At the time of his sentencing, the trial court considered Arce's request for a split
sentence and denied it. The court noted that upon his release from physical custody, Arce
was subject to deportation proceedings initiated by the United States Immigration and
Customs Enforcement (ICE). The trial court found that, given the risk Arce would be
deported during the period of any mandatory supervision, and thus not be subject to the
probation department's supervision or able to participate in the rehabilitative services
offered by the department, a split sentence was not a realistic disposition.
On appeal, Arce argues the trial court erred in finding his immigration status was a
complete bar to a split sentence. Arce argues the trial court should have considered the
possibility that he would be able to challenge his deportation and stay in this country
either temporarily while his immigration status is litigated or, although unlikely,
permanently. He notes that a number of other factors that show he was amenable to
mandatory supervision, including the fact that he has been in this country lawfully since
2000, has no prior criminal record, is married to a United States citizen and has three
children, all of whom are also United States citizens.
We agree with the trial court that a period of supervision following deportation is
impractical and inconsistent with the goals and purposes of the legislation that mandates
imposition of split sentences. Split sentences are the preferred disposition in eligible
1 All further statutory references are to the Penal Code unless otherwise indicated. 2
cases because they provide released prisoners with close supervision and supportive
services designed to substantially reduce the risk of recidivism. As a practical matter,
such supervision and services are not available after a prisoner has been deported.
Because his conviction for possession for sale of heroin and cocaine makes Arce
subject to mandatory deportation and mandatory detention under the terms of the
Immigration and Nationality Act, the trial court did not err in denying his request for a
split sentence.
We note the Attorney General concedes the trial court erred in imposing a $156
penalty assessment; accordingly, we vacate the assessment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Investigation
On the morning of July 30, 2014, federal law enforcement officers observed the
following: a PT Cruiser being driven by Jessica Lopez crossed the border from Mexico at
the San Ysidro port of entry; the law enforcement officers followed it to a shopping mall
garage in Chula Vista, where Lopez left the vehicle. Shortly thereafter, Arce got in the
PT Cruiser and drove it to a Walmart parking lot.
A Nissan Frontier being driven by Oscar Rodriguez Gonzalez, and being observed
by other officers, arrived at the Walmart parking lot at the same time Arce arrived in the
PT Cruiser. Both Arce and Gonzalez went into the Walmart; when they came out, Arce
drove off in the Nissan Frontier and Gonzalez left in the PT Cruiser. Shortly thereafter,
the law enforcement officers stopped the PT Cruiser, searched it and found 16 taped
bundles of illegal drugs in a spare tire, including more than a kilo of heroin and more than
a kilo of cocaine.
3
2. Plea
Gonzalez was arrested when the contraband was discovered. Gonzalez, Arce and
Lopez were later charged with, among other matters, possession for sale of more than a
kilo of heroin and possession for sale of more than a kilo of cocaine in violation of Health
and Safety Code sections 11351 and 11370.4, subdivision (a)(1).
Arce pled guilty to both possession for sale charges, and four other counts were
dismissed. Arce agreed he would be sentenced to a period of five years in jail. The
district attorney agreed Arce could request that his sentence be split under section 1170,
subdivision (h)(5) but advised Arce's attorney he would oppose the request.
3. Sentencing
Prior to his sentence, the probation department prepared a report that indicated
Arce has been a lawful resident of the United States since he arrived here in 2000. The
probation report stated: "When defendant is remanded into custody, ICE will place a
hold on him until he is released, at which time he will be processed for deportation to
Mexico." The probation report also noted that Arce had no prior criminal record. The
probation report further stated: "Absent his immigration status, the recommendation in
this case would be a split sentence pursuant to PC1170(h)(5)(B), with two years in
custody, followed by three years of mandatory supervision."
Arce filed a statement in mitigation in which he argued that notwithstanding the
prospect that following his release he would be subject to deportation proceedings, the
trial court should nonetheless impose a split sentence of one year of custody and four
years of managed supervision.
