The FAQs below were excerpted from a Memorandum issued in August 2011 by the Judicial Council of California.
Sentencing
1. How does criminal justice realignment change sentencing?
Criminal justice realignment divides felonies for the purpose of sentencing into three primary groups.
a.Felonies sentenced to county jail: Penal Code1 section 1170, subdivision (h), provides that the following defendants must be sentenced to county jail if probation is denied:
•Crimes where a penal statute does not specify a term of punishment. In such circumstances, the crime is punished by 16 months, two, or three years in county jail (section 1170(h)(1)).
•Crimes where the statute now specifically requires punishment in the county jail, either as a straight felony commitment or as an alternative sentence as a wobbler. The length of the term is not limited to 16 months, two, or three years, but will be whatever triad or punishment is specified by the statute (section 1170(h)(2)).
b.Felonies excluded from county jail: Notwithstanding that a crime usually is punished by commitment to the county jail, the following crimes and/or defendants, if denied probation, must be sentenced to state prison: (section 1170(h)(3))
•Where the defendant has a prior or current serious or violent felony conviction under section 1192.7(c) or 667.5(c);
•Where the defendant is required to register as a sex offender under section 290; or
•Where the defendant is convicted of a felony with an enhancement for aggravated theft under section 186.11.
c.Felonies specifying punishment in state prison: The Legislature carved out over 70 specific crimes where the sentence must be served in state prison. It will be incumbent on courts and counsel to verify the correct punishment for all crimes sentenced after the effective date of the realignment legislation.
2. When do the changes to sentencing laws apply?
The changes in felony sentencing apply to any person sentenced on or after October 1.
3. Is there a limit to the length of time a court may sentence a person to county jail under section 1170(h)?
No. Nothing in the criminal justice realignment act limits the length of the county jail commitment. The only restrictions on eligibility for county jail commitment are based on the offense or the offender’s record. See Answer 1(b), above.
4. Is there any period of parole for an inmate upon release from county jail on a felony conviction sentenced under section 1170(h)(1) and (2)?
No. Under the criminal justice realignment act, persons sentenced under section 1170(h)(1) and (2) to county jail are not released to parole supervision upon serving their term – unlike those who serve time in state prison. A form of post-release supervision can be required under section 1170(h)(5); see Question 7.
5. What is the meaning of section 1170(h)(5)?
Section 1170(h)(5) was added by AB 1172 to give the sentencing judge discretion regarding how individuals convicted of felonies who are sentenced to county jail serve their term. The intent behind section 1170(h)(5) is to provide that, for any county jail-eligible felony conviction, the court may commit the defendant to county jail for the straight term allowed by law, or may suspend execution of a concluding portion of that term, during which time the defendant will 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. This portion of supervision, if imposed by the court, will be mandatory.
6. How is the sentencing discretion authorized in section 1107(h)(5) impacted by such sections as section 1203.07, which provide that certain offenses are ineligible for probation?
The intent of the criminal justice realignment act is that the probation ineligibility provisions should not hinder a judge from imposing the “split sentence” authorized under section 1107(h)(5).
7. If a statute specifies that the crime is punishable in county jail under section 1170(h), is it still possible to send the defendant to state prison?
Generally, crimes punishable in county jail may not be punished by a commitment to state prison; the court must sentence to county jail if probation is denied. If a defendant is sentenced to state prison for a qualified felony, however, other charges normally punished in county jail also will be punished in state prison (section 1170.1(a)).
8. Is there a requirement that the People “plead and prove” any factor that disqualifies a defendant from a county jail commitment?
Although a portion of the current language of section 1170(f) suggests there may be an obligation to “plead and prove” a disqualifying allegation, clarifying legislation is being considered that likely will delete the reference. A similar issue has been raised in connection with factors that disqualify a defendant from receiving enhanced conduct credits under sections 2933 and 4019. The issue is before the California Supreme Court.
9. Where will a defendant serve a sentence if prior to October 1, the court imposed and suspended execution of a sentence to state prison for a crime now punishable under section 1170(h), and after October 1 does not reinstate the defendant on probation?
There is no clear answer. Likely the defendant will serve the term in county jail. The traditional rule is that once imposed, a suspended sentence may not later be modified. (People v. Howard (1997) 16 Cal.4th 1081, 1095.) The realignment legislation, however, applies to all sentencing proceedings occurring on or after October 1, 2011. Certainly the decision not to reinstate a defendant on probation and order into execution a suspended state prison sentence is a “sentencing proceeding.” Furthermore, if the change from a state prison commitment to a county jail commitment is perceived as a less onerous sanction, a defendant may be entitled to the benefits of the change as a matter of equal protection.
