0 Rev. 5/17 FELONY SENTENCING AFTER REALIGNMENT J. RICHARD COUZENS Judge of the Superior Court County of Placer (Ret.) TRICIA A. BIGELOW Presiding Justice, Court of Appeal 2 nd Appellate District, Div. 8 May 2017

1 Rev. 5/17 New to This Edition The previously posted version of this memo was dated May 2016. This May 2017 version includes technical, non-substantive changes and the following updates: Page 8 – Sentence for reckless evading an officer (Veh. Code, § 2800.2) – People v. Butcher Pages 18 – 19 – Conditions of mandatory supervision – People v. Maslago and People v. Relkin Page 29 – Excess credits – People v. Morales Pages 29 – 30 – Flash incarceration (§ 1203.35) Page 40 – Modification of straight sentence – People v. Antolin Page 74 – People v.

Lopez abrogated by statutory change Page 98 – “Residence” for the purpose of PRCS – People v. Gonzalez Page 108 – Application of Sex Offender Containment Model for persons on PRCS – People v. Toussain Page 133 – Termination of supervision of persons on parole – People v. VonWahlde

2 Rev. 5/17 TABLE OF CONTENTS A.

Felony Commitments ................................................................................................... 6 1) Defendants committed to county jail (§ 1170(h)(5)) .............................................. 7 2) Felonies excluded from county jail ......................................................................... 7 3) Felonies specifying punishment in state prison and felonies without a designated housing .................................................................................................................... 8 4) Conflicts in the designation of punishment ............................................................ 8 a.

Conflicts between specification of punishment and an exclusion ............. 8 b. Conflicts between specification of punishment for the base term and punishment for an enhancement ............................................................... 9 B. Alternatives to Commitment to Jail or Prison ............................................................. 9 C. No Parole Following Release From Jail Commitment ............................................... 10 D. Imposition of Sentence Under

Section 1170(h)(5) .................................................... 11 1) Practical application .............................................................................................. 18 2) Sentencing script ................................................................................................... 19 3) Concurrent and consecutive sentences ................................................................ 20 a. Concurrent sentences ............................................................................... 20 b.

Consecutive sentences.............................................................................. 22 4) Use of flash incarceration (§ 1203.35) .................................................................. 29 5) The early release ................................................................................................... 30 a. The court's authority to prevent electronic monitoring........................... 33 b. Custody credits on EMP ............................................................................ 33 c.

Early release authorization by the court .................................................. 34 d. When custody credits exceed actual time ordered by the court ............. 35 e. Sheriff’s voluntary alternative custody program ...................................... 35 6) Modification or termination of a sentence imposed under

section 1170(h) ....... 39 a. Straight sentence under

section 1170(h)(5) ............................................. 39 b. Split sentence under

section 1170(h)(5)................................................... 39 7) Violations of mandatory supervision .................................................................... 41 8) Tolling of supervision period................................................................................. 44 9) Transfer of supervision under

section 1203.9; transfer to another state ............ 44 E. The Misdemeanor Sentence ...................................................................................... 46 F. Effective Date of

Section 1170(h) .............................................................................. 46 G. Multiple Counts, Mixed Punishment ......................................................................... 47

3 Rev. 5/17 H. Additional Issues ........................................................................................................ 48 1) Application of the exclusion provisions ................................................................ 48 a. Sex Crime Registrants ............................................................................... 49 b. Defendants with current or prior serious or violent felony convictions .. 50 c. Juvenile strikes .......................................................................................... 50 d. Whether disqualifying conditions must be pled and proved ................... 51 e. Use of

section 1385 to dismiss disqualifying factors ................................ 52 2) Application of sections 1170(

d) and (e) ................................................................ 53 3) Crimes committed in county jail while serving sentence under

section 1170(h) 54 4) Reconciliation of realignment legislation with probation ineligibility statutes ... 54 a. Probation eligibility ................................................................................... 54 b. Ability to impose a split sentence under

section 1170(h)(5) .................... 55 5) Exercise of discretion under sections 17(b), 1203.4, and 1203.41 ....................... 56 6) Execution of a prior suspended sentence............................................................. 57 7) Status of defendants sentenced to state prison prior to October 1, 2011 .......... 58 8) Crimes punishable by “state prison” or “pursuant to subdivision (

h) of

Section 1170” ..................................................................................................................... 59 9) Commitment under

section 1170(h)(5) as a “prior” under

section 667.5(b) ....... 59 a. Documentation from the court ................................................................ 60 10) Prior convictions in another jurisdiction (§ 668) .................................................. 60 11) Collection of victim restitution ............................................................................. 61 12) Restitution fines .................................................................................................... 62 a. Misdemeanors .......................................................................................... 62 b.

Felonies when defendant placed on probation ........................................ 62 c. Felonies when defendant committed to state prison or under

section 1170(h) ...................................................................................................... 63 d.

Collection of restitution fines ................................................................... 64 13) Expansion of home detention programs .............................................................. 64 14) Contracts with Department of Corrections and Rehabilitation and other counties ................................................................................................................. 65 15) Cases from multiple jurisdictions.......................................................................... 65 16) Commitments to the California Rehabilitation Center (CRC) (Welf. & Inst. §§ 3050, et seq.) ........................................................................................................ 71 17) Application of California Vehicle Code, § 41500 .................................................. 72 18) Application of

Section 1368 proceedings ............................................................. 73 19) Parole/ PRCS advisement at sentencing ............................................................... 73 20) Attorney fees ........................................................................................................ 73 21) Supervision fees .................................................................................................... 73 22) Affordable Healthcare Act .................................................................................... 73

4 Rev. 5/17 23) Work furlough programs ...................................................................................... 74 24) Application of

section 1203.2a to commitments under

section 1170(h) ............. 74 25) Application of People v. Leiva ............................................................................... 77 26) Violations occurring during period when mandatory supervision is not active .. 80 27) Ability of the court to issue a criminal protective order ...................................... 81 28) Sentencing violations of

section 4573 and 4573.5; denial of equal protection ... 82 29) Certificate of rehabilitation .................................................................................. 82 I.

Custody Credits........................................................................................................... 82 1) Sentences to county jail ........................................................................................ 82 2) Sentences to state prison ..................................................................................... 83 3) Credit for sentences imposed after October 1, 2011, for crimes committed prior to the effective date ............................................................................................. 84 4) Violations of probation ......................................................................................... 84 5) Equal protection.................................................................................................... 84 6)

Summary of rules governing calculation of credits .............................................. 85 7) Specialized work credits ........................................................................................ 86 8) Credits and parole eligibility as a result of a federal court order ......................... 87 9) Custody credits for crime committed while on mandatory supervision .............. 88 10) Additional material on custody credits ................................................................. 89 J.

Postrelease Community Supervision (PRCS) (§§ 3450-3465) ................................... 89 1) Applicable crimes .................................................................................................. 89 2) Length of PRCS ...................................................................................................... 91 3) Conditions of PRCS ................................................................................................ 93 4) PRCS revocation fine ............................................................................................. 94 5) Violation of PRCS ................................................................................................... 95 a.

Action by the supervising agency ............................................................. 95 b. Petition to the court.................................................................................. 96 c. Sanctions by the court ............................................................................ 101 6) Transfer of PRCS (§ 3460) ................................................................................... 103 7) Demands for production ..................................................................................... 103 8) Application of

Section 1368 proceedings ........................................................... 104 9) Legal issues related to PRCS ............................................................................... 104 a. Application of Morrissey v. Brewer ........................................................ 104 b. Violation preceding adjudication of underlying offense ........................ 105 c. Application of the Valdivia consent decree ............................................ 105 d. Application of Marsy’s Law to PRCS and

section 1203.2 ........................ 105 e. Application of the Sex Offender Containment Model ............................ 106 10) Affordable Healthcare Act ...................................................................... 106

5 Rev. 5/17 11) Work furlough programs ........................................................................ 106 12) Contracts for medical services ............................................................................ 107 13) Application of People v. Leiva ............................................................................. 107 K.

Adjudication of Parole Violations (§ 3000.08, effective July 1, 2013) .................... 110 1) Inmates subject to new procedure ..................................................................... 110 2) Supervision procedure by agency ....................................................................... 113 3) Referral to court .................................................................................................. 125 4) Acceptance of proposed sanctions ..................................................................... 133 5) Parole revocation fine ......................................................................................... 133 6) Application of

Section 1368 proceedings ........................................................... 134 7) Potential conflict with Marsy's Law .................................................................... 134 8) Potential application of Valdivia consent decree ............................................... 135 9) Affordable Healthcare Act .................................................................................. 135 10) Work furlough programs ................................................................................... 136 11) Application of People v.

Leiva ............................................................................ 136 L. Issuance of criminal protective orders for persons on mandatory supervision, PRCS or parole ................................................................................................................... 139 M. Entry of a stipulated order of modification after waiver of appearance ............... 142 N. Application of

Section 1368 to Mandatory Supervision, PRCS and Parole ............ 145 O. Application of Valdivia Consent Decree to Parole .................................................. 148 1) Scope of rights under

section 1203.2 ................................................................. 150 2) Application of Armstrong to court proceedings ................................................. 150 P. Determination of probable cause for detention ..................................................... 150 Q. Use of hearsay .......................................................................................................... 154 R. Tolling of the supervision period ............................................................................. 156 S.

