Filed 1/21/15
                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



THE PEOPLE,                                       D064737

        Plaintiff and Appellant,

        v.                                        (Super. Ct. No. SCE327615)

HUGO JOSEPH CAMP,

        Defendant and Respondent.


        APPEAL from an order of the Superior Court of San Diego County, Charles W.

Ervin, Judge. Affirmed.

        Bonnie M. Dumanis, San Diego District Attorney, Laura E. Tanney, Linh Lam,

and Lilia Encisco Garcia, Deputy District Attorneys, for Plaintiff and Appellant.

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

Respondent.
                                              I.

                                     INTRODUCTION

       After Hugo Joseph Camp entered into a plea agreement with the People, the trial

court imposed a stipulated split sentence1 of 28 months, with 14 months to be served in

local custody and 14 months under mandatory supervision. In preparing for Camp's

release from custody, the probation officer filed a report indicating that the officer had

recently learned that Camp was ineligible for mandatory supervision because he was

subject to an immigration hold and would be deported upon his release from custody. At

a hearing to consider this issue, defense counsel requested that the court terminate the

mandatory supervision portion of Camp's sentence and permit him to be deported. The

trial court agreed, terminated the mandatory supervision portion of Camp's sentence, and

ordered Camp released to an immigration enforcement agent.

       On appeal, the People contend that the trial court exceeded its jurisdiction in

terminating the mandatory supervision portion of Camp's split sentence. The People

maintain that the court's only options were to order Camp to serve the remainder of the

28-month sentence in custody, or permit him to withdraw his guilty plea. We affirm the

trial court's order.

1       A split sentence is a hybrid sentence in which a trial court suspends execution of a
portion of the term and releases the defendant into the community under the mandatory
supervision of the county probation department. Such sentences are imposed pursuant to
Penal Code section 1170, subdivision (h)(5)(B)(i), a provision originally adopted as part
of the "2011 Realignment Legislation addressing public safety." (Criminal Justice
Realignment Act of 2011 (Realignment Act), operative Oct. 1, 2011.) (Stats. 2011, 1st
Ex. Sess. 2011–2012, ch. 12, § 1.)
                                               2
                                             II.

                   FACTUAL AND PROCEDURAL BACKGROUND

       The People charged Camp with robbery (Pen. Code, § 211)2 (count 1), burglary

(§ 459) (count 2), petty theft (§ 484) (count 3), and resisting an officer (§ 148, subd.

(a)(1)) (count 4). As to the petty theft charge (§ 484) (count 3), the People alleged that

Camp had suffered three prior theft convictions. The People also alleged that Camp had

suffered four prison priors (§§ 667.5, subd. (b), 668).

       One week later, the People and Camp entered into a plea agreement. The plea

agreement stated that Camp would plead guilty to grand theft from a person (§ 487, subd.

(c)),3 and resisting an officer (§ 148, subd. (a)(1)) (count 4) and would admit having

incurred one prison prior (§§ 667.5, subd. (b), 668). The agreement further stated that the

People would dismiss the balance of the charges and that Camp would be sentenced to a

stipulated split sentence (§ 1170, subd. (h)(5)(B)(i))4 of 28 months, with 14 months to be




2      All subsequent statutory references are to the Penal Code, unless otherwise
specified.

3      The plea agreement indicated that the charge of grand theft of a person (§ 487,
subd. (c)) was count 5 of an amended complaint. Although no amended complaint is in
the record, a minute order indicates that the complaint was amended by interlineation to
allege a charge of grand theft of a person (§ 487, subd. (c)) (count 5).

4      All citations to section 1170, subdivision (h)(5)(B) are to a version of section 1170
that was in effect both at the time the trial court sentenced Camp, and at the time the trial
court terminated his mandatory supervision. (Amended by Stats. 2012, ch. 828, § 1.)

                                              3
served in local custody and 14 months under mandatory supervision.5 That same day,

the trial court held a change of plea hearing and accepted Camp's plea of guilty.