As we indicated at the outset, the trial court declined to impose a split sentence. In
4
particular, although the court noted that in many respects Arce was suitable for
imposition of a split sentence, the risk he would be deported undermined the likelihood
he would be subject to the managed supervision provided by section 1170, subdivision
(h)(5) and the benefits and protections such supervision would provide both the public
and Arce. In reaching this conclusion, the trial court noted that managed supervision
provides a great deal of prerelease support and a very high degree of monitoring by the
probation department upon a prisoner's release.2
DISCUSSION
When, as here, sentencing is pursuant to section 1170, subdivision (h), the court
must impose a split sentence "[u]nless the court finds that, in the interests of justice, it is
not appropriate in a particular case." (§ 1170, subd. (h)(5).) Section 1170, subdivision
(h) was enacted as part of the 2011 Realignment Legislation (stats. 2011, ch. 15, § 1;
hereafter Realignment). In adopting Realignment, the Legislature added section 17.5,
which states:
"(a) The Legislature finds and declares all of the following:
"(1) The Legislature reaffirms its commitment to reducing recidivism among
criminal offenders.
"(2) Despite the dramatic increase in corrections spending over the past two
decades, national reincarceration rates for people released from prison remain unchanged
or have worsened. National data show that about 40 percent of released individuals are
2 Gonzalez and Arce were sentenced on the same day, but separately. Gonzalez was sentenced first, and, when the trial court sentenced Arce, the trial court incorporated by reference the findings it made in denying Gonzalez's similar request for a split sentence. 5
reincarcerated within three years. In California, the recidivism rate for persons who have
served time in prison is even greater than the national average.
"(3) Criminal justice policies that rely on building and operating more prisons to
address community safety concerns are not sustainable, and will not result in improved
public safety.
"(4) California must reinvest its criminal justice resources to support community-
based corrections programs and evidence-based practices that will achieve improved
public safety returns on this state's substantial investment in its criminal justice system.
"(5) Realigning low-level felony offenders who do not have prior convictions for
serious, violent, or sex offenses to locally run community-based corrections programs,
which are strengthened through community-based punishment, evidence-based practices,
improved supervision strategies, and enhanced secured capacity, will improve public
safety outcomes among adult felons and facilitate their reintegration back into society.
"(6) Community-based corrections programs require a partnership between local
public safety entities and the county to provide and expand the use of community-based
punishment for low-level offender populations. Each county's Local Community
Corrections Partnership, as established in paragraph (2) of subdivision (b) of Section
1230, should play a critical role in developing programs and ensuring appropriate
outcomes for low-level offenders.
"(7) Fiscal policy and correctional practices should align to promote a justice
reinvestment strategy that fits each county. 'Justice reinvestment' is a data-driven
approach to reduce corrections and related criminal justice spending and reinvest savings
in strategies designed to increase public safety. The purpose of justice reinvestment is to
6
manage and allocate criminal justice populations more cost-effectively, generating
savings that can be reinvested in evidence-based strategies that increase public safety
while holding offenders accountable.
"(8) 'Community-based punishment' means correctional sanctions and
programming encompassing a range of custodial and noncustodial responses to criminal
or noncompliant offender activity. Community-based punishment may be provided by
local public safety entities directly or through community-based public or private
correctional service providers, and include, but are not limited to, the following:
"(A) Short-term flash incarceration in jail for a period of not more than 10 days.
"(B) Intensive community supervision.
"(C) Home detention with electronic monitoring or GPS monitoring.
"(D) Mandatory community service.
"(E) Restorative justice programs such as mandatory victim restitution and victim-
offender reconciliation.
"(F) Work, training, or education in a furlough program pursuant to Section 1208.
"(G) Work, in lieu of confinement, in a work release program pursuant to Section
4024.2.
"(H) Day reporting.
"(I) Mandatory residential or nonresidential substance abuse treatment programs.
"(J) Mandatory random drug testing.
"(K) Mother-infant care programs.
"(L) Community-based residential programs offering structure, supervision, drug
3 In both Padilla and Patterson, the defendants were longtime lawful permanent residents charged with drug offenses; on the advice of their respective criminal attorneys, 12
Thus, we cannot adopt Arce's suggestion we should nonetheless remand this case
to permit him to make a showing he will not be subject to deportation upon his release.
