BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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SB 1441 (Emmerson) 1
As Introduced February 24, 2012
Hearing date: April 24, 2012
Penal Code
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CRIMINAL JUSTICE REALIGNMENT OF 2011:
FELONY SENTENCES OF MORE THAN 3 YEARS
HISTORY
Source: Riverside County District Attorney
Prior Legislation: AB 109 (Committee on Budget) - Ch. 15, Stats.
2011
AB 117 (Committee on Budget) - Ch. 39, Stats. 2011
ABx1 17 (Blumenfield) - Ch. 12, Stats. 2011
AB 116 (Committee on Budget) - Ch. 136, Stats. 2011
Support: Kern County Board of Supervisors; Riverside County
Board of Supervisors; California District Attorneys
Association; California State Sheriffs Association;
California Police Chiefs Association; San Bernardino
Sheriff
Opposition:California Attorneys for Criminal Justice
KEY ISSUE
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SHOULD THE CRIMINAL JUSTICE REALIGNMENT OF 2011 BE REVISED TO
REQUIRE THAT DEFENDANTS CONVICTED OF A FELONY AND SENTENCED TO
MORE THAN THREE YEARS SERVE THAT SENTENCE IN PRISON, AS
SPECIFIED?
PURPOSE
The purpose of this bill is to revise the criminal justice
realignment of 2011 by requiring that defendants convicted of a
felony and sentenced to more than three years shall serve that
sentence in prison, as specified.
Current law generally provides that, for any person sentenced on
or after October 1, 2011, certain felonies - those which by
their statutory terms specifically so provide - are punishable
by a term of imprisonment in a county jail, as specified.
(Penal Code � 1170(h).)
Current law provides that, notwithstanding this general
provision, where a defendant meets any of the following criteria
an executed sentence for a felony punishable pursuant to this
subdivision shall be served in state prison:
The defendant has a prior or current felony conviction
for a serious felony described in subdivision (c) of
Section 1192.7;
The defendant has a prior or current conviction for a
violent felony described in subdivision (c) of Section
667.5;
The defendant has a prior felony conviction in another
jurisdiction for an offense that has all of the elements of
a serious felony described in subdivision (c) of Section
1192.7 or a violent felony described in subdivision (c) of
Section 667.5;
The defendant is required to register as a sex offender,
as specified; or
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The defendant is convicted of a crime and as part of the
sentence an enhancement pursuant to Section 186.11 is
imposed. (Penal Code � 1170(h)(3).)
This bill would amend this provision to provide in addition that
where a defendant has been convicted of a felony punishable
pursuant to this subdivision and is sentenced to more than three
years , the sentence shall be served in state prison, as
specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
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prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
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The author's office has been informed that this bill appears to
aggravate the prison overcrowding crisis described above under
ROCA.
COMMENTS
1. Stated Need for This Bill
The author states:
Under realignment, low-level offenders are being
shifted from prisons to local jails. As it stands,
approximately 32 counties are faced with overcrowding
or court-imposed caps on jail populations. Therefore,
the realignment population
shift is causing our local jails to be even more over
crowed than before. Furthermore, California's jails
were not built or designed to house prisoners for long
periods of time.
2. What This Bill Would Do
As explained above, this bill would change provisions in the
2011 criminal justice realignment concerning which felonies must
be served in prison. Specifically, this bill would widen the
category of which executed felony sentences must be served in
state prison - not county jail - by providing that sentences of
more than 3 years must be served in state prison. Under current
law, there is no term-based threshold for which felonies must be
served in prison or jail.
This bill would result in more felons serving their custodial
time in prison. Committee staff is unaware of data estimating
the impact of this particular bill on the prison population and
the state's ability to make progress on meeting the reductions
ordered by the court in Plata. The overall estimated impact of
realignment is noted in a Legislative Analyst's Office's
February report on realignment:
CDCR projects that the average daily prison population
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will be nearly 11,000
inmates, or 7 percent, lower in 2011-12 than it would
have been in the absence of realignment. By 2016-17,
the department estimates that the prison population
will be lower by nearly 40,000 inmates, or 24 percent,
than it otherwise would
have been absent the 2011 realignment. By the end of
this projection period, the state's prison system is
expected to have about 124,000 inmates. These
estimates are consistent with the administration's
original projections regarding the impact of the 2011
realignment on the state prison population.<1>
3. Background: Felony Sentencing Under the Criminal Justice
Realignment of 2011
The "2011 Realignment Legislation Addressing Public Safety"
("criminal justice realignment") fundamentally altered how
convicted felons are handled under California law.<2> Under
California law operative until October 1, 2011, a felony was a
crime punishable by death or imprisonment in state prison.<3>
Effective October 1, 2011, criminal justice realignment
redefined the term "felony" to include crimes punishable by
imprisonment in a county jail, as specified, depending upon the
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<1> The 2012-13 Budget: Refocusing CDCR After The 2011
Realignment, Legislative Analyst's Office (February 23, 2012.)
