In an apparent response to the United States Supreme Court order to reduce California's prison population to 137 percent of capacity by May 24, 2013 and the State's burgeoning budget crisis, Governor Jerry Brown signed into law A.B. 109 (Cal Stats 2011, ch 15, April 4, 2011) effectively transferring responsibility for nonserious, nonviolent and non-Pen C §290 registerable sex offenders from the state to the counties. Together with the amendments effected by A.B. 117 (Cal Stats 2011, ch 39, June 30, 2011) and several trailer bills (see e.g., A.B. 118 (Cal Stats 2011, ch 40, June 30, 2011), A.B. 116 (Cal Stats 2011, ch 136, July 27, 2011), A.B. 109 is referred to as "realignment." The provisions of realignment apply prospectively only and affect largely felony sentencing, pretrial and postconviction credits, postrelease supervision and parole revocation.
The sentencing provisions of realignment are operative on and after October 1, 2011.
They represent the largest change to California sentencing since Three Strikes. Members of the bench and bar should become familiar with these provisions for the purposes of charging, advising, and sentencing defendants.
For a comprehensive discussion of this legislation, see Garrick Byers' article, Realignment. Mr. Byers is a Senior Defense Attorney at the Fresno County Public Defenders Office and is a co-author of CEB's California Criminal Law Procedure and Practice. He has generously given CEB permission to reprint his insightful analysis.
The main sentencing provisions are:
- The term felony has been redefined to mean an offense punishable by death or by imprisonment in the state prison or by imprisonment in the county jail for more than a year. Pen C §17.
- Sentences for most felonies that are nonserious, nonviolent and nonregisterable sex offenses (so-called "non-non-non felonies"), if the defendant also has no prior serious, violent or registerable convictions, will now be served in the county jail. See Pen C §1170(h)(2)-(3). (The length of felony terms have not changed.)
- Felonies with nonspecified terms in the underlying statute will be punishable by a term of 16 months, 2 years or 3 years in the county jail. Pen C §§18; 1170(h)(1). Sentences for these offenses may include a period of county jail and a period of probation not to exceed the maximum possible term. Pen C §1170(h)(5).
- Probation, deferred entry of judgment and other alternatives to prison continue to be available sentencing options.
- County jail terms of more than 1 year for a felony are priorable as a sentencing enhancement. Pen C §667.5(b).
- All county jail inmates except convicted murderers and those being committed to state prison for violent felonies can earn 50 percent conduct credits under Pen C §4019.
- Counties may permit electronic monitoring in lieu of bail (Pen C §1203.018) or home detention in lieu of jail (Pen C §1203.016). Time on electronic monitoring or home detention counts toward mandatory minimum sentences. Pen C §2900.5.
- There are over 60 felony offenses that are nonserious, nonviolent and nonregisterable sex offenses that are nonetheless punishable by a term in prison. These offenses generally involve a weapon or injury. See Byers, G, Realignment, Appendix II.
- Individuals convicted of a current or prior serious or violent offense, required to register under Pen C §290 or whose sentence is enhanced under Pen C §186.11 (taking more than $100,000 under certain circumstances) must serve their current term in prison. Pen C §1170(h)(3).
- Individuals sentenced to consecutive terms where one term (whether principal or subordinate) is punishable by state prison must serve the aggregate sentence in prison. Pen C §1170.1(a). (No statutory provision yet addresses concurrent sentences.)
The main postrelease and parole provisions operative October 1, 2011 are:
- Individuals convicted of felonies punishable by a prescribed term of county jail in the underlying statute will not be supervised after release; there will be no period of parole.
- Only those individuals convicted of a straight felony (where the term is not prescribed by the underlying statute and, therefore, is 16 months, 2 years or 3 years under Pen C §1170(h)(1)) may be sentenced to a period of county jail and a period of probation not to exceed the maximum possible term. Pen C §1170(h)(5). See Legislative Counsel's Digest to A.B. 116 (Cal Stats 2011, ch 136).
- Prison sentences for non-non-non felonies will be followed by a period of up to 3 years of Postrelease Community Supervision administered by the counties. Violations of Post Release Community Supervision can be punished in many ways, including flash incarceration. Revocations must be done by a new Court Revocation Officer. Pen C §§3450-3458.
- Offenders released from state prison after serving a sentence for a third strike or a serious or violent felony or who are classified as high risk sex offenders or mentally disordered or who are on parole prior to October 1, 2011 will be under state parole supervision. See Pen C §§3000.08, 3000.09.
- Parole revocations will be served in county jail for a maximum of 180 days.
- Only persons previously sentenced to a term of life can be returned to prison on a parole revocation.
Beginning July 1, 2013, the parole revocation process will become a county court-based process. Until then, parole revocations will continue under the Board of Parole Hearings.
After July 1, 2013, the BPH will be responsible for:
- Parole considerations for lifers
- Medical parole hearings
- Mentally disordered offender cases; and
- Sexually violent predator cases
The Division of Juvenile Justice is unaffected by realignment. See Legislative Counsel's Digest for A.B. 117 (Cal Stats 2011, ch 39).
On California criminal law and sentencing, see California Criminal Law Procedure and Practice 2011 and California Criminal Sentencing Enhancements in both print and electronic formats.
© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission is strictly prohibited.