Not only does the express language of Immigration and Nationality Act provide no relief
from deportation, that strict interpretation has been adopted both by the United States
Supreme Court and, in turn, our own Supreme Court. (See Padilla, supra, 559 U.S. at
p. 368; Patterson, supra, 2 Cal.5th at p. 895.) In light of the strict provisions of the
Immigration and Nationality Act and the manner in which they have been interpreted, we
are in no position to question the trial court's conclusion that, following his release from
physical custody, Arce will be detained and removed from the country. 4
each pled guilty to a drug offense. At the time of their respective pleas, neither of their attorneys advised them that the pleas would make them subject to mandatory deportation. In Padilla, the court held that counsel's failure to advise the defendant about the immigration consequences of his plea would support a claim that the defendant did not receive the effective assistance of counsel. (Padilla, supra, 559 U.S. at pp. 373-374.) In Patterson, the court held that, notwithstanding a mandatory admonition that the plea carried a risk of deportation (§ 1016.5), the defendant's ignorance with respect to the mandatory deportation required under the Immigration and Nationality Act nonetheless supported a later motion to withdraw his plea under section 1018. (Patterson, supra, 2 Cal.5th at p. 898.)
4 Neither the holding nor the rationale of People v. Superior Court (Perez) (1999) 75 Cal.App.4th 394, is in any sense controlling here. In Perez, a legal immigrant was subject to a petition under the Sexually Violent Predators Act (Welf. & Institutions Code, § 6600 et seq.; SVPA). He argued that the SVPA petition should be dismissed because he had committed an aggravated felony, and, on his release from custody as a criminal, he was subject to mandatory deportation under Title 8 United States Code sections 1228 and 1229. The court disagreed and, relying on the United States Supreme Court's opinion in Reno v. American-Arab Discrimination Comm. (1999) 525 U.S. 471, 483-485, found that notwithstanding the mandatory provisions of Title 8 United States Code sections 1228 and 1229, the United States Attorney General nonetheless retained the power to defer deportation proceedings in his case. (Perez, at p. 400.) We in no sense question the holding in Perez that likely deportation proceedings are not grounds for dismissing an SVPA petition. That holding on its face has no application here where the trial court was required to determine the entirely distinct issue 13
We are mindful Arce's detention and deportation following his release is not a
matter of factual certainty. (See, e.g., Martinez-Done v. McConnell (2014) 56 F.Supp.3d
535, 548.) Following Arce's release from custody, it is possible for any number of
reasons that Arce may not actually be detained by federal immigration officials and
thereafter deported. (Ibid.) However, we are not in a position to predict that such a
period—when Arce will no longer be in physical custody and not yet subject to
deportation proceedings—will occur.
Because the supervision and programs contemplated by Realignment cannot be
administered following deportation and the trial court could reasonably find that Arce is
subject to deportation following his release from physical custody, the trial court did not
err in denying Arce's request for a split sentence.
of whether, as a practical matter, upon Arce's early release the unique conditions and services required under Realignment can be enforced and provided. In light of Padilla and Patterson, we do question the rationale of Perez. The court's conclusion that the Attorney General has discretion with respect to noncitizens convicted of deportable offenses has been substantially undermined by the contrary conclusions reached in both Padilla and Patterson. 14
DISPOSITION
The judgment of conviction is modified to delete the $156 penalty assessment; as
modified, the judgment is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
15
AI Brief
AI-generated · verify before citing
Holding. A trial court does not err in denying a request for a split sentence under Penal Code section 1170, subdivision (h)(5) when the defendant is subject to mandatory deportation, as the required post-release supervision and rehabilitative services are impractical and inconsistent with the legislative goals of the statute.
Issues
Whether a trial court may deny a split sentence under Penal Code section 1170, subdivision (h)(5) based on a defendant's immigration status and the likelihood of deportation.
Whether the trial court erred in concluding that the defendant's mandatory deportation rendered the rehabilitative goals of mandatory supervision unattainable.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“We agree with the trial court that a period of supervision following deportation is impractical and inconsistent with the goals and purposes of the legislation that mandates imposition of split sentences.”
“Because the supervision and programs contemplated by Realignment cannot be administered following deportation and the trial court could reasonably find that Arce is subject to deportation following his release from physical custody, the trial court did not err in denying Arce's request for a split sentence.”