2011 Criminal Justice Realignment Act (AB 109/117)

On October 1, 2011, there will be some significant changes to felony sentencing practices, as well as parole revocation procedures, when the provisions of AB 109 and AB 117 (and cleanup legislation in AB 116 and AB 118 and ABx1 17) become effective. Please note that the changes in AB 109, 116, 117, and 118, and ABx1 17 may not comprise the final law, as cleanup legislation is pending in SBx1 5 (currently in committee). Among other changes, the new laws will provide the option for courts to impose a jail term of over one year for certain felonies committed by specified defendants. We are just beginning to analyze these changes. In July, the Bench-Bar Coalition of the Office of Governmental Affairs has sent a preliminary, informational e-mail outlining the key court-related provisions. It can be viewed here.

The California Judicial Branch website contains many helpful resources through its page dedicated to these new legislative changes: Criminal Justice Realignment Resource Center. CDCR also summarizes the legislation with various resources on CDCR’s realignment webpage. Garrick Byers of the Fresno Public Defender’s Office presented a webinar on these new laws through CACJ in August. To pay and listen to this event, click here. The websites of both FDAP and CCAP also present
useful resources through their Realignment pages.

Amendments to Penal Code sections 2933 and 4019 providing for additional presentence custody credits for many individuals: 1) retroactivity question from January 2010 amendments in California Supreme Court; 2) further changes will take effect October 1, 2011.

The SB3x 18 amendments to Penal Code section 4019, which went into effect on January 25, 2010, provide for additional presentence custody credits for individuals without prior or current serious or violent felonies and without sex offender registration requirements.

The primary question raised by this favorable change in the law is whether it should be applied retroactively and secondarily, if so, whether it should be retroactive for all cases not yet final under the principles of In re Estrada (1965) 63 Cal.2d 740, 748, or retroactive for all cases under equal protection principles, as applied as explained in In re Kapperman (1974) 11 Cal.3d 542, 546-550. The California Supreme Court has granted review in many cases to decide the retroactivity question; the lead case is People v. Brown (2010) 182 Cal.App.4th 1354, review granted, June 9, 2010, S181963. ADI’s news alerts and guidance to counsel dated February 2, 2010, February 26, 2010, May 7, 2010, June 22, 2010, February 4, 2011, and March 22, 2011 are here. In short, counsel should preserve the issue where applicable. Relief should normally be sought in the trial court first under Penal Code section 1237.1; consult trial counsel to see if he or she will be doing that. Petition for review should be filed if the efforts in the trial court and Court of Appeal are unsuccessful.

On September 28, 2010, the law setting forth calculation of presentence custody credits was changed yet again with the enactment of Senate Bill No. 76 (2009-2010 Reg. Sess.), urgency legislation that was effective immediately.  The calculation method set forth in Penal Code section 2933, subdivision (e)(1), as amended by SB 76, is beneficial in providing for one additional day of conduct credits in cases with odd numbered actual custody credits and requiring no minimum number of actual credits prior to the award of conduct credits, as had been required under former Penal Code section 4019.   (See also People v. Dieck (2009) 46 Cal.4th 934.)  On the other hand, subdivision (e)(2) is detrimental in creating a new limitation on these credits.  ADI’s 2011 news alerts and guidance to counsel dated February 4 and March 22 are here. A memo on SB 76 is here.

Additional favorable changes, effective October 1, 2011, permit more defendants to get halftime conduct credits (amended Penal Code section 4019) and permit actual days of credit for home detention (amended Penal Code section 2900.5). Please note that while language in amended Penal Code section 4019 states the October 1, 2011 changes are not retroactive, no such language exists in amended Penal Code section 2900.5. In considering whether the home detention credit changes apply retroactively, the resources and arguments regarding the January 2010 changes should provide guidance. Additional resources addressing the most recent credits amendments can be found in the resources on FDAP’s website.

Penal Code section 666 amendment: three or more prior theft-related convictions now required to elevate petty theft to felony for many defendants

In addition to increasing sentences for certain sex offenses, Chelsea’s Law, signed September 9, 2010, and effective immediately, provides petty theft is a felony only when the defendant has three or more prior theft-related convictions and was incarcerated for them, unless the defendant is required to register as a sex offender or has a serious or violent felony prior. Text of entire bill is here; excerpts on change to section 666 are here.

Counsel should review their Penal Code section 666 cases in which clients were convicted on the basis of one or two priors and act if it would be beneficial. They should keep in mind this amendment, if applicable, would change a section 666 felony to a misdemeanor and in some instances conceivably could require immediate steps.

ADI is analyzing the possible retroactivity of the amendment. Counsel should argue at least that the amendment applies to all cases not yet final for purposes of appellate review, under In re Estrada (1965) 63 Cal.2d 740, 748. (See People v. Nasalga (1996) 12 Cal.4th 784.) An argument that the law is fully retroactive would be based on In re Kapperman (1974) 11 Cal.3d 542, 546-550, and People v. Sage 1980) 26 Cal.3d 498 and should consider People v. Floyd (2003) 31 Cal.4th 179. (See In re Chavez (2004) 114 Cal.App.4th 989 [change from indeterminate to determinate sentence was correction of legislative oversight, intended to be fully retroactive]; see also Way v. Superior Court (People) (1977) 74 Cal.App.3d 165 [Legislature may retroactively change final judgments to determinate ones under general restructuring of sentencing system].)

The Fifth District Court of Appeal has found that the amendment is retroactive under Estrada. (People v. Vinson (2011) 193 Cal.App.4th 1190.)

“New Laws for 2011 for Criminal Law Practitioners”

Fresno public defender Garrick Byers’ analysis of statutory and other changes going into effect in 2011 is posted with the author’s permission here.

Tracking pending legislation

One may search for pending California legislation and sign up for e-mail notifications of developments for any given bill here.