FELONY SENTENCING
AFTER REALIGNMENT

J. RICHARD COUZENS
Judge of the Superior Court
County of Placer (Ret.)

TRICIA A. BIGELOW
Presiding Justice, Court of Appeal, 2nd Appellate District, Div. 8

January 2012

TABLE OF CONTENTS
A.  Felony Commitments .........................................................................................................3 
1)  Defendants committed to county jail (P.C. § 1170, subd. (h)(5)) ..................................3 
2)   Felonies excluded from county jail ................................................................................4 
3)  Felonies specifying punishment in state prison and felonies without a
designated housing .........................................................................................................4 
4)  Conflicts in the designation of punishment ...................................................................5 
B.  Alternatives to commitment to jail or prison ..................................................................6 
C.  No parole following release from jail commitment .........................................................6 
D.  Imposition of sentence under section 1170, subdivision (h)(5) ......................................7 
1)  Practical application .....................................................................................................10 
2)  Sentencing script ..........................................................................................................11 
3)  The early release ..........................................................................................................11 
4)  The misdemeanor sentence ..........................................................................................13 
E.  Effective date of section 1170, subdivision (h) ...............................................................13 
F.  Multiple counts, mixed punishment ...............................................................................14 
G.  Additional issues...............................................................................................................14 
1)  Application of the exclusion provisions ......................................................................14 
2)  Application of section 1170, subdivisions (d) and (e) .................................................18 
3)  Crimes committed in county jail ..................................................................................19 
4)  Reconciliation of realignment legislation with probation ineligibility statutes ...........19 
5)  Exercise of discretion under section 17, subdivision (b) .............................................19 
6)  Execution of a prior suspended sentence .....................................................................20 
7)  Status of defendants sentenced to state prison prior to October 1, 2011 .....................20 
8)  Crimes punishable by “state prison” or “pursuant to subdivision (h) of Section
1170” ............................................................................................................................21 
9)  Commitment under section 1170, subdivision (h)(5) as a “prior” under section
667.5, subdivision (b) ..................................................................................................21 
10) Prior convictions in another jurisdiction (§ 668) .........................................................22 
11) Restitution fines ...........................................................................................................22 
12) Expansion of home detention programs ......................................................................23 
13) Contracts with Department of Corrections and Rehabilitation ....................................23 
14) Cases from multiple jurisdictions ................................................................................24 
15) Commitments to the California Rehabilitation Center (Welf. & Inst. §§ 3050,
et seq.) ..........................................................................................................................25 
16) Restitution to the victim ...............................................................................................25

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H.  Custody credits .................................................................................................................26 
1)  Sentences to county jail ...............................................................................................26 
2)  Sentences to state prison ..............................................................................................27 
3)  Credit for sentences imposed after October 1, 2011, for crimes committed
prior to the effective date .............................................................................................27 
4)  Violations of probation ................................................................................................27 
1.   APPENDIX I: TABLE OF CRIMES REQUIRING COMMITMENT TO
COUNTY JAIL ......................................................................................................................29 
2.  APPENDIX II: TABLE OF CRIMES REQUIRING COMMITMENT TO
STATE PRISON ....................................................................................................................35 

Copyright © 2012 Barrister Press
Permission is granted to copy and distribute these materials to the judges and staff
of the California judiciary

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The Criminal Justice Realignment Act of 2011 makes significant changes to the
sentencing and supervision of persons convicted of felony offenses. The new legislation
amends a broad array of statutes concerning where a defendant will serve his or her
sentence and how a defendant is to be supervised on parole. There are a number of issues
related to this legislation, some of which will only be resolved by further changes by the
Legislature or interpretation by the courts. The following is a discussion of some of the
sentencing issues related to realignment as the statutes currently exist after the enactment
of cleanup legislation.
In enacting the realignment legislation, the Legislature declared: “Criminal justice
policies that rely on building and operating more prisons to address community safety
concerns are not sustainable, and will not result in improved public safety. California
must reinvest its criminal justice resources to support community-based corrections
programs and evidence-based practices that will achieve improved public safety returns
on this state's substantial investment in its criminal justice system. Realigning low-level
felony offenders who do not have prior convictions for serious, violent, or sex offenses to
locally run community-based corrections programs, which are strengthened through
community-based punishment, evidence-based practices, improved supervision
strategies, and enhanced secured capacity, will improve public safety outcomes among
adult felons and facilitate their reintegration back into society.” (P.C. § 17.5, subd.
(a)(3)-(5).)
A.

Felony Commitments
With respect to felony sentencing, it appears the intent of the realignment
legislation is merely to change the place where sentences for certain crimes are to
be served. The legislation has not changed the basic rules regarding probation
eligibility. Courts retain the discretion to place people on probation, unless
otherwise specifically prohibited, under the law that existed prior to the
realignment legislation. There is no intent to change the basic rules regarding the
structure of a felony sentence contained in sections 1170 and 1170.1.
Furthermore, there is no change in the length of term or sentencing triad for any
crime. Realignment comes into play when the court determines the defendant
should not be granted probation, either at the initial sentencing or as a result of a
probation violation.
For the purposes of sentencing, the realignment legislation divides felonies into
three primary groups:
1)

Defendants committed to county jail (P.C. § 1170, subd. (h)(5))

Section 1170, subdivision (h), provides the following defendants must be
sentenced to county jail if probation is denied:

Crimes where a penal statute specifies the defendant “shall be
punished by imprisonment pursuant to subdivision (h) of Section 1170” without
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the designation of a particular term of punishment. In such circumstances, the
crime is punished by 16 months, two, or three years in county jail. (§§ 18 and
1170, subd. (h)(1).) Crimes in this category include most of the “wobblers,”
where the crime may be punished either as a misdemeanor or a felony.

Crimes where the statute now requires punishment in accordance with
section 1170, subdivision (h), with a designated triad or term. 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. (§ 1170, subd. (h)(2).) It appears the
longest possible single count term for a jail commitment is a second or subsequent
conviction of a violation of Water Code, section 13387, subdivision (d)(1),
discharging specified substances knowing they will place a person “in imminent
danger of death or serious bodily injury,” which provides for a term of 10, 20 or
30 years.
See Appendix I for a list of crimes now sentenced under section 1170, subdivision
(h).
2)

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: (§ 1170, subd. (h)(3).)

Where the defendant has a prior or current serious felony conviction
under section 1192.7, subdivision (c), a violent felony conviction under section
667.5, subdivision (c), or an out-of-state felony conviction of a crime that would
qualify as a serious or violent felony under California law;

Where the defendant is required to register as a sex offender under
section 290; or

Where the defendant is convicted of a felony and is sentenced with an
enhancement for aggravated theft under section 186.11.
3)

Felonies specifying punishment in state prison and felonies without a
designated housing

The Legislature left 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.
Notwithstanding the shifting of hundreds of crimes from state prison
commitments to county jail sentences under section 1170, subdivision (h), section

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18 designates state prison as the “default” sentence: “Except in cases where a
different punishment is prescribed by any law of this state, every offense declared
to be a felony is punishable by imprisonment for 16 months, or two or three years
in the state prison unless the offense is punishable pursuant to subdivision (h) of
Section 1170.” (Section 18, subd. (a).)
See Appendix II for a list of crimes that remain punishable in state prison.
4)

Conflicts in the designation of punishment

At times the designation of punishment for a particular offense under section
1170, subdivision (h), appears to be in direct conflict with an exclusion. Section
288.2, distribution of lewd material to a minor, for example, has been shifted to
punishment under section 1170, subdivision (h). Yet section 288.2 is a
registerable sex offense, which would require punishment in state prison because
of the exclusions in section 1170, subdivision (h)(3). Similarly, sections 191.5,
subdivision (c)(2), vehicular manslaughter while intoxicated, and 243, subdivision
(d), battery with serious bodily injury, are punishable under section 1170,
subdivision (h). The required level of injury makes these crimes serious felonies
under section 1192.7, subdivision (c)(8), thus excluded under section 1170,
subdivision (h)(3). It is not clear whether the statute defining the crime or the
exclusion controls. This issue may be resolved by application of the rule of
statutory interpretation that a specific provision acts as an exception to a
conflicting general provision. (In re Williamson (1954) 43 Cal.2d 651, 654;
People v. Artis (1993) 20 Cal.App.4th 1024, 1026-1027.) The question is which is
the more specific provision.
Punishment also is not clear when the base term specifies a term under section
1170, subdivision (h), but an enhancement requires punishment in state prison.
For example:

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

The defendant commits two crimes normally punished under section
1170, subdivision (h), but the second crime was committed while “out
on bail” within the meaning of section 12022.1. Section 12022.1,
subdivision (b), imposes “an additional term of two years in state
prison.” (Emphasis added.) Must all crimes be sentenced to prison?



