Filed 10/22/13
                          CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION EIGHT


THE PEOPLE,                                      B244648

        Plaintiff and Respondent,                (Los Angeles County
                                                 Super. Ct. No. MA 052511)
        v.

LANIEL WILSON,

        Defendant and Appellant.




        APPEAL from a judgment of the Superior Court of Los Angeles County,
Charles A. Chung, Judge. Affirmed.


        Suzan E. Hier, under appointment by the Court of Appeal, for Defendant and
Appellant.


        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Brendan
Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.
       Laniel Wilson appeals his sentence to state prison after the trial court revoked his
probation. He argues the trial court should have sent him to county jail because he was
effectively “sentenced” after the Criminal Justice Realignment Act of 2011 (the
Realignment Act or the Act) became operative on October 1, 2011 when his probation
was revoked, even though his sentence was imposed and its execution suspended before
that date. A different panel of this Division decided the same issue in People v. Clytus
(2012) 209 Cal.App.4th 1001 (Clytus) (review denied Jan. 16, 2013), finding in this
situation the defendant must be sent to county jail. At the time, Clytus was the only
decision on the issue. Since then, five published decisions have disagreed with Clytus.
(People v. Moreno (2013) 218 Cal.App.4th 846, petn. for review pending, petn. filed
Sept. 17, 2013; People v. Wilcox (2013) 217 Cal.App.4th 618 (Wilcox), review denied
Sept. 11, 2013; People v. Kelly (2013) 215 Cal.App.4th 297, review denied June 19,
2013; People v. Mora (2013) 214 Cal.App.4th 1477, review denied June 19, 2013;
People v. Gipson (2013) 213 Cal.App.4th 1523 (Gipson), review denied June 19, 2013).
Two decisions have agreed with Clytus, one of which has since been ordered depublished
upon grant of the petition for review by our high court. (People v. Reece (2013) __
Cal.App.4th __ [2013 WL 5503189] (Reece); People v. Scott (2013) 216 Cal.App.4th
848, review granted July 24, 2013, S211670.)
       In light of the recent cases, the Attorney General urges us to revisit and overrule
Clytus, while appellant urges us to continue to follow Clytus. We need not address these
arguments because we agree with the Attorney General‟s alternative argument not raised
in Clytus that applying the Realignment Act to send appellant to county jail would
impermissibly alter a material term in the parties‟ plea agreement. (Clytus, supra, 209
Cal.App.4th at p. 1009.) We therefore affirm appellant‟s sentence.
                          PROCEDURAL BACKGROUND1
       Appellant‟s probation arose from an April 2011 complaint charging him with one
count of felony second degree commercial burglary (Pen. Code, § 459)2 and one count of

1      The underlying facts are not relevant to the issue on appeal.


                                             2
misdemeanor petty theft (§ 484, subd. (a)). On April 29 he entered a plea agreement
providing that he would plead no contest to the felony commercial burglary count, and in
exchange, the court would dismiss the misdemeanor count, impose and suspend
execution of a two-year sentence in state prison, and impose a three-year term of
probation. No evidence of the parties‟ plea negotiations appears in the record. Appellant
was sentenced on May 20 consistent with the terms of the agreement and was placed on
probation with various conditions, including that he serve 28 days in county jail with
credit for 28 days served, as well as other conditions not relevant here. The trial court
also terminated probation in three misdemeanor probation cases that were pending at the
time.
        In June 2011, appellant‟s probation was revoked as a result of allegations he had
committed an assault, and in July 2011, the court found appellant had committed the
violation and reinstated probation.
        A year later on June 4, 2012, the district attorney filed a motion to revoke
appellant‟s probation, alleging a new case had been filed against him. At an August 23,
2012 hearing, appellant admitted he violated probation and pleaded no contest to two new
misdemeanor counts. The court executed his previously suspended two-year state prison
sentence, imposed a 180-day sentence on the new misdemeanor counts to run
concurrently with the two-year state prison term, imposed other terms not relevant here,
and dismissed other pending misdemeanor cases.
        At this hearing, the trial court initially indicated appellant‟s sentence would be
served in state prison, while both appellant‟s counsel and the prosecutor understood he
would serve his term in county jail. After a discussion held off the record, the trial court
imposed the state prison sentence and appellant agreed to it.3 The trial court‟s sentencing
minute order indicates, “The court notes that the defendant is ineligible for housing in


2       All undesignated statutory citations are to the Penal Code.
3      Notwithstanding, the Attorney General does not argue waiver on appeal and we do
not consider the issue.


