Filed 11/14/14 unmodified opinion attached

                                 CERTIFIED FOR PUBLICATION


                  COURT OF APPEAL - FOURTH APPELLATE DISTRICT

                                             DIVISION ONE

                                      STATE OF CALIFORNIA



LAVINA CAROL WOFFORD,                               D064633

        Petitioner,                                 (San Diego County
                                                     Super. Ct. No. SCD233212)
        v.
                                                    ORDER MODIFYING OPINION AND
THE SUPERIOR COURT OF SAN                           DENYING PETITION FOR
DIEGO COUNTY,                                       REHEARING

        Respondent;                                 [NO CHANGE IN JUDGMENT]

THE PEOPLE,

        Real Party in Interest.

THE COURT:

        The Attorney General's petition for rehearing filed November 5, 2014, 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.

shall be deleted and replaced with:

                 (§ 1170, subd. (h)(5)(B)(i), italics added.)
       2. On page 13, footnote 8 is deleted in its entirety and replaced with the following

footnote 8:

              8Section 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



                                             2
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,"

the statutory citation shall be deleted and replaced with the following:

              (§ 1170, subd. (h)(5)(B)(i).)

       There is no change in the judgment.




                                                                     HUFFMAN, Acting P. J.

Copies to: All parties




                                               3
Filed 10/22/14 unmodified version

                                    CERTIFIED FOR PUBLICATION


                 COURT OF APPEAL - FOURTH APPELLATE DISTRICT

                                          DIVISION ONE

                                      STATE OF CALIFORNIA



LAVINA CAROL WOFFORD,                             D064633

        Petitioner,                               (San Diego County
                                                   Super. Ct. No. SCD233212)
        v.

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

        Respondent;

THE PEOPLE,

        Real Party in Interest.

        Proceedings in mandate after superior court denied released offender's motion for

permission to apply for transfer of supervision to another state. Desiree A. Bruce-Lyle,

Judge. Petition granted.

        Robert Booher, under appointment by the Court of Appeal, for Defendant and

Petitioner.

        Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Charles C. Ragland, Collette C. Cavalier and Amanda E. Casillas, Deputy Attorneys

General, for Respondent and Real Party in Interest.
       After being convicted of drug-related offenses, Lavina Wofford was sentenced

under the Realignment Act1 to serve a portion of her prison sentence released into the

community under the mandatory supervision of the probation department. Among the

many conditions of her mandatory supervision, Wofford is required to obtain the superior

court's consent before moving to another state. Apart from mandatory supervision

requirements, a released offender who wants to transfer his or her supervision to another

state must also obtain the approval of the California office that administers out-of-state

transfer requests under the Interstate Compact for Adult Offender Supervision (the

Compact or Interstate Compact).

       After she was released in the community under mandatory supervision, Wofford

filed a motion in superior court requesting that she be permitted to submit an application

to California's Interstate Compact office for a transfer of her supervision to another state.

The court denied her request to apply to the Compact office, in part based on its

conclusion that offenders serving mandatory supervision sentences are ineligible to apply

for transfers under the Compact.

       We conclude the court erred in ruling mandatory supervision releasees serving

their sentences in the community under the Realignment Act are ineligible to apply for




1     Our references to the Realignment Act are to the 2011 Realignment Legislation
addressing public safety (Stats. 2011, ch. 15, § 1) and subsequent related legislation.
(See Historical and Statutory Notes, 47 West's Ann. Pen. Code (2014 ed.) foll. § 17.5, p.
90; People v. Cruz (2012) 207 Cal.App.4th 664, 668.)

                                              2
transfers under the Interstate Compact. Accordingly, we grant the petition for writ of

mandate.

                                      BACKGROUND

       At proceedings in 2011 and 2012, Wofford was convicted of several drug-related

offenses, and the trial court sentenced her to an eight-year prison term, to be served

locally as a "split sentence" under the Realignment Act. Her sentence consisted of three

years served in jail and a five-year suspended sentence served while released into the

community under mandatory supervision by the probation department.2

       Wofford's terms of mandatory supervision while released into the community

include the condition that she obtain the "court's and [probation officer's] written consent

before moving out of state." In August 2013, Wofford filed a motion requesting that she

be permitted to apply for a transfer of her supervision to Virginia through the Interstate

Compact. She contended she was eligible to apply for a transfer under the Compact

because (1) she was an offender under supervision as defined in the rules governing the

Compact, and (2) a transfer was permissible under California's Realignment Act and

consistent with its rehabilitative goals.

