Filed 10/4/13 reposted same date to correct concurring justice
                                 CERTIFIED FOR PUBLICATION

               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 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 2011,2 but not executed until after that date. In this appeal, we must
determine whether the sentences are to be served in county jail, as the superior court
concluded, or in state prison, as the People contend. For the reasons stated here, we will
affirm the superior court‟s judgment that section 1170, subdivision (h), applies to
defendants whose sentences were imposed before but executed after the Realignment
Act‟s operative date.
                                        I.         BACKGROUND
         In April 2011, the superior court sentenced defendant to a total of five years, eight
months prison as follows: In case No. SS101428A, the upper term of three years for


         1
              Unspecified statutory references are to the Penal Code.
         2
              Stats. 2011, 1st Exec. Sess. 2011–2012, chs. 12,15.
petty theft with prior theft convictions (§§ 666, 484, subd. (a)), plus one year for each of
two prior 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
A.     THE CRIMINAL JUSTICE REALIGNMENT ACT

       In 2011, the Legislature passed a series of laws that marked a “sea change in
felony sentencing” in California. (People v. Clytus (2012) 209 Cal.App.4th 1001, 1007
(Clytus).) Breaking with the historical practice of incarcerating all felons in state prison,
the Legislature amended the Penal Code to make county jails the default location for
nonserious, nonviolent, and nonsexual felonies. (§ 1170, subd. (h)(2) [“Except as
provided in paragraph (3), a felony punishable pursuant to this subdivision shall be
punishable by imprisonment in a county jail. . . .”].) Sentences for those felonies are now
served in county jail unless the defendant: (1) has a current or prior conviction for a


                                              2
serious or violent felony (§§ 1192.7, subd. (c), 667.5, subd. (c)); (2) has a prior
conviction in another jurisdiction that meets all the elements of a serious or violent felony
(§§ 1192.7, subd. (c), 667.5, subd. (c)); (3) is required to register as a sex offender (§ 290
et seq.); or (4) is subject to an enhancement for multiple felonies involving fraud or
embezzlement (§ 186.11). (§ 1170, subd. (h)(3).) The Realignment Act specifically
states the new sentencing regime applies to “any person sentenced on or after October 1,
2011.” (Id., subd. (h)(6).)
       The Legislature‟s rationale for felony sentencing realignment is codified at section
17.5. That section characterizes as unsustainable the historical criminal justice policy of
“building and operating more prisons to address community safety concerns,” while
noting the high recidivism rates for those who have served time in prison, both in
California and throughout the nation. (§ 17.5, subds. (a)(2), (a)(3).) To “improve public
safety outcomes,” the Legislature calls for reinvesting “criminal justice resources to
support community-based corrections programs” and “[r]ealigning low-level felony
offenders who do not have prior convictions for serious, violent, or sex offenses” to
“community-based punishment,” including county jails. (§ 17.5, subds. (a)(4), (a)(5),
(a)(8).)
B.     APPLICABILITY TO DEFENDANT’S SENTENCE

       The superior court decided section 1170, subdivision (h)(6), mandates
incarceration in county jail for defendant‟s offenses because his sentences were executed
after October 1, 2011. The People argue that realignment is inapplicable to defendant
because the sentences were imposed before October 1, 2011. A trial court‟s
interpretation of a statutory provision is a question of law we review de novo. (People v.
Zeigler (2012) 211 Cal.App.4th 638, 650.)




                                              3
       1.     Appellate Courts Are Divided in Applying the Realignment Act

       Several published opinions have reached conflicting results in applying the
Realignment Act to previously-suspended sentences.
              a. Cases Sending Defendants to County Jail

       In the first published case to address this issue, Clytus, supra, 209 Cal.App.4th
1001, Division Eight of the Second Appellate District looked to the text of section 1170,
subdivision (h)(6), and concluded that the Legislature‟s use of “ „any person sentenced‟ ”
was meant to include individuals whose sentences were imposed before but executed
after October 1, 2011. (Clytus, supra, at p. 1006.) The court reasoned that, for purposes
of section 1170, subdivision (h)(6), a defendant was a “ „person sentenced‟ ” both before
October 1, 2011 (at the imposition of sentence) and after October 1, 2011 (at the
execution of sentence). (Clytus, supra, at p. 1007.) The court explained that execution of
a sentence also constitutes “sentencing” because the decision to revoke probation is
discretionary and the court must articulate its reasons for revoking probation and
executing the sentence. (Ibid.)
       The Clytus court distinguished the California Supreme Court‟s opinion in People
v. Howard (1997) 16 Cal.4th 1081 (Howard), which held that when a court imposes a
sentence but suspends its execution, the court cannot later modify the previously-imposed
sentence and “must order that exact sentence into effect . . . .” (Id. at p. 1088.) While the
Clytus court recognized Howard was “clear and well established,” it nonetheless
concluded the case was inapplicable because Howard concerned only the length of an
individual‟s sentence rather than the location of incarceration. (Clytus, supra, 209
Cal.App.4th at p. 1008.)
       One panel of the Sixth District recently approved of the reasoning in Clytus and
reached the same result in People v. Scott (2013) 216 Cal.App.4th 848, review granted
July 24, 2013, No. S211670, 303 P.3rd 391.