Review of court’s decision ....................................................................................... 159 Appendix I: Table of Crimes Punishable in State Prison or County Jail Under

Section 1170(h) ...................................................................................................................... 160 Appendix II:

Summary of Sentencing Under PC § 1170(h) .......................................... 173 Appendix III: Modification, Revocation, & Termination of Supervision ...................... 175 Appendix IV: PRCS/Parole Advisement at Sentencing ................................................ 177 Appendix V: Parole Violation Flow Chart ...................................................................... 178 Copyright © 2017 Barrister Press Permission is granted to copy and distribute these materials to the judges and staff of the California judiciary

6 Rev. 5/17 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 sente nce 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 s ome 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 commu nity-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.” (Pen.Code, § 17.5(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 s erved. 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 th e court determines the defendant should not be granted probation, either at the initial sentencing or as a result of a probation violation. * Unless otherwise indicated, all references are to the Penal Code.

7 Rev. 5/17 For purposes of sentencing, the realignment legislation divides felonies into three primary groups: 1) Defendants committed to county jail (§ 1170(h)(5))

Section 1170(

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 subdivi sion (

h) of

Section 1170” without the sion (

h) of

Section 1170” without 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(h)(1).) Crimes in this category include most of the “wob blers,” 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(

h) with a designated triad or term. The length of the term is not limited to 16 months, two, o r three years, but will be whatever triad or punishment is specified by the statute. (§ 1170(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(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(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(h)(3).) • Where the defendant has a prior or current serious felony conviction under

section 1192.7(c), a violent felony conviction under

section 667.5(c), or an out -of- state felony conviction of a crime that would qualify as a serious or violent felony under California law. The exclusion does not expressly include juvenile strikes. It must be noted, however, that if the defendant has a juvenile strike and the strike is part of the conviction at sentencing, the defendant must be sentenced to state prison as a strike offender, not because of the realignment legislation, but because of the Three Strikes law. (See discussion, infra.) • Where the defendant is required to register as a sex offender under

section 290, either for a current or past offense.

8 Rev. 5/17 • Where the defendant is convicted of a felony and is sentenced with an enhancement for aggravated theft under

section 186.11. It is likely this exclusion will apply if the defendant has a current or prior conviction with the enhancement under

section 186.11. 3) Felonies specifying punishm ent 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 is 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(h),

section 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.” (§ 18(a).) A defendant convicted of driving under the influence of alcohol or drugs, with a prior felony conviction, pursuant to Vehicle Code,

section 23550.5, is not eligible for a county jail commitment under

section 117 0(h). The statute specifies punishment is in state prison. ( People v. Guillen (2013) 212 Cal.App.4 th 992.) Similarly, a person convicted of reckless evading of a peace officer (Veh. Code § 2800.2), if denied probation, must be sent to state prison; the s ection was not amended by the realignment legislation to permit a sentence under

section 1170(h). ( People v. Butcher (2016) 247 Cal.App.4 th 310.) See Appendix I for a list of crimes that remain punishable in state prison. Effect of enhancement If an enhancement specifies punishment in state prison, the entire term must be served in state prison, even though the base term specifies punishment under

section 1170(h). The enhancement and base term are all a part of the sentence. (People v. Vega (2014) 222 Cal.App.4th 1374.) 4) Conflicts in the designation of punishment a. Conflicts between specification of punishment and an exclusion At times the designation of punishment for a particular offense under

section 1170(

h) appears to be in direct conflict with an exclusion. Sections 191.5(c)(2), vehicular manslaughter while intoxicated, and 243(d), battery with serious bodily injury, for example, state that violations are punishable under

section 1170(h). However, the

9 Rev. 5/17 required level of injury makes these crimes serious felonies under

section 1192.7(c)(8), thus are excluded under

section 1170(h)(3). The answer to this apparent conflict is provided by a close reading of

section 1170(h). Paragraphs 1170(h)(1) and (2) start with the qualification that "exce pt as provided in paragraph (3)," the punishment shall be in county jail. Correspondingly, paragraph 1170(h)(3) starts with "[n]otwithstanding paragraphs (1) and (2)," where the defendant has any exclusions, punishment must be in state prison. While it may be somewhat confusing to have a conflict between an express statute and an exclusion, the plain language of

section 1170(

h) clearly provides that the exclusions in paragraph (3) control over any other designation of punishment. b. Conflicts between sp ecification of punishment for the base term and punishment for an enhancement If an enhancement specifies punishment in state prison, the entire term must be served in state prison, even though the base term specifies punishment under

section 1170(h). The enhancement and base term are all part of the sentence. (People v. Vega (2014) 222 Cal.App.4th 1374.) SB 1023, effective June 27, 2012, amended

section 12022.1, which provides an enhancement of two years for a crime committed while on bail. Under th e new version of the statute, the enhancement follows the base term, whether it is to state prison or county jail under

section 1170(h). Furthermore,

section 12022.1(

e) provides that if the primary offense is punishable in state prison, the secondary offe nse must be punished in state prison. It is not clear whether it matters that the enhancement is a status enhancement added once at the end of the case, or a count -specific conduct enhancement. After the holding in Vega, it is unlikely there is any significant difference between these two kinds of enhancements. If any enhancement requires state prison, the entire term is served in prison. B. Alternatives to Commitment to Jail or Prison

Section 1170(h)(4) specifically provides that “[n]othing in this s ubdivision 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.”

10 Rev. 5/17 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(h). Sections 3000, et seq ., governing the requirement of parole, only require parole if a defendant has been committed to state prison. These sect ions were not changed to include commitments under

section 1170(h); the omission was intentional. County parole 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, wo rk furlough facility, industrial farm or industrial road camp under a judgment of imprisonment or as a condition of probation for any criminal offense . . . .” (§ 3076(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 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(b).) The statute further p rovides 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(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 commit ted 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(

h) and county parole, it is not clear whether the process is available when the court has imposed a structured mandatory supervision program under

section 1170(h)(5)(B). The question remains whether county parole boards can or should override the court’s well-structured plans.

11 Rev. 5/17 D. Imposition of Sentence Under

Section 1170(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. For persons sentenced prior to January 1, 2015,

section 1170(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) (

i) For a term as determined in accordance with the applicable sentencing law, but suspend execution of a concluding portion of the term selected in the court's di scretion, 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 i mposed by the court. The period of supervision shall be mandatory, and may not be earlier terminated except by court order. Any proceeding to revoke or modify mandatory supervision under this subparagraph shall be conducted pursuant to either subdivisions (

a) and (

b) of

section 1203.2 or s ection 1203.3. During the period when the defendant is under such supervision, unless in actual custody related to the sentence imposed by the court, the defendant shall be entitled to only actual time credit against the term of imprisonment imposed by the court. Any time period which is suspended because a person has absconded shall not be credited toward the period of supervision. (ii) The portion of a defendant's sentenced term during which time he or she is superv ised by the county probation officer pursuant to this subparagraph shall be known as mandatory supervision, and shall begin upon release from custody. Effective for persons sentenced after January 1, 2015,

section 1170(h)(5) provides: (5) (

A) Unless the court finds that, in the interests of justice, it is not appropriate in a particular case, the court, when imposing a sentence pursuant to paragraph (1) or (2) of this subdivision, shall suspend execution of a concluding portion of the term for a period s elected at the court’s discretion.

12 Rev. 5/17 (

B) The portion of a defendant’s sentenced term that is suspended pursuant to this paragraph shall be known as mandatory supervision, and, unless otherwise ordered by the court, shall commence upon release from physical custody or an alternative custody program, whichever is later. During the period of mandatory supervision, the defendant shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation, for the remaining unserved portion of the sentence imposed by the court.

The period of supervision shall be mandatory, and may not be earlier terminated except by court order. Any proceeding to revoke or modify mandatory supervision under this subparagraph shall be conducted pursuant to either subdivisions (

a) and (

b) of

Section 1203.2 or

Section 1203.3. 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 cre dit against the term of imprisonment imposed by the court. Any time period which is suspended because a person has absconded shall not be credited toward the period of supervision. The new provisions eliminate the straight commitment to county jail under former

section 1170(h)(5)(

A) as a discrete sentencing choice and require that a split sentence be imposed “[u]nless the court finds that, in the interests of justice, it is not appropriate in a particular case” to impose such a sentence. The conditions an d length of the split sentence are left to the court’s discretion. Although “interests of justice” is not specifically defined by statute, the Legislature directed the Judicial Council to adopt rules of court to guide the court’s decision to “[d]eny a per iod of mandatory supervision in the interests of justice under paragraph (5) of subdivision (

h) of

Section 1170 or determine the appropriate period and conditions of mandatory supervision.” (§ 1170.3(a)(5).) The changes in the sentencing of crimes under

section 1170(h)(5) are expressly made prospective and applicable only to persons sentenced on or after January 1, 2015. (§ 1170(h)(7).) In response to the legislative mandate, the Judicial Council adopted California Rules of Court, r ule 4.415, effective January 1, 2015. The rule acknowledges that the changes to

section 1170(

h) create a presumption that a split sentence will be imposed by the court. “When imposing a term of imprisonment in county jail under

section 1170(h), the court must suspend execution of a concluding portion of the term to be served as a period of mandatory supervision unless the court finds, in the interests of justice, that mandatory supervision is not appropriate in a particular case. Because

section 1170(h)(5)(

A) establishes a st atutory presumption in favor of the imposition of a period of mandatory supervision in all applicable cases, denials of a period of mandatory supervision should be limited.” (Cal. Rules of Court, Rule 4.415(a).)

13 Rev. 5/17 Rule 4.415(

b) specifies a non -exclusive list of criteria the court may consider in determining whether to deny mandatory supervision “in the interests of justice.” determining whether to deny mandatory supervision “in the interests of justice.” “[T]he court’s determination must be based on factors that are specific to a particular case or defendant.” (Id.) The restriction is meant to exclude any consideration of generalized or philosophical objections to split sentences.