       Wofford told the court she had been in compliance with her supervision terms for

six months; she has strong family and financial support in Virginia, whereas in California

she was struggling financially; Virginia (a Compact member) has a supervision protocol

similar to California's and will be required to supervise her for the length of time


2      We grant the Attorney General's unopposed request that we take judicial notice of
the order granting Wofford mandatory supervision. (Evid. Code, §§ 452, 459.)
                                              3
established by California; and California retained the right to bring her back to the state.

Wofford submitted a letter from her daughter which described the stable, supportive

environment the daughter and her family could provide for Wofford in Virginia and

expressing the daughter's willingness to assist in Wofford's supervision plan.

       The District Attorney opposed Wofford's request to apply for a transfer, arguing

that although mandatory supervision releasees could fall within the broad definitions of

"offender" and "supervision" set forth in the Compact rules, these rules also reflected that

not all such offenders were eligible. The District Attorney contended that mandatory

supervision releasees were not meant to be covered by the Compact because, unlike

probationers, they are inmates serving a prison term in the community. The District

Attorney also asserted that the Compact should not be applied to mandatory supervision

releasees because they are subject to specialized supervision mechanisms (including a

centralized review court, a comprehensive, personalized case plan, and specially-trained

probation officers), and, concerning this case, Virginia does not have supervision

comparable to this mandatory supervision. The District Attorney also argued the court

should deny Wofford's request because she had been on mandatory supervision for only

six months.

       Both parties submitted e-mail correspondence from, and described phone

conversations with, personnel at California's Interstate Compact office concerning the

mandatory supervision eligibility issue. Each party claimed these e-mails and

conversations supported its position on the eligibility question.



                                              4
         At a hearing on September 19, 2013, the court denied Wofford's motion for

permission to apply for a transfer under the Compact. The court reasoned a defendant on

mandatory supervision is for "all intents and purposes" serving a prison term even though

the defendant is released in the community; a defendant who is an inmate does not

qualify for a Compact transfer; and accordingly mandatory supervision releasees were

not eligible for Compact transfers. The court also stated Wofford was doing well on

mandatory supervision but she had not been on mandatory supervision long enough to

determine whether her progress will be consistent, and there was a question as to whether

Virginia would supervise her in the same manner as she was being supervised in San

Diego.

         In response to defense counsel's requests for clarification, the court stated its

ruling was without prejudice to Wofford's right to request reconsideration if she had

additional time on mandatory supervision with consistent positive results, and if the

court's findings on the other matters were also addressed.

         Wofford filed an appeal challenging the court's ineligibility ruling. Although the

court's ruling was without prejudice to Wofford's right to file another transfer request, her

ability to purse a transfer request would be impeded absent a legal determination on the

Compact eligibility issue. Accordingly, to resolve this purely legal issue, we treated

Wofford's appeal as a petition for writ of mandate. (See Thornburg v. Superior Court

(2006) 138 Cal.App.4th 43, 48.) We note that Wofford is not challenging the court's

factual finding that a transfer application was not appropriate at this juncture, and we

express no view on this fact-based component of the court's order.

                                                5
                                      DISCUSSION

       California is a member of the Interstate Compact through which member states

coordinate the out-of-state transfer and supervision of offenders who are released into the

community under the supervision of the authorities. The Compact contains detailed

provisions governing transfer requests by the offender, implementation of the transfers,

and supervision of the transferred offender.

       The parties do not dispute that the Compact applies to offenders released into the

community on traditional parole or probation status. However, they disagree whether it

applies to the new class of released offenders who, under California's recent Realignment

Act, are serving a portion of their prison term released into the community under the

supervision of the probation department.

       For reasons we shall explain, we conclude mandatory supervision releasees are

eligible to apply for transfers under the Compact.