The defendant is convicted of transportation of a controlled substance
in violation of Health and Safety Code section 11352, subdivision (a),
punishable under section 1170, subdivision (h), and an enhancement
under Health and Safety Code section 11356.5, subdivision (a)(1),
because the crime involved PCP with a value in excess of $500,000.
The enhancement provides for an additional “one year in prison.”
(Emphasis added.) Where is the sentence served?

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

Additional enhancements which specify additional time in state prison
include Health and Safety Code section 11379.7, manufacturing PCP
with children present, and Penal Code section 422.75, subdivision (a),
committing a felony that is also a hate crime.



Does it matter that the enhancement is a status enhancement added
once at the end of the case (such as the “out on bail” enhancement), or
a count-specific conduct enhancement (such as the hate crime
enhancement)?

Again, it may be that the specific statute will control over the general statute. As
discussed previously, is the base crime the specific statute, or does the
enhancement have a more narrow focus?
Does it make a difference that the conflict is between the punishment specified for
the base term and an exclusion under section 1170, subdivision (h)(3), as opposed
to the conflict for the designated punishment for the base term and enhancement?

B.

Alternatives to commitment to jail or prison
Section 1170, subdivision (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.”

C.

No parole following release from jail commitment
There is no formal state parole period following a defendant’s release from a
commitment under section 1170, subdivision (h). Sections 3000, et seq.,
governing the requirement of parole, only require parole if a defendant has been
committed to state prison. These sections were not changed to include
commitments under section 1170, subdivision (h); the omission was intentional.
Nothing in the realignment legislation, however, appears to restrict the application
of county parole under sections 3074, et seq. County parole boards are charged
with creating rules and procedures for the release on parole of “any prisoner who
is confined in or committed to any county jail, work furlough facility, industrial
farm, or industrial road camp, or in any city jail, work furlough facility, industrial
farm or industrial road camp under a judgment of imprisonment or as a condition
of probation for any criminal offense . . . .” (§ 3076, subd. (b).) The parole
board is authorized to “release any prisoner on parole for a term not to exceed two
years upon those conditions and under those rules and regulations as may seem fit
and proper for his or her rehabilitation, and should the prisoner so paroled violate
any of the conditions of his or her parole or any of the rules and regulations

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governing his or her parole, he or she shall, upon order of the parole commission,
be returned to the jail from which he or she was paroled and be confined therein
for the unserved portion of his or her sentence.” (§ 3081, subd. (b).) The statute
further provides that for the purpose of computing the unserved portion of the
person’s sentence, “no credit shall be granted for the time between his or her
release from jail on parole and his or her return to jail because of the revocation of
his or her parole.” (§ 3081, subd. (d).)
The use of county parole depends on an application from the inmate. Because of
the potential two-year parole “tail,” it is unlikely an inmate will request parole
status if the term imposed by the court is relatively short. Inmates committed for
longer terms, however, may find county parole an appealing alternative to
custody.
Although there appears to be no conflict in the statutory provisions governing
commitments under section 1170, subdivision (h), and county parole, it is not
clear whether the process is available when the court has imposed a structured
mandatory supervision program under subsection (h)(5)(B). The question
remains whether county parole boards can or should override the court’s wellstructured plans.
D.

Imposition of sentence under section 1170, subdivision (h)(5)
The realignment legislation provides a limited alternative to parole by way of
supervision by the probation department for a portion of the county jail term
imposed by the court. Section 1170, subdivision (h)(5), provides:
“(5) 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) For a full term in custody 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. 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.”

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Sentences imposed under section 1170, subdivision (h)(5)(B), have been
characterized as “split” or “blended” sentences because they have both
custody and non-custody elements. The length and circumstances of the
suspended term are within the court’s discretion; presumably the court
could suspend all or only a portion of the sentence. There are many
sentencing strategies available to the court, depending on the defendant’s
circumstances, hopefully enlightened by a current risk/needs assessment
done by the probation department. The following represent just a few of
the options available to the court:


The court could impose a term from the triad, suspend a concluding portion of
the term and set conditions of supervision. Such an alternative may be
appropriate when the time in custody will be relatively short such that the case
plan developed at sentencing will be reasonably current when the defendant
converts to mandatory supervision.



The court could impose a term from the triad, suspend a concluding portion of
the term, but reserve jurisdiction to set the conditions of supervision shortly
before the defendant is released from custody. Such an alternative may be
appropriate when the court realizes that supervision is necessary, but because
of a lengthy custody period may want to have a new risk/needs assessment at
the time the defendant is ready to be released. Such a strategy will account for
the changing nature of defendant’s risk and will make the case plan more
relevant to defendant’s actual circumstances at the time he is ready for release.



The court could choose to impose a sentence under the provisions of section
1170, subdivision (h)(5)(B), but reserve jurisdiction to set the actual time and
conditions of release at a later time. Such a strategy might be appropriate
where the court wants to give the defendant encouragement to complete
various custody programs and do well in custody, then set relevant terms
when the court determines release is appropriate.

In exercising these options, the court must observe three important points:


Unless the court sets all of the timing and circumstances of release at the
original sentencing proceeding, the court should expressly reserve
jurisdiction to make these decisions at a later time.



If the court does reserve jurisdiction to adjust the circumstances of release,
such authority undoubtedly does not include the right to change the length of
the original sentence. Once made, that is a sentencing decision that cannot be
changed unless the court has the authority to recall the sentence under
authority similar to section 1170, subdivision (d). (See discussion below.)

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

Regardless of how the sentence is structured, once the original term runs out,
including both custody and non-custody time and any appropriate custody
credits, the defendant is free of any supervision.

The legislation specifies that the supervision period is mandatory. The court will
have the discretion to impose either a straight commitment to jail for the
computed term, or to impose a “split” sentence. Since the commitment under
section 1170, subdivision (h), is the equivalent of a prison sentence, the defendant
need not agree to the terms and conditions of supervision in the same manner as a
sentence involving a grant of probation.
The terms, conditions and procedures of supervision will be similar to the
traditional grant of probation. Presumably the probation officer and the district
attorney will have the ability to petition the court for revocation of the postsentence supervision. Presumably the court, after hearing, could reinstate the
defendant under supervision or order into execution all or a portion of the
remaining sentence. Presumably the defendant will have all of the due process
rights of a probationer regarding notice, hearing and right to counsel. In any
event, the supervision period will end with the expiration of the term originally
imposed by the court.
The court is given the ability to terminate the supervision period prior to
expiration of the imposed sentence. No specific guidance is given for the exercise
of the court’s discretion in this regard, but presumably it would be similar to the
discretion exercised regarding a request to terminate probation under section
1203.3, subdivision (a): “The court may at any time when the ends of justice will
be subserved thereby, and when the good conduct and reform of the person so
held on probation shall warrant it, terminate the period of probation and discharge
the person so held.”
The court undoubtedly has the authority to set the terms and conditions of
defendant’s period of mandatory supervision. While the conditions likely will
resemble traditional terms of probation, some care should be exercised in
selecting terms and conditions that will impact treatment and workload of the
probation officer. Terms and conditions should only be set following a proper
risk/needs assessment. If the period of actual custody time is very short, the
assessment prepared in connection with the original judgment and sentence may
be sufficient. If it is anticipated the custody period will be lengthy, however,
courts may well be advised to simply reserve jurisdiction to set the conditions of
supervision shortly before the defendant’s actual release date. In that way a
current, relevant risk/needs assessment can be made so that a realistic and
effective case plan can be developed.
It is likely that once the court places the defendant on mandatory supervision, the
responsibility to supervise the defendant will remain in the sentencing county.
Section 1203.9, as implemented by California Rule of Court, Rule 4.530, only

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relates to the transfer of probation supervision. The mandatory supervision
allowed by section 1170, subdivision (h)(5)(B), is not probation.
1)

Practical application

The application of section 1170, subdivision (h)(5) may be illustrated by the
following example:
On October 5, 2011, the defendant commits and is arrested for a second degree
burglary (16 – 2 – 3). He is convicted of the burglary on November 15, 2011, and
a prison prior under section 667.5, subdivision (b) (+1) is found true. The
defendant has 42 days of actual custody credit. If the court chooses to deny
probation and impose the middle base term for the burglary, the sentence under
section 1170, subdivision (h)(5) would be:
Commitment to the county jail for the middle base term of 2 years, plus 1 year for
the prison prior under section 667.5, subdivision (b), for an aggregate term of 3
years. Defendant would be granted custody credit of 42 days of actual time, plus
42 days of conduct credit, for total pre-sentence credit of 84 days.
The court must next decide between two sentencing schemes:
A)
The court could order the sentence served straight time, in which case the
defendant will serve a 3-year term in county jail, less applicable actual time and
conduct credits. At the end of the term, in this case a maximum of 18 total
months in custody, the defendant will be released from custody with no
supervision.
B)
The court could suspend a concluding portion of the term imposed, such
as the concluding 300 days of the sentence (or any other number of days within
the court’s discretion), and place the defendant under the supervision of the
probation officer for that period. The net effect of such a sentence is that the
defendant will do a county jail sentence of 3 years, less credit of 84 days for presentence credit, less actual time and conduct credits for the remaining term up to
the point where 300 days remain on the sentence - an additional 355 days. The
total actual time in custody will be 397 days. At that point he will be released for
the remaining 300 days under mandatory supervision by the probation officer. At
the end of the 300 days, the defendant will be free from all forms of supervision.
The defendant will receive only actual time credit against the remaining 300 days
as they are served. If there is a violation of the terms of supervision, the court
would have the discretion to place the defendant back in custody for all or any
remaining portion of the 300 days after deduction for any accrued actual time
credits.