<2> AB 109 (Committee on Budget) (Ch. 15, Stats. 2011) is the
principal measure establishing the 2011 public safety
realignment. As noted at the beginning of this analysis,
several subsequent measures revised AB 109 and enacted
additional provisions relating to certain aspects of
realignment.
<3> Penal Code � 17. This classification does not affect the
ability of the court to suspend execution of a felony sentence
and impose conditions of probation where allowable, supervised
and performed locally. (See Penal Code � 1203.1.) A
misdemeanor is a crime punishable by imprisonment by 6 months or
not more than one year. (Penal Code �� 19 and 19.2.)
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criminal history of the offender.<4>
As explained in a January 2012, article describing felony
sentencing after realignment:
With respect to felony sentencing, it appears the
intent of the realignment legislation is merely to
change the place where sentences for certain crimes
are to be served. The legislation has not changed the
basic rules regarding probation eligibility. Courts
retain the discretion to place people on probation,
unless otherwise specifically prohibited, under the
law that existed prior to the realignment legislation.
There is no intent to change the basic rules
regarding the structure of a felony sentence contained
in sections 1170 and 1170.1. Furthermore, there is no
change in the length of term or sentencing triad for
any crime. Realignment comes into play when the court
determines the defendant should not be granted
probation, either at the initial sentencing or as a
result of a probation violation.<5>
The confinement changes under criminal justice realignment -
that is, modifications to where felons serve their executed
felony sentences in custody, either in state prison or in local
facilities - apply to persons sentenced on or after October 1,
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<4> Penal Code � 17, as amended by Section 228 of AB 109 and
Section 6 of ABx1 17.
<5> Felony Sentencing After Realignment, J. Richard Couzens,
Judge of the Superior Court, County of Placer (Ret.); Tricia A.
Bigelow, Presiding Justice, Court of Appeal, 2nd Appellate
District, Div. 8, p. 3 (January 2012).
(http://www.courts.ca.gov/partners/documents/felony_sentencing.pd
f.)
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2011. These changes are not retroactive.<6>
Criminal justice realignment provides that numerous felonies are
punishable by a term of imprisonment in county jail - not prison
- unless the crime of conviction or a defendant's criminal
history makes the defendant ineligible for serving their felony
sentence in jail.<7> This change, contained in subdivision (h)
of Penal Code section 1170, applies only to criminal statutes
which have been expressly amended to provide for a felony jail
term where otherwise allowable.<8>
Certain felons are categorically prohibited from serving an
executed felony sentence in county jail. The following persons
are statutorily ineligible to serve any executed felony sentence
in county jail:
The defendant has a prior or current felony conviction
for:
o a serious felony described in subdivision (c) of
Section 1192.7, or
o a violent felony described in subdivision (c) of
Section 667.5;
The defendant has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a
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<6> Paragraph (6) of subdivision (h) of Section 1170 of the
Penal Code, as amended by Sections 27 and 28 of AB 117, and
Section 12 of ABx1 17, states: "The sentencing changes made by
the act that added this subdivision shall be applied
prospectively to any person sentenced on or after October 1,
2011." With the exception of the role of courts in adjudicating
parole violations, which starts on July 1, 2013, the major
criminal law provisions of realignment became operative on and
after October 1, 2011. (See Section 68 of AB 117 and Section 46
of ABx1 17.)
<7> Just like the law prior to realignment about the length of
terms, if a term is not specified in the underlying offense the
crime shall be punishable by a term of imprisonment for 16
months, or two or three years and, for crimes where the
underlying criminal statute specifies the term, the felony shall
be punishable by imprisonment for the term described in the
underlying offense. (See Penal Code � 18, as amended in
Section 230 of AB 109 and Section 7 of ABx1 17, and Penal Code
Section 1170(h), as amended by sections 27 and 28 of AB 117.)
<8> This feature of criminal justice realignment - that its
newly-created felony jail sanction can be applied only to those
criminal statutes expressly amended to include a cross-reference
authorizing that sanction - largely accounts for the length of
AB 109 (663 pages).
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serious or violent felony in California, as specified;
The defendant is required to register as a sex offender;
or
The defendant is convicted of a crime and as part of the
sentence receives an aggravated theft enhancement, as
specified.<9>
For convicted felony offenders subject to confinement in a
county jail, courts are authorized to impose the felony sentence
to commit a defendant to county jail as follows:
For a full term in custody as determined in accordance
with the applicable sentencing law.
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
discretion, during which time the defendant shall be
supervised by the county probation officer in accordance
with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the
remaining unserved portion of the sentence imposed by the
court. The period of supervision shall be mandatory, and
may not be earlier terminated except by court order.