                                I. The Interstate Compact

       The Interstate Compact is an "agreement between member states that seeks to

promote public safety by systematically controlling the interstate movement of certain

adult offenders." (Interstate Commission for Adult Offender Supervision Rules (Mar. 1,

2014) (Compact Rules or Rules), Introduction.)3 California enacted legislation adopting




3      The Compact is available at <http://www.interstatecompact.org> as of October
22, 2014.

                                               6
the Compact in 2000. (Pen. Code,4 § 11180.) The Compact is overseen by the Interstate

Commission for Adult Offender Supervision (ICAOS or the Commission), which is a

"quasi-governmental administrative body vested by the states with broad regulatory

authority." (Compact Rules, supra, Introduction.) The Commission promulgates rules

that "have the force and effect of statutory law" and that take precedence over any

conflicting laws established in the compacting states. (§ 11180, arts. V, XIV; Compact

Rules, supra, Introduction.) To assist with implementation and interpretation of the

Compact, the Commission also issues advisory opinions (Advisory Opinions) and a

judicial bench book (Bench Book). (Compact Rules, supra, Introduction; ICAOS Bench

Book for Judges and Court Personnel (2014 ed.).)5 Each member state has a

commissioner with voting rights on the Commission, and a compact administrator

responsible for the administration and management of the Compact in the state.

(§ 11180, arts. III, IV; Compact Rules, supra, Rule 1.101.)6

       The current Compact, entitled the Interstate Compact for Adult Offender

Supervision, was preceded by a 1937 Compact entitled the Interstate Compact for the

Supervision of Parolees and Probationers. (See § 11180, Preamble.) The change in

terminology in the current Compact—which uses the broad term "offender"—was

"intended to correct perceived problems with the [predecessor Compact], which

4      Subsequent unspecified statutory references are to the Penal Code.

5      The Bench Book is available at <http://www.interstatecompact.org> as of October
22, 2014.

6      Subsequent numeric references to Rules are to the Compact Rules.
                                            7
encouraged states to claim that certain individuals were exempt from coverage of the

agreement by use of the explicit language of 'probationers' and 'parolees,' terms that were

given a narrow definition and application." (Bench Book, supra, at pp. 51-52.)

       Explaining its purpose, the Compact states: "The compacting states to this

Interstate Compact recognize that each state is responsible for the supervision of adult

offenders in the community who are authorized pursuant to the Bylaws and Rules of this

compact to travel across state lines both to and from each compacting state in a manner

so as to track the location of offenders, transfer supervision authority in an orderly and

efficient manner, and when necessary return offenders to the originating jurisdiction."

(§ 11180, art. I, Purpose, italics added.) Further, the Compact specifies that its purpose

is, among other things, "to provide for the effective tracking, supervision, and

rehabilitation of these offenders by the sending and receiving states." (Ibid., italics

added.)

       The Compact's general eligibility requirements are derived from the definitions of

the terms "offender" and "supervision" set forth in the Compact Rules. Offender is

defined as "an adult placed under, or made subject to, supervision as the result of the

commission of a criminal offense and released to the community under the jurisdiction of

courts, paroling authorities, corrections, or other criminal justice agencies, and who is

required to request transfer of supervision under the provisions of the Interstate Compact

for Adult Offender Supervision." (Rule 1.101, italics added.) Supervision is defined as

"the oversight exercised by authorities of a sending or receiving state over an offender for

a period of time determined by a court or releasing authority, during which time the

                                              8
offender is required to report to or be monitored by supervising authorities, and to

comply with regulations and conditions, other than monetary conditions, imposed on the

offender at the time of the offender's release to the community or during the period of

supervision in the community." (Ibid., italics added.)

       The Compact Rules contain several provisions specifying various types of

offenders who are, or are not, eligible for transfer under the Compact. The Rules state

offenders subject to deferred sentences are eligible. (Rule 2.106.) The Rules list the

following types of offenders as ineligible: (1) a person "subject to supervision pursuant

to a pre-trial release program, bail, or similar program"; and (2) a person "who is

released from incarceration under furlough, work-release, or other pre-parole program."

(Rules 2.106, 2.107, italics added.)

       Under the Rules, the sending state (the state sending the offender) has the

discretion to decide whether to request the transfer of an offender to another state. (Rules

2.101, 3.101; Bench Book, supra, at p. 54.) When a sending state makes a transfer

request, acceptance of the transfer by the receiving state (the state receiving the offender)

is mandatory if the offender (1) has more than 90 days or an indefinite period of

remaining supervision; (2) has a valid plan of supervision; (3) is in substantial

compliance with the terms of supervision; and (4) either (a) is a resident of the receiving

state, or (b) has family in the receiving state able to assist with the supervision, and can

obtain employment or has a means of support. (Rule 3.101.) If these criteria are not met,

the receiving state's acceptance of the transfer is discretionary. (Rule 3.101-2.)



