex offender crimes [whatever that is]; Mentally disordered offenders. (Penal Code , 3451.) Commitment to the California Rehabilitation Center (CRC) is no longer a sentencing option. (Welfare & Inst. 3050, 3051, 3100, ) The CRC facility at Norco is slated to close in 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 which provides that a defendant s nonfelony 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].)

6 6 P age- Summary of Realignment Statutes 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 nonprobationary 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 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 (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;

7 7 P age- Summary of Realignment Statutes Transferring supervision to another county (Penal Code ); Penal Code 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 Other Exceptions to the General Rule: State prisoners convicted of violent felonies continue to receive only 15% credits. (Penal Code (a); see also People v. Caceras (1997) 52 Cal.App.4th 106; People v. Palacios (1997) 56 Cal.App.4th 252, [15% limitation applies to entire sentence]); Since there has been no change to Penal Code (a)(5) (or Penal Code 667(c)(5)), a defendant sentenced as a 2 nd 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);

8 8 P age- Summary of Realignment Statutes 3 rd strikers do not receive any credit against the mandatory indeterminate term of life imprisonment. (See Penal Code 667(c)(5), (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 ) 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, 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 (c) seems to say that prisoners convicted of violent felonies (Penal Code 667.5) continue to receive only 15% county jail credits. But some

9 9 P age- Summary of Realignment Statutes 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 2 nd striker under Penal Code 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); 3 rd strikers still do not receive any credit against the mandatory indeterminate term of life imprisonment. (See Penal Code 667(c)(5), (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 ) 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 ) Such a program is available to all inmates [not just low risk offenders] and can be either: Voluntary, or Involuntary. (See Penal Code , ) The board can also authorize the sheriff to create a home detention/electronic monitoring program as a substitute for bail. (Penal Code ) 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 (a).) 13 Early Release: When necessary to ease overcrowding, Penal Code 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 ) 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 community. (Penal Code (c)(1)(C).)

10 10 P age- Summary of Realignment Statutes 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 and Improved supervision strategies. (Penal Code 3450(b)(5).) 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 ); (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 reduce recidivism. (Penal Code 3450(b)(9).)

11 11 P age- Summary of Realignment Statutes The Parole Authority will administer parole violations until July 1, After that, local probation offices will take over supervision and and parole violations will be heard by the courts. (Penal Code ) 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 , 3451): Serious felonies (Penal Code (c)); Violent felonies (Penal Code 667.5(c)); A third strike (Penal Code 667(e)(2), (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 Counties may impose additional conditions consistent with public safety, including: Continuous electronic monitoring (see Penal Code ) Appropriate rehabilitation and treatment services; Referral to a reentry court (Penal Code 3015); and Flash incarceration. (Penal Code 3454(b).) 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 supervisee s criminal history. (Penal Code 3454(a).)

12 12 P age- Summary of Realignment Statutes Adjudication of Postrelease Community Supervision Violations [PRCS]: The rules for adjudicating PRCS violations are now the same as for probation violations. (See Penal Code , , 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 and 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 18 See footnote 14, supra, for a list of community based punishments.

13 13 P age- Summary of Realignment Statutes 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 ; 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 1 st, can still be sent to prison upon revocation. But after their sentence is completed, you look to Penal Code 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 (c).) Some Other Caveats: Parolees can still be sent back to state prison (see Penal Code ), 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, 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 ) 19 Parolees are also eligible for early discharge. Those convicted of serious, violent or registrable offenses can be released after a year, and everyone else is eligible after six months. (Penal Code 3001.)

14 14 P age- Summary of Realignment Statutes 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 ) Persons convicted of murder as well as certain kidnapping and sexual offenses are still subject to lifetime parole. (Penal Code ) However, the board has authority to discharge them as well. A defendant convicted of 187 1st can be discharged after 7 years and a defendant convicted of 187 2nd can be released after 5 years.

15 15 P age- Summary of Realignment Statutes Appendix A Crimes for Which a Defendant Shall Receive a County Jail Sentence 20 Penal Code Penal Code 69 [felony resisting arrest] , 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] [possession of controlled substances in custody; 2-3-4] 191.5(c)(2) [vehicular manslaughter while intoxicated; ] [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; ] (a) [gang enhancement for possession of firearm; 1-2-3] [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, [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] [discharging firearm or BB gun w/ gross negl.] [possession of explosive/destructive device; 3-5-7] 261.5(c) and (d) [statutory rape] [sale of destructive device; 2-3-4] 265 [abduction for marriage or defilement] [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] 273.6(d) and (e) [violation of stay away order] Health & Safety Code 11350(a), (b) [possession of narcotics] (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] [possession of cocaine base for sale; 3-4-5] [passing harmful matter w/ intent to seduce a minor] [sales of narcotics; 3-4-5] 311.9(a),(b) and (c) [possession of child porn] [selling controlled substances on school grounds; 5-7-9] 368(d), (e) and (f) [elder abuse; 2-3-4] [selling to minors in parks or playgrounds; 3-6-9] [brandishing a firearm in presence of a car] 11357(a) [possession of concentrated cannabis] [brandishing with serious bodily injury] [cultivation of marijuana] [hate crime] [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 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. 23 This crime can be a serious felony. (Penal Code (c)(6).) When that is the case, it is punishable in state prison.

