Filed 8/6/13

                          CERTIFIED FOR PUBLICATION


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                            SIXTH APPELLATE DISTRICT



THE PEOPLE,                                        H037737
                                                  (Monterey County
        Plaintiff and Respondent,                  Super. Ct. No. SS110008)

        v.

STEVEN MORENO, JR.,

        Defendant and Appellant.



        The Criminal Justice Realignment Act of 2011 (Realignment Act)1 made
significant changes in punishment for defendants, including confinement in county jail
rather than state prison for certain felons. (Pen. Code, § 1170, subd. (h).)2 These
sentencing changes apply “to any person sentenced on or after October 1, 2011.”
(§ 1170, subd. (h)(6).) We conclude that the Realignment Act does not apply to
defendant Steven Moreno, whose sentence was imposed prior to October 1, 2011, and
executed after that date when his probation was revoked.3 Accordingly, we reverse the
judgment.


1
      Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1.
2
      All further statutory references are to the Penal Code.
3
      This issue is presently before the California Supreme Court in People v. Scott,
review granted July 24, 2013, S211670.
                                      I. Background
        On January 3, 2011, defendant was charged by complaint with receiving stolen
property (§ 496, subd. (a) – count 1), resisting, delaying, or obstructing a peace officer
(§ 148, subd. (a)(1) – count 2), and possession of burglar’s tools (§ 466 – count 3). The
complaint also alleged that defendant had failed on three separate occasions to remain
free of prison custody for a five-year period (§ 667.5, subd. (b).
        On January 18, 2011, defendant pleaded no contest to felony receiving stolen
property and admitted two of the prior prison term allegations.
        On April 12, 2011, the trial court imposed a five-year state prison term, suspended
execution of sentence, and ordered defendant to serve formal probation for three years.
The remaining charges and allegations were dismissed pursuant to section 1385.
        On May 12, 2011, a petition to revoke probation was filed. On
September 8, 2011, defendant was arrested on a bench warrant for violating the terms and
conditions of probation. On September 22, 2011, the district attorney’s office filed a
second petition to revoke probation on the ground that defendant had failed to obey all
laws.
        On September 29, 2011, defendant admitted a violation of probation for failing to
comply with the imposed terms and conditions. The trial court dismissed the unrelated
misdemeanor charges. As part of the negotiated disposition, defendant agreed that “the
previously suspended prison sentence would . . . be executed.” At defendant’s request,
the trial court continued the case.
        On November 3, 2011, the trial court revoked defendant’s probation and ordered
the previously imposed sentence of five years into effect. The trial court also concluded
that defendant qualified under the Realignment Act to serve his sentence in county jail.
On November 22, 2011, the trial court recalled the sentence pursuant to section 1170,
subdivision (b) to determine whether defendant had a prior serious felony which


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disqualified him from serving his sentence in county jail. A week later, the trial court
found that defendant was not disqualified from serving his sentence in county jail.
       The People filed a timely notice of appeal.