       The court sentenced Camp as follows:

          "Pursuant to the agreement in this case it is the judgment and
          sentence of this court that this defendant be committed to the
          custody of the sheriff pursuant to [section] 1170, [subdivision]
          (H)(5)(B), which is local prison, to serve the term stipulated to be 28
          months. [¶] . . . After the first 14 months he serves actually in
          custody, the latter portion will be suspended and served in the
          community under the supervision of the probation department."

       In preparation for Camp's release from the sheriff's custody to mandatory

supervision, the probation officer filed a report indicating that an agent of Immigration

and Customs Enforcement (ICE) had informed the probation officer that Camp was in the

United States illegally, and that he would be "deported to South Africa." The report

further stated that Camp would be "released from the Sheriff's custody directly to ICE

custody." The report then states the following:

          "[The deportation] will make the offender unavailable for mandatory
          supervision. Therefore it is recommended that he serve the
          remainder of his term in the custody of the Sheriff's Department
          without release to the community. If this is not possible, due to the
          stipulated plea agreement, it is recommended that the case be sent
          back to the sentencing court for a change of plea to address this
          development."

       The trial court held a hearing concerning the issue raised in the supplemental

probation report. At the hearing, defense counsel requested that the court "terminate the


5     The plea agreement described the stipulated sentence as follows, "stipulated 28
months local prison split sentence[,] 14 [months] / 14 months."
                                            4
mandatory supervision," in light of the fact that Camp was going to be released to ICE's

custody and then deported. The court asked the prosecutor for the People's position. The

prosecutor stated, "The People would, at least, like to see [Camp] serve his custodial

commit and then we would submit on the court's discretion after that." The court then

asked the probation officer for his department's position. The officer stated, "Nothing

further other than it doesn't sound like he'll be eligible for mandatory supervision if he's

being deported."

       After the parties submitted the matter to the court, the court terminated Camp's

mandatory supervision and modified his sentence, stating:

          "Probation is terminated and denied.[6] He is to serve 364 days in
          jail with credit for 364, 182, 182 good time/work time credits on top
          of the actual. [¶] He can go back to wherever they are going to
          deport him to. ICE has a hold of him now. The court finds good
          cause to modify the previously agreed upon sentencing structure in
          this case."

       The People timely appealed the trial court's order terminating Camp's mandatory

supervision and modifying his sentence.7



6     Although the court referred to "probation" it is clear the court was terminating
Camp's "mandatory supervision." (§ 1170, subd. (h)(5)(B)(i).)

7      The trial court's order terminating Camp's mandatory supervision and modifying
his sentence is appealable as "[a]n order made after judgment, affecting the substantial
rights of the people." (§ 1238, subd. (a)(5).) Camp does not contend otherwise.
       Camp does contend that the fact that he has been deported to South Africa renders
the People's appeal moot. However, Camp advances no authority in support of this
contention. Further, Camp has not established that the trial court's order terminating
mandatory supervision will have no possible effect in the future. (See, e.g., People v.
                                              5
                                             III.

                                       DISCUSSION

       The trial court did not act in excess of its jurisdiction in terminating Camp's
                    mandatory supervision and modifying his sentence

       The People claim that the trial court acted in "excess of its jurisdiction by

releasing Camp from the remaining 14 months of his suspended sentence when he

became ineligible for mandatory supervision." The People argue that the trial court's act

in terminating Camp's mandatory supervision, without placing him in custody for the

remainder of his suspended sentence, resulted in an "unauthorized sentence" that "must

be vacated."8 The People's contention presents a pure question of law, which requires us

to interpret the statutes governing mandatory supervision. Accordingly, we apply the de

novo standard of review. (See e.g., Doe v. Brown (2009) 177 Cal.App.4th 408, 417 ["We




Puluc–Sique (2010) 182 Cal.App.4th 894, 900 [defendant's appeal challenging conditions
of probation is not moot because the resolution of the appeal "could affect defendant's
rights should he return to this country in the future"].) In addition, we are not persuaded
by Camp's suggestion that the People's appeal is moot because "his period of mandatory
supervision has been terminated, and therefore the court no longer retains jurisdiction
over him." The propriety of the trial court's termination of Camp's mandatory
supervision is the subject of this appeal. Thus, the fact that the trial court terminated
Camp's mandatory supervision is not a basis for concluding that the People's appeal is
moot.

