Realignment: What Is It, and Why Do I Care?

Hon. John W. Kennedy

You may have heard politicians, newscasters, and government honchos talk about “realignment” and wondered what they are taking about.  It sounds like something your chiropractor would do.  This is different; it is much less painful.

The realignment legislation, initially proposed by Governor Brown and enacted by the Legislature in Assembly Bill 109, fundamentally shifts responsibility for housing and supervision of many convicted felons from state prison and the Parole Board to our county jails and Probation Office, respectively.  If you practice any criminal law, you will want to educate yourself on the details so you can better represent your clients.  If you do not practice criminal law, you may be interested in learning how this legislation affects our public safety, state and county budgets, and criminal justice agencies.  If you are not interested, now would be a good time to check out the Coffee Talk page.

The realignment legislation established in each county an Executive Committee to develop a Public Safety Realignment Implementation Plan.  In Contra Costa, the Executive Committee is comprised of our Chief Probation Officer, Phil Kader (Chair), our Presiding Judge Diana Becton, our Director of Health Services Cynthia Belon, our Public Defender Robin Liptezky, our Sheriff-Coroner David Livingston, our District Attorney Mark Peterson, and a representative of local law enforcement, Richmond Police Chief Chris Magnus.  The Legislature provided each county with funding for implementation of AB 109.  Unfortunately, the funding formula was based on the number of defendants typically sentenced to state prison in each county.  Because the Bay Area Counties historically have been “high efficiency” counties – that is, we send a relatively small portion of those convicted of felonies in our counties to state prison – we received a relatively small portion of the funding.  Contra Costa County received $4,593,231.  The Executive Committee recommended and the Board of Supervisors adopted a budget allocating these funds among the participating agencies.

Under the realignment legislation, sentences for many less serious felonies will be served in county jail rather than state prison.  This applies to defendants sentenced after October 1, 2011.  Those who are serving sentences for most crimes committed after October 1, 2011 will receive 50% custody credits; that is, for each day they serve in jail or prison, they will receive two days’ credit.  Also effective October 1, 2011, most prisoners released from state prison will be placed on post-release community supervision (rather than traditional parole) and be supervised by our County Probation Office (rather than by parole agents).  Revocations of post-release community supervision (cleverly called “PRCS”) will be adjudicated by our Superior Courts (rather than by the Parole Board) and any additional custody time will be served in our county jail.

Other than changing the location where most felony sentences are served and the credit calculations for many offenders, the realignment legislation did not alter the basic sentencing process.  All defendants who were eligible for felony probation remain eligible.  Wobblers can still be reduced to misdemeanors under Penal Code Section 17(b) if the defendant is sentenced to less than one year in county jail.  The sentencing triads for most felonies remain the same.  Enhancements generally are unchanged.  The primary effects of the realignment legislation is that most felony sentences, no matter how long, will be served in county jail, and that most convicted felons will serve less actual time in custody.

Now the painful part: the details.

The following felony sentences must be served in county jail:

(1)  Crimes where a penal statute specifies that the defendant “shall be punished by imprisonment pursuant to subdivision (h) of Section 1170” of the Penal Code without designation of a term of imprisonment.  In these cases, the crime is punished by 16 months, two or three years in county jail.

(2)  Crimes where a penal statute specifies that the defendant “shall be punished by imprisonment pursuant to subdivision (h) of Section 1170” with a designated triad or term.

The following sentences must be served in state prison:

(1)   When the defendant has a current or prior conviction for a serious felony as defined in P.C. § 1192.7(c), a current or prior conviction for a violent felony as defined in P.C. § 667.5(c), or a prior out-of-state conviction that would qualify as a serious or violent conviction under California law.

(2)   When the defendant is required to register as a sex offender under P.C. § 290 as a result of a current or prior conviction.

(3)   When the defendant currently is convicted of a felony and sentenced with an enhancement for aggravated theft under P.C. § 186.11.

(4)   When the defendant currently is being sentenced on one of a list of over 70 specified crimes in addition to the serious or violent felonies and those that require P.C. § 290 registration.

The disqualifying priors do not include juvenile adjudications, so an adult defendant with a prior juvenile adjudication – even if it qualifies as a strike – is not required to go to state prison if the current conviction is not serious, violent, etc.  Courts cannot strike disqualifying priors under P.C. § 1385 to make a defendant eligible for county jail.  If any portion of a defendant’s sentence must be served in state prison, then the entire sentence must be served in state prison.  For example, if a defendant is convicted of a P.C. § 211 Robbery (a violent felony to be served in state prison) and a V.C. § 10851 Unlawfully driving or taking a vehicle (a county jail offense), he will serve his entire sentence in state prison.

