Friday, February 8, 2013

1170(h) Split Sentence Issue. Revocation

Recently I came across the issue is a person serving a split sentence (a prison commit serving local time with  a period of Mandatory Supervision upon release) more like a grant of parole or like probation.

The issue presented is that a person was serving a split sentence and was still incarcerated. While in custody he was accused of a crime, say assault on another inmate. The Prosecutor tries to revoke his Mandatory Supervision. I object saying that he hasn't started his Mandatory Supervision yet.

Penal Code § 1170, subdivision(h)(5) reads as follows:
The court, when imposing a sentence pursuant to this subdivision, may commit the offender to the county jail as follows:
(i)             For a straight term as determined in accordance with applicable sentencing law; or
(ii)           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 offender 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 un-served 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. …. (Emphasis added)
This issue seems to be a case of first impression.  Not surprisingly, there is a dearth of case law on the issue. However, a plain and simple reading of the statute shows that the period of mandatory supervision does not commence until the offender is released from custody from his prison sentence.
        The next step is to turn to the Legislative Intent. The Legislative  Counsel’s Digest for AB 109,  notes:
(8) Existing law generally provides that the Board of Parole
Hearings, a state agency, shall have the power to allow prisoners
imprisoned in the state prisons to go upon parole outside the prison
walls and enclosures, as specified. Existing law authorizes each
county to establish a local Community Corrections Partnership to
provide a system of felony probation supervision services, as
This bill would enact the Postrelease Community Supervision Act of
2011 to provide that any person released from prison on or after
July 1, 2011, after serving a term in prison for certain felonies
that are, among other things, not serious or violent, shall be
subject to, for a period not exceeding 3 years, community supervision
provided by a county agency designated by that county's board of
supervisors, as prescribed. By imposing additional duties as local
agencies, this bill would impose a state-mandated local program. The
bill would also require the courts to establish a process to
determine if there has been a violation of the conditions of the
postrelease supervision, and the courts would be authorized to take
certain actions upon such a finding. The bill would establish within
each county local Community Corrections Partnership an executive
committee, as specified, to recommend a local plan to the county
 to the jurisdiction of the Department of Corrections and
Rehabilitation. Existing law also provides for parole of those
felons, under the jurisdiction of the Board of Parole Hearings.
This bill would limit the jurisdiction of the Board of Parole
Hearings for purposes of parole supervision by providing that persons
who are released from prison after serving terms for a serious
felony, as defined, a violent felony, as defined, a term imposed
because of 2 or more prior felony convictions, as specified, or a
term for an offense whereby the person may be classified as a High
Risk Sex Offender, would be subject to parole supervision by the
department or the court, as specified.
The bill would require that any parolee who was paroled from state
prison prior to July 1, 2011, be subject to certain parole
supervision requirements, including, but not limited to, that he or
she remain under the supervision of the department until a specified
circumstance occurs, and that those parolees, being held for a parole
violation in county jail on July 1, 2011, be subject to the
jurisdiction of the board. Eligible parolees released from prison
after serving terms for a serious felony, a violent felony, a term
imposed because of 2 or more prior felony convictions, as specified,
or a term for an offense whereby the person may be classified as a
High Risk Sex Offender, whose parole is revoked by the board, would
be remanded to state prison, and after his or her release
jurisdiction over the parolee would remain under the Division of
Adult Parole Operations. Any subsequent revocation action would be
Conducted  by the court in the county into which the parolee was

            Based upon the foregoing, I argued that the clear Legislative intent is that Mandatory Supervision replaces parole. Under prior law, a person could not violate parole prior to release from physical incarceration. 
 The issue has yet to be resolved.