The factors the court may consider are: (1) “Consideration of the balance of custody exposure available after imposition of presentence custody credits.” In considering this factor, for example, a sentencing court may conclude that because of significant pre-sentence custody credits, there is insufficient time to provide meaningful treatment services to the offender; that the public is best served by a st raight sentence. The factor also may be considered in setting the conditions and length of mandatory supervision. (Cal.

Rules of Court, Rule 4.415(c)(6).) (2) “The defendant's present status on probation, mandatory supervision, postrelease community supervision, or parole.” Consideration of this factor may include a finding by the court that there are other treatment and supervision programs in place, such that mandatory supervision may create a needless duplication of services. The factor also may be considered in setting the conditions and length of mandatory supervision. (Cal.

Rules of Court, Rule 4.415(c)(5).) (3) “Specific factors related to the defendant that indicate a lack of need for treatment or supervision upon release from custody.” The court may find, for example, that the offender has substantial support and other treatment services available upon release from custody, such that ordering additional services as a part of mandatory supervision will not benefit the defendant. (4) “Whether the nature, seriousness, or circumstances of the case or the defendant's past performance on supervision substantially outweigh the benefits of supervision in promoting public safety and the defendant's successful reentry into the community upon release from custody.” This factor will allow the court to consider the extent of services previously offered a defendant, and whether the defendant properly took advantage of them.

The factor allows the court to reach a conclusion that “enough is enough,” such that the sentencing should focus of straight accountability rather than treatment. Rule 4.415(

d) requires that “when a court denies a period of mandatory supervision in the interests of justice, the court must state the reasons for the denial o n the record.” (Emphasis added.) The rule specifies that the provisions of Rule 4.412(a), which allow the court to impose a stipulated sentence without giving reasons, will not obviate the need to specify the reasons on the record. Because the legislatio n includes a requirement that the court must “find” in the interests of justice that a split

14 Rev. 5/17 sentence is not appropriate, the court should not accept a stipulated disposition which does not include a period of mandatory supervision without making an independent determination that the disposition is in the interests of justice and making the necessary findings on the record. The court should not suspend any portion of a sentence under

section 1170(

h) where the statute defining the punishment for a crime prohibits suspending execution of the sentence.

Section 18780, for example, provides: “A person convicted of a violation of this

chapter shall not be granted probation, and the execution of the sentence imposed upon that person shall not be suspended by the court.” (Emphasis added.) Suspending a portion of the sentence for the purpose of imposing mandatory supervision is inappropriate. (People v. Borynack (2015) 238 Cal.App.4 th 958.) As with the changes to

section 1170(h)(5)(A), nothing in the rule speci fies the conditions or length of mandatory supervision, leaving such matters to the discretion of the court. Rule 4.415(c), however, provides a non-exclusive list of factors the court may consider in setting these elements of supervision.

The factors include: (1) “Availability of appropriate community corrections programs.” It is important to observe that the availability of supervision and treatment services may be considered in setting the specific conditions of mandatory supervision, but is not inclu ded in the list of factors that justify the denial of mandatory supervision “in the interests of justice.” (2) “Victim restitution, including any conditions or period of supervision necessary to promote the collection of any court-ordered restitution.” (3) “Consideration of length and conditions of supervision to promote the successful reintegration of the defendant into the community upon release from custody.” (4) “Public safety, including protection of any victims and witnesses.” (5) “Past performa nce and present status on probation, mandatory supervision, postrelease community supervision, and parole.” This factor also may be considered in determining whether to deny mandatory supervision and impose a straight sentence. (Cal.

Rules of Court, Rule 4.415(b)(2).) (6) “The balance of custody exposure after imposition of presentence custody credits.” This factor also may be considered in determining whether to deny mandatory supervision and impose a straight sentence. ( Cal. Rules of Court, Rule 4.415(b)(1).) (7) “Consideration of the statutory accrual of post -sentence custody credits for mandatory supervision under

section 1170(h)(5)(

B) and sentences served in county

15 Rev. 5/17 jail under

section 4019(a)(6).” This factor highlights the difference between custod y and non-custody time under mandatory supervision. If the defendant is in custody, conduct credits accrue at the rate specified in

section 4019(a)(6): for every two days that are served, the defendant is entitled to two days of actual time credit and two days of conduct credit – essentially half-time credit.

If the defendant is out of physical custody while on mandatory supervision, the credits are limited to actual time only. (§ 1170(h)(5)(B).) Understanding this distinction will permit the court to s trike a proper balance between the custody and supervision portions of mandatory supervision. (8) “The defendant's specific needs and risk factors identified by a validated risk/needs assessment, if available.” This rule does not require the court to ob tain a risk/needs assessment, but may consider the results, if they otherwise exist, in determining the appropriate conditions of mandatory supervision.

The factor is not included in the provisions justifying the denial of mandatory supervision. (9) “The likely effect of extended imprisonment on the defendant and any dependents.” Sentences imposed under

section 1170(h)(5) with a supervision period are characterized as “split” or “blended” sentences because they generally 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 defend ant’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 appro priate 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 d efendant’s risk and will make the case plan more relevant to defendant’s actual circumstances at the time he is ready for release.

16 Rev. 5/17 • The court could choose to impose a split sentence under the provisions of

section 1170(h)(5), but reserve jurisdiction to set the actual time and conditions of release at a later date. 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. • Where there is no risk/needs assessment available for the court at the time of sentencing, the court could order as a condition of supervision that the defendant submit to the assessment and observe the conditions of treatment that probation establishes from the assessment.

Such a process would be useful in determining whether the defendant needs a particular level or type of treatment program. • The court could structure the sentence to place the defendant on mandatory supervision for the entire term. • If the sheriff or probation department have extensive out of custody programs, the court could sentence the defendant entirely to custody on the assumption that when the jail determines the defendant is ready for participation in programs, the defendant could be released without the need for further court involvement.

If the defendant violates any of the conditions of his release, he would be subject to immediate re-arrest and detention on the original sentence. 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(d). (See discussion, infra.) • 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.

Section 1170(h)(5) specifies that the supervision period is mandatory. The defendant may not refuse mandatory supervision. (People v. Rahbari (2014) 232 Cal.App.4 th 185, 194. The court will have the discretion to impose a “split” sentence under such terms and conditions as it considers appropriate for the defendant, without regard to the defendant’s willingness to be supervised – the court need not ask whether the defendant “accepts” the conditions. Since the commitment under

section 1170(h)

17 Rev. 5/17 generally 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 post-sentence supervision. Presumably the court, after hearing, could reinstate the defendant under supervision or order into execution all or a portion of the remaining sentence.

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 undoubtedly has the authority to set the terms and conditions of the defendant’s period of mandatory supervisi on. 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 the workload of the probation officer.

Terms and conditions should only be set fo llowing 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. People v.

Martinez (2014) 226 Cal.App.4 th 759, addresses the standard for reviewing the validity of the conditions of mandatory supervision. “’[T]he Legislature has decided a county jail commitment followed by mandatory supervision imposed under

section 1170, subdivision (h), is akin to a state prison commitment; it is not a grant of probation or a conditional sentence.’ ([ People v.

Fandinola (2013) 221 Cal.App.4 th 1415,] 1422.) Therefore, as the court in Fandinola recently found, ‘ mandatory supervision is more similar to parole than probation.’ ( Id. at p. 1423.) We will therefore analyze the validity of the terms of supervised release under standards analogous to the conditions or parallel to those applied to terms of parole.” (Martinez at p. 763.) “The validity and reasonableness of parole conditions is analyzed under the same standard as that developed for probation conditions. ( In re Hudson (2006) 143 Cal.App.4th 1, 9; In re Stevens , supra, 119 Cal.App.4th at p. 1233 [‘[t]he criteria for assessing the constitutionality of conditions of probation also applies to conditions of parole’].) “‘A condition of [parole] will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) r elates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .” [Citation.] Conversely, a condition of

18 Rev. 5/17 [parole] which requires or forbids conduct which is not itself cr iminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.’ ( People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted, superseded on another ground by Proposition 8 as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-292; see also People v.

Olguin (2008) 45 Cal.4th 375, 379-380.) ¶ In general, the courts are given broad discretion in fashioning terms of supervised release, in order to foster the reformation and rehabilitation of th e offender, while protecting public safety. ( People v. Carbajal (1995) 10 Cal.4th 1114, 1120; People v.

Urke (2011) 197 Cal.App.4th 766, 774.) Thus, the imposition of a particular condition of probation is subject to review for abuse of that discretion. ‘As with any exercise of discretion, the court violates this standard when it imposes a condition of probati on that is arbitrary, capricious or exceeds the bounds of reason under the circumstances. [Citation.]’ (People v. Jungers (2005) 127 Cal.App.4th 698, 702.)” (Martinez at p.764; accord People v.

Malago (2017) 8 Cal.App.5th 1301, 1305.) Any objections to the conditions of mandatory supervision should be resolved by the court at sentencing; they should not be deferred to the “mandatory supervision judge.” (Malago, supra, at p. 1305.) The Martinez court found, under the circumstances of the defendant’s ba ckground, requiring him to report to the gang unit of the local police agency was properly related to the goals of supervision.

The court also approved the following provision requiring the defendant to stay away from the courthouse: “You shall not be p resent at any criminal court proceeding or at any criminal courthouse building, including the lobby, hallway, courtroom, or parking lot that you know or reasonably should know involves either criminal street gang charges or a person associated with a criminal street gang (as defined in Penal Code

section 186.22) as a member or witness, unless you are scheduled for a court hearing as a party, defendant, or subpoenaed as a witness to a criminal court proceeding, or have the express permission of your probatio n officer, or have other lawful business with the court or county administration.” ( Martinez at pp.767-768.) In People v.