                                      II. Discussion
       Section 1170, subdivision (h)(6) provides that “[t]the sentencing changes made by
[the Realignment Act] shall be applied prospectively to any person sentenced on or after
October 1, 2011.”
       People v. Clytus (2012) 209 Cal.App.4th 1001 (Clytus) (review den. Jan. 16, 2013)
considered the issue before us. Clytus concluded that “a trial court executing a suspended
sentence for a violation of probation on and after October 1, 2011, the effective date of
the Realignment Act, has no discretion to send to prison a defendant who qualifies under
the Act to serve the sentence in county jail.” (Id. at p. 1004.) Clytus relied on “the plain
meaning” of section 1170, subdivision (h)(6) and reasoned: “It is certainly true that in
this case, defendant was sentenced before October 1, 2011, when the court imposed and
suspended execution of sentence with probation. But that does not mean defendant was
not also a ‘person sentenced’ when the court executed the suspended sentence after
October 1, 2011. (§ 1170, subd. (h)(6).) Whenever a sentence is imposed and
suspended, it may be executed in the future after a revocation of probation if the trial
court decides not to reinstate probation. The trial court must make and articulate the
reasons for its discretionary choice not to reinstate probation and to execute the sentence,
as the trial court did here. We see no reason why we should conclude defendant was a
‘person sentenced’ when the court stayed execution of the sentence but not when the
court executed the previously suspended sentence.” (Clytus, at pp. 1006-1007.)
       Clytus also rejected the argument that People v. Howard (1997) 16 Cal.4th 1081
(Howard) provided relevant reasoning or authority. (Clytus, supra, 209 Cal.App.4th at
pp. 1007-1009.) “Howard concluded that a trial court may not modify or change a
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sentence that was imposed and suspended. [Citation.] In contrast, the Realignment Act
does not modify or change the sentence for any felony. The Act directs that the court is
to impose a ‘term described in the underlying offense’ and thus preserves the existing
triad of terms for felonies . . . .” (Id. at pp. 1008-1009.)
       People v. Kelly (2013) 215 Cal.App.4th 297 (Kelly) (review den. June 19, 2013)
disagreed with Clytus and concluded that the Legislature did not intend to abrogate
Howard when it enacted the Realignment Act. (Kelly, at p. 300.) Kelly began its analysis
by setting forth Howard’s “distinction ‘between orders suspending imposition of sentence
and orders suspending execution of previously imposed sentences.’ [Citation.] When a
court suspends imposition of sentence before placing a defendant on probation, there is
no judgment pending against the defendant. Therefore, upon revoking probation, the
court has full discretion to impose any appropriate sentence. The probation order is
considered a final judgment only for the purpose of allowing the defendant to take an
appeal from the order. [Citations.] In contrast, when a court imposes sentence but
suspends its execution during a period of probation, there is a judgment, and revocation
of the order granting probation requires execution of the existing sentence, exactly as
imposed. [Citation.]” (Id. at p. 302.) Kelly noted Howard’s acknowledgment that these
principles were reflected in section 1203.2, subdivision (c) and California Rules of Court,
rule 4.435(b).4 (Kelly, at p. 302.) Kelly questioned the failure of Clytus to “explain why

4
        Section 1203.2, subdivision (c), provides that following revocation and
termination of probation, “the court may, if the sentence has been suspended, pronounce
judgment for any time within the longest period for which the person might have been
sentenced. However, if the judgment has been pronounced and the execution thereof has
been suspended, the court may revoke the suspension and order that the judgment shall
be in full force and effect.” (Italics added.) California Rules of Court, rule 4.435(b),
which implements section 1203.2, subdivision (c), provides that, upon revocation of
probation, “(1) If the imposition of sentence was previously suspended, the judge must
impose judgment and sentence after considering any findings previously made and
hearing and determining the matters enumerated in rule 4.433(c)” or “(2) If the execution
(continued)
                                               4
the phrase ‘sentenced on or after October 1, 2011’ unambiguously has a meaning
different from the traditional rule as discussed in Howard.” (Kelly, at p. 303.)
       As did Clytus, Kelly found that section 1170, subdivision (h)(6) was not
ambiguous on its face. (Kelly, supra, 215 Cal.App.4th at p. 305.) However, Kelly
conceded that if “ ‘any person sentenced on or after October 1, 2011,’ might have the
meaning Clytus ascribes to it—i.e., that sentencing means any proceeding in which a
sentence is either imposed or executed—the phrase becomes ambiguous because it is
contrary to Howard and to section 1203.2, subdivision (c). [Citations.]” (Ibid.) To
resolve any ambiguity, Kelly turned to the “rule of statutory construction that the
Legislature is deemed to be aware of statutes and judicial decisions already in existence
and to have enacted a statute in light of existing statutes and decisions [citation] . . . .”
(Ibid.) Given that Howard was decided several years prior to the enactment of the
Realignment Act, Kelly concluded that “[t]he enactment of section 1170(h)(6) without
either amending or repealing statutes [distinguishing orders suspending imposition from
those suspending execution of sentence] or providing a definition of ‘sentenced’ in
section 1170(h)(6) which differs from the rule enunciated in Howard can be interpreted
to mean only that the Legislature did not intend to do so.” (Kelly, at pp. 305-306.) Kelly
also noted that the Realignment Act itself recognized “the distinction between imposition
and execution of sentence.” (Kelly, at p. 306 [“section 1170(h)(5) refers to imposing a
term in county jail but suspending execution of a portion of the sentence and placing the
defendant under the supervision of the county probation officer. (§ 1170(h)(5)
[introductory sentence], (B)(i))”].) Thus, Kelly concluded that “the Realignment Act
does not abrogate Howard, and that a defendant who is ‘sentenced on or after