During the period when the defendant is under such
supervision, unless in actual custody related to the
sentence imposed by the court, the defendant shall be
entitled to only actual time credit against the term of
imprisonment imposed by the court.<10>
As noted by Judge Couzens and Justice Bigelow:
Sentences imposed under section 1170, subdivision
(h)(5)(B), have been characterized as "split" or
"blended" sentences because they have both custody and
non-custody elements. The length and circumstances of
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<9> Penal Code � 1170(h) (3), as amended in Sections 450 and
451 of AB 109, Sections 27 and 28 of AB 117, and Section 12 of
ABx1 17.
<10> Penal Code � 1170(h) (5), as amended in Section 12 of
ABx1 17.
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the suspended term are within the court's discretion;
presumably the court could suspend all or only a
portion of the sentence. There are many sentencing
strategies available to the court, depending on the
defendant's circumstances, hopefully enlightened by a
current risk/needs assessment done by the probation
department. The following represent just a few of the
options available to the court:
The court could impose a term from the
triad, suspend a concluding portion of the term
and set conditions of supervision. Such an
alternative may be appropriate when the time in
custody will be relatively short such that the
case plan developed at sentencing will be
reasonably current when the defendant converts to
mandatory supervision.
The court could impose a term from the
triad, suspend a concluding portion of the term,
but reserve jurisdiction to set the conditions of
supervision shortly before the defendant is
released from custody. Such an alternative may
be appropriate when the court realizes that
supervision is necessary, but because of a
lengthy custody period may want to have a new
risk/needs assessment at the time the defendant
is ready to be released. Such a strategy will
account for the changing nature of defendant's
risk and will make the case plan more relevant to
defendant's actual circumstances at the time he
is ready for release.
The court could choose to impose a
sentence under the provisions of section 1170,
subdivision (h)(5)(B), but reserve jurisdiction
to set the actual time and conditions of release
at a later time. Such a strategy might be
appropriate where the court wants to give the
defendant encouragement to complete various
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custody programs and do well in custody, then set
relevant terms when the court determines release
is appropriate.<11>
4. Reports of Very Long Jail Felony Sentences
Since the enactment of realignment, there have been anecdotal
and press reports of very long felony sentences required to be
served in county jail. For example:
Javier Miranda was arrested last November while
driving a truck full of methamphetamine up Interstate
5. After a short trial, he received an 18-year
sentence - but he won't go to prison. Instead,
Miranda will serve his time in county jail.
The length of Miranda's sentence is an unusual but not
a unique result of prison "realignment." Counties
throughout California are now tasked with housing and
rehabilitating prisoners classified as non-serious,
non-violent and non-sexual, no matter the length of
their sentence in their jail. Before realignment,
prisoners like Miranda would likely have faced prison
time.
. . .
There is a difference between spending 18, seven or
even two years in county jail as opposed to prison.
Jails often lack the necessary resources for longer
stays, such as medical care and other social services
programs that help rehabilitate prisoners.
. . .
Miranda is the first person in Merced County to be
handed such a long jail sentence.
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<11> Felony Sentencing After Realignment, supra fn.4, at p. 8.
Merced County Chief Deputy District Attorney Harold
Nutt was the prosecutor in Miranda's case and said the
18 years - four years for the principal charge, 10 for
weight of drugs he was transporting (10 kilos), three
years for a prior prison term for a similar
drug-related offense and one year for a prior prison
term - fit the crime.
Realignment, he said, took away a hammer that law
enforcement once had to hold people accountable.
Prison, he said, used to be a real threat to
individuals looking to offend and re-offend. Without
the option of prison, county jails will increasingly
have to bear the burden of long sentences.
"This is highly unusual," he said of Miranda's 18
years in jail. But, he added, "It wouldn't be
inconceivable to sentence someone to seven or eight
years. Realignment changed the way everybody looks at
things."
Merced is not the only county that has seen jail
sentences of longer than a year. The longest in
Contra Costa County so far is five years. In San
Bernardino the longest sentence was 10 years, and in
Riverside, 14 years. Santa Barbara County jail holds
one inmate sentenced to 23 years.
Long jail sentences have mostly been in Southern
California, said Pazin, who is also president of the
California Sheriff's Association. That area of the
state also has the largest population, he noted.
How many years of their sentence that these inmates
will actually serve behind bars depends on the
respective county's resources and realignment plan.
Miranda is going to be in custody in Merced's jail for
at least two years, according to Antoinette Murillo,
public information officer for Merced County
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Corrections Department.
He'll spend another couple of years on electronic
monitoring before going under the supervision of
probation, she said. Miranda has a U.S. Immigration
and Customs Enforcement hold, she noted, which also
might affect what happens to him once he is released
from jail.
Barely a year into realignment, multi-year sentencing
is an unintended consequence of reform, Pazin said.
He added that he and his colleagues hope to discuss
the possibility of a legislative remedy to the problem
with Gov. Jerry Brown in the future.
In the meantime, he said, "We are hoping that this
won't become a trend."<12>
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<12> Realignment Results in Lengthy Jail Sentences, M. Perez,
California Health Report (http://www.healthycal.
org/archives/8196.)
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