Relkin (2017) 6 Cal.App.5th 1188, the court approved the following conditions of mandatory supervision: that defendant obtains written permission from the probation officer before leaving the state; and that the defendant reports any “arrests” or “incidents” involving peace officers. The court found the condition requiring the defendant report any “contacts” with law enforcement was unconstitutionally vague. 1) Practical application The application of

section 1170(h)(5) may be illustrated by the following example:

19 Rev. 5/17 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(b) (+1) is found true. The defendant has 42 day s of actual custody credit on the day of sentencing. If the court chooses to deny probation and impose the middle base term for the burglary, the sentence under

section 1170(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(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 strategies:

A) 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 jurisdiction of the probation officer for that period on mandatory supervision. 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 pre -sentence credit, less actual time and con duct 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.

B) 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. 2) Sentencing script Although the legislation does not require any particular language for the commitment of a person to county jail under

section 1170(h)(5), the court might use language similar to the following:

20 Rev. 5/17 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) 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 subject to mandatory supervision 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) Concurrent and consecutive sentences The mechanics of imposing a concurrent and consecutive sentence under

section 1170(h)(5) will be substantially the same as traditional state prison sentences under sections 1170 and 1170.1. Under the realignment legisla tion, the structure of sentences under

section 1170(h)(5) is exactly the same as it has been for years for state prison commitments – only the place where the sentence is served has changed. Once the aggregate term has been determined after taking into ac count concurrent or consecutive sentencing, the court must then determine how much of the aggregate term, if any, will be served on mandatory supervision. a. Concurrent sentences Concurrent sentences will be imposed in accordance with the provisions of

section 1170. The court will select an appropriate base term for each count, together with any applicable count -specific conduct enhancements. Status enhancements will be added once at the end of the sentence. If the sentence is a straight term, without a split sentence, the full term for each count will be ordered served concurrently with any other counts. If the judgment imposes a split sentence, the court will order the terms imposed for each count served concurrently with any other term being served .

After the aggregate term to be served has been calculated, the court then must determine how much of the term will be served on mandatory supervision. If, for example, the defendant is convicted of second degree burglary (§ 459) and the unlawful driving or taking of a vehicle (Veh.C. § 10851), with a prior prison term, the court might pronounce a concurrent sentence under

section 1170(h)(5) as follows: Probation is denied. For violation of Penal Code

section 459, burglary in the second degree, as charged in Count 1, the court hereby sentences

21 Rev. 5/17 the defendant under the provisions of

section 1170(h)(5) to the middle term of 2 years. For violation of Vehicle Code

section 10851, the unlawful driving or taking of a vehicle, as charged in Count 2, the court hereby sentences the defendant under the provisions of

section 1170(h)(5) to the middle term of 2 years, to be served concurrently with any other term being served The defendant having suffered a prior prison term within the meaning of

section 667.5(b), an additional and consecutive term of 1 year is ordered, for an aggregate term of 3 years. The court herby suspends the concluding 12 months of said term and places the defendant on mandatory supervision under the following terms and conditions . . . . Under this sentence, the defendant will serve actual custody time of 12 months, and mandatory supervision time of 12 months. The actual custody time is computed by taking the total months of the sentence (36 months), subtracting the period of mandatory super vision (12 months), and then subtracting the conduct credits under

section 4019 (12 months), which leaves the actual time to be served (12 months). The foregoing example involves custody terms of the same length. If the terms are of different lengths, the court still must suspend a portion of the total term for mandatory supervision if a split sentence is imposed. For example, if Count 1 has a two year term and Count 2 has a three year term, the court may wish to impose a concurrent sentence as follows: Probation is denied. For violation of Penal Code

section 459, burglary in the second degree, as charged in Count 1, the court hereby sentences the defendant under the provisions of

section 1170(h)(5) to the middle term of 2 years. For violation of Vehic le Code

section 10851, the unlawful driving or taking of a vehicle, as charged in Count 2, the court hereby sentences the defendant under the provisions of

section 1170(h)(5) to the upper term of 3 years, to be served concurrently with any other term being served The defendant having suffered a prior prison term within the meaning of

section 667.5(b), an additional and consecutive term of 1 year is ordered, for an aggregate term of 4 years. The court herby suspends the concluding 1 year of said term and places the defendant on mandatory supervision under the following terms and conditions . . . . Under this sentence, the defendant will serve actual custody time of 18 months, and mandatory supervision time of 12 months. If the concurrent sentence comes from multiple cases as part of a package disposition, the sentencing is the same as if all counts were charged in the

22 Rev. 5/17 same case. The sentencing will produce a single term with the base term and any conduct enhancements for each count run currently with all other counts, plus any status enhancements added once to the end of the sentencing for the case. If the concurrent sentence is being added to a defendant previously sentenced in another case, a resentencing normally is not required; the court need only specify that the new sentence is imposed concurrently with any other term previously imposed. If the new case sends the defendant to state prison, however, resentencing will be required to convert the previously imposed sentence under

section 1170(

h) to a state prison term as required by

section 669(d). If the sentence involves multiple cases from different jurisdictions, the court will need to enter an order prescribing where the sentence will be served. (See the discussion of multiple jurisdiction cases in

Section H(14), infra.) b. Consecutive sentences The structure of a consecutive sentence, whether the sentence is to county jail under

section 1170(

h) or state prison, will be governed by

section 1170.1. The court will select the base term for each c ount, plus any applicable count - specific conduct enhancements. The count with the longest sentence imposed will be the principal term; the remaining counts will be subordinate consecutive terms, usually discounted to one -third the middle base term and one-third of any conduct enhancements. Any status enhancements are added once at the end of the sentence. If the sentences are straight terms imposed without any period of mandatory supervision, the court will simply order the aggregate term into execution.

If a split term is imposed, the court will order the aggregate term executed, allocated between custody and mandatory supervision time. If, for example, the defendant is convicted of second degree burglary (§ 459) and the unlawful driving or taking of a vehicle (Veh. Code § 10851), with a prior prison term, the court might pronounce a consecutive sentence as follows: Probation is denied. For violation of Penal Code

section 459, burglary in the second degree, as charged in Count 1, the court hereby sentences the defendant under the provisions of

section 1170(h)(5) to the middle term of 2 years, which the court designates as the principal term. For violation of Vehicle Code

section 10851, the court hereby sentences the defendant under the provisions of

section 1170(h)(5) to the subordinate and consecutive term of 8 months, which is one-third the middle term. The defendant having suffered a prior prison term within the meaning of

section 667.5(b), an additional and consecutive term of 1 year is ordered, for an aggregate term of 3 years and 8 months. The court herby suspends the concluding 6 months of said term and places the

23 Rev. 5/17 defendant on mandatory supervision under the following terms and conditions . . . . Under this sentence, the defendant will ser ve actual custody time of 19 months, and mandatory supervision time of 6 months. Multiple cases sentenced consecutively under

section 1170(

h) Consecutive sentencing of multiple counts from multiple cases may appear daunting, particularly if the sentencin g occurs in sequential proceedings. g occurs in sequential proceedings. Consecutive sentencing with multiple cases generally occurs in two circumstances: the “package disposition” where the court imposes sentence on two or more open cases pending against the defendant, and the “sequential s entence” where the defendant is sentenced in a series of proceedings over a course of time. The “package disposition” is the simplest to impose.

Each of the counts, including any count-specific conduct enhancements, are sentenced together, as if all of the crimes had been charged in one proceeding.

Section 1170.1(

a) dictates that there will be one principal term, and the balance of the counts will be subordinate consecutive terms. Any status enhancements are added once at the end of the sentence. If, f or example, the defendant has a prior prison term enhancement under

section 667.5(b), the one year term will be added only once in the final sentence, even though the enhancement was charged and found in more than one case. The sentencing proceeding will produce a single aggregate term incorporating the sentence imposed on all counts and cases. Sequential sentencing follows the same provisions of

section 1170.1(a). But because the sentencing of the crimes occurs at different times and possibly by different judges, the last judge in line must do a “resentencing” of all of the cases, incorporating the prior and current sentences into one final sentence on the current case.

The resentencing must observe the restrictions of California Rules of Court, r ule 4.452: (1) all of the counts will create a single aggregate term, as if all counts had been charged in a single proceeding – there will be one principal term and the balance will be subordinate consecutive terms; (2) when considering the sentence on the curr ent case, the court may find it necessary to designate a new principal term; and (3) the current court may not change the discretionary decisions made in the earlier proceedings, including the term selected from the triad and the concurrent or consecutive sentencing structure.

There is an exception to (3): because there can be only one principal term, if the court in the current proceeding determines one of its counts should be the new principal term, a previously designated principal term will become a subordinate one-third-the-middle-base-term by operation

24 Rev. 5/17 of law. When imposing consecutive sentences, the principal term must be the longest term imposed, including any count-specific conduct enhancements. (§ 1170.1(a).) As a result, when a court is called upon to resentence on multiple cases, selection of the principal term will require the court to calculate the term for each count being sentenced on the current case, compare the terms selected on the current case to the ones previously imposed in the pri or proceeding, and select the longest term from the counts on all cases as the principal term.

Finally, sequential sentencing also must determine the proper credits to be given the defendant, accounting for credits earned in the prior proceedings and thos e earned in the current case. The forgoing issues outlining the proper way to sentence consecutively with multiple cases may be illustrated with the following example: In Case A the defendant is convicted of two counts of burglary in the second degree, in violation of

section 459. The court imposes the mid- base term on Count 1 of two years (the principal term) and a subordinate consecutive term on Count 2 of eight months. The defendant also has a prior prison term under

section 667.5(b), for which he is sentenced to an additional one year. The aggregate sentence of three years, eight months is ordered to be served two years in custody and one year, eight months on mandatory supervision. At the time of sentencing the defendant has 30 days of actual custody time credit. The defendant is ordered into custody on the sentence. After sentencing he will serve a custody term of 22 months (24 months, less actual and conduct presentence credits of two months), then be on mandatory supervision for one year, eight months.