                                              9
       To initiate the transfer process, the offender must obtain the approval of the

sending state's Interstate Compact office, and the sending state then sends the transfer

request to the receiving state. (Rule 2.101; Bench Book, supra, at pp. 54-55.) The

Compact Rules require that the sending state submit specified information to the

receiving state, including a description of the offense, the conditions of supervision, the

presentence-investigation report, any no-contact or sex offender registration orders, and

the supervision history. (Rule 3.107.) The length of supervision is determined by the

sending state, whereas the terms of supervision are determined by the receiving state.

(Rules 4.102, 4.101.)7 The sending state must inform the receiving state of any special

conditions applicable to the offender; the receiving state must notify the sending state if it

is unable to enforce a special condition imposed in the sending state; and the receiving

state may impose its own special conditions. (Rule 4.103.)

       Annually or more frequently upon request, the receiving state must send progress

reports to the sending state, providing information about the offender's compliance with

the supervision conditions, participation in treatment programs, any sanctions imposed,

and the supervising officer's recommendation. (Rule 4.106.) The receiving state must

notify the sending state if there are significant supervision violations, and the sending




7       Rule 4.102 states: "A receiving state shall supervise an offender transferred under
the interstate compact for a length of time determined by the sending state."
        Rule 4.101 states: "A receiving state shall supervise an offender transferred under
the interstate compact in a manner determined by the receiving state and consistent with
the supervision of other similar offenders sentenced in the receiving state."
                                             10
state has the authority to order the return of the offender to the sending state without use

of extradition procedures. (Rules 3.109, 4.109, 5.101.)

                           II. California's Realignment Statutes

       Entirely distinct from the Compact, California's penal system was substantially

revamped in 2011 with enactment of the Realignment Act, which shifted responsibility

for the custodial housing and postrelease supervision of certain felons from the state to

the local jails and probation departments. (People v. Cruz, supra, 207 Cal.App.4th at pp.

668, 671; § 1170, subd. (h).) In a statement of declarations and findings underlying the

Realignment Act, the Legislature stated it was committed to reducing recidivism;

California parolees have recidivism rates greater than the national average; and building

more prisons was not sustainable and would not result in improved public safety. (§ 17.5,

subd. (a)(1)-(3); Cruz, supra, at p. 669.) The Legislature stated that California must

support "community-based corrections programs and evidence-based practices that will

achieve improved public safety," and that realigning low-level felony offenders 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." (§ 17.5, subd. (a)(4), (5),

italics added.)

       The Legislature explained that " '[c]ommunity-based punishment' means

correctional sanctions and programming encompassing a range of custodial and

noncustodial responses to criminal or noncompliant offender activity" that "may be

                                              11
provided by local public safety entities directly or through community-based public or

private correctional service providers . . . ." (§ 17.5, subd. (a)(8).) The Legislature

delineated a nonexclusive list of community-based punishments, including such options

as "[s]hort-term flash incarceration" in jail for 10 days maximum; intensive community

supervision; home detention with electronic or GPS monitoring; mandatory community

service; restorative justice programs such as victim restitution and victim-offender

reconciliation; work furlough and work release programs; day reporting; mandatory

substance abuse treatment and random drug testing; and residential programs offering

supervision, treatment and other interventions. (Ibid.) The Legislature further explained

that " '[e]vidence-based practices' " refers to supervision practices "demonstrated by

scientific research to reduce recidivism . . . ." (Id., subd. (a)(9), italics added.)

       To implement this shift from the state to local communities, the Realignment Act

provides that eligible felons will serve their prison terms in local jails rather than state

prison. (People v. Cruz, supra, 207 Cal.App.4th at p. 671; § 1170, subd. (h)(1), (2).)

