AB109 Realignment in California

In 2011, California Assembly Bill 109 was enacted to combat the problem of a severely overcrowded California State prison system. The law itself was enacted to combat recidivism and not overcrowding, but the general effect of the bill was to lower the population of the state prison system. This law was dubbed “realignment.” So you may ask how does realignment change things under AB109?

Under realignment, AB109 changes the definition of what a felony crime is in California. Felonies are defined as offenses that can be punished with state prison, but AB109 also adds that the offenses can also be punished in county jail, even though they are still considered felonies [Penal Code Section 1170(h)]. AB109 amends 500 different criminal statutes to eliminate the possibility of state prison time.

AB109 applies to all kinds of California Codes. If you are convicted of any of the 500 different realignment offenses, and are otherwise disqualified from realignment, you are not exposed to state prison. Instead of prison, you will be sentenced using the California Penal Code Section 1170(h) guidelines, which means you will serve your sentence in county jail, or out of custody with mandatory supervision. In general, the felonies that qualify for realignment involve non-serious, non-violent, and non-sex related offenses. Remember that realignment is meant to deal with low-level, low-risk offenders, and not people who considered too dangerous and a safety hazard to the community, and who are unable to be rehabilitated.

There are also certain offenses that are excluded under realignment. These include violent felonies (Penal Code 667.5) and offenses where the defendant has a prior conviction for a violent felony under the same Penal Code. Serious felonies under Penal Code 1192.7 and offenses where the defendant has a prior conviction for a serious felony. Certain sex crimes that require the defendant to register as a sex offender are also excluded from realignment. Lastly, certain aggravated white collar crimes [Penal Code Section 186.11] are excluded. Essentially, what this means is that any crime that involves strikes, sex registration, and certain aggravated white collar crimes are excluded from realignment.

Note that there are also about 60 crimes that the legislature has excluded from qualifying for realignment. For a complete list of excluded crimes, please see the “California Department of Corrections and Rehabilitation Final Crime Exclusion List”.

Realignment is meant to shift punishment for low-level felony offenders from the state prison system to local jail or out of custody mandatory supervision. What this means is that the law shifts responsibility for low-level felony offenders from the state to the local level (i.e. jails and probation departments at the local county level). Essentially, what realignment does is it allows the offender to serve his sentence in jail (the usual triad is 16 months, 2 years, or 3 years).

Under Penal Code Section 1170(h), the judge has a few options. The judge could sentence the defendant to the full amount of jail time permitted (16 months, 2 years, or 3 years), or in the alternative, the judge might sentence the defendant to a jail for a part of the time, and can place the defendant on an out-of-custody mandatory supervision (a form of probation) for the rest of the portion of the sentence. AB109 does not prevent the judge from granting Felony Probation or Diversion under PC 1000 if you are eligible for that type of sentencing. House arrest, community service, furlough, work release, treatment, and restorative justice are also options the judge can consider under AB 109.

Realignment also changes the state parole system. In the past, when a defendant was released from prison, he was placed on parole and supervised by a state parole agent. Under realignment, when a defendant is released from prison, assuming the crime he committed is subject to AB109 realignment, he would be supervised by county probation. This scheme is called “Postrelease Community Supervision. Before AB109, if there was a violation of state parole, then the offender would be sent back to prison to serve his violation. Under AB109, and supervision of PCS, the offender would instead serve extra time in jail.

This is essentially how AB109 changes the landscape of how certain felonies are treated.

If you wish to learn more, or wish to retain our legal services, you can contact us at:

Law Offices of Jeffery K. Rubenstein

9461 Charleville Blvd # 267

Beverly Hills, CA 90212

(310) 477-2100


BY: Young Sik Cho Attorney at Law


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