                                               3
county jail under Penal Code section 1170(h) due to the nature of the charges and/or his
prior criminal history.”
       Appellant filed a timely notice of appeal, and the trial court granted a certificate of
probable cause.4
                                       DISCUSSION
       Appellant‟s sole contention on appeal is that the trial court improperly sentenced
him to state prison when it revoked his probation and executed his suspended sentence
because, by that time, he was subject to the Realignment Act and should have been sent
to county jail. When appellant‟s sentence was imposed and its execution suspended in
May 2011, all felony sentences were served in state prison; however, when his sentence
was executed, the Realignment Act prescribed that sentences for certain felonies shall be
served in county jail. (§ 1170, subd. (h)(1); Clytus, supra, 209 Cal.App.4th at p. 1004.)
As Clytus explained, “[t]he Realignment Act „enacted sweeping changes to long-standing
sentencing laws,‟ including replacing prison commitments with county jail commitments
for certain felonies and eligible defendants.” (Clytus, supra, at p. 1004.) It realigns
“„low-level felony offenders who do not have prior convictions for serious, violent, or
sex offenses to locally run community-based corrections programs.‟” (Ibid., quoting
§ 17.5, subd. (a)(5).) Section 1170, subdivision (h)(6) specifies “[t]he sentencing
changes made by the [Realignment Act] that added this subdivision shall be applied
prospectively to any person sentenced on or after October 1, 2011.”
1. Disqualifying Prior Serious Felonies Under the Realignment Act
       Under the Realignment Act, a defendant with a prior or current serious felony
listed in section 1192.7, subdivision (c) must serve his sentence in state prison, not
county jail. (§ 1170, subd. (h)(3).) In their briefing on appeal, both appellant and the
Attorney General assumed appellant was not disqualified by this provision. They are



4       The certificate did not include the issue appellant now presses on appeal, but once
the trial court issues the certificate, an appellant is not limited to the issues identified
therein. (People v. Hoffard (1995) 10 Cal.4th 1170, 1174.)


                                              4
correct insofar as appellant‟s current conviction for second degree commercial burglary
in violation of section 459 does not qualify as a serious felony under section 1192.7,
subdivision (c). However, appellant‟s probation report indicates he had two apparent
prior felony convictions on June 15, 1996, and April 25, 1997, for “forceful assault with a
deadly weapon, not firearm, great bodily injury likely,” in violation of section 245,
subdivision (a)(1).5
       A conviction under section 245, subdivision (a)(1) constitutes a serious felony
within section 1192.7, subdivision (c) if the defendant personally inflicts great bodily
injury (§ 1192.7, subd. (c)(8)), personally uses a dangerous or deadly weapon (§ 1192.7,
subd. (c)(23)), or commits the assault with a deadly weapon (§ 1192.7, subd. (c)(31)).
(People v. Banuelos (2005) 130 Cal.App.4th 601, 604-605 (Banuelos).) Merely being
convicted of assault by means likely to cause great bodily injury is not a serious felony
unless it also involves the use of a deadly weapon or actually results in the personal
infliction of great bodily injury. (Id. at p. 605; People v. Delgado (2008) 43 Cal.4th
1059, 1065 (Delgado) [“[A] conviction under the deadly weapon prong of section
245(a)(1) is a serious felony, but a conviction under the [great bodily injury] prong is
not.”].)
       “Where, as here, the mere fact that a prior conviction occurred under a specified
statute does not prove the serious felony allegation, otherwise admissible evidence from
the entire record of the conviction may be examined to resolve the issue.” (Delgado,
supra, 43 Cal.4th at p. 1065.) The record of appellant‟s prior convictions is inconclusive
on whether they were for assault with a deadly weapon or assault accompanied by
personal infliction of great bodily injury (serious felonies) or assault with great bodily
injury likely (not a serious felony). In the file for the 1997 conviction, for example, the


5      At the time of appellant‟s prior convictions, section 245, subdivision (a)(1)
provided, “Any person who commits an assault upon the person of another with a deadly
weapon or instrument other than a firearm or by any means of force likely to produce
great bodily injury” would be subject to specified terms of imprisonment. (§ 245, former
subd. (a)(1) [eff. to Dec. 31, 1999].)