The defendant completes the custody term and after six months on mandatory supervision he is arrested for another commercial burglary, Case B. He is held in custody for 30 actual days on both cases, pending sentencing. The court in Case B determines that the defendant should be sentenced to the upper -base term of three years on the new burglary, consecutive to the previous term. Also charged in Case B is the same

section 667.5(

b) prior prison term charged in Case A. Upon the resentencing of Ca se A and the sentencing of Case B, the final aggregate sentence is 5 years, 4 months: Case B: 459-2° - upper-base term: 3 yrs (principal term) Case A: Ct. 1 – 459-2° - subordinate: 8 mos Ct. 2 – 459-2° - subordinate: 8 mos Prior prison term – 667.5(b): 1 yr Aggregate term: 5 yrs, 4 mos

25 Rev. 5/17 As of the date of sentencing, the defendant is entitled to the following credits against the aggregate sentence: Case A: 24 mos of custody on original sentence (12 mos actual + 12 mos conduct) 6 mos actual time while on mandatory supervision 2 mos of custody after arrest for crime in Case B (1 mo actual + 1 mo conduct) Total credit Case A: 32 mos Case B: No credit because all credits were awarded in Case A The sentence is 64 months, less credit of 32 mo nths = 32 months remaining. The court may then allocate the remaining 32 months of the sentence between custody and mandatory supervision. The foregoing example is in compliance with

section 1170.1 and California Rules of Court, rule 4.452. The resentencing of Case A and sentencing of Case B preserves the terms imposed for the two counts in Case A, subject to the effect of Count 1 becoming a subordinate term. It also keeps the consecutive sentencing structure of Case A, and the decision in Case A to have the sentence served partially in custody and partially on mandatory supervision. What may be different is the actual allocation between the custody and mandatory supervision periods attributable to Case A.

Such a difference appears justified, however, because the court in Case B is merely changing the way a sentence is served, not the length of sentence, a decision often handled administratively by custodial staff. Furthermore, there is no other practical means of preserving t he same mathematical relationship between custody and mandatory supervision originally ordered in Case A without constructing an unreasonably complex algebraic formula.

If the sentence involves multiple cases from different jurisdictions, the court also will need to enter an order prescribing where the sentence will be served. (See the discussion of multiple jurisdiction cases in

Section H(14), infra.) Sentence to state prison If the defendant is convicted of any count or enhancement that requires a state prison sentence, the sentence for all crimes must be served in state prison. (§§ 669(

d) and 1170.1(a).) If the defendant was previously sentenced to county jail under

section 1170(h), and the current case mandates state

26 Rev. 5/17 prison, the entire case must be resentenced to state prison to serve the balance of any remaining term. The process of resentencing involves restating the total sentence imposed in the prior proceeding, less any accrued credits. The court also will determine whether the current senten ce is imposed concurrently with or consecutive to the prior term. The foregoing examples on concurrent and consecutive sentencing illustrate the potential structure of the sentence. The defendant will be entitled to actual time and conduct credits under

section 4019 for any custody time served, and actual time only for time served on mandatory supervision. The award of credits also will depend on whether the court chooses a concurrent or consecutive sentencing structure. If a consecutive sentence is imposed, the defendant is only entitled to one period of credit for any given period of custody; duplicate credits are not permitted. (§ 2900.5(b); In re Atiles (1983) 33 Cal.3d 805, 810-811, disapproved on other grounds in In re Joyner (1989) 48 Cal.3d 487, 494-495.) If custody credits exceed the new sentence Because of the effect of

section 1170.1(a), it may be possible that the custody credits for a case will exceed the time ordered after resentencing. The problem may be illustrated by the following sentence imposed under

section 1170(h): Case A: the defendant is sentenced as follows: Ct. 1: 459 – 2° - mid-base term: 2 yrs To be served 1 year in custody and 1 year on mandatory supervision Case B: [defendant is arrested for crime and vio lation of mandatory supervision in Case A 30 days after being released on mandatory supervision] The court in Case B imposes the following sentence under

section 1170(h): Case B, Ct. 1: 459 - 2° - upper term: 3 yrs Case A, Ct. 1: 459 - 2° - consecutive 8 mos Aggregate sentence: 3 yrs, 8 mos Credits: Case A: 182 days of actual time, plus 182 days of conduct credit for a total of 364 days for the custody portion of the sentence and 30 days of actual time on the mandatory

27 Rev. 5/17 supervision portion of the sentence, for a total credit of 394 days. Case B: Credit could be awarded for any custody time between arrest and sentencing of Case B, but only to the extent it is not awarded in Case A. Under the forgoing circumstances, it is clear that the allowable custody credits for Case A exceed the 8-month sentence ordered after imposition of the new aggregate term at the time of sentencing of Case B. The excess credits are not transferrable to Case B because they were not earned in that case. The awarding of credits is case-specific. (§ 2900.5(b); People v.

Adrian (1987) 191 Cal.App.3d 868, 877.) Furthermore, because there is no period of parole or PRCS following the completion of the sentence, the reduction of the parole period discussed in In re Sosa (1980) 102 Cal.App.3d 1002, is inapplicable. If all of defendant’s crimes are punishable under

section 1170(h), it would seem that the court only has jurisdiction to apply the credits against any fees and fines pursuant to

section 2900.5(a). That sect ion permits excess credits to be “credited to any fine, including, but not limited to, base fines, on a proportional basis, that may be imposed, at the rate of not less than thirty dollars ($125) per day, or more, in the discretion of the court imposing th e sentence.” Except to the extent of relief under

section 2900.5(a), the defendant looses the excess credits. The outcome may be different if the defendant is sentenced to state prison on one of the cases. Depending on the nature of the crime, if the de fendant is sentenced to state prison, he will be released either on parole pursuant to

section 3000.08, or PRCS pursuant to

section 3451. Whether the defendant is entitled to apply excess custody credits to reduce the period of parole or PRCS is a matter upon which the appellate courts disagree. No reported case has dealt with this issue in th e context of a direct sentence to state prison. It appears, however, that Sosa would at least apply to persons released on parole.

Section 3451(

a) provides: "Notwithstanding any other law and except for persons serving a prison term for a crime described in subdivision (b) [crimes requiring parole rather than PRCS], all persons released from prison on and after October 1, 2011, or, whose sentence has been deemed served pursuant to

Section 2900.5 after serving a prison term for a felony shall, upon release from prison and for a period not exceeding three years immediately following release, be subject to community supervision provided by a county agency designated by each county's board of supervisors which is consistent with evidence -based practices, including, but not limited to, supervision policies, procedures, programs, and practices demonstrated by scientific research to reduce recidivism among individuals unde r postrelease

28 Rev. 5/17 supervision." (Emphasis added.)

Section 3451(

a) is unambiguous – it has no application to persons who must be placed on parole following the completion of a prison term. There is no reason to suggest that Sosa has in any way been abrogated by the realignment legislation. The law is less clear with respect to persons placed on PRCS. While there is no published opinion concerning the issue as it relates to an original commitment to state prison, a similar issue has been discusse d in the context of resentencing pursuant to Propositions 36 and 47.

When relief is granted under either proposition, the defendant frequently receives a new sentence which has been fully satisfied by custody credits. The issue is whether any excess credits may apply to reduce the term of PRCS. People v. Espinoza (2014) 226 Cal.App.4 th 635, a Proposition 36 case, holds that

section 3451(

a) is unambiguous: "Notwithstanding any other law and except for persons serving a prison term for [crimes requiring pa role rather than PRCS], all persons released from prison on and after October 1, 2011, . . . after serving a prison term for a felony shall, upon release from prison and for a period not exceeding three years immediately following release, be subject to community supervision. . . .” (Emphasis added.) The court expressly rejected any application of Sosa, which holds that excess custody credits reduce any applicable parole period.

Espinoza observed: “ PRCS serves an important public interest to ‘improve pub lic safety outcomes’ and facilitate ‘successful reintegration back into society.’ (§ 3450, subd. (a)(5); see People v. Torres (2013) 213 Cal.App.4th 1151, 1158.) Both the community and appellant will benefit from PRCS. The trial court said that the ‘[S]tate of California actually doesn't want Mr. Espinoza to return to custody. . . .

To take so many years of incarceration and then fling the doors open and say, well, good luck, hope it all works out is likely to just result in a disaster.’ We are hop eful that PRCS reduces the chance of disaster.” ( Espinoza, at pp. 641 -642.) Generally in accord with Espinoza is People v. Tubbs (2014) 230 Cal.App.4th 578. Tubbs also holds that CDCR is not the only agency with the authority to determine whether a discharged defendant should be placed on PRCS; the court also has such authority in the context of ruling on a request for resentencing under

section 1170.126. (Id. at pp. 586-587.) People v. Morales (2016) 63 Cal.4th 399, a Proposition 47 case, holds the excess credit may not be used to reduce the parole period. People v. Hickman (2015) 237 Cal.App.4th 984, extends Espinoza and Tubbs to

section 1170.18 . In Hickman, the defendant was on parole when Proposition 47 was enacted. The trial court granted defendant’s request for resentencing, but ordered the defendant to serve a one-year period of parole under

section 1170.18(d). The trial court refused to apply any excess custody credits to reduce the period of parole. The sentence was affirmed. Hickman held the parole period authorized by

section 1170.12(

d) is in addition to any term of punishment.