Felony sentences imposed under P.C. § 1170(h) have no parole tail.  For example, if a defendant is convicted of Vehicle Code Section 10851 (a county jail felony) and has a (non-strike) prison prior; the court denies probation and selects a two-year term from the triad, adds one year for the prison prior, and sentences the defendant to three years in county jail, the defendant will likely serve 18 months (with 50% custody credits) and be released without any form of supervision.

To make matters more confusing, the Legislature added a new type of felony sentence: a “split sentence” (also called a “blended sentence”).  Under Penal Code Section 1170(h)(5), a defendant who is sentenced to county jail on a felony can be required to serve a portion of her sentence in custody and a portion on “mandatory supervision,” which is eerily similar to probation.  The Court can decide what portion of a sentence is to be served in custody and what portion on mandatory supervision – the division can be at any point along the spectrum of the sentence.  The total period of the sentence – the custody portion plus the mandatory supervision portion – must equal the term imposed by law, no more and no less.  Taking our earlier V.C. § 10851 example, once the Court selects the term from the triad (two years) and adds the prison prior (one year), then the total term of the sentence is three years.  The Court can order that the defendant serve one year in county jail and two years on mandatory supervision, or vice versa.  If the former, the defendant would likely serve six months on the one-year custody portion and then begin her two years of mandatory supervision.  If the latter, the defendant would likely serve one year on the two-year custody portion and then begin her one year of mandatory supervision.

The supervision term of a split sentence is called “mandatory supervision” because, unlike probation (but like parole), the defendant does not have to agree to mandatory supervision; it is imposed by the Court.  Defendants who are ineligible for probation can be given a split sentence because “mandatory supervision” technically is not probation (it just seems like it).

Criminal practitioners will find that the realignment legislation gives them a greater array of options in seeking bail, negotiating plea agreements, and litigating sentencing hearings.  The realignment legislation envisions greater use of pre-trial release on home detention and electronic monitoring in appropriate cases.  In plea agreements, counsel can agree to dismiss counts that mandate state prison, tailor split sentences to suit the particular circumstances of the case, and select effective terms of probation or mandatory supervision.  At sentencing hearings, counsel can emphasize the benefits of a longer period of probation or mandatory supervision versus custody time as a means of discouraging recidivism.

When negotiating plea agreements, counsel should make every effort to reach clear agreements on – and make sure defendants understand – all of the potential terms of the agreement.

Plea negotiations ideally should address all of the following:

(1)   Whether the defendant is to be granted probation (formal or informal)

(2)   Where the sentence will be served – state prison or county jail

(3)   The length of any custody term, and how it was calculated

(4)    If a split sentence is to be imposed, what portion is to be served in county jail vs. mandatory supervision

(5)   Credits: Actual number of days and which custody credits formula applies

(6)   Any terms of probation or mandatory supervision

(7)   Amounts of fines and fees

(8)   Actual restitution amounts and to whom they are to be paid (if any).

The Court urges all counsel to have these issues fully resolved before stepping up to the lectern for the change-of-plea hearing in a negotiated disposition to avoid unpleasant mid-plea surprises.  The custody credits formulas have changed three times in the last 18 months, so their application is not intuitively obvious to the casual observer.  Nobody in the courtroom wants the parties to be unpleasantly surprised by the Court’s determination of the applicable custody credits formula.

Our relatively brief experience thus far with realignment sentencing has been a pleasant surprise.  Our justice partners have worked hard and engaged cooperatively to set up and master the new procedures and processes.  The Sheriff’s Office is increasing jail capacity, hiring staff, and buying EHD devices to expand its pre-trial release and custody alternative options.  We have already seen a surge in the jail population from parole violations and AB 109 commitments.  The District Attorney’s Office and defense bar have made creative and effective use of the new sentencing options in their negotiated dispositions.  Our Probation Office has done an extraordinary job of preparing for the influx of new parolees, lining up services to address the housing, mental health, substance abuse, and employment issues this new population will bring.  Used effectively, the sentencing options created by the realignment legislation can enable us to reduce the state’s prison population, monitor those released on parole and probation more successfully, and improve public safety by reducing recidivism.