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2)

Sentencing script

Although the legislation does not require any particular language for the
commitment of a person to county jail under section 1170, subdivision (h)(5)(B),
the court might use language similar to the following:
Probation is denied. The court has denied probation because [state
reasons]. Accordingly, it is the judgment of the court that for violation of
Penal Code section 459, burglary in the second degree, as charged in
Count One, that the defendant be committed under the provisions of Penal
Code section 1170(h)(5)(B) to the ____ County Jail for the middle term of
two years. The court has selected the middle term because [state
reasons]. The defendant having admitted that he suffered a prior prison
term within the meaning of section 667.5(b), the court orders the
defendant to serve an additional and consecutive term of one year, for an
aggregate term of three years. The court hereby suspends the concluding
300 days of said term, during which time the defendant shall be supervised
by the probation department. The conditions of supervision shall include .
. . . [The court may state conditions or reserve jurisdiction to determine
whether and under what conditions mandatory supervision will be
imposed later in defendant’s term.]
3)

The early release

Either because of federal consent orders that set a jail’s capacity, or because of
housing management decisions, there are times when defendants will be released
from actual jail custody prior to the time set by the court's sentence. Some
releases will be without restriction. Some will be on electronic home detention
under sections 1203.016 or 1203.017. Regardless of the circumstances, the
release on electronic monitoring is “in lieu of confinement in the county jail,” and
thus satisfies the custody portion of court's sentence. (P.C. §§ 1203.016, subd.
(a), and 1203.017, subd. (a).) While the sheriff or custodial administrator may set
some conditions on the release, it is unlikely the conditions will be as stringent as
the ones ordered by the court for mandatory supervision. It is also likely that
supervision will be minimal or non-existent. The most effective way of
addressing this problem is to include a contingency provision in the original
sentence. Failure to anticipate this problem may allow the defendant to be
released into the community without any real supervision until the home release
portion of the custody part of the sentence has been served. If this problem is not
addressed as part of the original sentence, it is unlikely that the court will have the
jurisdiction to modify the timing of the mandatory supervision. A court may wish
to include the following language in the original sentencing order:
If the defendant is released for any reason from actual jail custody prior
to the custody period ordered by the court, the defendant is hereby
directed to report to the probation officer by the close of the next business
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day following release from custody to commence service of any period of
mandatory supervision ordered by the court. The court reserves
jurisdiction to modify the terms and conditions of mandatory supervision
upon the occurrence of the defendant’s early release.
The ____ County Sheriff is ordered to report all early releases of inmates
sentenced under section 1170, subdivision (h), to the ______ County
Probation Department and the ______ County Superior Court. The
sheriff shall direct the inmate, in writing, to appear in the _______ County
Superior Court in Department ___ at 8:30 a.m. on the first Monday
following the defendant’s release from actual custody.
Although the defendant will be out of custody sooner than desired, at least he or
she will be required to immediately start the period of mandatory supervision.
The court's authority
The authority of the court to prevent placement of a particular defendant on
electronic monitoring is governed by statute. Subdivision (e) of sections
1203.016 and 1203.017 specify: “The court may recommend or refer a person to
the correctional administrator for consideration for placement in the home
detention program. The recommendation or referral of the court shall be given
great weight in the determination of acceptance or denial. At the time of
sentencing or at any time that the court deems it necessary, the court may restrict
or deny the defendant's participation in a home detention program.” (See also
People v. Superior Court (Hubbard)(1991) 230 Cal.App.3d 287, 298.)
Custody credits
There is some question regarding the defendant's eligibility for conduct credits
while on electronic monitoring ordered by the correctional administrator. There is
no appellate case addressing entitlement to credits under section 1203.017 if the
defendant is put on electronic monitoring involuntarily as a result of jail
overcrowding. However, section 1203.017, subdivision (a), provides:
“Notwithstanding any other provision of law, upon determination by the
correctional administrator that conditions in a jail facility warrant the necessity of
releasing sentenced misdemeanor inmates prior to them serving the full amount of
a given sentence due to lack of jail space, the board of supervisors of any county
may authorize the correctional administrator to offer a program under which
inmates committed to a county jail or other county correctional facility or granted
probation, or inmates participating in a work furlough program, may be required
to participate in an involuntary home detention program, which shall include
electronic monitoring, during their sentence in lieu of confinement in the county
jail or other county correctional facility or program under the auspices of the
probation officer. Under this program, one day of participation shall be in lieu of
one day of incarceration. Participants in the program shall receive any sentence

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reduction credits that they would have received had they served their sentences in
a county correctional facility.” (Emphasis added.)
People v. Anaya (2007) 158 Cal.App.4th 608, denied conduct credits for persons
placed on electronic monitoring under section 1203.016. The court observed that
even if the defendant was serving a mandatory sentence, only actual time credit is
allowed: “[Section 2900.5, subdivision (f),] is not triggered unless a defendant
both serves time and is sentenced under a statute requiring mandatory minimum
jail time. Once the subdivision applies, it provides only that the time served
qualifies as mandatory jail time, not any other time.” (Id. at p. 614; emphasis
original.) At the time Anaya was decided, however, placement on electronic
monitoring under section 1203.016 was only voluntary; the realignment
legislation added the provision allowing involuntary placement in the program.
Although section 1203.016 does not contain a credit provision as found in section
1203.017, subdivision (a), a defendant involuntarily placed on electronic
monitoring under section 1203.016 may be able to assert a viable claim for a
denial of equal protection.
4)

The misdemeanor sentence

It is common for defendants to have misdemeanor charges pending along with a
felony. In many circumstances these crimes become “throw away” charges
during plea negotiations over the felony. If misdemeanors survive the settlement
of the case, and the defendant is sentenced to prison, they usually are ordered
served in county jail concurrently with the felony state prison sentence. It is not
clear what the court can or should do with misdemeanors when the defendant is
sentenced under section 1170, subdivision (h). Presumably the misdemeanor term
can be imposed and the court would have the discretion to order the term served
concurrently with or consecutively to the felony. If sentences under section 1170,
subdivision (h), are treated like prison terms, misdemeanor sentences should be
ordered served separately from the felony. Whether the misdemeanor is part of
the 1170, subdivision (h), sentence, or is ordered served separately, it is likely a
distinction without much difference to the defendant. The prospect of
incorporating misdemeanor dispositions into the settlement of the case, however,
may give the court and counsel additional avenues to resolve issues of custody
time, treatment, and mandatory supervision.
E.

Effective date of section 1170, subdivision (h)
Section 1170, subdivision (h)(6), specifies the subdivision will be effective for all
persons sentenced on or after October 1, 2011. This effective date should not be
confused with the effective date of changes made to the custody credit rules under
section 4019, which are applicable only to crimes committed on or after October
1, 2011. Although the changes to section 1170 will be applicable to crimes
committed prior to their effective date, there likely will be no ex post facto

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concerns since the changes result in a potential reduction of the penal
consequences to many crimes, assuming a county jail sentence is considered less
punitive than a prison sentence.
F.

