Assembly Bill 109 (AB 109), known as realignment, is a measure passed by California voters in 2011 that diverts defendants convicted of less serious felonies to serve their time in local county jail rather than in state prison.
However, realignment does not change how things work for more serious felonies, violent felonies or major sex crimes. People convicted of these offenses will still be eligible for state prison.
AB 109 remains the subject of significant controversy, a controversy intensified by the February 20, 2017 shooting death of Whittier Police officer Keith Boyer. As a consequence of realignment, the suspect in that case was on locally supervised probation rather than the more stringent jurisdiction of the Department of Corrections and Rehabilitation.
In this article, our California criminal defense attorneys will discuss:
- 1. What is realignment AB 109 in California?
- 2. How does realignment change things?
- 3. What crimes are covered by realignment?
- 4. What offenses are NOT covered by realignment?
- 5. How does realignment AB 109 work?
If you have further questions about realignment AB 109 in California or Section 1170(h) offenses after reading this article, we invite you to contact us at Shouse Law Group for a consultation.
1. What is realignment AB 109 in California?
Realignment describes a process of significant change in the California criminal justice system. Realignment AB 109 transfers responsibility for supervising certain kinds of felony lower-level offenders and state prison parolees from state prisons and state parole agents to county jails and probation officers.
Realignment came about in early 2011 through enactment of California Assembly Bill 109, called the Public Safety Realignment Act, signed by then Governor Jerry Brown. Realignment AB 109 legislation was then “tweaked” by a series of other laws including AB 116, AB 117, and AB 118.
Realignment AB 109 was enacted against the backdrop of a severely overcrowded California state prison system, which strained health care and social services for inmates. But the statute says it was enacted to combat recidivism and not because of overcrowded prison populations.2
This new sentencing scheme applies statewide to anyone sentenced on or after October 1, 2011.3
As a result of realignment AB 109 in California:
- If you are convicted of one of about 500 felony crimes in California that are considered “non-serious, non-violent and non-sex-related,” you will be sentenced to county jail and/or non-custodial mandatory supervision (similar to probation), whereas before you could have been sentenced to California state prison.4
- If you are currently serving a prison sentence for a “realignment” crime, when you are released you will be supervised by county probation officers under a new scheme called Postrelease Community Supervision (PRCS) instead of by state parole agents.
Prison realignment is not the same thing as felony probation in California, although California Penal Code Section 1170(h) provides that “mandatory supervision” shall be conducted in accordance with the “terms, conditions, and procedures generally applicable to persons placed on probation.”5
If you would like to read more about felony probation, please see our related article on Felony Probation in California. Misdemeanor probation is something else altogether and we discuss that in our article Misdemeanor Probation in California.
Advocates of realignment AB 109 believe that low-level offenders can be best rehabilitated through local, community-oriented and evidence-based practices instead of state prison.
However, not everyone thinks realignment is going to reduce crime. Law enforcement officials have criticized the law and, in a letter to the Los Angeles County Board of Supervisors, Los Angeles County District Attorney Steve Cooley wrote that realignment poses “a grave threat to public safety.”6
2. How does realignment change things?
Realignment changes things in a number of ways. For one thing, realignment AB 109 amends the very definition of a felony crime in California.7
Whereas felony crime in California used to be defined as an offense that could be punished with state prison, the statute now defines felony to include Penal Code “Section 1170(h)” offenses that can be punished in county jail even though they are still considered “felony crimes.”8
Let’s look at an example:
Example: In 2010 Manuel was caught with baggies of cocaine. He was arrested and convicted of violating California Health & Safety 11351 hs drug possession for sale. Because it was 2010 and realignment was not in effect, Manuel faced up to four years in California state prison.
Change the facts: Manuel is not sentenced for his California Health & Safety 11351 hs drug possession for sale conviction until November 2011, after the realignment AB 109 implementation plan takes effect. This means that Manuel faces at most up to four years in county jail for his commitment offense.9
Manuel might also be eligible for felony probation in California for his California Health & Safety 11351 hs drug possession for sale conviction, so long as he has no prior conviction for the offense.10
3. What crimes are covered by realignment?
Realignment AB 109 in California amended about 500 criminal statutes to eliminate the possibility of state prison time. The law amended all kinds of California Codes including the California Penal Code, California Health & Safety Code and California Vehicle Code.