                                              5
felony complaint for an arrest warrant alleged one count of assault with a deadly weapon,
i.e., a “BEER BOTTLE, SHOD FEET AND FISTS,” and by means of force likely to
produce great bodily injury. The complaint further alleged the offense to be a serious
felony within section 1192.7, subdivision (c), and alleged an enhancement for personal
infliction of great bodily injury under section 12022.7, subdivision (a), which also would
cause the offense to become a serious felony under section 1192.7, subdivision (c)(8).
The case summary and sentencing minute order indicate appellant pleaded no contest to
“strike w/ deadly weapon” and “245(A)(1) PC FEL -- ASSAULT W DEADLY
WEAPON/INSTR.” By not referring to the great bodily injury prong of section 245,
subdivision (a)(1), these references could indicate appellant‟s conviction was for assault
with a deadly weapon, a serious felony. (Delgado, supra, at pp. 1069-1070 [finding
reference to “„PC‟” “„245(A)(1)‟” and “„Asslt w DWpn‟” sufficient to prove assault was
committed with deadly weapon to qualify as serious felony].) But the probation report
notation of “forceful assault with a deadly weapon, not firearm, great bodily injury
likely” could signify a conviction for either assault with a deadly weapon or assault with
great bodily injury likely. (See Banuelos, supra, 130 Cal.App.4th at p. 606 [finding
reference to “„ASSAULT GBI W/DEADLY WEAPON‟” in abstract of judgment
ambiguous and insufficient to prove use of deadly weapon during commission of
offense].) And nothing in the record indicates the factual basis for appellant‟s plea, such
as whether he admitted to personally inflicting great bodily injury or using a deadly
weapon. The file also does not contain an abstract of judgment.
       This issue was not raised below, so we do not have the benefit of any factual
findings by the trial court. The parties also did not address this issue in their briefs on
appeal. In supplemental briefing, appellant argued the record was insufficient to find his
prior convictions were disqualifying serious felonies and urged the court to reach his
argument under Clytus. The Attorney General did not address the sufficiency of the
record, but simply argued if we follow Clytus, we should remand the case for the trial
court to determine whether appellant‟s prior convictions constituted serious felonies.



                                               6
       Regardless of our conclusion on the merits of appellant‟s appeal, we would not
remand for further factual findings by the trial court on this issue. Absent contrary
evidence, we presume appellant‟s prior convictions were for the least adjudicated
elements of the crimes, which would not qualify them as prior serious felonies.
(Delgado, supra, 43 Cal.4th at p. 1066; People v. Rodriguez (1998) 17 Cal.4th 253, 262
(Rodriguez).) The prosecutor bore the burden to prove otherwise in the trial court but did
not raise the issue. (Rodriguez, supra, at p. 262.) On appeal, the Attorney General has
eschewed any argument that the current record is sufficient. Thus, we presume
appellant‟s prior convictions were not serious felonies and do not disqualify him from
serving his sentence in county jail under the Realignment Act. We will reach the merits
of appellant‟s primary contention on appeal.
2. The Plea Agreement and the Realignment Act
       Before the October 1, 2011 operative date of the Realignment Act, the trial court
sentenced appellant to a two-year term of imprisonment in state prison, but suspended
execution of the sentence and imposed probation. After the Realignment Act became
operative on October 1, 2011, appellant violated probation and the trial court executed
the previously suspended state prison sentence. In an identical factual scenario, Clytus
held “a trial court executing a suspended sentence as punishment for a probation violation
on and after October 1, 2011, has no discretion to send to prison a defendant whose
criminal record and current felony convictions qualify for a county jail commitment
under section 1170, subdivision (h).” (Clytus, supra, 209 Cal.App.4th at p. 1006.) Clytus
noted, however, the Attorney General did not argue “the prosecutor would not have
offered the plea bargain to defendant if the many changes effected by realignment had
been anticipated,” so Clytus refrained from deciding “whether [the parties] might have
negotiated their plea agreement differently if they had known defendant would serve his
sentence in county jail with supervised release and not parole.” (Id. at p. 1009.) Unlike
in Clytus, the Attorney General argues here that ordering appellant to serve his sentence
in county jail would alter a material term in the parties‟ plea agreement. We agree.