Multiple counts, mixed punishment
Section 1170.1, subdivision (a), provides in part: “Whenever a court imposes a
term of imprisonment in the state prison, whether the term is a principal or
subordinate term, the aggregate term shall be served in the state prison, regardless
as to whether or not one of the terms specifies imprisonment in the county jail
pursuant to subdivision (h) of Section 1170.”
Section 1170.1, subdivision (a), only makes reference to “principal or
subordinate” terms, language applicable to consecutive sentences. It can be
argued these phrases have no application to concurrent terms. It is not clear
whether this distinction is significant. It is unlikely the Legislature intended to
require that mixed consecutive sentences be served in state prison, while giving
courts discretion when sentencing crimes concurrently to allow one crime to be
served in state prison and the other in county jail. The purpose of the statutory
language suggests that if the sentence for one crime must be served in prison, all
sentences must be served in prison, whether the sentences are being served
concurrently or consecutively. The imposition of concurrent county jail terms to
state prison commitments, however, is not unheard of. The practice is regularly
used in the disposition of misdemeanor crimes being sentenced with felonies.
While there is an argument that the plain language of the statute applies only to
consecutive sentences, the argument seems contrary to the underlying purpose of
the provision.
It is also not clear where the defendant is to serve a sentence if the base term
specifies disposition in county jail under section 1170, subdivision (h), but an
enhancement specifies the additional term is to be served in state prison. Section
12022.1, for example, imposes a two-year term in state prison if a crime is
committed while out on bail or own recognizance. If the underlying crime is
burglary in the second degree, a crime which specifies punishment in county jail
under section 1170, subdivision (h), a question remains as to where is the
sentence to be served.

G.

Additional issues
There are a number of residual issues regarding the scope and application of the
realignment legislation. Some of these issues will require either further cleanup
legislation or court interpretation.
1)

Application of the exclusion provisions

As noted above, a defendant may not be sentenced to county jail under the
realignment legislation if he has a prior or current California or out-of-state
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serious or violent felony conviction, is required to register as a sex offender under
section 290, or is sentenced for a crime with an enhancement for aggravated theft
under section 186.11. Because these exclusions are similar to the exclusions from
the enhanced custody credit provisions of sections 2933 and 4019, a review of the
custody credit case law may be helpful.
Sex Crime Registrants
The exclusion clearly will apply to all defendants who are being sentenced on a
current crime where registration is either mandatory or required as a matter of
discretion under section 290.006. Because the exclusion only applies if the
defendant “is required to register as a sex offender,” [emphasis added] the
defendant would be entitled to be sentenced under section 1170, subdivision (h),
if the court exercised its discretion not to require registration under section
290.006.
There may be a question whether the exclusion will apply to persons who are
required to register for a prior crime, and not because of the crime currently being
sentenced. The plain language of the statute suggests that anyone required to
register, whether or not for the current offense, will be excluded from sentencing
under section 1170, subdivision (h). So, for example, a defendant sentenced for
second degree burglary must be sentenced to state prison if he was previously
convicted of a sex offense and is subject to the registration requirement. Given
that the statutory wording is relatively clear and unambiguous, it seems likely that
trial courts will be required to follow its dictates. (California Fed. Saving & Loan
Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349.)
Defendants with current or prior serious or violent felony convictions
Defendants who have a current or prior serious felony conviction under section
1192.7(c), a violent felony conviction under section 667.5, subdivision (c), or an
out-of-state conviction that would qualify as a serious or violent felony conviction
under California law, must be sentenced to state prison.
Juvenile strikes
Because the statute limits the exclusion to defendants who have current or prior
serious or violent felony “convictions,” the restriction itself will not apply to
defendants having only juvenile “adjudications” that will qualify as strikes under
the Three Strikes law. (See People v. Pacheco (2011) 194 Cal.App.4th 343, 346.)
Indeed, cleanup legislation originally included an exclusion based on California
or out-of-state juvenile adjudications if the minor was 16 years old or older when
the crime was committed. The language was deleted after further legislative
hearings.

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Although the Legislature clearly intended that juvenile strikes not exclude a
defendant from a jail commitment under section 1170, subdivision (h), the
realignment legislation must be read with the provisions of the Three Strikes law.
Section 1170.12, subdivision (a) provides, in relevant part: "Notwithstanding any
other provision of law, if a defendant has been convicted of a felony and it has
been pled and proved that the defendant has one or more prior felony convictions,
as defined in subdivision (b) [including juvenile adjudications under subdivision
(b)(3)], the court shall adhere to each of the following: (4) There shall not be a
commitment to any other facility other than the state prison." (Emphasis added.)
Accordingly, whether a defendant with a juvenile strike must be sentenced to
prison or county jail, will depend on the court's handling of the strike. If the court
does not dismiss the strike under section 1385, the defendant must be sentenced to
state prison for the computed term, not because of the realignment exclusion, but
because of the requirements of the Three Strikes law. If the court does dismiss
the strike, then it would appear that the defendant would be eligible for a county
jail commitment under section 1170, subdivision (h).
It appears the court has the ability to dismiss a prior juvenile strike to make a
defendant eligible for a commitment under section 1170, subdivision (h).
Subdivision (f) of section 1170 provides: “Notwithstanding any other provision of
this section, for purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current conviction, sentence
enhancement, or because he or she is required to register as a sex offender shall
not be subject to dismissal pursuant to Section 1385.” (Emphasis added.)
Because the legislation bars only the dismissal of strike “convictions,” it would
not seem to restrict the ability of the court to dismiss juvenile strike
“adjudications.”
Whether disqualifying conditions must be pled and proved
As noted above, a commitment to county jail under section 1170, subdivision (h),
is unavailable to defendants who have current or prior violent or serious felony
convictions listed in sections 667.5, subdivision (c), and 1192.7, subdivision (c),
who are required to register as a sex offender, or who have a felony conviction
with an enhancement for aggravated theft under section 186.11. (§ 1170, subd.
(h)(3).) As the legislation now reads, it is not clear whether the People must
“plead and prove” the disqualifying factors.
One portion of section 1170 may suggest a duty to plead and prove any
disqualifying factor. Section 1170, subdivision (f) provides: “Notwithstanding
any other provision of this section, for purposes of paragraph (3) of subdivision
(h), any allegation that a defendant is eligible for state prison due to a prior or
current conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal pursuant to Section
1385.” (Emphasis added.) Whether the single reference to “allegation” under
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these circumstances is sufficient to imply a pleading and proof requirement is
open to interpretation. It is obviously the purpose of this provision to prevent trial
courts from dismissing disqualifying factors to allow a defendant to be committed
to county jail. It is not likely the Legislature intended the statute to impose a
pleading and proof requirement. When such a requirement is intended, the
Legislature clearly knows how to express it. (See, e.g., § 1170.12, subdivision
(a).)
There will be no issue if the defendant is actually charged with and found to have
committed a prior serious or violent felony, is being sentenced for a current
serious or violent felony, is being sentenced for a current crime that requires
registration as a sex offender, or is currently being sentenced for an enhancement
under section 186.11. The “pleading and proof” requirement, however, will be an
issue in all other circumstances. People v. Lara (2011) 193 Cal.App.4th 1393, and
People v. Jones (2010) 188 Cal.App.4th 165, holding there is a pleading and proof
requirement to be excluded from the enhanced custody credit provisions, have
been granted review or depublished by the Supreme Court. People v. James
(2011) 196 Cal.App.4th 1102, and People v. Voravongsa (2011) 197 Cal.App.4th
657, conclude there is no requirement to plead and prove the existence of a prior
disqualifying strike; both have been granted review.
A similar “pleading and proof” dispute arose regarding a defendant’s eligibility
for Proposition 36. Except in limited circumstances, a defendant with a prior
serious or violent felony conviction is not eligible for Proposition 36. (§ 1210.1,
subd. (b)(1).) In re Varnell (2003) 30 Cal.4th 1132, 1143, concluded the
prosecution is not required to plead and prove the disqualifying convictions. The
court also concluded no such duty was compelled by Apprendi v. New Jersey
(2000) 530 U.S. 466. (Id. at pp. 1141-1142.) Finally, it should be recalled that
Apprendi and its progeny have only been applied in determining the maximum
sentence a person is ordered to serve; they never have been applied to such things
as the calculation of the minimum term of custody, and certainly not when the
only issue is where the term is to be served. (See, e.g., where Blakely v.
Washington (2004) 542 U.S. 296, 304-305, expressly distinguished its
circumstances from those in McMillan v. Pennsylvania (1986) 477 U.S. 79, where
the court imposed a statutory minimum if particular facts were found.)
While the appellate decisions regarding the pleading and proof requirement for a
denial of enhanced custody credit may be helpful, there is a significant difference
between that issue and the exclusion of a defendant from sentencing under section
1170, subdivision (h). As both Jones and Lara observe, the reduction of custody
credit translates into a direct increase in the amount of time the defendant serves
in custody. The realignment legislation, however, does not change the amount of
time to be served, only where it is to be served. Courts may be less willing to find
a pleading and proof requirement under these circumstances, particularly in the
absence of express legislation imposing such a duty.