When imposing these local sentences, the trial court may select a straight commitment to

jail for the applicable term, or it may select "a hybrid sentence in which it suspends

execution" of a portion of the term and releases the felon into the community under the

mandatory supervision of the county probation department. (Cruz, supra, at p. 671;

§§ 1170, subd. (h)(5), 19.9.) Describing the split sentence option, section 1170,

subdivision (h), provides that the court shall "suspend execution" of the portion of the

term to be served under mandatory supervision in the community, and during the

mandatory supervision period the defendant shall be supervised by the probation

                                               12
department "in accordance with the terms, conditions, and procedures generally

applicable to persons placed on probation . . . ." (§ 1170, subd. (h)(5)(A), (B), italics

added.)8

                                        III. Analysis

       When deciding whether offenders released into the community under mandatory

supervision are eligible to apply for out-of-state transfers under the Interstate Compact,

we apply well-established rules of statutory interpretation. We view the statutory

enactments as a whole; consider the plain, commonsense meaning of the language used

by the enactors; and seek to effectuate the legislative intent evinced by the enactments.

(People v. Fandinola (2013) 221 Cal.App.4th 1415, 1421.)




8       Section 1170, subdivision (h)(5) states: "(A) Unless the court finds that, in the
interests of justice, it is not appropriate in a particular case, the court, when imposing a
sentence . . . shall suspend execution of a concluding portion of the term for a period
selected at the court's discretion. [¶] (B) The portion of a defendant's sentenced term that
is suspended pursuant to this paragraph shall be known as mandatory supervision, and
shall begin upon release from custody. During the period of mandatory supervision, 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." (Italics added.)

                                             13
       Neither the Compact Rules nor California's Penal Code (including the

Realignment Act) contain any provisions expressly addressing whether mandatory

supervision releasees are eligible to apply for transfers under the Compact.9 However,

the language used in the Compact Rules readily suggests an intent to incorporate these

releasees into the Compact. Rule 1.101 broadly defines an offender as a person "released

to the community under the jurisdiction of . . . criminal justice agencies" and broadly

defines supervision as "the oversight exercised by authorities . . . determined by a court

or releasing authority." (Italics added.) Persons serving a prison term released in the

community under the probation department's supervision easily fall within these

expansive definitions of offenders under supervision set forth in the Compact Rules.

       Likewise, the eligibility of mandatory supervision releasees is consistent with the

views expressed by the Commission in its judges' bench book, which states that offenders

need not be on "formal probation or parole status" to qualify for transfers, and explicitly

recognizes the eligibility of offenders on "release from incarceration with community-

based supervision . . . ." (Bench Book, supra, at p. 8, italics added.) Indeed, as noted,

when the 1937 predecessor compact was replaced with the current Compact, the broadly-

defined term "offender" was affirmatively selected in lieu of the more narrow terms

"probationer" and "parolee" to encourage a wider application of the Compact. (Id. at pp.

51-52.) As the Commission explained, the broad definition of offender allows it to


9       In contrast to out-of-state transfers, the California Legislature has addressed in-
state transfers between counties, stating that mandatory supervision releasees, along with
probationers, may apply to transfer their supervision or probation to another county.
(§ 1203.9.)
                                             14
"regulate the full breadth of adult offenders," including those "subject to deferred

execution of sentence if some form of community supervision and/or reporting is a

condition of the court's order," and those subject to "other 'non-standard' forms of

disposition as determined by the Commission if some form of community supervision

and/or reporting is a condition of the court's order." (Ibid., italics added.)

       Advisory opinions issued by the Commission also reflect an intent to encompass a

broad array of offenders released under supervision in the community. In these opinions,

the Commission has repeatedly emphasized that "individual states' statutory schemes can

vary remarkably across the nation" and an offender's eligibility should not be based on

"the label used by" a particular state legislature, but rather should be based on "the action

actually taken by . . . the court." (Advisory Opn. 6-2005, p. 3, italics added; Advisory

Opn. 4-2004, p. 3.) For example, the Commission has explained that an offender

released on a deferred sentence is eligible under the Compact because the "offender is no

longer in a pretrial, presumed innocent status, but has [been] found to have committed

the charged offense notwithstanding the decision of the court to withhold punitive

sentencing in favor of an alternative program of corrections such as deferment,

probation in lieu of sentencing, suspended imposition of sentence or suspended execution

of sentence." (Advisory Opn. 4-2004, pp. 2-3, italics added; see Advisory Opn. 6-2005,

pp. 2-3 [state's deferred prosecution equates with deferred sentence because offender

stipulates to guilt in the event he or she fails to comply with release conditions]; Advisory

Opn. 1-2009 [even though rules of predecessor compact referred to prerelease transfer

requests from a "paroling offender," the provisions governing prerelease transfer requests

                                             15
applied equally to Massachusetts offenders sentenced to "split" jail or prison sentences

who would be released to probation supervision].)