                                               7
       “„“When a guilty [or nolo contendere] plea is entered in exchange for specified
benefits such as the dismissal of other counts or an agreed maximum punishment, both
parties, including the state, must abide by the terms of the agreement.”‟” (People v.
Segura (2008) 44 Cal.4th 921, 930-931, original brackets.) “Thereafter, material terms of
the agreement cannot be modified without the parties‟ consent.” (People v. Martin
(2010) 51 Cal.4th 75, 80.) “A negotiated plea agreement is a form of contract, and it is
interpreted according to general contract principles. [Citations.] „The fundamental goal
of contractual interpretation is to give effect to the mutual intention of the parties.
[Citation.]‟” (People v. Shelton (2006) 37 Cal.4th 759, 767.)
       As relevant to this case, “„“all applicable laws in existence when an agreement is
made, which laws the parties are presumed to know and to have had in mind, necessarily
enter into the contract and form a part of it, without any stipulation to that effect, as if
they were expressly referred to and incorporated,”‟” and “laws enacted subsequent to the
execution of an agreement are not ordinarily deemed to become part of the agreement
unless its language clearly indicates this to have been the intention of the parties.”
(Swenson v. File (1970) 3 Cal.3d 389, 393 (Swenson).) Thus, “to hold that subsequent
changes in the law which impose greater burdens or responsibilities upon the parties
become part of that agreement would result in modifying it without their consent.” (Id. at
p. 394.)
       The Supreme Court recently addressed this rule from Swenson in the context of a
plea agreement. (Doe v. Harris (2013) 57 Cal.4th 64 (Doe).) At issue was whether the
defendant‟s plea agreement was violated by applying a retroactive amendment to
California‟s Sex Offender Registration Act, section 290 et seq. (Doe, supra, at p. 65.)
Responding to a question certified by the United States Court of Appeals for the Ninth
Circuit, the court drew a distinction between Swenson,6 which involved a change in law



6      The court assumed without deciding that the rule announced in Swenson, a civil
case involving a commercial contract, applied to plea agreements. (Doe, supra, 57
Cal.4th at p. 69.)


                                               8
not intended to apply retroactively, and People v. Gipson (2004) 117 Cal.App.4th 1065
(Gipson), in which the court applied a retroactive change in recidivism sentencing
notwithstanding the parties‟ plea agreement under prior law. (Doe, supra, at pp. 69-70.)
In contrast to Swenson, the court in Gipson applied the rule, “„When persons enter into a
contract or transaction creating a relationship infused with a substantial public interest,
subject to plenary control by the state, such contract or transaction is deemed to
incorporate and contemplate not only the existing law but the reserve power of the state
to amend the law or enact additional laws for the public good and in pursuance of public
policy . . . .‟” (Doe, supra, at p. 70, quoting In re Marriage of Walton (1972) 28
Cal.App.3d 108, 112.)
          The court in Doe explained these cases recognize “that the Legislature, for the
public good and in furtherance of public policy, and subject to the limitations imposed by
the federal and state Constitutions, has the authority to modify or invalidate the terms of
an agreement. Our explanation in Swenson that, as a general rule, contracts incorporate
existing but not subsequent law, does not mean that the Legislature lacks authority to
alter the terms of existing contracts through retroactive legislation. Nor should it be
interpreted to mean that the parties, although deemed to have existing law in mind when
executing their agreement, must further be deemed to be unaware their contractual
obligations may be affected by later legislation made expressly retroactive to them, or
that they are implicitly agreeing to avoid the effect of valid, retroactive legislation.
Gipson explains that the parties to a plea agreement -- an agreement unquestionably
infused with substantial public interest and subject to the plenary control of the state --
are deemed to know and understand that the state, again subject to the limitations
imposed by the federal and state Constitutions, may enact laws that will affect the
consequences attending the conviction entered upon the plea.” (Doe, supra, 57 Cal.4th at
p. 70.) The court applied the rule from Gipson, not Swenson, because the amendments to
the Sex Offender Registration Act were expressly made retroactive by the Legislature.
(Ibid.)