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Use of section 1385 to dismiss disqualifying factors
As noted above, subdivision (f) of section 1170 provides: “Notwithstanding any
other provision of this section, for purposes of paragraph (3) of subdivision (h),
any allegation that a defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to register as a
sex offender shall not be subject to dismissal pursuant to Section 1385.” Clearly
the Legislature intends that judges generally not be permitted to dismiss
disqualifying factors to make a defendant eligible for a county jail commitment
under section 1170, subdivision (h). Nothing in the legislation, however, suggests
any intent to otherwise restrict the exercise of the court’s discretion under section
1385.
It appears the court has the ability to dismiss a prior juvenile strike to make a
defendant eligible for a commitment under section 1170, subdivision (h).
Because section 1170, subdivision (f) bars the dismissal of only strike
“convictions,” it would not seem to restrict the ability of the court to dismiss
juvenile strike “adjudications.”
2)

Application of section 1170, subdivisions (d) and (e)

Section 1170, subdivision (d), permits the court to recall a commitment to state
prison within 120 days of the date of sentencing. Section 1170, subdivision (e),
provides a process for the compassionate release of prisoners sentenced to prison
at any time during the term. Neither of these statutory provisions mentions a
commitment to county jail under section 1170, subdivision (h). Although
commitments to county jail are not mentioned, it is likely such defendants have a
viable claim to the benefits of these provisions as a matter of equal protection. It
seems illogical to deny these procedures to the less serious offenders sent to
county jail, but grant them to the more serious offenders sent to state prison.
This issue may be resolved as a matter of jurisdiction. Absent the exercise of
discretion under section 1170, subdivision (d), the court loses jurisdiction to
modify a state prison sentence once imposed and the defendant is received in state
prison custody. (See Portillo v. Superior Court (1992) 10 Cal.App.4th 1829,
1835-1836.) It is unclear whether the superior court loses jurisdiction over a
defendant confined in a county jail under section 1170, subdivision (h).
Jurisdiction may remain if the sentence imposed is a “split” or “blended” sentence
under the provisions of subdivision (h)(5)(B), where the court has jurisdiction to
remand the defendant into further custody if there is a violation of the conditions
of mandatory supervision or there is a need to modify the conditions of
supervision.

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3)

Crimes committed in county jail

Section 1170.1, subdivision (c), requires a full consecutive term for crimes
committed in state prison, not simply a subordinate consecutive term limited to
one-third the mid-base term. Commitments under section 1170, subdivision (h)
are not mentioned. It is not clear whether the omission is intentional or
inadvertent. As the statute now reads, if a crime is committed while a defendant
is committed under section 1170, subdivision (h), the court could only impose a
traditional consecutive sentence, generally limited to one-third the mid-base term.
4)

Reconciliation of realignment legislation with probation ineligibility
statutes

A number of statutes prohibit the granting of probation for certain crimes or
offenders. (See, e.g., §§ 1203.07, subd. (a), and 1203.073, subd. (b) [specified
drug offenses].) Nothing in the realignment legislation appears inconsistent with
these statutes. A commitment under section 1170, subdivision (h), is the
equivalent of a state prison commitment. It may only be ordered after probation is
expressly denied by the court. The new sentencing provisions apply only when
the court has determined not to grant probation, but to impose the statutory
sentence. The amendment to section 667.5, subdivision (b), makes commitments
under section 1170, subdivision (h), priorable as an enhancement, a consequence
not applicable to traditional grants of probation. Supervision under a “split” or
“blended” sentence under section 1170, subdivision (h)(5)(B), unlike probation, is
mandatory; the defendant may not legally refuse the supervision. The fact that the
sentence is served in county jail rather than state prison or allows post-release
supervision by the probation officer does not mean the court is granting probation
in violation of the statutes that prohibit such a disposition.
The original language of subdivision (h)(5) created an ambiguity because it
specified the defendant was to serve “a period of mandatory probation.” The
reference to “probation” has been eliminated.
The potential conflict between the statutes prohibiting probation and section 1170,
subdivision (h)(5), if a conflict exits, likely is fairly limited. Defendants who
would be ineligible for probation because of the Three Strikes law, use of guns, or
specified sex crimes would be excluded in any event by the disqualifiers in
section 1170, subdivision (h)(3).
5)

Exercise of discretion under section 17, subdivision (b)

Since the realignment legislation changes only the place where a sentence is to be
served, there will no change in the court’s ability to specify “wobbler” offenses as
a misdemeanor under section 17, subdivision (b). The court will have the ability
to specify an offense as a misdemeanor under all of the traditional circumstances.
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For example, subdivision (b) now provides: “When a crime is punishable, in the
discretion of the court, either by imprisonment in the state prison or imprisonment
in a county jail under the provisions of subdivision (h) of Section 1170, or by fine
or imprisonment in the county jail, it is a misdemeanor for all purposes under the
following circumstances: (1) After a judgment imposing a punishment other than
imprisonment in the state prison or imprisonment in a county jail under the
provisions of subdivision (h) of Section 1170.” Accordingly, so long as the court
has not imposed either an actual or suspended sentence to state prison or under
section 1170, subdivision (h), the court retains jurisdiction to specify a wobbler as
a misdemeanor. But if a defendant is either sentenced to state prison or county
jail under section 1170, subdivision (h), or the court suspends execution of a state
prison sentence or a sentence under section 1170, subdivision (h), the court will
have no jurisdiction later to specify an offense as a misdemeanor.
6)

Execution of a prior suspended sentence

It is common for courts to impose a state prison sentence, but suspend its
execution pending satisfactory completion of probation. It is unclear what the
court should do with these sentences if they are ordered into execution on or after
October 1, 2011, but the crime is now punishable under section 1170, subdivision
(h). The traditional rule specifies 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 persons sentenced 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
well be entitled to the benefits of the change as a matter of equal protection.
7)

Status of defendants sentenced to state prison prior to October 1, 2011

As noted above, the realignment legislation relative to sentencing under section
1170, subdivision (h), applies to all persons sentenced on or after October 1,
2011. The specification of the effective date constitutes a “savings clause” which
prevents its application to sentencing proceedings prior to the designated date.
(See People v. Rossi (1976) 18 Cal.3d 295.)
A timely application for recall of a sentence under section 1170, subdivision (d),
may constitute a sentencing proceeding for the purpose of applying the new law
to the case. Beyond that process, however, inmates sentenced under the old law
only have a possible argument based on a denial of equal protection of the law.
Such arguments have not been favorably received. (See, e.g., In re Stinnette
(1979) 94 Cal.App.3d 800, 804-805.)

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8)

Crimes punishable by “state prison” or “pursuant to subdivision (h) of
Section 1170”

Under the law prior to realignment, it has been well understood that if a statute
specifies a crime punishable in “state prison” without a designated triad, the
sentence is 16 months, 2, or 3 years in prison. (§ 18.) Following realignment
legislation, section 18, subdivision (a), now reads: “Except in cases where a
different punishment is prescribed by any law of this state, every offense declared
to be a felony is punishable by imprisonment for 16 months, or two or three years
in the state prison unless the offense is punishable pursuant to subdivision (h) of
section 1170.” Accordingly, if the statute simply specifies punishment in “state
prison” without a designated triad, the crime is punishable by 16 months, or two
or three years in state prison. If the statute simply specifies punishment “pursuant
to subdivision (h) of Section 1170,” the crime is punishable by 16 months, or two
or three years in county jail.
9)

Commitment under section 1170, subdivision (h)(5) as a “prior” under
section 667.5, subdivision (b)

Section 667.5, subdivision (b), has been amended to specify that commitments
under section 1170, subdivision (h) qualify for the one-year enhancement for prior
“prison” terms, whether the person is committed to state prison or county jail.
Section 667.5, subdivision (b), expressly provides that a “split” or “blended”
sentence imposed under section 1170, subdivision (h)(5)(B), qualifies as a
chargeable prior conviction.
It is not entirely clear how the five-year “washout” under section 667.5 is
calculated when the court imposes a blended sentence under section 1170,
subdivision (h)(5)(B). The statute provides, in relevant part: “no additional term
shall be imposed under this subdivision for any prison term or county jail term of
more than one year imposed or when sentence is not suspended prior to a period
of five years in which the defendant remained free of both the commission of an
offense which results in a felony conviction, and prison custody or the imposition
of a term of jail custody of more than one year or any felony sentence that is not
suspended.” (Emphasis added.) It is unclear whether the five-year period starts
to run when the split sentence is “imposed,” as suggested by a literal application
of the statute, or does it mean after the actual custody portion is served, or only
after the entire sentence has been served, including any period of mandatory
supervision. The statute references being free from custody, which suggests the
period might start with the end of the custody portion of the sentence. But
mandatory supervision is not the same as parole because in the former situation
the supervision period is considered part of the sentence being served.
Section 1213, subdivision (a), has been amended to require the preparation of
appropriate documentation for all county jail commitments under section 1170,
subdivision (h): “either a copy of the minute order or an abstract of the judgment
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as provided in Section 1213.5, certified by the clerk of the court, and a Criminal
Investigation and Identification (CII) number shall be forthwith furnished to the
officer whose duty it is to execute the probationary order or judgment, and no
other warrant or authority is necessary to justify or require its execution.”
Presumably the abstract can be used by other courts and district attorneys in
determining the existence of a county jail prior under section 667.5, subdivision
(b).
10)

