Filed 10/9/14 P. v. Reece CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H038356
                                                                    (Monterey County
         Plaintiff and Appellant,                                    Super. Ct. Nos. SS101428A,
                                                                     SS110117A)
         v.

LARRY THOMAS REECE,

         Defendant and Respondent.

         Defendant Larry Thomas Reece was sentenced in two cases to a total of five years,
eight months in prison for petty theft with priors (Pen. Code, §§ 666, 484, subd. (a),
667.5, subd. (b))1 and cocaine possession (Health & Saf. Code, § 11350, subd. (a)). The
sentences were imposed before October 1, 2011, the effective date of the Criminal Justice
Realignment Act of 2011 (Realignment Act), but not executed until after that date. We
previously published an opinion in this matter, which the Supreme Court has directed we
vacate and reconsider in light of its decision in People v. Scott (2014) 58 Cal.4th 1415
(Scott).
                                          I.          BACKGROUND
         The following background is identical to that in our previous decision. In April
2011, the superior court sentenced defendant to a total of five years, eight months in
prison as follows: in case No. SS101428A, the upper term of three years for petty theft
with prior theft convictions (§§ 666, 484, subd. (a)), plus one year for each of two prior

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              Unspecified statutory references are to the Penal Code.
prison terms (§ 667.5, subd. (b)); and in case No. SS110117A, eight months consecutive
for possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). In
exchange for defendant’s guilty pleas and admissions of the prior prison terms, a “crime
on bail” enhancement under section 12022.1 and a misdemeanor paraphernalia charge
under Business and Professions Code section 4140 were dismissed in case No.
SS110117A pursuant to section 1385. In each case, by agreement, the court suspended
execution of the sentence, placed defendant on probation, and referred him to participate
in drug treatment court.
       In January 2012, the People filed a petition to revoke probation, alleging that
defendant had been discharged from a court-ordered drug treatment program for
possessing a cellular phone. Defendant admitted the violation in February 2012 and the
trial court determined that the suspended sentences would be executed. After hearing
arguments regarding the incarceration location, the superior court concluded section
1170, subdivision (h), required defendant to serve his sentence in county jail rather than
state prison.
                                II.       DISCUSSION
       The outcome of this appeal is now controlled by the Supreme Court’s decision in
Scott. Scott pleaded guilty to a felony in return for probation and the trial court
suspended execution of a seven-year prison sentence in June 2009. In December 2011,
the trial court revoked Scott’s probation and executed the previously imposed sentence.
Because the sentence was executed after October 1, 2011, the trial court determined that
the Realignment Act applied and ordered Scott to serve his felony sentence in county jail
rather than state prison. (Scott, supra, 58 Cal.4th at pp. 1420-1421.)
       Under the Realignment Act, “low-level felony offenders who have neither current
nor prior convictions for serious or violent offenses, who are not required to register as
sex offenders and who are not subject to an enhancement for multiple felonies involving
fraud or embezzlement,” serve their sentences for specified offenses in county jail rather
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than state prison. (Scott, supra, 58 Cal.4th at p. 1418.) The Supreme Court granted
review in Scott to resolve a conflict in court of appeal decisions regarding interpretation
of section 1170, subdivision (h)(6) (hereafter section 1170(h)(6)), which provides that “
‘[t]he sentencing changes made by the [Realignment Act] ... shall be applied
prospectively to any person sentenced on or after October 1, 2011.’ ” (Scott, at p. 1421,
quoting § 1170(h)(6), original italics.) Although under the foregoing language the
Realignment Act does not apply to felons whose sentences were imposed and executed
before October 1, 2011, the Scott court noted that “the meaning of the term ‘sentenced’ in
section 1170(h)(6) is potentially ambiguous regarding felony offenders ... whose state
prison terms of incarceration were imposed but execution was suspended pending
successful completion of a term of probation prior to October 1, 2011, and who
subsequent to October 1, 2011, have their probation revoked and are ordered to serve the
previously imposed term of incarceration.” (Scott, at p. 1421.)
       To resolve the ambiguity, the court looked to its decision in People v. Howard
(1997) 16 Cal.4th 1081 (Howard), where it “discussed the distinction between
suspending imposition of a sentence and suspending execution of a sentence.” (Scott,
supra, 58 Cal.4th at p. 1423.) When a court initially suspends imposition of sentence,
upon revocation of probation the sentencing court retains “full sentencing discretion ... .”
(Howard, at p. 1087.) However, the Howard court explained that when a court imposes a
sentence but suspends its execution, “[o]n revocation of probation ... the sentencing judge
must order that exact sentence into effect ... .” (Id. at p. 1088.) The Scott court applied
that reasoning to section 1170(h)(6), finding that “a defendant is ‘sentenced’ when a
judgment imposing punishment is pronounced even if execution of the sentence is then
suspended.” (Scott, at p. 1423.) Thus, the court concluded “that the Realignment Act is
not applicable to defendants who have had a state prison sentence imposed and
suspended prior to October 1, 2011.” (Id. at p. 1426.)


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        Here, the trial court imposed state prison sentences in April 2011 and suspended
execution of those sentences pending defendant’s successful completion of probation.
Upon revocation of probation in March 2012, the court executed the sentences and
ordered that they be served in county jail. In light of the Supreme Court’s conclusion in
Scott that the Realignment Act does not apply to sentences imposed before October 1,
2011 but executed after that date, the trial court erred in committing defendant to county
jail.
                                III.     DISPOSITION
        The judgment is reversed and the matter remanded for further proceedings
consistent with this opinion.




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                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Premo, Acting P.J.




____________________________
Mihara, J.
