The Discretion of Cal Judges in Split Sentencing

Oct. 28, 2012

I had the good fortune to attend a conference on parole reentry courts put on by the California Administrative Office of the Courts (AOC) last week. The conference dealt mostly with Parole Reentry Courts and was moderated in part by retired Judge Richard Couzens, a recognized authority on California Sentencing Law. I had  an opportunity to talk to Judge Couzens about the extraordinary discretion given to California Judges to shape prison sentences under the new AB109 Sentencing Law ( where offenses called triple nons; non violent, non-serious, and non sex offenses, actually serve their prison sentences in county jail).

I had read in the manual,”Felony Sentencing After Realignment”, written by Judge  Richard Couzens and  Justice Tricia Bigelow, that where the court decided to impose a split sentence, the conditions of the sentence could be “reserved” and both the term or length of the sentence as well as the conditions of  “mandatory supervision” that normally follows a jail sentence, could be modeified at any time by the court. [click on image on the left for a copy of the manual]

The actually language i found in the manual read, “The court could choose to impose a sentence under the provisions of section 1170(h)(5)(B), but reserve jurisdiction to set the actual time and conditions of release at a later time. Such a strategy might be appropriate where the court wants to give the defendant encouragement to complete various custody programs and do well in custody, then set relevant terms when the court determines release is appropriate” (p.10).

I asked Judge Couzins about the court’s discretion to impose later term and conditions, and he reaffirmed my understanding of the law. Which brings me to a dilemma. I am aware that many courts are not using the split sntencing authority presented under Penal Code Section 1170H. But even when they do, they don’t often use the discretion given to them under the law to shape both the jail and supervision segments of the term. Just this week i read an article in the San Jose mercury News that lamented the lack of discretion given judges to shape a split sentence once handed down. It seems to me that there may be sufficient interest in the court’s authority under Penal Code Section 1170H to warrant a separate AOC Conference dealing with the court’s jurisdiction when imposing split sentencing under the new sentencing law.


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