                                              4
              b. Cases Sending Defendants to State Prison

       In contrast to Clytus and Scott, five published opinions have held that individuals
in defendant‟s position must serve their sentences in state prison. The first came from
Division Two of the Second Appellate District in People v. Gipson (2013) 213
Cal.App.4th 1523 (Gipson). In Gipson, the court analyzed the language of section 1170,
subdivision (h)(6), and concluded the word “ „sentenced‟ plainly means” the date
sentence is imposed rather than the date it is executed. (Gipson, supra, at p. 1529.) In
support, the court quoted from Howard regarding the “ „important distinction, in
probation cases, between orders suspending imposition of sentence and orders
suspending execution of previously imposed sentences.‟ ” (Ibid., quoting Howard, supra,
16 Cal.4th at p. 1087.) While trial courts retain significant discretion if imposition of
sentence is suspended, the court continued, when the defendant has already been
sentenced trial courts have no discretion to modify sentences because “everything about a
defendant‟s sentence is prescribed,” including the duration and location of the sentence.
(Gipson, supra, at p. 1529.) For this reason, the court declined to follow Clytus and
affirmed the defendant‟s sentence to state prison. (Id. at pp. 1529-1530.)
       The second published opinion in favor of state prison, People v. Mora (2013) 214
Cal.App.4th 1477 (Mora), came from Division One of the Fourth Appellate District. The
Mora court followed Gipson, also reasoning that section 1170, subdivision (h)(6) refers
to the date sentence is imposed rather than the date it is executed. (Mora, supra, at p.
1482.) The court explained that “imposition of the sentence is equated with a final
judgment,” which takes away the jurisdiction of the trial court to “modify or change the
final judgment” when a defendant violates his or her probation terms. (Ibid.)
       Division Two of the Fourth Appellate District also found in favor of state prison in
People v. Kelly (2013) 215 Cal.App.4th 297 (Kelly). The Kelly court found the reasoning



                                              5
in Clytus in conflict with Howard‟s interpretation of section 1203.2, subdivision (c),3 as
well as California Rules of Court, rule 4.435(b)(2).4 (Kelly, supra, at pp. 302-303.) The
court noted that Howard interpreted those provisions as limiting the trial court‟s power to
modify a sentence once it is imposed. (Id., at p. 302.) A trial court retaining jurisdiction
to change the location of a previously-imposed sentence would, according to Kelly,
violate the limitation on the trial court‟s jurisdiction recognized both in statute and by the
Supreme Court in Howard. (Id. at p. 305.) Relying on Howard, the court concluded that
“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.” (Id. at p. 302, citing Howard, supra, 16
Cal.4th at pp. 1087-1088.)
       The Third District has also determined that individuals in defendant‟s position
should be sent to state prison. (People v. Wilcox (2013) 217 Cal.App.4th 618.) Wilcox
distinguishes Clytus, and follows Gipson, Mora, and Kelly. (Id., at pp. 622-626.)
       The most recent opinion sending a defendant to state prison, from a different panel
of the Sixth District, is People v. Moreno (2013) 218 Cal.App.4th 846 (Moreno). The
Moreno court analyzed the various opinions interpreting section 1170, subdivision (h)(6),


       3
          Section 1203.2, subdivision (c), states: “Upon any 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. In either case, the person shall be delivered over to the proper
officer to serve his or her sentence, less any credits herein provided for.”
        4
          California Rules of Court, rule 4.435(b)(2), states: “If the execution 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.”


