California Court of Appeals, Fourth District, First Division
The Attorney General's petition for rehearing filed November 5, 2014,
230 Cal.App.4th 1023; ___Cal.Rptr.3d___ is DENIED. The opinion filed on October 22, 2014 is MODIFIED as follows:
1. On page 13, the statutory citation immediately preceding Discussion part III. [230 Cal.App.4th 1033, advance report, 1st par., line 15] shall be deleted and replaced with:
(§ 1170, subd. (h)(5)(B)(i), italics added.)
2. On page 13, footnote 8 [230 Cal.App.4th 1033, advance report, fn. 8] is deleted in its entirety and replaced with the following footnote 8:
Section 1170, subdivision (h)(5) states: "The court, when imposing a sentence pursuant to paragraph (1) or (2) of this subdivision, may commit the defendant to county jail as follows: [¶] (A) For a full term in custody as determined in accordance with the applicable sentencing law. [¶] (B)(i) For a term as determined in accordance with the applicable sentencing law, but suspend 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. The period of supervision shall be mandatory, and may not be earlier terminated except by court order. Any proceeding to revoke or modify mandatory supervision under this subparagraph shall be conducted pursuant to either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3 [addressing revocation or modification of probation and other release terms]. During the period when the defendant is under such supervision, unless in actual custody related to the sentence imposed by the court, the defendant shall be entitled to only actual time credit against the term of imprisonment imposed by the court.
Any time period which is suspended because a person has absconded shall not be credited toward the period of supervision. [¶] (ii) The portion of a defendant's sentenced term during which time he or she is supervised by the county probation officer pursuant to this subparagraph shall be known as mandatory supervision, and shall begin upon release from custody." (Italics added.)
We note that effective January 1, 2015, the wording of section 1170, subdivision (h)(5) has been changed to include language stating: "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 this subdivision, shall suspend execution of a concluding portion of the term for a period selected at the court's discretion." (§ 1170, subd. (h)(5)(A), (7), italics added.)
3. On page 19, following the sentence ending "to be served in the community, " [230 Cal.App.4th 1037, advance report, 1st par., line 10] the statutory citation shall be deleted and replaced with the following:
(§ 1170, subd. (h)(5)(B)(i).)
There is no change in the ...