29 Rev. 5/17 Sosa has no application to the parole period authorized by

section 1170.12(d). (Hickman, at pp. 988-989.) 4) Use of flash incarceration (§ 1203.35) When the realignment law was first enacted, the use of “flash incarceration” was limited to persons coming out of state prison on postrelease community supervision (PRCS) or parole. (§§ 3454(

b) and 3000.08(d).) Effective January 1, 2017, and until January 1, 2021, the probation officer has limited authority to impose flash incarceration on persons on probation or on mandatory supervision because of a sentence imposed under

section 1170(h). (§ 1203.35(a)(1).) Authority to impose flash incarceration is obtained by the defendant’s waiver of a right to a hearing prior to the imposition of the sanction. The statute contemplates the waiver being made “at the time of granting probation or ord ering mandatory supervision.” ( § 1203.35(a)(1).) Since the whole process is triggered by the defendant’s agreement to flash incarceration, the waiver also can be obtained at a subsequent modification of the terms of supervision. Although

section 1203.35(a)(1) does not specifically require a written waiver, it also provides that probation is not to be denied “for refusal to sign the waiver.” (Id.) The better practice would be to obtain an “informed” waiver signed by the defendant and his attorney.

Section 1203.35 requires the probation department to utilize a “response matrix” to determine the appropriate action taken on a violation, including the use of flash incarceration (§ 1203.35(a)(2)), the term of the flash incarceration must have prior approval of a probation supervisor (§ 1203.35(a)(3)), and he determines the sanction is appropriate, the probation officer must “notify the court, public defender [which presumably means the defendant’s attorney of record], district attorney and sheriff” (§ 1203.35(a)(4)) of each intended use.

Although the defendant may initially agree to the use of flash incarceration, he is not required to accept the sanction for a particular violation. If the defendant refuses to accept t he sanction, the probation officer is authorized to address the violation in a formal petition to the court. (§ 1203.35(a)(5).) “Flash incarceration” is defined as “ a period of detention in a county jail due to a violation of an offender's conditions of probation or mandatory supervision. The length of the detention period may range between one and 10 consecutive days.

Shorter, but if necessary more frequent, periods of detention for violations of an offender's conditions of probation or mandatory supervi sion shall appropriately punish an offender while preventing the disruption in a work or home establishment that typically arises from longer periods of detention. In cases where there are multiple violations in a single incident, only one flash incarcerat ion booking is authorized and may range between one and 10 consecutive days.” (§ 1203.35(b).)

30 Rev. 5/17 The sanction is not authorized for persons on a Proposition 36 (drug) program. (§ 1203.35(c).) While a defendant is serving a period of flash incarceration, he is not entitled to conduct credits against the term. (§ 4019(i)(1).) However,

section 4019(i)(2) provides that “[c]redits earned pursuant to [section 4019] for a period of flash incarceration pursuant to

Section 1203.35 shall, if the person’s probation or mandatory supervision is revoked, count towards the term to be served.” “Revoked” is not further defined. It is not clear whether conduct credits are allowed only when supervision is finally and fully revoked and the defendant is sentenced to state prison or under

section 1170(h), or whether conduct credits are allowed after a court summarily revokes probation when a petition is filed. It seems most likely the Legislature intends conduct credits to be awarded only after the court has decided to termin ate supervision and impose a prison or

section 1170(

h) sentence. Nothing in the legislation suggests an intent to grant credits because of a technical revocation utilized to preserve the court’s jurisdiction over the defendant after an alleged violation. 5) The early release Either because of federal consent orders that set a jail’s capacity, or because of jail management decisions, there are times when defendants will be released from actual jail custody prior to the time set by the court's sentence. S ome releases will be without restriction. Some will be on an electronic monitoring program (EMP) 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 will satisfy the custody portion of court's sentence. (§§ 1203.016(a), and 1203.017(a).) While the sheriff or custodial administrator may set some conditions on the release, the conditions might not be as stringent as the ones ordered by the court for mandatory supervision. It may be that actual supervision will be minimal or non-existent.

Failure to anticipate this problem may allow a defendant to be released into the community without any real supervision until the electronic monitoring 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 not clear that the court will have the jurisdiction to modify the timing of the mandatory supervision portion of the sentence. In a budget trailer bill effective July 1, 2013, the Legislature attempted to address the problem of early release by amending

section 1170(h)(5)(B)(ii) to provide that mandatory supervision “shall begin upon [the defendant’s] release from custody.” mandatory supervision “shall begin upon [the defendant’s] release from custody.” The a mendment did not define the meaning of “custody.” It was not clear, for example, whether the term included when the defendant is released to home supervision or on electronic monitoring, situations which would at least be constructive custody. An analysis prepared by the Senate Rules Committee, Office of Senate Floor Analysis, indicates that SB 76 “clarifies that mandatory supervision shall

31 Rev. 5/17 begin upon release from jail custody.” (Bill Analysis of SB 76, June 13, 2013, page 2.) The analysis suggests the intent of the legislation was to trigger mandatory supervision when the defendant is no longer in actual jail custody. The amendment also does not address the disposition of the unserved custody time. Presumably the custody portion of the sentence will continue to run so long as the defendant observes the conditions of his release, but it is not clear whether the court has the ability to roll the unserved custody time into the mandatory supervision period.

The legislation also did not address the potenti al overlap of the custody and mandatory supervision periods, which would shorten the overall length of the sentence. In other words, so long as the defendant is complying with the conditions of early release, the “custody” portion of the sentence continues to run, even though the change to

section 1170(h)(5)(B)(ii) has also triggered the start of the mandatory supervision portion of the sentence because the defendant has been released from actual custody. To the extent the custody and non -custody portions of the sentence are being served concurrently, it shortens the total period the court has jurisdiction over the defendant. An amendment effective January 1, 2015, addressed this issue.

Section 1170(h)(5)(A), in relevant part, was amended to read: “The portion of a defendant’s sentenced term that is suspended pursuant to this paragraph shall be known as mandatory supervision, and, unless otherwise ordered by the court, shall commence upon release from physical custody or an alternative custody program, whichever is later.” whichever is later.” (Emphasis added.) The legislation allows for greater flexibility in setting the start of mandatory supervision to correspond with the realities of supervision in a particular county.

If the court makes no special order, the “default ” rule is that mandatory supervision will start when the defendant is no longer in actual or constructive custody, whichever is later. However, if the court wants the defendant to observe the more stringent conditions and treatment required by mandatory s upervision if he is released from actual custody, the court may want to “accelerate” the start of supervision, even though the defendant remains in constructive custody while on EMP for the balance of the custody portion of the sentence.

These supervision issues may be addressed with the use of an “acceleration clause” which advances the start of mandatory supervision to correspond to the defendant’s release from actual custody.

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 service of the full custody period ordered by the court, the defendant is hereby directed to report to the probation officer by the close of the next business day following release from custody to commence service of any period of mandatory supervision ordered by the court. The court reserves jurisdiction to

32 Rev. 5/17 modify the terms and conditions of mandatory supervision upon the occurrence of the defendant’s early release. The ____ County Sheriff is ordered to report the defendant's early release 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.

The net effect of this acceleration clause will be to allow the concurrent service of EMP and mandatory supervision periods of the sentence. Under thi s provision, the total jurisdiction over the defendant will be reduced to the extent these two portions of the sentence overlap. Although the defendant will serve a shorter sentence overall, at least he or she will be required to immediately start the peri od of mandatory supervision upon release from actual custody.

Alternatively, the court may choose to impose an acceleration clause that deals with these supervision issues and avoids the overlapping of the two portions of the sentence by converting any unserved custody time to mandatory supervision. The following alternative acceleration clause accounts for the early release of the defendant by providing a corresponding automatic increase of the portion of the sentence being served on mandatory supervision.

Unlike the previous version of the acceleration clause, this provision will preserve the original length of the full sentence because the custody and mandatory supervision periods will not overlap. Although the defendant will not receive a reductio n in the sentence as contemplated by the first alternative clause, there is no prejudice to the defendant because the original length of the sentence remains the same, only that more is served out of custody on mandatory supervision, a less restrictive status.

If the defendant is released for any reason from actual jail custody prior to the service of the full custody period ordered by the court, the defendant is hereby directed to report to the probation officer by the close of the next business day following release from custody to commence service of any period of mandatory supervision ordered by the court. Under such circumstances, the number of days from the date of defendant's release from actual custody to the end of the original custody term ordered by the court are hereby converted and added to the term of mandatory supervision previously 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. Courts should use caution prior to uniformly including an acceleration clause in a split sentence. The importance of having such a clause will depend on the extent of supervision if a defendant is released early from custody. Some counties use t he probation department to supervise persons on electronic monitoring. The level of

33 Rev. 5/17 supervision in such circumstances may be equal to or more intensive than persons on normal probation. Probation departments can require treatment, search and seizure, and drug testing while on EMP. If that is the case, there would be a disadvantage in “accelerating” the supervision period (unless the unserved time is converted to mandatory supervision) – it would needlessly shorten the overall jurisdiction over the defendant. On the other hand, some counties have defendants supervised by the jail or sheriff’s department when released early from custody.