of sentence was previously suspended, the judge must order that the judgment previously
pronounced be in full force and effect and that the defendant be committed to the custody
of the Secretary of the Department of Corrections and Rehabilitation for the term
prescribed in that judgment.”

                                                5
October 1, 2011,’ is one whose sentence is imposed on or after that date, not one whose
previously imposed and suspended sentence is executed on or after that date.” (Ibid.)5
       We agree with Kelly. Here, since defendant was sentenced to state prison before
October 1, 2011, the Realignment Act did not apply. When the trial court revoked
defendant’s probation and executed his sentence on November 3, 2011, it lacked
jurisdiction to modify the sentence committing him to state prison for five years.
       Defendant contends that if the judgment is reversed, the case must be remanded
for the trial court to exercise its power to recall defendant’s sentence and resentence him
under section 1170, subdivision (d).
       Section 1170, subdivision (d) provides that a trial court can recall a sentence on its
own motion within 120 days after committing a defendant to prison. (Dix v. Superior
Court (1991) 53 Cal.3d 442, 456.)
       After it recalled the sentence, the trial court stated: “And so again, I’m not
departing from Judge Curtis’ sentencing determination that upper term is appropriate.
I’m not departing from his sentencing determination that two prior prison terms should be
added to that for a consecutive two years. I’m not making any other changes to the
penalty that was identified by Judge Curtis. [¶] But I am following the dictate of the
[L]egislature that Mr. Moreno serve that sentence in the county jail rather than in the state
prison.” Since the trial court’s determination was based solely on its interpretation of the
Realignment Act, remand is unnecessary.




5
      People v. Gipson (2013) 213 Cal.App.4th 1523 (review den. June 19, 2013),
People v. Mora (2013) 214 Cal.App.4th 1477 (review den. June 19, 2013), and People v.
Wilcox (2013) 217 Cal.App.4th 618 also disagreed with Clytus, supra, 209 Cal.App.4th
1001.

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                                    III. Disposition
      The judgment is reversed. The trial court is directed to order into effect the
originally imposed state prison term.




                                                _____________________________
                                                Mihara, J.




I CONCUR:




Márquez, J




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PREMO, Acting P.J., Dissenting:

I respectfully dissent. A separate panel of this court recently decided in People v. Scott
(2013) 216 Cal.App.4th 848 (review granted Jul. 24, 2013, S211670), that the provisions
of the Criminal Justice Realignment Act of 2011 (Realignment Act) are applicable to
those defendants whose sentence was imposed prior to October 1, 2011, the effective date
of the Act, but whose sentence was executed after that date upon revocation of probation.
Here, defendant’s sentence was imposed on April 12, 2011, prior to the effective date of
the Realignment Act. However, sentence was not executed until November 3, 2011, after
the effective date of the Realignment Act. Under the reasons set forth in Scott, I would
affirm the judgment of the trial court ordering defendant serve his sentence in county jail.




                                                         Premo, Acting P. J.
Trial Court:                                 Monterey County Superior Court


Trial Judge:                                 Honorable Adrienne M. Grover


Attorneys for Plaintiff and Appellant:       Kamala D. Harris
                                             Attorney General of California

                                             Dane R. Gillette
                                             Chief Assistant Attorney General

                                             Gerald A. Engler
                                             Senior Assistant Attorney General

                                             Laurence K. Sullivan
                                             Supervising Deputy Attorney General

                                             Seth K. Schalit
                                             Supervising Deputy Attorney General

                                             Amy Haddix
                                             Deputy Attorney General

                                             Bridget Billeter
                                             Deputy Attorney General


Attorney for Defendant and Respondent:       Renee Paradis
                                             Under Appointment by the Sixth District
                                             Appellate Program




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