16 16 P age- Summary of Realignment Statutes 453(a) [possession of incendiary device] [sale of marijuana; 2-3-4] 461(b) [punishment for 459 2nd ] 470a [forging driver s license or ID card] [possession of controlled substance] [possession for sale of controlled substance] 470b [possession of forged driver s license or ID card] [possession for sale of PCP; 3-4-5] 473, 474 [forgery] [sale of controlled substances; 2-3-4] 478, 479, 480(a) [counterfeiting; 2-3-4] [sale of PCP; 3-4-5] 484/666 [petty theft] [inducing a minor to commit drug violation; 3-6-9] 484b [fraud] [possession with intent to manufacture PCP; 2-4-6] 484i [forgery of credit cards] 487b [grand theft - real property] 487d [grand theft gold, amalgam, quicksilver] Vehicle Code [evading arrest- driving the wrong way] 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] 499(c) [theft of trade secrets] 496d(a) [receiving/possessing a stolen vehicle] 530.5(a), (c)(2), (c)(3) and (d)(1) [identity theft] 548(a), 549, 550 [insurance fraud] 594(b)(1) [felony vandalism] 594.3(a) and (b) [vandalism of church] [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] [417, 12025, at a school; 1-2-3] [annoying/molesting a child under 18] (c)(2) [annoying/molesting a child w/ a prior; 2-4-6] f (a), (c), (d)(1), (d)(2) [soliciting various crimes] /10851 [car theft w/ a prior; 2-3-4] 10851(a), (b) [auto theft] [reckless driving w/ great bodily injury] [reckless driving with specified injury] [speed contest with specified injury] 23550(a) [DUI with three or more priors] 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 county jail.

17 17 P age- Summary of Realignment Statutes 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 166(c)(4) [violation of DV restraining order w/ prior and credible threat ] Penal Code [cont.] 646.9(a), (b), (c) [stalking (subds. (a)& (c)are wobblers)] [white collar crime enhancement] 666(b) [petty theft with specified priors] [gang crime] 647.6(b) & (c) [Annoying a child under specified circumstances] [recruiting gang members] 653f(b) and probably (c) [soliciting specified crimes (wobbler)] (b) [gang registration violations] (c)(1) [gross vehicular manslaughter while intoxicated] 12020(b) 4532(a) and (b) [escape (subd. (b) is a wobbler)] [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] [possession of firearm by felon convicted of specified crimes] 266a, 266e, 266f, 266(h), 266i, 266j [pimping] [possession of destructive device in public place] 273a(a) [child endangerment (wobbler)] 273ab [assault upon a child resulting in death] 4536(a) [escape from state hospital after MDO commitment] Health & Safety Code (a) and (e) [domestic violence (wobbler)] 11353, , 11354, 11361, [inducing a minor to buy or sell drugs] 368(b) [elder abuse (wobbler)] [possession of certain drugs with gun] [distributing obscene material to a minor] (wobbler) [deliberately exposing another to HIV infection] 417(c), [brandishing a firearm (wobbler)] Vehicle Code [brandishing a firearm to resist arrest] [evading arrest (wobbler)] 424 [embezzlement by public officials] (a) and (b) [evading arrest causing serious bodily injury] 452(a), (b), (c) [arson (wobbler)] [Evading arrest by driving the wrong way] (wobbler) 455 [attempted arson] [hit and run with injury] (wobbler) 489(a) [grand theft of a firearm] 598d [sale of horsemeat (wobbler)] [punishment for felony DUI (wobbler)] [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.

18 18 P age- Summary of Realignment Statutes Appendix C The Realignment Statutes: Penal Code 1170(h), 2933, 4019, et. seq., 3450 et. seq. Examined & Analyzed Penal Code 1170 Analysis 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 (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 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 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 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 [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.) When sentencing under this subdivision, the

19 19 P age- Summary of Realignment Statutes (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 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 (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 or Section 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 [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 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 offense is:

20 20 P age- Summary of Realignment Statutes 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, (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 3 rd 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 [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 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