Such supervision may be minimal, calculated only to assure the defendant has not removed the electronic monitoring equi pment. In that circumstance, if the court is unable to convert the unserved portion of the custody term to mandatory supervision, for the reasons discussed above, the court may find it in the public interest to shorten the overall jurisdictional period, but improve the level of supervision over the defendant. a. The court's authority to prevent electronic monitoring 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 necess ary, 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; cf.

section 1170.06, discussed, infra, which gives the sheriff or county director o f corrections the limited authority to grant electronic monitoring “notwithstanding any other law.”) b. Custody credits on EMP 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(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 t o 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 progra m under the auspices of the

34 Rev. 5/17 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 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(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 provi des 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(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 if not granted the additional credit. c. Early release authorization by the court

Section 4024.1 governs the procedure whereby the sheriff or correctional administrator may obtain the permission of the court for the general authorization to release inmates when necessary to comply with restrictions on the capacity of the jail. “4024.1. (

a) The sheriff, chief of police, or any other person responsible for a county or city jail may apply to the presiding judge of the superior court to receive general authorization for a period of 30 days to release inmates pursuant to the provisions of this section. (

b) Whenever, after being authorized by a court pursuant to subdivision (a), the actual inmate count exceeds the actual bed capacity of a county or city jail, the sheriff, chief of police, or other person responsible for such county or city jail may accelerate the release, discharge, or expiration of sentence date of sentenced inmates up to a maximum of 30 days. (

c) The total number of inmates released pursuant to this

section shall not exceed a number necessary to balance the inmate count and actual bed capacity. (

d) Inmates closest to their normal release, discharge, or expiratio n of sentence date shall be given accelerated release priority. (

e) The number of days that release, discharge, or expiration of sentence is accelerated shall in no case exceed 10 percent of the particular inmate's

35 Rev. 5/17 original sentence, prior to the applic ation thereto of any other credits or benefits authorized by law.” SB 1023, effective June 27, 2012, increased the early release provisions in subdivision (

b) from a maximum of five days to a maximum of 30 days. While these procedures do provide some guidance for the early release of inmates, it is likely they would not prevent the sheriff from going beyond the limits of

section 4024.1 when necessary to meet a federal cap on jail capacity. d. When custody credits exceed actual time ordered by the court There may be rare circumstances when the defendant’s custody credits exceed the custody portion of the sentence imposed by the court. If such a circumstance occurs with a normal state prison sentence, In re Ballard (1981) 115 Cal.App.3d 647, holds that the excess custody credits are to be used to reduce the parole period. Effective January 2016,

section 1170(a)(3) has been amended to provide that if presentence credits exceed the sentence imposed by the court, the entire sentence is deemed satisfied, “exc ept for the remaining period of mandatory supervision,” and the defendant is not to be delivered to custody in the jail. e. Sheriff’s voluntary alternative custody program Effective January 1, 2015,

section 1170.06 provides a voluntary alternative custody program for specified persons serving county jail sentences. The program operates under the sole discretion of the sheriff or county director of corrections, and is offered in lieu of the custody term ordered by the court, “notwithstanding any other law.” (§ 1170.06(a).) “The sheriff or his or her designee or the county director of corrections or his or her designee shall have the sole discretion concerning whether to permit program participation as an alternative to custody in a county jail.“ (§ 1170.06(i )(2); emphasis added.) Because

section 1170.06 operates “notwithstanding any other law,” and because the sheriff or county director of corrections is given sole discretion to permit the alternative program, it is unlikely the court has any jurisdiction to prevent its use in a given case, or the right to prevent the use of electronic monitoring with the use of sections 1203.016(

e) and 1203.017(e). “An inmate participating in this program shall voluntarily agree to all of the provisions of the program in writing, including that he or she may be returned to confinement at any time with or without cause, and shall not be charged fees or costs for the program.” (§ 1170.06(m).) Eligibility “[I]nmates sentenced to a county jail for a determinate term of impris onment pursuant to a misdemeanor or a felony pursuant to subdivision (

h) of

Section 1170,

36 Rev. 5/17 and only those persons, are eligible to participate in the alternative custody program authorized by this section.” (§ 1170.06(c).) It is clear that this alternative program is not available to persons on probation. It is also clear that the program is available to persons receiving a straight determinate term under

section 1170(h)(5). However, it is unclear whether it is intended to apply to the custody portion o f a split sentence. Use of the phrase “sentenced to a county jail for a determinate term of imprisonment pursuant to . . . a felony pursuant to”

section 1170(

h) suggests the alternative sentencing provisions are not available to inmates who are given a sp lit sentence under

section 1170(h)(5). It seems unlikely the Legislature would have intended to give the jail the authority to create its own split sentence within the split sentence ordered by the court. The following persons, however, are excluded from the program under

section 1170.06(d): “

(1) The person was screened by the sheriff or the county director of corrections using a validated risk assessment tool and determined to pose a high risk to commit a violent offense.

(2) The person has a history, within the last 10 years, of escape from a facility while under juvenile or adult custody, including, but not limited to, any detention facility, camp, jail, or state prison facility.

(3) The person has a current or prior conviction for an offense that re quires the person to register as a sex offender as provided in

Chapter 5.5. (commencing with

Section 290) of Title 9 of

Part 1.” “This

section shall not be construed to require a sheriff or his or her designee, or a county director of corrections or his or her designee, to allow an inmate to participate in this program if it appears from the record that the inmate has not satisfacto rily complied with reasonable rules and regulations while in custody. An inmate shall be eligible for participation in an alternative custody program only if the sheriff or his or her designee or the county director of corrections or his or her designee co ncludes that the inmate meets the criteria for program participation established under this

section and that the inmate’s participation is consistent with any reasonable rules prescribed by the sheriff or the county director of corrections.” (§ 1170.06(i).) “A risk and needs assessment shall be completed on each inmate to assist in the determination of eligibility for participation and the type of alternative custody.” (§ 1170.06(i)(2).) The alternative program

37 Rev. 5/17 “As used in this section, an alternative custody program shall include, but is not limited to, the following:

(1) Confinement to a residential home during the hours designated by the sheriff or the county director of corrections.

(2) Confinement to a residential drug or treatment program during the hours designated by the county sheriff or the county director of corrections.

(3) Confinement to a transitional care facility that offers appropriate services.

(4) Confinement to a mental health clinic or hospital that offers appropriate mental health services.” (§ 1170.06(b).) While the first three of the foregoing alternatives are quite straightforward and appropriate, the fourth alternative, regarding the commitment of a defendant to a mental health facility, may raise procedural or due process concerns. Likely there will be no such issues if the defendant voluntarily agrees to participate in an inpatient mental health program.

Serious questions arise, however, if the attempt to commit the defendant is involuntary or is made under the threat of terminating the alternative sentencing program. The involuntary mental health commitment of a criminal defendant traditionally has only been accomplished with the strict observance of such procedural due process rights as representation by counsel and a determination by a judge or jury. (See §§ 1026(

a) and 1369.) None of these protections are evident in

section 1170.06(b)(4) – indeed, the statutory provisions purport to give the custodial administrator “sole discretion concerning whether to permit program participation.” (§ 1170.06(i)(2); emphasis added.) “An alternative custody program may include the use of electronic monitoring, global positioning system devices, or other supervising devices for the purpose of helping to verify a participant’s compliance with the rules and regulations of the program.

The devices shall not be used to eavesdrop or record any conversation, except a conversation between the participant and the person supervising the participant, in which case the recording of the conversation is to be used solely for the purposes of voice identification.” (§ 1170.06(e).) ”In order to implement alternative custody for the population specified in subdivision (c), the sheriff or the county director of co rrections shall create, and the participant shall agree to and fully participate in, an individualized treatment and rehabilitation plan.

When available and appropriate for the individualized treatment and rehabilitation plan, the sheriff or the county director of corrections shall prioritize the use of evidence -based programs and services that will aid in the participant’s successful reentry into society while he or she takes

part in alternative custody. Case management services shall be provided to suppor t rehabilitation and to track the

38 Rev. 5/17 progress and individualized treatment plan compliance of the inmate.” (§ 1170.06(f)(1).) ”The sheriff or his or her designee or the county director of corrections or his or her designee shall permit program participant s to seek and retain employment in the community, attend psychological counseling sessions or educational or vocational training classes, participate in life skills or parenting training, utilize substance abuse treatment services, or seek medical, mental health, and dental assistance based upon the participant’s individualized treatment and release plan.

Participation in other rehabilitative services and programs may be approved by the case manager if it is specified as a requirement of the inmate’s individualized treatment and rehabilitative case plan.” (§ 1170.06(j)(1).) Rules of the program “The sheriff or the county director of corrections shall prescribe reasonable rules to govern the operation of the alternative custody program. Each participant shall be informed in writing that he or she is required to comply with the rules of the program, including, but not limited to, the following rules:

(1) The participant shall remain within the interior premises of his or her residence during the hours designated by the sheriff or his or her designee or the county director of corrections or his or her designee.

(2) The participant shall be subject to search and seizure by a peace officer at any time of the day or night, with or without cause. In addition, the participant shall admit any peace officer designated by the sheriff or his or her designee or the county director of corrections or his or her designee into the participant’s residence at any time for purposes of verifying the participant’s compliance with the conditions of his or her detention. Prior to participation in the alternative custody program, each participant shall agree in writing to these terms and conditions.

(3) The sheriff or his or her designee, or the county director of corrections or his or her designee, may immediately retake the participant into custody to serve the balance of his or her sentence if an electronic monitoring or supervising device is unable for any reason to properly perform its function at the designated place of detention, if the participant fails to remain within the place of detention as stipulated in the agreement, or if the participant for any other reason no longer meets the criteria under this section.” (§ 1170.06(g).) “Whenever a peace officer supervising a participant has reasonable suspicion to believe that the participant is not complying with the rules or conditions of the program, or that a required electronic monitoring device is unable to function

39 Rev. 5/17 properly in the designated place of confinement, the peace officer may, under general or specific authorization of the sheriff or his or her designee, or the county director of corrections or his or her designee, and without a warrant of arrest, retake the participant into custody to complete the remainder of the original sentence.” (§ 1170.06(h).) Custody credits “Under this program, one day of participation is in lieu of one day of incarceration in a county jail.

