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
specified.
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
released.
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.