Prior convictions in another jurisdiction (§ 668)

Section 668, which deals with the use of prior convictions in other states, has been
amended to specifically cross-reference commitments under section 1170,
subdivision (h). Accordingly, prior convictions obtained in other jurisdictions
may be used for commitments under section 1170, subdivision (h), as if the prior
conviction had occurred in California.
11)

Restitution fines

Imposition of restitution fines under sections 1202.4, subdivision (b), 1202.44 and
1202.45 in some respects are different after October 1, 2011.
Misdemeanors
No change in the current law.
Felonies when defendant placed on probation
Where imposition of sentence has been suspended, there will be no change in the
process. The court will impose the basic restitution fine of $200 to $10,000 under
section 1202.4, subdivision (b). The court will impose a probation revocation fine
in the same dollar amount under section 1202.44.
If the court imposes a suspended state prison sentence, the court should impose
the basic assessment under section 1202.4, subdivision (b), a probation revocation
fine in the same dollar amount under section 1202.44, and a parole revocation fine
in the same dollar amount under section 1202.45.
If the court imposes a suspended term under section 1170, subdivision (h),
whether or not a “split” sentence, the court should impose only the basic
restitution fine under section 1202.4, subdivision (b) and the probation revocation
fine under section 1202.44. The parole revocation assessment should not be
imposed because there is no parole on a commitment under section 1170,
subdivision (h).

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Felonies when defendant committed to state prison or under section 1170,
subdivision (h)
When the court denies probation and sentences the defendant to state prison, the
court should impose the basic restitution fine under section 1202.4, subdivision
(b), and the parole revocation fine under section 1202.45. If the defendant had
previously been on probation, the court should order into execution the probation
revocation fine under section 1202.44.
Where the court denies probation and sentences the defendant to county jail under
section 1170, subdivision (h), whether or not a “”split” sentence, the court should
only impose the basic restitution fine under section 1202.4, subdivision (b). The
probation revocation fine under section 1202.44 should not be imposed because
there is no probation. The parole revocation fine under section 1202.45 should
not be imposed because there is no parole. If the defendant had previously been
on probation, the court should order into execution the previously imposed
probation revocation fine under section 1202.44.
12)

Expansion of home detention programs

The realignment legislation amended section 1203.016, subdivision (a), to permit
county boards of supervisors to expand the use of home detention programs.
Previously these programs where limited to “minimum security inmates and lowrisk offenders.” Now, with the approval of the board of supervisors, the program
may be made available to all inmates confined in the county jail. The program,
which can either be voluntarily accepted by the inmate or imposed involuntarily,
will be administered by the local “correctional administrator.” The new provision
allowing involuntary placement on home detention is in addition to the
involuntary placement under section 1203.017 which is triggered by jail
overcrowding.
13)

Contracts with Department of Corrections and Rehabilitation

Penal Code section 2057 permits counties to contract with CDCR for the housing
of any felon. There is no restriction on the type of felon that could be transferred
to CDCR under this arrangement. The statute is silent as to any of the specific
terms of the contract, including such matters as cost and length of the commitment.
Presumably the contract could relate to a single individual or group of persons.
There has been a suggestion that such arrangements may violate the equal
protection clause if an inmate is singled out for special housing.
Section 4115.56 allows the counties to contract with CDCR for housing of prison
inmates in the county jail during the final 60 days of their term for the purpose of
providing “reentry and community transition” services. Such a transfer places the
inmates under the exclusive jurisdiction of the local county facilities.
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14)

Cases from multiple jurisdictions

The realignment legislation is wholly silent on the issue of sentences from
multiple jurisdictions. If a defendant is convicted of vehicle theft in County A,
and later is convicted of second degree burglary in County B, it is unclear how the
sentence to be structured and where the custody time is to be served. The cases
would be handled in the traditional manner if both counties granted probation.
The process is not at all clear if the two counties sentence the defendant under
section 1170, subdivision (h). Since the rules regarding the structure of the
sentence under section 1170.1 have not been changed, the second sentencing
judge will have the jurisdiction to determine whether there will be a consecutive
or concurrent sentencing structure. Section 1170.1, subdivision (a), governs
multiple count and multiple case sentencing, whether the commitment is to state
prison or county jail: “when any person is convicted of two or more felonies,
whether in the same proceeding or court or in different proceedings or courts, and
whether by judgment rendered by the same or by a different court, and a
consecutive term of imprisonment is imposed under Sections 669 and 1170, the
aggregate term of imprisonment for all these convictions shall be the sum of the
principal term, the subordinate term, and any additional term imposed for
applicable enhancements for prior convictions, prior prison terms, and Section
12022.1.” (Emphasis added.) Beyond that, however, there is no existing rule or
procedure to answer the following questions:
 Where is the sentence to be served if the second judge determines a
consecutive sentence is appropriate? Is it the last county to sentence? Can the
second judge impose the term, then remand the defendant to the first county to
serve the first sentence?
 Where is the sentence to be served if the second judge determines a
concurrent sentence is appropriate? Is the entire sentence served in the second
county? Does custody follow the longest term?
 What if one county decides to contract with the Department of Corrections
and Rehabilitation for the placement of defendant in state prison? Must the other
county pay for any of the costs of custody?
 What if one county imposes a straight term in custody under section 1170,
subdivision (h)(5)(A), but the other county imposes a “split” sentence under
subdivision (h)(5)(B)?
There are no clear answers to any of these questions. Hopefully they will be
addressed by the Legislature in further cleanup legislation.

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15)

Commitments to the California Rehabilitation Center (Welf. & Inst. §§
3050, et seq.)

Nothing in the realignment legislation appears to limit the ability of the court to
commit a defendant to the California Rehabilitation Center (C.R.C.) as a narcotics
offender. Welfare and Institutions Code, section 3051 provides, in relevant part,
“Upon conviction of a defendant for a felony, or following revocation of
probation previously granted, and upon imposition of sentence, if it appears to the
judge that the defendant may be addicted or by reason of repeated use of narcotics
may be in imminent danger of becoming addicted to narcotics the judge shall
suspend the execution of the sentence and order the district attorney to file a
petition for commitment of the defendant to the Director of Corrections for
confinement in the narcotic detention, treatment, and rehabilitation facility unless,
in the opinion of the judge, the defendant’s record and probation report indicate
such a pattern of criminality that he or she does not constitute a fit subject for
commitment under this section.”
Nothing in section 3051 conditions the defendant’s qualification on a potential
commitment to state prison. If after hearing the court determines the defendant is
not qualified for commitment as a narcotics offender, section 3051 specifies the
defendant is to be returned to court “for the ordering of execution of sentence.”
Again, state prison is not mentioned. The only other instance where state prison
is a potential factor in the sentence relates to a defendant’s ineligibility for
commitment to C.R.C. Section 3052, subdivision (a)(2), excludes any defendant
who has a sentence that “exceeds six years’ imprisonment in state prison.” It is
not clear whether a sentence to county jail under section 1170, subdivision (h),
would trigger the six-year limit. At the very most, it may be implied that the
sentence under section 1170, subdivision (h), must not be longer than six years.
Unless the defendant is otherwise excluded from C.R.C. because of a factor listed
in section 3052 or because of excessive criminality, there appears no reason to
deny a defendant a commitment as a narcotic addict for any crime which remains
punishable in state prison. For the reasons indicated above, defendants convicted
of crimes punishable under section 1170, subdivision (h), also appear to be
eligible for such a commitment.
16)

Restitution to the victim

The law imposes a different scope of victim restitution on the defendant
depending on whether the defendant's sentence is to state prison or probation.
Under section 1202.4, the restitution obligation is limited to the loss arising out of
the criminal activity that formed the basis of the conviction. The restitution
obligation under a grant of probation, however, can be much broader. In People
v. Anderson (2010) 50 Cal.4th 19, 29, the Supreme Court observed: “Trial courts
continue to retain authority to impose restitution as a condition of probation in
circumstances not otherwise dictated by section 1202.4. In both sections 1203.1
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and 1202.4, restitution serves the purposes of both criminal rehabilitation and
victim compensation. But the statutory schemes treat those goals differently.
When section 1202.4 imposes its mandatory requirements in favor of a victim's
right to restitution, the statute is explicit and narrow. When section 1203.1
provides the court with discretion to achieve a defendant's reformation, its ambit
is necessarily broader, allowing a sentencing court the flexibility to assist a
defendant as the circumstances of his or her case require.”
It is not clear from the realignment legislation that a sentence to county jail under
section 1170, subdivision (h), will be the equivalent of a state prison sentence for
the purpose of victim restitution under section 1202.4. Because sentences under
section 1170, subdivision (h), are otherwise being treated as prison sentences,
likely such sentences will be considered prison sentences for the purpose of
determining the proper scope of restitution.