                                               9
       The court in Doe also reasoned, “it is not impossible the parties to a particular plea
bargain might affirmatively agree or implicitly understand the consequences of a plea
will remain fixed despite amendments to the relevant law,” although this inquiry
“presents factual issues that generally require an analysis of the representations made and
other circumstances specific to the individual case.” (Doe, supra, 57 Cal.4th at p. 71.)
Generally, “prosecutorial and judicial silence on the possibility the Legislature might
amend a statutory consequence of a conviction should not ordinarily be interpreted to be
an implied promise that the defendant will not be subject to the amended law.” (Ibid.)
       Unlike in Doe and Gipson, the Legislature expressly provided the Realignment
Act would apply only prospectively to “any person sentenced on or after October 1,
2011.” By making the Realignment Act operate prospectively only, the Legislature did
not intend to affect any existing plea agreements. The rule in Swenson therefore applies
and the law as it existed prior to the Realignment Act governs the plea agreement unless
the language and surrounding circumstances of the agreement clearly indicate otherwise.
They do not. Rather than remaining silent on where appellant would serve his suspended
jail term, the plea agreement expressly contemplated appellant would serve the term in
state prison. Although the record does not reflect whether the parties discussed the
Realignment Act as part of the plea negotiations in April and May 2011, the Realignment
Act was enacted on April 4, 2011, and we presume the parties were aware of it at the
time. (Stats. 2011, ch. 15, § 450.) While the changes to section 1170, subdivision (h) did
not become operative until October 1, 2011,7 having negotiated the agreement under the
shadow of the Realignment Act, the parties must have intended the state prison aspect of
their agreement to be an important part of their bargain or they would not have included
it.



7      The original version of the Realignment Act enacted in April 2011 provided that
the sentencing changes would apply prospectively to any person sentenced on or after
July 1, 2011, but that date was later amended to October 1, 2011. (Stats. 2011, ch. 39,
§ 27.)


                                             10
          Appellant also correctly notes a county jail sentence under the Realignment Act is
in many ways like a pre-Act state prison sentence. “[T]he 2011 Realignment Act did not
change the existing rules about felony probation eligibility, the length of any felony
sentence, or how the sentence is to be calculated under sections 1170 and 1170.1.
Instead, the Realignment Act changed only the place where certain less violent felons
serve their sentences.” (People v. Prescott (2013) 213 Cal.App.4th 1473, 1478, fn. 2
(Prescott).) But there are important differences that could impact plea negotiations. A
defendant under the Realignment Act is no longer subject to parole or postincarceration
state supervision, while he or she would have been upon release from state prison.
(Wilcox, supra, 217 Cal.App.4th at p. 621; People v. Cruz (2012) 207 Cal.App.4th 664,
671-672 (Cruz).) And the trial court has discretion to suspend execution of a portion of a
defendant‟s county jail term and place the defendant on mandatory supervision, which
could significantly reduce the period of actual custody (often called “split” or “blended”
sentences). (§ 1170, subd. (h)(5)(B); Wilcox, supra, at p. 621; Prescott, supra, at p. 1478,
fn. 2.)
          In light of these differences, the parties‟ bargain likely would have been different
if, at the time the trial court imposed and suspended execution of appellant‟s sentence and
imposed probation, appellant would have been eligible under the Realignment Act to
serve his suspended sentence in county jail if he violated probation at some future time.
The prosecutor may not have agreed to probation at all for appellant‟s most recent
offenses if the only sentence hanging over appellant‟s head was a term in county jail
without parole, part of which could be suspended in favor of mandatory supervision.8
(Cruz, supra, at p. 680, fn. 15 [noting “a term of imprisonment, followed by a mandatory
period of parole, is likely to have been an important consideration in many, if not most,
felony plea agreements”].) Indeed, the probation report recommended probation be

