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Before 2011, felonies in which a defendant was denied probation required that the term of imprisonment be served in the State Prison system. County Jails were for those sentenced to only misdemeanor offenses, or those awaiting trial or sentencing on felony matters. However, after the 2011 “Realignment”, Penal Code section 1170(h) created a new subset of felony offenses in which a defendant denied probation could be sentenced to serve their entire felony term in the County Jail as opposed to State Prison. See Cal. Penal Code § 1170(h). It further created a new type of supervision that was not probation (before sentencing to a term of imprisonment), and not parole/PRCS (supervision of those released from State Prison for “strike” offenses or other prison-eligible felonies), called “Mandatory Supervision”, where a defendant sentenced to a County Jail term for a felony could be deemed to be “serving” a portion of his time outside of jail while under the supervision of the county probation department.

Penal Code Section 1170(h)(5)(B) provides the Court the authority in sentencing a defendant subject to a term of local custody pursuant to 1170(h) of the Penal Code to:

[S]uspend execution of a concluding portion of the term selected in the court’s discretion, during which time the defendant shall be supervised by the county  probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation, for the  remaining unserved portion of the sentence imposed by the court.

Cal. Penal Code § 1170(h)(5)(B)(i).

The name given to the term of probation supervision after serving a portion of one’s section 1170(h) sentence in actual custody is termed “Mandatory Supervision”, which starts as soon as a defendant is released from custody. Cal Penal Code § 1170(h)(5)(B)(ii). It should be noted that there is a presumption in favor of some portion of a “1170(h)” sentence to be served on Mandatory Supervision:

Unless the court finds that, in the interests of justice, it is not appropriate in a particular case, the court, when imposing a sentence pursuant to paragraph (1) or (2) [of Penal Code Section 1170(h)], shall suspend execution of a concluding portion of the term for a period selected at the court’s discretion.

Cal. Penal Code § 1170(h)(5)(A).

There is thus statutory authority that the Court should impose some portion of a sentence imposed under Penal Code section 1170(h) on grant of Mandatory Supervision.

California Rule of Court Rule 4.415 discusses “Criteria affecting the imposition of mandatory supervision”. See Cal. Rule Court, Rule 4.415. Rule of Court 4.415(a) indicates that there is also a presumption that the Court impose a period of a local prison term on mandatory supervision:

Except where the defendant is statutorily ineligible for suspension of any part of the sentence, when imposing a term of imprisonment in county jail under section 1170(h), the court must suspend execution of a concluding portion of the term to be served as a period of mandatory supervision unless the court finds, in the interests of justice, that mandatory supervision is not appropriate in a particular case. Because section 1170(h)(5)(A) establishes a statutory presumption in favor of the imposition of a period of mandatory supervision in all applicable cases, denials of a period of mandatory supervision should be limited.

Cal. Rule of Court, Rule 4.415(a).

This presumption is so strong that the Court must state any reason for denying a grant of Mandatory Supervision on the record by law. Cal. Rule of Court, Rule 4.415(d).

            Rule of Court, Rule 4.415(c) discusses relevant criteria impacting the length and conditions of a grant a term of Mandatory Supervision  as a part of a Penal Code section 1170(h) commitment, including:

(1)Availability of appropriate community corrections programs;

(2)Victim restitution, including any conditions or period of supervision necessary to promote the collection of any court-ordered restitution;

(3)Consideration of length and conditions of supervision to promote the successful reintegration of the defendant into the community upon release from custody;

(4)Public safety, including protection of any victims and witnesses;

(5)Past performance and present status on probation, mandatory supervision, postrelease community supervision, and parole;

(6)The balance of custody exposure after imposition of presentence custody credits;

(7)Consideration of the statutory accrual of post-sentence custody credits for mandatory supervision under section 1170(h)(5)(B) and sentences served in county jail under section 4019(a)(6);

(8)The defendant’s specific needs and risk factors identified by a risk/needs assessment, if available; and

(9)The likely effect of extended imprisonment on the defendant and any dependents.

Cal. Rule of Court, Rule 4.415(c).

It should be noted that Mandatory Supervision, much like parole or probation, can be revoked. If a person fails on Mandatory Supervision, such as by picking up  a new law violation or violating terms of release such as failing to abstain from illegal drugs, the defendant will be forced to serve the balance of his term in actual custody of the County Jail, after he is found to have been in violation at a hearing or through an admission.

Despite the presumption in favor of some period of supervised release on Mandatory Supervision, the court can choose to deny a defendant a  grant of mandatory supervision, and require that the defendant serve the entire period of his term of imprisonment in actual custody, in considering factors weighing on denying mandatory supervision, including:

(1)Consideration of the balance of custody exposure available after imposition of presentence custody credits;

(2)The defendant’s present status on probation, mandatory supervision, postrelease community supervision, or parole;

(3)Specific factors related to the defendant that indicate a lack of need for treatment or supervision upon release from custody; and

(4)Whether the nature, seriousness, or circumstances of the case or the defendant’s past performance on supervision substantially outweigh the benefits of supervision in promoting public safety and the defendant’s successful reentry into the community upon release from custody.

Cal. Rule of Court, Rule 4.415(b).

Thus the presumption for some period of supervised release in County Jail felony cases can be overcome, depending on how beneficial and successful a Court believes a particular defendant will be on supervised release.

At Honeychurch Law, we strive to obtain the best results available to each and every client and  always fighting for outright dismissal of charges or violations of probation. If you are facing criminal charge for a current felony offense, or an alleged probation violation for such an offense, you need a knowledgeable, tested defense team on your side. Call Honeychurch Law today for a free consultation as to how we will work with your case to achieve the best results available for your situation.


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