H.

Custody credits
1)

Sentences to county jail

The 2011 Realignment Legislation amends section 4019 to specify, without any
exclusion, that inmates who are sentenced to four or more days are to receive two
days of conduct credit for every four days of actual custody time served in county
jail. (§ 4019, subd. (b) and (c).) In other words, for every two days of actual time
in custody, four days will have been deemed served, or essentially half-time
credit. (§ 4019, sub. (f).) The change is made effective for all crimes committed
on or after October 1, 2011. The effective date of this change should not be
confused with the effective date of the changes related to section 1170,
subdivision (h), which are effective as to all crimes sentenced after October 1,
2011.
The Legislature eliminated the exclusions based on the defendant having a prior
adult serious or violent felony conviction, being sentenced for a serious felony, or
being required to register as a sex offender under section 290.
The new provisions of section 4019 will be applicable to all sentences served in
county jail, including misdemeanor sentences, all felony sentences imposed and
served as a condition of probation, and all sentences imposed as a result of a
violation of parole or Post-Release Community Supervision (PRCS), where the
underlying crime occurred on or after October 1, 2011. The new provisions also
will apply to all pre and post-sentence credit for persons serving a term in county
jail under section 1170, subdivision (h), for a crime committed on or after October
1, 2011. (§ 4019, subd. (a)(6).)
No conduct credit is given a defendant on PRCS who is serving a period of “flash
incarceration” imposed by the probation officer under sections 3000.08 and 3454.
(§ 4019, subd. (i).)
Rev. 1/5/12

26

2)

Sentences to state prison

Section 4019 will govern the defendant’s entitlement to any pre-sentence credit.
Unless otherwise limited by such statutes as sections 2933.1 [violent felony] and
2933.2 [murder], the pre-sentence credit for persons sent to state prison will be
four days of total credit for every two days served.
Section 2933, subdivision (b), governs post-sentence credit for persons sent to
state prison: for every six months of actual custody, the defendant is awarded an
additional six months of conduct credit. Unless otherwise limited, all inmates
serving a sentence in state prison will receive the same credit. The realignment
legislation eliminated the exclusions based on the fact the defendant has a prior
adult serious or violent felony conviction, is being sentenced for a serious felony,
or is required to register as a sex offender under section 290.
3)

Credit for sentences imposed after October 1, 2011, for crimes
committed prior to the effective date

As noted above, the new credit provisions are effective only as to crimes
committed on or after October 1, 2011. Any custody credit earned prior to
October 1, 2011, is to be governed by the applicable prior law. (§ 4019, subd.
(h).) Accordingly, when sentencing a defendant after October 1, 2011, for a
crime occurring prior to that date, the court must look to the formula applicable to
the time when the crime was committed. In other words, the court should
determine when the crime occurred (or in cases of a violation of probation, when
the underlying crime occurred), then determine the applicable credit formula.
The only “gap” in the prior law concerns sentences imposed after October 1,
2011, where the defendant is sentenced to county jail under the provisions of
section 1170, subdivision (h); that section did not exist prior to October 1, 2011.
In absence of further corrective legislation or appellate review, it is suggested the
defendant receive pre and post-sentence credit based on the formula applicable to
state prison commitments for the indicated period. Except as to where the
sentence is served, commitments under section 1170, subdivision (h), are being
treated the same as state prison commitments. It would seem reasonable for the
defendant to receive “state prison” credit during this transition period.
4)

Violations of probation

Because the most recent changes to section 4019 are limited to crimes committed
on or after October 1, 2011, the newest rules will have no application to violations
of probation when the underlying crime occurred prior to that date. Courts must
look to the prior law to determine the applicable formula. The new provisions,
however, will apply to violations of probation when the underlying crime
occurred on or after October 1, 2011.

Rev. 1/5/12

27

The changes made by the realignment legislation must be viewed in context with
all of the amendments to section 2933 and 4019. Please refer to the separate
memorandum on custody credits: “Awarding Conduct Credits Under P.C. §§
4019 and 2933 After October 1, 2011,” by Couzens and Bigelow.

Rev. 1/5/12

28

1.

APPENDIX I: Table of Crimes Requiring Commitment
to County Jail

PLEASE NOTE: The following table was prepared with the assistance of Michael B.
Silverman, Supervising Deputy District Attorney, County of Riverside. It is our
attempt to locate all crimes that now include “punishment pursuant to subdivision (h)
of Section 1170 of the Penal Code.” The material has been prepared from several
different sources. It is incumbent upon the court and counsel to verify where a
sentence imposed after October 1, 2011, must be served.
Penal Code
33
38
67.5(b)
69
71
72
72.5
76
95
95.1
96
99
107
109
113
114
115.1
126
136.7
137(b)
139
140
142
146a(b)
146e(b)
148(b),(c),(d)
148.1
148.3(b)
148.4(b)
148.10
149
153(1), (2)

Rev. 1/5/12

156
157
168
171c(a)(1)
171d
181
182
186.10
186.28
191.5(c)(2)
193(b)
193.5(b)
210.5
217.1(a)
218.1
219.1
237(a)
241.1
241.4
241.7
243(c),(d)
243.1
243.6
244.5
245.6(d)
246.3(a)
247.5
261.5(c),(d)
265
266b
266g
271

271a
273.6(d),(e)
273.65(d),(e)
273d
278
278.5
280(b)
284
288.2
290.4(c)(1)
290.45(e)(1)
290.46(j)(2)
311.9
313.4
337.3
337.7
337b
337c
337d
337e
337f
350(a)(2),(b),(c)
367f
367g
368(d),(e),(f)
374.2
374.8
375(d)
382.5
382.6
386
387
399.5
404.6(c)
29

405b
417.3
417.6
422.7
453
461(b)
463
464
470a
470b
473
474
478
479
480
481
483.5
484b
484i
487b
487d
489(b)
496
496a
496d
499c
499d
500(b)(2)
502(d)(1),(2)(B),(3)(C),
(4)(B)
506b
520
529
529a
530.5(a),(c)(2),(3),(d)
532a(4)
532f
533
535
537e(a)(3)
538.5
548
549
550(c)(1),(2)(A),(3)
551(c),(d)
560

Rev. 1/5/12

560.4
566
570
577
578
580
581
587
587.1(b)
591
593
594(b)(1)
594.3
594.35
594.4(a)
597
597.5(a)
600(a), (c), (d)
601
610
617
620
621
625b(b)
626.9(f),(h),(i)
626.95
626.10(a)(1), (b)
629.84
631
636
637
647.6(b),(c)
653f(a),(c),(d),(e)
653h
653j
653s
653t
653u
653w(b)(1),(3)
664(a)
666(a)
666.5
836.6
1320(b)
1320.5
2772

2790
4011.7
4131.5
4502
4533
4536
4550
4573
4573.6
4573.9
4574(a),(b)
4600
11411(c),(d)
11413
11419
12025(b)(1),(2),(5),(6)
12035(d)(1)
12040
12072(g)(2),(3),(4)
12076
12090
12101
12220
12280(a),(b)
12281
12303.3
12303.6
12304
12312
12320
12355
12370
12403.7
12422
12520
18715
18720
18725
18730
18375(c)
18740
20110
22810
22910
23900
25110(a)

30

25300
25400(c)(5),(6)
25850(c)(6)
27590(b),(c),(d)
28250(b)

29700(a)
30315
30600
30605(a)
30725

31360
32625
33410

Business & Professions Code

Corporations Code

585
650(g)
654.1
655.5(f)
729(b)(3), (b)(4), (b)(5)
1282.3(b)
1701
1960
2052(a)
2315(b)
4324(a), (b)
5536.5
6126(b), (c)
6153
6788
7028.16
7739
10238.6
11020(b)
11023
11286 (b)
11287
11320
16755(a)(2)
17511.9(b)
17550.19(b)
22430(d)
25618