8      It may be possible the parties could agree a defendant would not serve a split or
blended sentence under the Realignment Act as part of a plea agreement. We need not
decide that question. But we note sending appellant to county jail now would deprive the
parties of the opportunity to negotiate a term like that as part of a plea bargain.


                                                11
denied and appellant be sentenced to state prison because appellant had a significant
criminal history and he was on several grants of probation at the time he committed the
offenses that led to the plea agreement. Given appellant‟s background and the fact that
the Realignment Act was to become operative shortly, the suspended state prison
sentence may have assured the prosecutor that appellant would comply with the terms of
his probation, while a county jail sentence may not have. By the same token, if the
prosecutor was unwilling to agree to probation if the suspended sentence would have
been served in county jail, appellant may have been deprived of the benefit of probation,
i.e., the opportunity to avoid actual custody. It is only now -- when his probation has
been revoked -- that he is seeking to benefit from the opportunity both to serve probation
and to serve an arguably more favorable county jail sentence. Applying the Realignment
Act to appellant‟s sentence now would therefore deprive the parties of an expressly
agreed upon benefit of their bargain. (See Wilcox, supra, at p. 624 [Applying the
Realignment Act in this circumstance “would also alter the terms of the plea agreement
where the suspended term was part of a stipulated sentence under the plea agreement.”].)9


9      In Reece, the court affirmed the defendant‟s county jail sentence and rejected the
Attorney General‟s request to remand the matter so the prosecution could withdraw the
plea agreement on the ground the defendant‟s county jail sentence deprived the
prosecution of the benefit of the bargain, an integral part of that agreement. (Reece,
supra, __ Cal.App.4th at p. __ [2013 WL 5503189, at pp. *6-*7].) It reaching this
conclusion, it distinguished People v. Collins (1978) 21 Cal.3d 208 and People v. Bean
(1989) 213 Cal.App.3d 639. In Collins, the court invalidated the parties‟ plea agreement
because the single count to which the defendant pleaded guilty was no longer a crime.
Instead of permitting the defendant to be set free, the court remanded the matter to allow
the prosecution to revive dismissed counts because “the defendant‟s vulnerability to a
term of punishment” was integral to the agreement. (Collins, supra, at p. 215.) In Bean,
the court found the crime to which the defendant pleaded guilty was nonexistent, but
refused to alter the plea agreement to allow the defendant to plead guilty to a
misdemeanor. Because “the intent of the parties was to expose defendant to the
possibility of a state prison sentence,” the court remanded the matter so the prosecution
could reinstate dismissed charges. (Bean, supra, at pp. 645-646.) We generally agree
these cases addressed different factual scenarios, but as already explained, we disagree
they lead to the conclusion reached in Reece that sending the appellant to county jail now
would not alter a material term to the parties‟ plea agreement.

                                            12
                                     DISPOSITION
       We need not address the continuing vitality of Clytus because, in this case,
sending appellant to county jail under the Realignment Act would alter a material term in
the parties‟ plea agreement that he serve his executed sentence in state prison, an issue
expressly left open in Clytus. The trial court therefore properly sentenced appellant to
state prison and we affirm appellant‟s sentence.




                                                   FLIER, J.
I CONCUR:




       GRIMES, J.




                                             13
People v. Wilson
B244648
BIGELOW, P. J., Concurring:


       I concur. I write separately to note, with regard to the regular references to
People v. Clytus (2012) 209 Cal.App.4th 1001, 1007 (Clytus), I was not on the panel of
this division that decided that case. Despite my respect for my colleagues, I do not agree
with the holding in Clytus for the reasons set forth in People v. Gipson (2013) 213
Cal.App.4th 1523.




                                          BIGELOW, P. J.
