A DEFENSE ATTORNEY’S PERSPECTIVE
WHAT IS THE EFFECT ON SENTENCING?
On October 1, 2011, the California prison realignment proposal supported by Governor Jerry Brown went into effect. In simple terms, this means that specified “low-level offenders” convicted of felonies will be incarcerated in county jail rather than state prison.
For a “low-level offender,” i.e., a felony criminal defendant who is charged with a non-violent, non-serious, non-sex related offense this is very positive news.
The effect of the prison realignment proposal is that all defendants convicted of non-violent, non-serious, non-sex related offenses and sentenced to state prison will serve their time in county jails instead of state prison.
However, if you are a convicted felon, who has a prior conviction for a serious, violent, or sex related charge, you are not eligible to be housed in county jail. A convicted felon sentenced to state prison, who has a prior conviction of a serious, violent, or sex related charge will be incarcerated in state prison, regardless of the current charge.
WHAT IS THE EFFECT OF THE REALIGNMENT PROPOSAL ON PAROLEES?
The realignment proposal also shifts responsibility for adult parole services to individual counties. Parole services include incarceration for parole violations and supervision of parolees. These parolees are not limited to having prior convictions for only non-violent, non-serious, non-sex related offenses.
HOW DO I DETERMINE IF I AM A “LOW-LEVEL OFFENDER” AND ELIGIBLE TO SERVE MY SENTENCE IN THE COUNTY JAIL INSTEAD OF STATE PRISON?
- 1. Be convicted of a non-serious, non-violent, non-sex related offense;
- 2. Not have any prior convictions of any violent, serious, or sex related offenses.
WHAT ARE THE SERIOUS, VIOLENT AND SEX RELATED OFFENSES?
Under the California prison realignment proposal:
- “serious” felonies are those defined by Penal Code §1192.7(c);
- “violent” felonies are those defined in Penal Code § 667.5(c);
- “sex” offenses would include all offenses that require registration as a sex offender upon conviction pursuant to Penal Code § 290(c).
THE LIST OF “SERIOUS” OFFENSES
Penal Code §1192.7(c) As used in this section, "serious felony" means any of the following:
(1) Murder or voluntary manslaughter;
(2) mayhem;
(3) rape;
(4) sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person;
(5) oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person;
(6) lewd or lascivious act on a child under 14 years of age;
(7) any felony punishable by death or imprisonment in the state prison for life;
(8) any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm;
(9) attempted murder;
(10) assault with intent to commit rape or robbery;
(11) assault with a deadly weapon or instrument on a peace officer;
(12) assault by a life prisoner on a noninmate;
(13) assault with a deadly weapon by an inmate;
(14) arson;
(15) exploding a destructive device or any explosive with intent to injure;
(16) exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem;
(17) exploding a destructive device or any explosive with intent to murder;
(18) any burglary of the first degree;
(19) robbery or bank robbery;
(20) kidnapping;
(21) holding of a hostage by a person confined in a state prison;
(22) attempt to commit a felony punishable by death or imprisonment in the state prison for life;
(23) any felony in which the defendant personally used a dangerous or deadly weapon;
(24) selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1) of subdivision (f) of Section 11055 or subdivision (a) of Section 11100 of the Health and Safety Code;
(25) any violation of subdivision (a) of Section 289 where the act is accomplished against the victim's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person;
(26) grand theft involving a firearm;
(27) carjacking;
(28) any felony offense, which would also constitute a felony violation of Section 186.22;
(29) assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220;
(30) throwing acid or flammable substances, in violation of Section 244;
(31) assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245;
(32) assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Sections 245.2, 245.3, or 245.5;
(33) discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246;
(34) commission of rape or sexual penetration in concert with another person, in violation of Section 264.1;
(35) continuous sexual abuse of a child, in violation of Section 288.5;
(36) shooting from a vehicle, in violation of subdivision (c) or (d) of Section 12034;
(37) intimidation of victims or witnesses, in violation of Section 136.1;
(38) criminal threats, in violation of Section 422;
(39) any attempt to commit a crime listed in this subdivision other than an assault;
(40) any violation of Section 12022.53;
(41) a violation of subdivision (b) or (c) of Section 11418; and
(42) any conspiracy to commit an offense described in this subdivision.
THE LIST OF “VIOLENT” OFFENSES
Penal Code § 667.5(c) For the purpose of this section, "violent felony" shall mean any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.
(4) Sodomy as defined in subdivision (c) or (d) of Section 286.
(5) Oral copulation as defined in subdivision (c) or (d) of Section 288a.
(6) Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288.
(7) Any felony punishable by death or imprisonment in the state prison for life.
(8) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) Sexual penetration as defined in subdivision (a) or (j) of Section 289.
(12) Attempted murder.
(13) A violation of Section 12308, 12309, or 12310.
(14) Kidnapping.
(15) Assault with the intent to commit a specified felony, in violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section 288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code.
(21) Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418. The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society's condemnation for these extraordinary crimes of violence against the person.
THE LIST OF “SEX” OFFENSES
Penal Code § 290. Sex Offender Registration Act; Persons required to register
290 § (c) The following persons shall be required to register:
Any person who, since July 1, 1944, has been or is hereafter convicted in any court in this state or in any federal or military court of a violation of Section 187 committed in the perpetration, or an attempt to perpetrate, rape or any act punishable under Section 286, 288, 288a, or 289, Section 207 or 209 committed with intent to violate Section 261, 286, 288, 288a, or 289, Section 220, except assault to commit mayhem, Section 243.4, paragraph (1), (2), (3), (4), or (6) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262 involving the use of force or violence for which the person is sentenced to the state prison, Section 264.1, 266, or 266c, subdivision (b) of Section 266h, subdivision (b) of Section 266i, Section 266j, 267, 269, 285, 286, 288, 288a, 288.3, 288.4, 288.5, 288.7, 289, or 311.1, subdivision (b), (c), or (d) of Section 311.2, Section 311.3, 311.4, 311.10, 311.11, or 647.6, former Section 647a, subdivision (c) of Section 653f, subdivision 1 or 2 of Section 314, any offense involving lewd or lascivious conduct under Section 272, or any felony violation of Section 288.2; any statutory predecessor that includes all elements of one of the above-mentioned offenses; or any person who since that date has been or is hereafter convicted of the attempt or conspiracy to commit any of the above-mentioned offenses.
Strassburg, Gilmore & Wei are qualified criminal defense attorneys. We are located in Pasadena but can help people all over Los Angles County, Orange County, Riverside County, Ventura County and San Diego County. We have attorneys who handle cases in Pasadena, Los Angeles, Glendale, Burbank, San Gabriel, Arcadia, Alhambra, El Monte Pomona, Whittier, Compton, East Los Angeles, West Los Angeles, Van Nuys, San Fernando and Norwalk.