                                              6
and followed Kelly, concluding that because the defendant‟s sentence was imposed before
October 1, 2011, the Realignment Act did not apply, regardless of when the sentence was
executed. (Moreno, supra, at p. 851.) In so holding, the panel reasoned that “[w]hen the
trial court revoked [the] 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.” (Ibid.)
          2. Analysis

       To determine the meaning of section 1170, subdivision (h)(6), we begin with the
statutory language and give “the words their usual, ordinary meaning.” (People v. Canty
(2004) 32 Cal.4th 1266, 1276 (Canty).) If it is unambiguous, we follow its plain
meaning. (Ibid.) If it is ambiguous, we may determine “ „whether the literal meaning of
a measure comports with its purpose or whether such a construction of one provision is
consistent with other provisions of the statute.‟ ” (Ibid., quoting Lungren v. Deukmejian
(1988) 45 Cal.3d 727, 735.) We must construe statutory language “in the context of the
statute as a whole and the overall statutory scheme . . . .” (Canty, supra, at p. 1276.) We
may reject a statutory interpretation that would lead to absurd results or consequences.
(People v. Leiva (2013) 56 Cal.4th 498, 506.)
              a. Statutory Interpretation Supports County Jail Incarceration

       Section 1170, subdivision (h)(6), states the Realignment Act is applicable
“prospectively to any person sentenced on or after October 1, 2011.” (§ 1170, subd.
(h)(6).) In the probation revocation context, we find the term “sentenced” ambiguous
because it could refer to either the imposition of a sentence or the execution of a
previously-imposed sentence. Because of this ambiguity, we must look to the purposes
of the Realignment Act to determine its meaning.
       When the Legislature passed Assembly Bill No. 109 in 2011, it added and
amended an array of criminal justice statutes so that low-level felons would be confined

                                             7
in county jails instead of state prisons. In addition to adding the phrase “any person
sentenced” to section 1170,5 the bill also added section 17.5, setting forth findings and
declarations about the realignment scheme. (Stats. 2011, ch. 15, §§ 229, 450.) Section
17.5, subdivision (a)(2), notes that recidivism rates for people released from prison have
either remained the same or increased despite large increases in corrections spending.
Based on those rates, the Legislature concluded that criminal justice policies relying
solely on building and operating new prisons are unsustainable and do not improve public
safety. (§ 17.5, subd. (a)(3).) To reduce recidivism and increase public safety outcomes,
the Legislature decided to “reinvest its criminal justice resources to support community-
based corrections programs . . . .” (Id., subd. (a)(4).) While not all offenders were
selected for realignment, the Legislature determined it would be beneficial to “[r]ealign[]
low-level felony offenders who do not have prior convictions for serious, violent, or sex
offenses to locally run community-based corrections programs . . . .” (Id., subd. (a)(5).)
       When interpreted in the context of the Act as a whole, we conclude the Legislature
intended to realign the incarceration of low-level offenders whose sentences would be
imposed on or after October 1, 2011 as well as those whose suspended sentences would
be executed after that date. One stated objective of the Realignment Act is to make local
jails the commitment location for all felons convicted of nonserious, nonviolent, and
nonsexual crimes. (§ 17.5, subd. (a)(5).) Because defendant is a low-level offender
meeting the statutory prerequisites, interpreting section 1170, subdivision (h)(6), to
include him and similarly situated offenders comports with the stated purposes and intent
of the Realignment Act. (Accord Clytus, supra, 209 Cal.App.4th at pp. 1004-1007.)


       5
          When the Legislature passed Assembly Bill No. 109, it codified this language in
section 1170, subdivision (h)(5), and the effective date was July 1, 2011. (Stats. 2011,
ch. 15, § 450.) Section 1170 was then amended several times before reaching its present
form, with the language at issue moving to subdivision (h)(6) and the effective date
changed to October 1, 2011. (§ 1170, subd. (h)(6).)

                                             8
       Additional support for our interpretation of section 1170, subdivision (h)(6), is
derived from changes made to the treatment of low-level inmates released from prison.
Assembly Bill No. 109 added a new title to the Penal Code, governing supervision of
nonviolent, nonserious, nonsexual felony offenders released from prison on or after
October 1, 2011. (Stats. 2011, ch. 15, §§ 479; Pen. Code, § 3450 et seq.) For these
offenders, section 3451 now mandates up to three years of postrelease community
supervision by county agencies instead of parole. (§ 3451, subd. (a).) If the terms of
community supervision are violated and the revocation hearing officer decides
incarceration is the proper punishment, the offender serves any further term of
confinement in county jail. (§ 3455, subd. (a).) Section 3458 makes clear that “[n]o
person subject to this title shall be returned to prison for a violation of any condition of
the person‟s postrelease supervision agreement.” (§ 3458.)
               b. Howard is Inapposite