10. Does the realignment legislation affect the court’s ability to consider probation or other alternative forms of punishment?
No. Section 1170(h)(4) specifically provides that “[n]othing in this subdivision shall be construed to prevent other dispositions authorized by law, including pretrial diversion, deferred entry of judgment, or an order granting probation pursuant to Section 1203.1.”
11. Currently, the California Department of Corrections and Rehabilitation (CDCR) reviews felony sentences for accuracy. Will sheriffs do this for jail-only sentences? How? Will sheriffs review to ensure that court ordered the correct facility (i.e., prison or jail)?
Nothing in the criminal justice realignment act appears to change any of these activities. CDCR will continue to review prison commitment papers for felons sentenced to state prison, and the prison packet remains the same. Courts should consult with their local sheriff to ascertain whether they will handle commitments to county jail any differently than prior to criminal justice realignment.
12. Do felony sentences served in county jail under section 1170(h) constitute “prison priors” for purposes of sentence enhancements?
Felony sentences served in county jail under section 1170(h) are intended to be “prison priors” for purposes of sentence enhancements.
Revocation of Supervision
1.Where will an inmate who is released from state prison to postrelease community supervision be supervised?
An inmate released from state prison who is eligible for postrelease community supervision will be returned, like those released on parole, “to the county that was the last legal residence of the inmate prior to his or her incarceration,” under subdivision (a) of section 3003, except that under subdivision (b), “an inmate may be returned to another county if that would be in the best interests of the public.”
2.When does the criminal justice realignment act require courts to begin hearing petitions for revocation of postrelease and parole supervision?
Postrelease community supervision: Beginning October 1, 2011, petitions for revocation of postrelease community supervision may be filed in the superior court in the jurisdiction in which the violator is being supervised. These petitions will be filed by the local supervising agency, likely to be the probation department in most counties.
Parole agency supervision: Beginning July 1, 2013, petitions for revocation of parole supervision may be filed in the superior court in the county in which the violator is being supervised. These petitions will be filed by the state parole agency.
3.When are courts likely to begin receiving petitions for revocation of postrelease supervision?
With the exception of the largest counties, probably not right away. The criminal justice realignment act applies to eligible inmates released from state prison on or after October 1, 2011. (Persons currently supervised by the state parole system will not be transferred to county supervision.) The act gives the supervising county agency (probation, in most counties) significant authority to respond to violations of supervision with a variety of intermediate sanctions, including but not limited to “flash incarceration” in a county jail for up to 10 days, without court involvement.
Before a petition for revocation of postrelease supervision may be filed with the court, section 3455(a) requires the supervising county agency to “determine, following application of its assessment processes, that intermediate sanctions are not appropriate…” Therefore, it is likely that many courts will not receive a petition for revocation for several weeks, or even months, following the October 1st effective date.
4.Will any state parole revocation petitions be filed with the courts between October 1, 2011, and July 1, 2013?
No. Until July 1, 2013, all state parole revocation proceedings will be carried out as they are under current law, under the jurisdiction of the Board of Parole Hearings. Petitions for parole revocation will not be eligible to be filed with a court until July 1, 2013.
5.How many petitions for revocation of postrelease supervision is a court expected to receive?
Because the criminal justice realignment act transfers an Executive Branch function to the Judicial Branch, and because it provides a great deal of implementation flexibility to counties, it is very difficult to predict petition caseload with precision. However, the state Department of Finance used CDCR’s caseload experience during 2010, broken down county-by-county, to provide a rough estimate of the number of petitions for revocation of supervision each court may receive. Courts should note that, while a variety of factors and local cultures will influence each court’s experience, only seven courts are estimated to have more than 300 final petitions for revocation of supervision in a 12-month period. Under these estimates, most courts will receive fewer than six petitions for revocation each week.
6.When do courts become involved in the proceedings when a person is alleged to have violated terms or conditions of postrelease community supervision?
Under the criminal justice realignment act, the court has no jurisdiction or required role until a petition for revocation of postrelease supervision has been filed by the supervising county agency. Prior to filing a petition, the supervising county agency has authority – and in fact has an affirmative duty under the act – to assess and determine whether an intermediate sanction not requiring court involvement is appropriate.
7.Will the Judicial Council develop rules and forms for revocation procedures?
Yes. The criminal justice realignment act requires the Judicial Council to adopt forms and rules of court to establish uniform statewide procedures to implement the new revocation proceedings, including prescribing minimum contents of supervising agency reports. Proposed rules and a form have been developed by the Criminal Law Advisory Committee and were recently circulated for public comment. They are designed to prescribe basic procedural requirements to promote statewide uniformity while providing courts with sufficient flexibility to implement the new proceedings according to local needs and customs.