If you are convicted of a realignment offense, and are not disqualified from realignment as discussed in Section 4 below, you won’t face time in state prison. Instead you will be sentenced in accordance with California Penal Code Section 1170(h), which means you will spend time in county jail and/or under out-of-custody mandatory supervision.
The statutes amended by realignment are sometimes referred to as the “non-non-non” crimes because they are non-serious, non-violent, and non-sex related.
Here are a few examples:
- California Penal Code 459 pc commercial burglary11
- California Penal Code 470 pc forgery12
- California Penal Code 273(d) pc corporal injury on a child13
- California Vehicle Code 2800.4 vc aggravated evading a police officer14
- California Health & Safety Code 11359 hs possession of marijuana
For a more complete list of all the laws amended by realignment AB 109, please see Appendix I to Felony Sentencing after Realignment by Retired Judge Richard Couzens and Justice Tricia Bigelow.
4. What crimes are NOT covered by realignment?
Certain categories of crimes, and certain types of offenders, are not covered by realignment. Realignment is designed to deal with low-level and low-risk offenders, not people who are considered too dangerous and high-risk to be rehabilitated within the community.
The following offenses and offenders are excluded from realignment:
- Violent felonies under Penal Code 667.5 and offenses where the defendant has a prior conviction for one of the violent felonies under Penal Code 667.5 16
- Serious felonies under Penal Code 1192.7 and offenses where the defendant has a prior conviction for one of the serious felonies under Penal Code 1192.717
- Certain sex crimes in California where the offender is Required to Register as a Sex Offender in California18
- Certain aggravated white-collar crimes19 pursuant to PC 186.1120
- Approximately 60 other crimes that the legislature has decided to exclude, such as California Penal Code 273.5 pc corporal injury on a spouse, California Penal Code 92 pc bribery of judges or jurors, and California Penal Code 266(h) pc pimping.21 (For a list of other excluded crimes see the California Department of Corrections and Rehabilitation Final Crime Exclusion List.)
To see how disqualification from realignment works, let’s return to our example regarding Manuel:
Example: Manuel is convicted of violating California Health & Safety 11351 hs drug possession for sale and sentenced after October 1, 2011. Unfortunately, Manuel has a violent past. He has a prior conviction for California Penal Code 211 pc robbery, which is one of the violent felonies under Penal Code 667.5.
Manuel would have been eligible for Section 1170(h) sentencing, but he is disqualified because of his California Penal Code 211 pc robbery conviction. Further, because California Penal Code 211 pc robbery is a “strike” crime in California, Manuel also will be sentenced as a second striker under the California Three Strikes Law.
5. How does realignment AB 109 work?
The basic idea behind realignment AB 109 is to punish low-level felony offenders with local jail or out-of-custody “mandatory supervision” instead of prison. Because jails and probation departments are run at the county level, the law thus shifts from the state to the local level responsibility for dealing with certain felons.
5.1. Jail instead of prison for Section 1170(h) offenses
Realignment works by cross-referencing the 500 amended statutes to the new California Penal Code Section 1170(h). Section 1170(h) then provides for “imprisonment” in accordance with the sentencing “triad” set forth in the underlying realigned statute, but in county jail and/or under non-custodial mandatory supervision instead of prison.
If no sentencing triad is specified in the underlying statute, the sentencing range defaults to
- 16 months,
- two years or
- three years.
So, for example, one of the statutes impacted by realignment AB 109 is California Penal Code 470 pc forgery. That statute provides that: “Forgery is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170.”22
Because no specific triad is set forth in California Penal Code 470 pc forgery, the felony sentencing scheme is 16 months, two or three years.23
Note that California Penal Code 470 pc forgery is a “wobbler” crime
in California, which means that it can be charged as either a misdemeanor or felony. It is only in cases where California Penal Code 470 pc forgery is charged as a felony that Section 1170(h) sentencing comes into play.
If it is charged as a misdemeanor, then the offender will face no more than one year in county jail.
5.2. Sentencing options under realignment AB 109
When it comes to sentencing under Penal Code Section 1170(h), the judge has a few options. The judge might sentence you to jail for the full amount of jail time permitted.24
Alternatively, the judge might sentence you to jail for a portion of the time permitted and place you on out-of-custody mandatory supervision (similar to probation) for the remaining portion of the sentence.