2255(c)
2256
6811
6814
8812
8815
12672
12675
22002(c)
25540
25541
27202
28880
29102
29550(a), (b)
31410
21411
35301

Civil Code
892(a),(b)
1695.8
1812.125
1812.217
2945.7
2985.2
2985.3

Rev. 1/5/12

Education Code
7054(c)
Election Code
18002
18100
18101
18102
18106
18200
18201
18203
18204
18205
18310
18311
18400

31

18403
18502
18520
18521
18522
18523
18524
18540
18544
18545
18560
18561
18564
18566
18567
18568
18573
18575
18578
18611
18613
18614
18620
18621
18640
18660
18661
18680
Finance Code
3510
3532
5300
5302
5303
5304
5305
5307
10004
12102
14752
17700
18349.5
18435
22753

Rev. 1/5/12

22780
31880
50500
Fish & Game Code
20004(b)
20005(a)(2)
Food & Agriculture
17701
18932
18933
19440
19441
80174
Government Code
1368
1369
3108
3109
5954
6200
6201
8670.64(a), (c)
9056
27443
51018.7(a)
Harbors & Navigation Code
264(b)
310
668(c)(1),(g)
Health & Safety
1390
1522.01 (c)
1621.5(a)
7051
7051.5
8113.5(b)(2),(b)(3)

32

8785
11100 (f)(2)
11100.1(b)(2)
11105
11153(b)
11153.5(b)
11162.5(a)
11350(a),(b)
11351
11351.5
11352
11353.5
11353.6 (c)
11353.7
11355
11357(a)
11358
11359
11360 (a)
11366.5 (a),(b),(c)
11366.6
11366.8 (a),(b)
11370.6 (a)
11371
11371.1
11374.5 (a)
11377 (a)
11378
11378.5
11379
11379.5
11379.6 (a),(c)
11380.7 (a)
11382
11383 (a),(b),(c),(d)
11383.5 (a) thru (f)
11383.6 (a),(b),(c),(d)
11383.7 (a) thru (f)
12401
12700 (a),(b)(3),(b)(4)
17601(b)
18124.5
25180.7(c)
25189.5 (b), (c), (d), (e)
25189.6
25189.7(b), (c)

Rev. 1/5/12

25190
25191(a)(2)
25395.13(b)
25515(a)
25541
42400.3(c)
44209
100895(b)
109335
115215(b), (c)
116730(b)
116750(a), (b)
118340(c), (d)
131130(b)
Insurance Code
700(b)
750(b)
833
1043
1215.10(d), (e)
1764.7
1814
1871.4(b)
10192.165(e)
11161
11162
11163
11760(a)
11880
12660
12845
Labor Code
227
6425(c)
7771
Military & Veterans Code
145
1318
1672(b)
1673

33

Public Contract Code

60637

10283
10873

Unemployment Insurance Code
2118.5

Public Resources Code
Vehicle Code
5097.99 (b), (c)
14591(b)(2)
25205(g)
48680(b)(1)
Public Utilities Code
7680
7724
7903
21407.6(b)
Revenue & Taxation Code
7093.6(n)
7093.6(j)
9278(n)
9278(j)
14251
16910
18631.7(d)(2)
19705
19708
30459.15
32471.5
32555
38800
40211.5
41171.5
43522.5
43606
45867.5
45955
46628
46705
50156.18
5532.5
55363

Rev. 1/5/12

2478(b)
2800.4
4463(a)
10501(b)
10752 (c)
10801
10802
10803
10851
21464 (a)
21651 (c)
23104(b)
23105(a)
23109.1 (a)
23550(a)
42000
Water Code
13387
Welfare & Institutions Code
871.5 (a)
1001.5 (a)
1768.7 (b)
1768.85 (a)
3002
7326
8100(g)
8101 (a), (b)
8103(i)
10980(b),(c)(2), (d), (g),(h)(1)(A)-(C)
14107.2 (a)(2), (b)(2)
14107.3
14107.4 (b), (e)
17410

34

2.

APPENDIX II: Table of Crimes Requiring Commitment
to State Prison

PLEASE NOTE: The following table represents the authors’ best attempt at
identifying the crimes that must be sentenced to state prison. The material has been
prepared from several different sources. It is incumbent upon the court and counsel
to verify where a sentence imposed after October 1, 2011, must be served.

Penal Code
67
68
85
86
92/93
141(b)
165
186.11
186.22
186.26
186.33
191.5(c)(1)
222
243.7
243.9
245
245(d)
266a
266e
266f
266h
266i
266j
273a
273ab
273.4
273.5
290.018
298.2

Rev. 1/5/12

Bribing an executive officer
Executive or ministerial officer accepting a bribe
Bribing a legislator
Legislator accepting a bribe
Judicial bribery
Peace officer intentionally planting evidence
Local official accepting a bribe
Felony conviction with aggravated theft enhancement
Criminal street gangs
Street gang activity
Gang registration violation
Vehicular manslaughter while intoxicated
Administering stupefying drugs to assist in commission of a felony
Battery against a juror
Gassing a peace officer or local detention facility employee
Assault with a deadly weapon or force likely to inflict GBI
Assault on peace officer
Abduction or procurement by fraudulent inducement for
prostitution
Purchasing a person for the purpose of prostitution or placing a
person for immoral purposes
Sale of a person for immoral purposes
Pimping and pimping a minor
pandering and pandering with a minor
Procuring a child under 16 for lewd or lascivious acts
Felony child abuse likely to cause GBI or death
Assault resulting in death of a child under age 8
Female genital mutilation
Felony domestic violence
Sex offender registration violations
Knowingly facilitating the collection of wrongfully attributed
DNA specimens
35

299.5
347
368b
417(c)
417.8
422
424
452
455
504/514
598c
598d
600(d)
646.9
653f(b)
666(b)
4501.1
4530
4532
11418
12020
12021/12021.1
12021.5(b)(3),(4)
12022(b)
12022.5
12022.9
12025(b)(3)
12303.1/12303.2

Wrongful use of DNA specimens
Poisoning or adulterating food, medicine, drink, etc.
Felony physical abuse of elder or dependent adult
Brandishing firearm in presence of peace officer
Felony brandishing firearm or deadly weapon to avoid arrest
Criminal threats
Misappropriation of public funds
Arson of inhabited structure or property
Burning forest land or property
Embezzlement of public funds
Possession or importation of horse meat
Offering horse meat for human consumption
Harming or interfering with police dog or horse causing GBI
Felony stalking
Solicitation for murder
Petty theft with specified prior convictions
Gassing
Escape from prison facility
Escape
Use of weapon of mass destruction
Possession of specified weapons
Possession of a firearm by prohibited person
Carrying firearm with detachable magazine
Using a deadly weapon in commission of felony
Using a firearm in commission of felony
Infliction of injury causing termination of pregnancy
Carrying concealed firearm by gang member
Possession of an explosive or destructive device

Elections Code
18501

Public official who aids and abets voter fraud

Government Code
1090/1097
1195
1855

Conflict of interest by public officer or employee
Taking subordinate pay
Destruction of documents

Health and Safety Code
11353
11354
11361(a) & (b)
11370.1
11380(a)
Rev. 1/5/12

Employment of minor to sell controlled substance
Employment of minor to sell controlled substance
Employment of minor to sell marijuana
Possession of a controlled substance while armed with firearm
Use of minor to transport/possess/possess for sale
36

120291

Knowingly exposure of person to HIV

Vehicle Code
2800.2
2800.3
20001
23109(f)(3
23110(b)
23153
23550.5

Reckless evading a police officer
Evading a peace officer causing death or serious bodily injury
Hit and run driving causing death or injury
Causing serious bodily injury during speed contest
Throwing object at motor vehicle with intent to cause GBI
Driving under the influence causing injury
Driving under the influence with designated priors

In addition to the foregoing specific crimes, any felony that does not specify
punishment in accordance with section 1170, subdivision (h), is punished in state
prison. (Section 18, subd. (a).)
In addition to the forgoing specific crimes, a defendant convicted of any felony
under any of the following circumstances must be sentenced to state prison
(P.C. § 1170(h)(3)):
1.

Conviction of a current or prior serious or violent felony conviction listed in
sections 667.5(c) or 1192.7(c);

2.

When the defendant is required to register as a sex offender under section 290;
or

3.

When the defendant is convicted and sentenced for aggravated theft under the
provisions of section 186.11.

Rev. 1/5/12

37