       It is apparent that regardless of the particular sentencing structure utilized by a

state, the essential factors that bring an offender within the parameters of the Compact are

(1) an adjudication of guilt, and (2) release from custodial status into the community

under supervision. Persons released into the community on mandatory supervision under

California's Realignment Act fit these requirements.

       To support its contrary position, the Attorney General points to the Compact Rule

excluding from eligibility offenders who are "released from incarceration under furlough,

work-release, or other pre-parole program." (Rule 2.107). Typically, these types of

offenders remain in confinement when they are not working, or are required to report to

designated work programs which effectively impose a type of confinement. (See § 1208,

subd. (d)(1) ["Whenever the prisoner is not employed . . . and between the hours or

periods of employment . . . , the prisoner shall be confined in the facility designated by

the board of supervisors for work furlough confinement unless the work furlough

administrator directs otherwise."]; § 4024.2, subd. (c) ["As a condition of participating in

a work release program, a person shall give his or her promise to appear for work . . . by

signing a notice to appear . . . and . . . an agreement that the sheriff may immediately

retake the person into custody . . . if the person fails to appear . . . .]; People v. Bojorquez

(2010) 183 Cal.App.4th 407, 422 [work release program has attributes of confinement].)

Thus, these offenders are released under programs that can retain a significant custodial

arrangement. The exclusion of offenders who are confined to work programs does not

                                               16
suggest an intent to exclude offenders who are released under other programs, such as

mandatory supervision, that focus on supervision rather than confinement. (See Bench

Book, supra, at p. 58 [the Compact "has application in a broad range of cases and

dispositions beyond traditional conviction followed by probation"; key consideration is

whether "the end consequence of the court's action [was] community supervision"].)

       Turning to California's Realignment Act, there are no provisions prohibiting

application of the Compact to mandatory supervision releasees, and there is nothing in

the Realignment Act suggesting that the Legislature intended to exclude mandatory

supervision releasees from Compact eligibility. The community-based punishment

concept described in the Realignment Act focuses on keeping the offender in the local

community under supervision, but it does not mandate that the community affording this

support and supervision must necessarily be a California community. Also, the

discretionary availability of a transfer to another state could well serve the goals of the

Realignment Act. As one court observed, "[i]t is apparent . . . that the overall purpose of

the [Realignment] Act is to reduce recidivism and improve public safety, while at the

same time reducing corrections and related criminal justice spending." (People v. Cruz,

supra, 207 Cal.App.4th at p. 679.) If an offender released on mandatory supervision

shows that he or she has a better chance of avoiding recidivism in another state, it would

advance the goals of the Realignment Act if the offender could seek transfer under the

Compact.

       Further, the fact that approval of a supervised offender's request for out-of-state

transfer is fully within the discretion of the relevant California authorities ensures that the

                                              17
goals of the Realignment Act will not be undermined by application of the Compact to

mandatory supervision releasees. First, based on the mandatory supervision condition

requiring court and probation officer consent to an out-of-state move, the superior court

serves as a gatekeeper with discretion to decline permission to pursue a transfer request

with the Compact office. Thus, Compact eligibility does not lessen the trial court's

discretionary power to keep an offender within the state because without the court's

approval there can be no transfer. Second, the Compact office can decline the transfer

request even if the court and probation officer consented.10 Thus, if there is a concern

that an offender released on mandatory supervision might not receive the appropriate

level or type of supervision in the other state, California has full authority to keep the

offender within its borders. Also, if a transferred offender does not perform well in the

receiving state, the Compact Rules allow the offender to be returned to California.

       We are not persuaded by the Attorney General's argument that the Compact does

not apply to mandatory supervision releasees because they are not parolees or

probationers, but rather inmates who are serving their prison terms in the community.

