2011 Criminal Justice Realignment Act ... - California Courts

21. What effect will section 17(b) have on “attempts” when committed to county
jail under section 1170(h)?
Section 17(b) has been amended to include in the definition of "felony" a crime punishable in
the county jail under section 1170(h) and eliminates the requirement that the term exceed one
year to constitute a felony.
22. Can the court terminate mandatory supervision before the end of the
sentence?
Yes. Section 1170(h)(5)(B), specifies 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.
23. Can section 1385 be used to dismiss the disqualifying factors to permit the
use of section 1170(h) to commit a defendant to county jail?
Generally, no. Section 1170(f) provides: “Notwithstanding any other provision of this
section, for purposes of paragraph (3) of subdivision (h), any allegation that a defendant is
eligible for state prison due to a prior or current conviction, sentence enhancement, or
because he or she is required to register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.” Section 1170(f) does not prevent the court from striking a strike
for the purposes of the Three Strikes law; it only prevents the use of section 1385 to strike a
strike or other disqualifier for the purpose of allowing local punishment under section
1170(h). The rule, however, is limited to adult convictions; it has no application to juvenile
adjudications. See Answer 24, below.
24. How does the adjudication for a juvenile strike relate to an 1170(h) sentence?
The exclusions under section 1170(h)(3) only reference adult strike convictions; juvenile
adjudications are not mentioned. Accordingly, if the defendant has a juvenile strike
adjudication, he will remain eligible for commitment under section 1170(h) for the purposes
of the realignment legislation. However, if the defendant is found to have suffered the
adjudication and it remains as part of the sentencing, the defendant must be committed to
CDCR, not because of the realignment law, but because of the Three Strikes law. Such a
consequence can be avoided in appropriate circumstances by striking the adjudication. With
the elimination of the strike, the defendant may receive a sentence under section 1170(h).
25. Does the realignment law affect the application of Vehicle Code section
41500?
Section 41500 allows the forgiveness of certain traffic offenses once a defendant is sentenced
to state prison. There is no similar provision for sentences imposed under the realignment
legislation. It would seem there is a compelling equal protection argument for applying
Vehicle Code section 41500 to 1170(h) sentences.
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