Penal Code Section 1170(h)

In October 2011, several new criminal laws in California were passed, collectively known as the Realignment.  Amongst these new laws was the enactment of Penal Code section 1170(h) which mandates that certain felons sentenced to prison will serve their time in county jails as opposed to state prisons.  The crime itself will specify whether it is subject to Penal Code section 1170(h), but prosecutors often refer to those crimes as “non/non/non” offenses.  This refers to non-serious, non-violent, non-sex offender.   Pursuant to Penal Code section 1170(h)(3), if a defendant has a current or prior conviction for strike offense (serious felony or violent felony), or is required to register as a sex-offender pursuant to Penal Code section 290, or is convicted of a crime with an enhancement under Penal Code section 186.11, also known as the “aggravated white collar enhancement”, then any prison time will be served in state prison.

Penal Code section 1170(h)(3) does not require that certain defendants must go to state prison.  It only specifies that if prison is ordered, then those with strike offenses or sex offenders must serve their time in state prison.  Penal Code section 1170(h)(4) still allows pretrial diversion, deferred entry of judgment or probationary sentence for these individuals.

Penal Code section 1170(h)(5) allows a judge to split the sentence of any person sentenced to prison pursuant to Penal Code section 1170(h).  When a sentence is split, part of the sentence is served in custody and part of the sentence is served outside of custody on probation.  For the part that is served in custody, a defendant will usually receive “day for day” credit for good behavior.  However, any part of the sentence that is served out of custody must be served in full.  A defendant will only receive actual time credit for any part of the sentence that is served out of custody.  It is the judge’s discretion as to how much time will be served in custody and how much time will be served out of custody.  Penal Code section 1170(h)(5) does not require split sentences.  A judge has the authority to allow the entire sentenced to be served in custody.

Penal Code section 1170(h)(6) indicates that this sentencing scheme only applies to defendants sentenced after October 1, 2011.

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