It’s important to note, further, that realignment AB 109 does not prevent the judge from sentencing you to Felony Probation in California or California Penal Code Drug Diversion PC 1000 if you are otherwise eligible for those sentencing schemes.25
House arrest is allowed under realignment AB 109.26 Other creative sentencing measures under realignment include:
- Community service
- Restorative justice programs
- Furlough programs
- Work release
- Substance abuse treatment27
5.3. Changes to Parole and Postrelease Community Supervision (PRCS)
Realignment makes changes to the state parole system as well as to felony sentencing. In the past, when you were released from prison you are placed on parole and supervised by a state parole agent.
Now, under realignment AB 109, when you are released from prison after having been sentenced for certain realigned crimes, you will be supervised by county probation agents instead of state parole agents.
This new scheme is called “postrelease community supervision” (PRCS), and we discuss it in more detail in our related article Postrelease Community Supervision (PRCS).
- Our California Criminal Defense Attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- California Penal Code Section 17.5 provides: “(a) The Legislature finds and declares all of the following: (1) The Legislature reaffirms its commitment to reducing recidivism among criminal offenders. (2) Despite the dramatic increase in corrections spending over the past two decades, national reincarceration rates for people released from prison remain unchanged or have worsened. National data show that about 40 percent of released individuals are reincarcerated within three years. In California, the recidivism rate for persons who have served time in prison is even greater than the national average. (3) Criminal justice policies that rely on building and operating more prisons to address community safety concerns are not sustainable, and will not result in improved public safety. (4) California must reinvest its criminal justice resources to support community-based corrections programs and evidence-based practices that will achieve improved public safety returns on this state’s substantial investment in its criminal justice system. (5) Realigning low-level felony offenders who do not have prior convictions for serious, violent, or sex offenses to locally run community-based corrections programs, which are strengthened through community-based punishment, evidence-based practices, improved supervision strategies, and enhanced secured capacity, will improve public safety outcomes among adult felons and facilitate their reintegration back into society. (6) Community-based corrections programs require a partnership between local public safety entities and the county to provide and expand the use of community-based punishment for low-level offender populations. Each county’s Local Community Corrections Partnership, as established in paragraph (2) of subdivision (b) of Section 1230, should play a critical role in developing programs and ensuring appropriate outcomes for low-level offenders. (7) Fiscal policy and correctional practices should align to promote a justice reinvestment strategy that fits each county. “Justice reinvestment” is a data-driven approach to reduce corrections and related criminal justice spending and reinvest savings in strategies designed to increase public safety. The purpose of justice reinvestment is to manage and allocate criminal justice populations more cost-effectively, generating savings that can be reinvested in evidence-based strategies that increase public safety while holding offenders accountable. (8) “Community-based punishment” means correctional sanctions and programming encompassing a range of custodial and noncustodial responses to criminal or noncompliant offender activity. Community-based punishment may be provided by local public safety entities directly or through community-based public or private correctional service providers, and include, but are not limited to, the following: (A) Short-term flash incarceration in jail for a period of not more than 10 days. (B) Intensive community supervision. (C) Home detention with electronic monitoring or GPS monitoring. (D) Mandatory community service. (E) Restorative justice programs such as mandatory victim restitution and victim-offender reconciliation. (F) Work, training, or education in a furlough program pursuant to Section 1208. (G) Work, in lieu of confinement, in a work release program pursuant to Section 4024.2. (H) Day reporting. (I) Mandatory residential or nonresidential substance abuse treatment programs. (J) Mandatory random drug testing. (K) Mother-infant care programs. (L) Community-based residential programs offering structure, supervision, drug treatment, alcohol treatment, literacy programming, employment counseling, psychological counseling, mental health treatment, or any combination of these and other interventions. (9) “Evidence-based practices” refers to supervision policies, procedures, programs, and practices demonstrated by scientific research to reduce recidivism among individuals under probation, parole, or post release supervision. (b) The provisions of this act are not intended to alleviate state prison overcrowding.”
- California Penal Code Section 1170(h)(6) provides: “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. (i) This section shall remain in effect only until January 1, 2014, and as of that date is repealed, unless a later enacted statute, that is enacted before that date, deletes or extends that date.”
- Kathryn B. Storton and Lisa Rodriguez, Prosecutor’s Analysis of the 2011 Criminal Justice Realignment, California District Attorney’s Association, September 2011 (“AB 109 and its companion bills, AB 117, AB 118, AB 116, ABX1 16, and ABX1 17 mandate that felons convicted of approximately 500 different crimes will serve their prison sentence in county jail instead of state prison. Such felons must be non-violent, non-serious, and non-sex offenders….Addtionally, the law requires that a county agency (the Probation Department in most counties) supervise any felon released from state prison after October 1, 2011, whose committing offense was non-violent, non-serious, or who is a low- to mid-risk sex offender as determined by CDCR. This is called “Postrelease Community Supervision” (PRCS).”)