       The People argue Howard requires defendant to serve his sentence in state prison.
We disagree. At issue in Howard was the discretion of trial courts to modify the length
of a previously-imposed but suspended sentence. (Howard, supra, 16 Cal.4th at p. 1086.)
The court explained that, while a trial court has broad discretion during a probation
revocation hearing when imposition of sentence has been suspended, if the court
previously imposed a sentence and suspended only its execution, the discretion of the
court is more limited. (Id. at p. 1088.) If a sentence was previously imposed, the trial
court is left with two options at the revocation hearing: either (a) allow the defendant to
remain on probation; or (b) revoke probation and “order that exact [previously-imposed]
sentence into effect . . . .” (Ibid. [interpreting § 1203.2, subd. (c)].)
       Though other courts have interpreted this language to require individuals like
defendant to serve their previously-imposed sentences in state prison, we agree with
Clytus that Howard only proscribes reducing a previously-imposed sentence. (Clytus,


                                                9
supra, 209 Cal.App.4th at pp. 1007-1009.) The People cite two cases applying Howard
to circumstances other than the length of a sentence.6 Those cases, which were both
decided long before the Realignment Act, involved trial courts attempting to ameliorate
sentences, which Howard forbids. (Howard, supra, 16 Cal.4th at p. 1088.) Howard is
silent, however, on the applicability of section 1203.2, subdivision (c), to the location of
incarceration. Additionally, because the Supreme Court decided Howard in 1997, it
could not have contemplated that nearly 15 years later the Legislature would drastically
alter California‟s sentencing scheme. We therefore find Howard inapplicable to the
location of defendant‟s incarceration. (People v. Brown (2012) 54 Cal.4th 314, 330
[“cases are not authority for propositions not considered”].)
       We likewise reject the People‟s argument that applying the Realignment Act
would reduce the severity of defendant‟s sentence. The People claim that defendants
sentenced pursuant to section 1170 might receive a reduced sentence because section
1170, subdivision (h)(5)(B), gives trial courts discretion to split sentences between
confinement in county jail and supervised release. We are not called upon to decide that
issue here because the trial court ordered defendant to serve the entire five year, eight
month sentence in county jail. The People also note that defendants sentenced pursuant
to realignment are not subject to parole or postrelease community supervision at the end
of their incarceration. However, that does not directly affect the severity of defendant‟s
sentence since he will be incarcerated for the same duration he would have been had he
served his sentence in state prison.
       We also note that the Realignment Act has changed other sections of the Penal
Code which make incarceration in county jail equivalent to incarceration in state prison.

       6
          The People cite People v. Garcia (2006) 147 Cal.App.4th 913, 916-917
(rejecting trial court attempt to strike § 290 sex offender registration requirement), and
People v. Wood (1998) 62 Cal.App.4th 1262, 1270-1271 (rejecting trial court attempt to
reduce felony “wobbler” conviction to a misdemeanor).

                                             10
For example, section 667.5, subdivision (b), which adds a consecutive one-year
enhancement for each prior prison term served, now includes sentences served in county
jail and even split sentences imposed under section 1170, subdivision (h)(5). (§ 667.5,
subd. (b).) Defendants committed to county jail pursuant to section 1170, subdivision
(h), earn conduct credits at the same rate as defendants committed to prison. (Compare §
4019, subd. (f) [“a term of four days will be deemed to have been served for every two
days spent in actual custody” in county jail] with § 2933, subd. (b) [“For every six
months of continuous incarceration [in state prison], a prisoner shall be awarded credit
reductions from his or her term of confinement of six months.”].)
              c. Defendant’s Sentences Do Not Run Afoul of the Saving Clause

       The People argue that application of the Realignment Act to defendant effectively
applies that law retroactively, in violation of the saving clause in section 1170,
subdivision (h)(6). Laws that mitigate punishment are to be applied retroactively unless
there is evidence of a contrary intent. (In re Estrada (1965) 63 Cal.2d 740, 742.)
Contrary intent can come in the form of a saving clause, which expressly states that a law
is of only prospective application. (People v Nasalga (1996) 12 Cal.4th 784, 793.) We
agree that section 1170, subdivision (h)(6), is a saving clause foreclosing retroactive
application. However, defendant‟s sentences were not executed until after the October 1,
2011 effective date of the Realignment Act, which, under our interpretation, brings these
sentences within the intended scope of the legislation.
C.     EFFECT OF REALIGNMENT ON THE PLEA AGREEMENT

       The People urge us to remand this matter so that the prosecution may withdraw
from the plea agreement unless the trial court‟s decision is reversed. Relying on People
v. Collins (1978) 21 Cal.3d 208, the People argue that defendant‟s county jail sentence
deprives them of the benefit of their bargain because “the possibility of a state prison
sentence was an integral part of the plea agreement . . . .” In Collins, the Supreme Court