(See, e.g., People v. Fandinola, supra, 221 Cal.App.4th at p. 1422 [probation supervision

fee may not be imposed on mandatory supervision releasee because the sentence is "akin



10      We note that, apart from an offender's mandatory supervision conditions, the
Commission also requires that the offender's supervising agent (i.e., probation officer)
first decide if the transfer plan is viable, and if the decision is no, the application is not
submitted to the Compact office. (See Compact Flow Chart, Overview of the Interstate
Compact Process, available at
<http://www.interstatecompact.org/About/NavigatingTheCompact.aspx.> as of October
22, 2014.
                                              18
to a state prison commitment; it is not a grant of probation or a conditional sentence"].)

As we indicated, the Commission has made clear that the fact that an offender is not a

traditional parolee or probationer is not determinative of eligibility; rather, the key

components of eligibility are (1) adjudicated guilt, and (2) release from custodial status

into the community under supervision. Regardless of the label placed on the sentence

being served by the mandatory supervision releasee, these eligibility components are

satisfied. As to the intent of the California Legislature, the Realignment Act directs that

the court suspend execution of the portion of the sentence to be served in the community.

(§ 1170, subd. (h)(5)(A).) The Legislature's reference to a suspended sentence reflects its

recognition that there is a qualitative difference between an inmate in actual prison

custody and a felon released in the community under mandatory supervision. Although a

mandatory supervision sentence may be treated as akin to an actual prison term for some

purposes, for purposes of Compact eligibility it meets the core requirement of

noncustodial release into the community under supervision.

       Finally, we reject the Attorney General's contentions that Wofford has no standing

to present, or has forfeited, her challenge to the court's lack-of-eligibility ruling. She has

standing because she is aggrieved by the court's ruling that she was not eligible to request

a transfer (see In re L. Y. L. (2002) 101 Cal.App.4th 942, 948), and there was no

forfeiture because she raised the issue of eligibility before the trial court (see In re S.C.

(2006) 138 Cal.App.4th 396, 406). The federal cases cited by the Attorney General to

support its claim of no standing are inapposite because they merely hold an offender

cannot bring a federal cause of action alleging a state's violation of the Compact. (M.F.

                                              19
v. State of New York Executive Dept. Div. of Parole (2d Cir. 2011) 640 F.3d 491, 494-497

[challenge to conditions imposed by receiving state is matter that is traditionally relegated

to state law]; Doe v. Pennsylvania (3d Cir. 2008) 513 F.3d 95, 103-105.) Wofford is

requesting a legal evaluation of Compact eligibility, which is a proper matter for state or

federal court determination. (See M.F., supra, 640 F.3d at pp. 493-494; Commonwealth

v. Blaxton (Va. 2012) 722 S.E.2d 247, 248-249; Hubble v. Bi-State Development Agency

of Illinois-Missouri Metropolitan Dist. (Ill. 2010) 938 N.E.2d 483, 489, fn. 3.) Equally

unavailing is the Attorney General's claim of forfeiture based on Wofford's failure to

challenge the mandatory supervision condition requiring that she obtain consent from the

court and probation officer to move out of state. Wofford's acceptance of this condition

did not mean she was waiving her right to request a transfer under the Compact; rather,

she merely agreed she would obtain permission from the court and probation officer

before moving, which thus required her to seek court approval before pursuing a transfer

under the Compact.

       Given the broad applicability of the Compact to offenders released on supervision,

and the Realignment Act's goal of recidivism reduction that can be served by out-of-state

transfer, we conclude an offender released into the community to serve a mandatory

supervision sentence under the Realignment Act is eligible to apply for a transfer under

the Compact.

       In the event we reach this conclusion, the Attorney General agrees that Wofford is

entitled to another hearing on whether she should be permitted to submit a transfer

application under the Compact. We emphasize that our holding is a narrow one, confined

                                             20
to the legal issue of Compact eligibility for mandatory supervision releasees. We express

no opinion on the factual question of whether the trial court should issue a ruling in favor

of allowing Wofford to submit a Compact transfer application.

                                      DISPOSITION

       Let a peremptory writ of mandate issue directing the superior court to correct its

September 19, 2013 order to the extent the court ruled mandatory supervision releasees

are ineligible to apply for transfers under the Compact.




                                                                               HALLER, J.

WE CONCUR:



         HUFFMAN, Acting P. J.



                       AARON, J.




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