- California Penal Code Section 1170(h), infra.
- Letter from Los Angeles County District Attorney Steve Cooley to Honorable Michael D. Antonovich, Supervisor, 5th District, Los Angeles County Board of Supervisors, dated August 30, 2011.
- California Penal Code Section 17
- California Penal Code Section 1170(h)
- California Health & Safety Code Section 11351 provides: “Except as otherwise provided in this division, every person who possesses for sale or purchases for purposes of sale (1) any controlled substance specified in subdivision (b), (c), or (e) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b) or (c) of Section 11055, or specified in subdivision (h) of Section 11056, or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code for two, three, or four years.’
- California Penal Code Section 1203.07(a)(11) provides: “(a) Notwithstanding Section 1203 and except as provided in subdivision (c), probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, either of the following:
(1) A person who is convicted of violating Section 11380 of the Health and Safety Code by using, soliciting, inducing, encouraging, or intimidating a minor to act as an agent to manufacture, compound, or sell a controlled substance specified in subdivision (d) of Section 11054 of the Health and Safety Code, except paragraphs (13), (14), (15), (20), (21), (22), and (23) of subdivision (d), or specified in subdivision (d), (e), or (f) of Section 11055 of the Health and Safety Code, except paragraph (3) of subdivision (e) and subparagraphs (A) and (B) of paragraph (2) of subdivision (f) of Section 11055 of the Health and Safety Code.
(2) A person who is convicted of violating Section 11380 of the Health and Safety Code by using a minor as an agent or who solicits, induces, encourages, or intimidates a minor with the intent that the minor shall violate the provisions of Section 11378.5, 11379.5, or 11379.6 of the Health and Safety Code insofar as the violation relates to phencyclidine or any of its analogs or precursors.
(b) The existence of a fact that would make a person ineligible for probation under subdivision (a) shall be alleged in the information or indictment, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury.
(c) A person who is made ineligible for probation pursuant to this section may be granted probation only in an unusual case where the interests of justice would best be served. When probation is granted pursuant to this subdivision, the court shall specify on the record and shall enter into the minutes the circumstances supporting the finding.”
- California Penal Code Section 461 provides: “Burglary is punishable as follows: (a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years. (b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.”
- California Penal Code Section 473 provides: “Forgery is punishable by imprisonment in a county jail for not more than one year, or by imprisonment pursuant to subdivision (h) of Section 1170.”
- California Penal Code Section 273d provides: “(a) Any person who willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for two, four, or six years, or in a county jail for not more than one year, by a fine of up to six thousand dollars ($6,000), or by both that imprisonment and fine.”
- California Vehicle Code Section 2800.4 provides: “Whenever a person willfully flees or attempts to elude a pursuing peace officer in violation of Section 2800.1, and the person operating the pursued vehicle willfully drives that vehicle on a highway in a direction opposite to that in which the traffic lawfully moves upon that highway, the person upon conviction is punishable by imprisonment for not less than six months nor more than one year in a county jail or by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code, or by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or by both that fine and imprisonment.”
- California Health & Safety Code Section 11359 provides: “Every person who possesses for sale any marijuana, except as otherwise provided by law, shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code.”
- California Penal Code section 1170(h), supra.
- California Penal Code Section 1170(h), supra.
- California Penal Code Section 1170(h), supra.
- California Penal Code Section 186.11
- California Penal Code Section 1170(h), supra.
- See California Department of Corrections and Rehabilitation Final Crime Exclusion List.
- California Penal Code Section 473, supra.
- California Penal Code Section 1170(h), supra.
- California Penal Code Section 1170(h), supra.
- California penal Code Section 1170(h), supra.
- California Penal Code Section 1203.016(a) provides: “(a) Notwithstanding any other provision of law, the board of supervisors of any county may authorize the correctional administrator, as defined in subdivision (h), to offer a program under which inmates committed to a county jail or other county correctional facility or granted probation, or inmates participating in a work furlough program, may voluntarily participate or involuntarily be placed in a home detention program during their sentence in lieu of confinement in the county jail or other county correctional facility or program under the auspices of the probation officer.”
- California Penal Code Section 17.5, supra.