                                             11
overturned defendant‟s plea agreement because the offense he pleaded to was no longer a
crime when the trial court imposed sentence. (Id. at pp. 211, 213.) Rejecting the
defendant‟s argument that he should be set free, the Supreme Court remanded the matter
to allow the People to revive the counts that were dismissed as part of the plea agreement.
(Id. at p. 215.) The court noted that integral to the People‟s interest in entering plea
agreements “is the defendant‟s vulnerability to a term of punishment.” (Ibid.) It then
held that “[w]hen a defendant gains total relief from his vulnerability to sentence,”
remanding to allow the People to revive previously-dismissed counts is appropriate.
(Ibid., italics added.)
       Unlike the defendant in Collins, who would have been free from any incarceration
unless the People were allowed to revive the previously dismissed counts, a change in the
location of defendant‟s incarceration does not reduce the term of defendant‟s sentence.
Because the duration remains unchanged, Collins is distinguishable.7
       The People‟s reliance on People v. Bean (1989) 213 Cal.App.3d 639 is similarly
misplaced. In Bean, the defendant pleaded guilty to felony “petty theft with a prior,”
which the appellate court concluded was a nonexistent crime. (Id. at p. 645.) Though the
defendant argued the court should allow him to withdraw his plea and reduce his
conviction to misdemeanor petty theft, the appellate court concluded this would “deny
the People their bargain.” (Ibid.) Because “the intent of the parties was to expose
defendant to the possibility of a state prison sentence,” the court remanded the matter to
allow the prosecution to reinstate charges which had been dismissed as part of the faulty
plea agreement. (Id. at pp. 645-647.)


       7
         We find In re Sutherland (1972) 6 Cal.3d 666, also cited by the People,
distinguishable for the same reason. (Id. at p. 672 [remanding matter and reviving four
dismissed counts after invalidating plea agreement because otherwise the defendant
would have faced no punishment].)


                                              12
       The People seize on Bean‟s use of the phrase “the possibility of a state prison
sentence” to argue that defendant‟s sentence to county jail deprives them of their bargain.
But the People take this phrase out of context. The Court in Bean used the phrase to
distinguish a misdemeanor conviction from a felony conviction because, when Bean was
decided, all felony sentences were served in state prison. Like Collins, the remand in
Bean ensured the defendant did not receive lesser punishment than had been agreed upon.
       We do not see that the benefit of the People‟s bargain in this case is diminished
solely by defendant‟s incarceration in county jail instead of state prison. From a public
safety standpoint, defendant will be separated from the public for the same amount of
time as had he been sent to state prison.8 We do not view the change in location of
defendant‟s incarceration, standing alone, as undermining the purpose or effect of the
People‟s bargain.
                              III.       DISPOSITION
       The judgment requiring defendant to serve his sentence in county jail is affirmed.




       8
          We acknowledge the People‟s observation that defendant will not be subject to
supervision after serving his sentence locally. We reject as speculative, however, the
People‟s assertion that the prosecution would not have agreed to dismiss the section
12022.1 enhancement nor to suspend execution of the sentence were it known in 2011
that if executed, the sentence would be served in jail rather than prison. The assertion is
particularly unpersuasive given defendant‟s eligibility for and entry into a drug treatment
court program.


                                            13
                               ____________________________________
                               Grover, J.




I CONCUR:




____________________________
Premo, Acting P.J.




People v Reece
H038356
MIHARA, J., Dissenting:


I respectfully dissent. In People v. Moreno (2013) 218 Cal.App.4th 846, petition for
review pending, petition filed September 17, 2013, a separate panel of this court held that
the provisions of the Criminal Justice Realignment Act of 2011 (Act) did not apply to a
defendant, whose sentence was imposed prior to October 1, 2011, and executed after that
date when his probation was revoked. Here, the trial court imposed sentence in April
2011, which was prior to the Act‟s operative date. However, his sentence was not
executed until February 2012. For the reasons stated in Moreno, I would reverse the
judgment.




                                          ______________________________
                                          MIHARA, J.




People v. Reece
H038356
Trial Court:                        Monterey County Superior Court
                                    Superior Court Case Nos.: SS101428A,
                                    SS110117A

Trial Judge:                        Hon. Sam Lavorato, Jr.

Counsel for Plaintiff/Respondent:   Glenn Paul Pesenhofer
The People                          District Attorney, County of Monterey

Counsel for Defendant/Appellant:    Dallas Sacher
Larry Thomas Reece                  Sixth District Appellate Program




People v. Reece
H038356
