AB 109 – “Realignment” of Prisons & Jails in California

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?
  • 5.1. Jail instead of prison for Section 1170(h) offenses
  • 5.2. Sentencing options under realignment AB 109
  • 5.3. Changes to parole and Postrelease Community Supervision (“PRCS”)

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 sale¹⁵

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.)

Note that violent felonies under Penal Code 667.5 and serious felonies under Penal Code 1192.7 qualify as “strikes” under California Three Strikes Law.

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).

Helpful links:

California Courts Realignment Resource Center

Los Angeles County Probation Department

Chief Probation Officers of California, Public Safety Realignment Information

Santa Clara County Public Defender’s Office Information on AB 109

U.S. Supreme Court

CDCR.gov (California Department of Corrections)

California Law Enforcement Agencies

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