Participants in the program shall receive any sentence reduction credits that they would have received had they served their sentence in a county jail, and are subject to denial and loss of credit pursuant to subdivision (

d) of

Section 4019.” (§ 1170.06(a).) 6) Modification or termination of a sentence imposed under

section 1170(

h) a. Straight sentence under

section 1170(h)

(5) Except for the recall of a sentence under

section 1170(d) (discussed, infra), the court has no authority to modify a straight sentence imposed under

section 1170(h)(5). authority to modify a straight sentence imposed under

section 1170(h)(5). (People v. Antolin (2017) ___ Cal.App.5th ___ [A147075].) Sections 1203.2 and 1203.3 give the court the authority to modify or revoke conditions of supervision.

Section 1170(h)(5)(

B) specifies: “Any proceeding to revoke or modify mandatory supervision under this subparagraph shall be conducted p ursuant to either” sections 1203.2 or 1203.3. No similar provision is included in

section 1170(h)(5)(A). Sections 1203.2(

a) and 1203.3(

a) specify their provisions apply to persons on some form of supervision - - probation, mandatory supervision, PRCS, or parole. No mention is made of straight sentences under

section 1170(h)(5)(A). b. Split sentence under

section 1170(h)

(5) SB 1023, effective June 27, 2012, added

section 1170(h)(5)(B(

i) to provide that all proceedings to modify or revoke mandatory superv ision shall be in accordance with sections 1203.2(

a) and (b), or 1203.3, the procedures traditionally used to modify or terminate probation.

Section 1170(h)(5)(B)(

i) suggests the court may have the ability to terminate the supervision period of a split sentence prior to expiration of the imposed sentence: “The period of supervision shall be mandatory, and may not be earlier terminated except by court order.” 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(a): “The court may

40 Rev. 5/17 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 extent of the court’s authority to terminate mandatory supervision is not entirely clear. There appears little question that the court has the authority to end mandatory supervision short of the full term originally ordered.

Section 1203.2(b)(1), applicable to all forms of supervision, provides “[u]pon its own motion or upon the petition of the supervised person, the probation or parole office r or the district attorney of the county in which the person is supervised, the court may modify, revoke, or terminate supervision of the person pursuant to this subdivision. . . .” Similarly, the corresponding, but separate provisions of

section 1203.3(a), provide “[t]he court shall also have the authority at any time during the term of mandatory supervision pursuant to subparagraph (

B) of paragraph (5) of subdivision (

b) of

Section 1170 to revoke, modify, or change the conditions of the court’s order su spending the execution of the concluding portion of the supervised person’s term.” The issue is whether the court’s authority to terminate mandatory supervision is limited only to the suspended portion of the sentence such that the defendant would be required to serve the balance of the suspended portion in custody, or whether it applies to the full sentence originally imposed by the court.

In other words, if the court terminates the mandatory supervision portion of the sentence prior to the full period having been served, must any unserved portion of the sentence be served in custody? People v. Camp (2015) 233 Cal.App.4 th 461, discusses termination and modification of a split sentence because of the defendant’s deportation status. In that case, the defendant negotiated and received a sentence of 28 months, half to be served in custody and half to be served on mandatory supervision.

Shortly after the defendant was sentenced, the probation officer determined the defendant was subject to deportation and could not serve any portion of the supervision term. The court modified the sentence by terminating mandatory supervision and imposing a total straight term of 364 days in the county jail. The People argued the court only was permitted to convert the remaining mandatory supervision time to straight time, or allow the defendant to withdraw his plea. The Court of Appeal disag reed. It found the termination and modification was consistent with the provisions of

section 1170(h)(5)(B)(i), and 1203.3 to terminate and modify supervision. The court was not required to impose the stayed portion of the sentence.

Section 1203.3 tradi tionally has been used to terminate probation when the defendant has demonstrated good behavior: “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 wa rrant it, terminate the period of probation and discharge the person so held.” (§ 1203.3(a).) When addressing the termination of probation, the statute expressly provides for discharge of the defendant; there is no provision providing for the “discharge” of a person on mandatory supervision.

41 Rev. 5/17 Furthermore,

section 1203.3(

b) appears to distinguish between termination of probation and termination of mandatory supervision: “The exercise of the court’s authority in subdivision (

a) to revoke, modify, or change probation or mandatory supervision, or to terminate probation,” is limited to specified conditions. Although these provisions may suggest the Legislature has not given the court the authority to discharge a person on mandatory supervision, such a conclusio n obviously is inconsistent with the traditional purpose of

section 1203.3 – rewarding good behavior generally does not translate into additional custody time. It is not logical to conclude the Legislature intended that a court must order a defendant into custody once he has shown the interests of justice no longer demonstrate a need for further supervision. It is logical for the Legislature to grant the court authority to terminate mandatory supervision early when the defendant has reformed and because t he mandatory supervision portion of the sentence occurs after the custody portion has been completed. Camp concurs with this

interpretation. (People v. Camp, supra, 233 Cal.App.4th, at pp. 474 -475.) Finally, when the Legislature desires to restrict the court’s authority to terminate a form of supervision, it knows how to do it. (See, e.g., sections 1203.2(

a) and (b)(1): “the court shall not terminate parole pursuant to this” section.) Neither

section 1203.2 nor 1203.3 contain such an express restriction on the court’s authority. In conflict with apparent authority of the court to terminate mandatory supervision under

section 1170(h)(5) is the Victim’s Bill of Rights embodied in

Article 1,

section 28(a)(5) of the Constitution, which provides: “Victims of crime have a collectively shared right to expect that persons convicted of committing criminal acts are sufficiently punished in both the manner and the length of the sentences imposed by the courts of the State of California.

This right includes the right to expect that the punitive and deterrent effect of custodial sentences imposed by the courts will not be undercut or diminished by the granting of rights and privileges to prisoners that are not required by any provision of the United States Constit ution or by the laws of this State to be granted to any person incarcerated in a penal or other custodial facility in this State as a punishment or correction for the commission of a crime.” Although

section 28(a)(5) primarily focuses on shortening of cus tody time, certainly the spirit of the provision is that once imposed by the court, sentences are not to be shortened. 7) Violations of mandatory supervision SB 1023, effective June 27, 2012, added

section 1170(h)(5)(B(

i) to provide that all proceedings to modify or revoke mandatory supervision shall be in accordance with sections 1203.2(

a) and (b), and 1203.3, the procedures traditionally used to modify, revok e or terminate probation. The uniform procedures under

section 1203.2 will be used for all persons on regular probation,

summary or informal probation, mandatory supervision, postrelease community supervision (PRCS), or revocation of parole supervision under

section 3000.08. (§ 1203.2(a).)

42 Rev. 5/17

Section 2(

b) of SB 1023 provides: “ By amending subparagraph (

B) of paragraph (5) of subdivision (

h) of

Section 1170, subdivision (

f) of

Section 3000.08, and subdivision (

a) of

Section 3455 of the Penal Code to apply to probation revocation procedures under

Section 1203.2 of the Penal Code, it is the intent of the Legislature that these amendments simultaneously incorporate the procedural due process protections held to apply to probation revocation procedures under Morrissey v. Brewer (1972) 408 U.S. 471, and People v. Vickers (1972) 8 Cal.3d 451, and their progeny.” (2011 Realignment Legislation, SB 1023,

Sec. 2(b), effective June 27, 2012.) Procedures In general, the traditional procedures and practices under

section 1203.2 and 1203.3 for modification or termination of probation will be fully applicable to persons on mandatory supervision, PRCS, and parole. Rule 4.541, governing the content of petitions to revoke or terminate supervision, is now applicable to all petitions under

section 1203.2. The Judicial Council has approved the Petition for Revocation (Form CR-300) for petitions to revoke PRCS and parole. Determination of probable cause for detention For a full discussion of the issue of the determination of probable cause for detention, see

Section P, infra. The court has the ability to order the release of any person being held in custody for a violation of supervision, under such terms as th e court deems appropriate. (§ 1203.2(a).) Use of hearsay evidence Violation proceedings likely will involve the limited use of hearsay evidence. For a full discussion of the use of such evidence, see

Section Q, infra. Sentencing options Just as with violations of probation, the court will have a number of options regarding violations of mandatory supervision. Presumably the court could modify treatment conditions to more effectively address the defendant's problems. The court could impose a discipli nary term in jail and reinstate on the same or modified conditions of mandatory supervision. The court could

43 Rev. 5/17 terminate supervision completely and impose any unserved time from the original sentence. As a matter of sentencing strategy, however, the court and the parties must understand there is no legal basis for extending the original sentence. The amount of custody time is finite -- once it is gone, the whole sentence is completed and the defendant is released from any form of supervision. If the court chooses to impose a custody sanction, the court will have the ability to use any unserved time remaining on the original sentence. Generally this will be time remaining for mandatory supervision.

In most instances, the calculation of the remaining time is simple. Even with multiple cases, a violation of any condition will expose the defendant to the use of any of the time remaining on the total sentence. This is so because the defendant is serving a single global sentence – the sentence is not allocate d between particular cases. Nothing in sections 1170 and 1170.1 specify the sentence is to be served separately for each case.

There will be a single aggregate sentence, allocated between actual custody and mandatory supervision; there will be a single set of conditions of supervision applicable to the entire period of supervision. Accordingly, violation of any condition of supervision will trigger the possibility of actual custody for the entire unserved portion of the sentence.

If the court permanentl y revokes mandatory supervision and commits the defendant to county jail for any remaining term of the original sentence, the court should order into execution any mandatory supervision revocation fine ordered as part of the original sentence under

section 1202.45(b). People v. Catalon (2014) 228 Cal.App.4 th 173, held the trial court did not abuse its discretion when it imposed 550 days in custody from the 783 days remaining from defendant’s period of mandatory supervision for a violation of the conditions of supervision. The court found the sentence did not conflict with the objectives of the realignment legislation as expressed in

section 17.5. It was of no consequence that pe