8      We may review the People's claim that the trial court imposed an unauthorized
sentence notwithstanding their failure to raise the claim in the trial court. (See People v.
Anderson (2010) 50 Cal.4th 19, 26 [party may raise claim that a trial court imposed an
"unauthorized sentence or a sentence entered in excess of jurisdiction," without asserting
claim in trial court].)
                                              6
apply the de novo standard of review to this claim, since the claim raises an issue of

statutory interpretation"].)

A.     Governing law

       1.      General principles of statutory interpretation

       In Doe v. Brown, supra, 177 Cal.App.4th at page 417, this court outlined the

following well-established principles of statutory interpretation:

            " 'In construing any statute, "[w]ell-established rules of statutory
            construction require us to ascertain the intent of the enacting
            legislative body so that we may adopt the construction that best
            effectuates the purpose of the law." [Citation.] "We first examine
            the words themselves because the statutory language is generally the
            most reliable indicator of legislative intent. [Citation.] The words of
            the statute should be given their ordinary and usual meaning and
            should be construed in their statutory context." [Citation.] If the
            statutory language is unambiguous, "we presume the Legislature
            meant what it said, and the plain meaning of the statute governs."
            [Citation.]' "

       2.      Split sentences under the Realignment Act

       "Under the Realignment Act, qualified persons convicted of nonserious and

nonviolent felonies are sentenced to county jail instead of state prison. [Citation.] Trial

courts have discretion to commit the defendant to county jail for a full term in custody, or

to impose a hybrid or split sentence consisting of county jail followed by a period of

mandatory supervision." (People v. Catalan (2014) 228 Cal.App.4th 173, 178.)

       At the time of Camp's sentencing, section 1170, subdivision (h)(5)(B) permitted a

trial court to sentence a defendant to a split sentence as follows:



                                              7
            "(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. 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 known as mandatory supervision . . . ."
            (Italics added.)

       3.      Provisions governing the revocation and modification of mandatory
               supervision

       As indicated by the second italicized sentence in section 1170, subdivision

(h)(5)(B)(i), quoted ante, proceedings to revoke or modify mandatory supervision are

conducted pursuant to either section 1203.2, subdivisions (a) or (b) or section 1203.3.

       Section 1203.2, subdivisions (a) and (b) authorize a trial court to revoke, modify,

or terminate the supervision of a defendant subject to mandatory supervision as follows:

            "(a) At any time during the period of supervision of a person . . . (3)
            placed on mandatory supervision pursuant to subparagraph (B) of
            paragraph (5) of subdivision (h) of Section 1170, . . . if any
            probation officer . . . has probable cause to believe that the
            supervised person is violating any term or condition of his or her

                                               8
            supervision, the officer may, without warrant or other process and at
            any time until the final disposition of the case, rearrest the
            supervised person and bring him or her before the court or the court
            may, in its discretion, issue a warrant for his or her rearrest. Upon
            such rearrest, or upon the issuance of a warrant for rearrest the court
            may revoke and terminate the supervision of the person if the
            interests of justice so require and the court, in its judgment, has
            reason to believe from the report of the probation or parole officer or
            otherwise that the person has violated any of the conditions of his or
            her supervision . . . .

            "(b)(1) Upon its own motion or upon the petition of the supervised
            person, the probation or parole officer, or the district attorney, the
            court may modify, revoke, or terminate supervision of the person
            pursuant to this subdivision, except that the court shall not terminate
            parole pursuant to this section. . . . "

       Section 1203.3 also permits a court to revoke, modify, or change the supervision

of a defendant subject to mandatory supervision.9 Section 1203.3, subdivision (a)

provides:

            "(a) The court shall have authority at any time during the term of
            probation to revoke, modify, or change its order of suspension of
            imposition or execution of sentence. The court may at any time
            when the ends of justice will be subserved thereby, and when the
            good conduct and reform of the person so held on probation shall
            warrant it, terminate the period of probation, and discharge the
            person so held. The court shall also have the authority at any time

9       In People v. Ramirez (2008) 159 Cal.App.4th 1412 (Ramirez), the court explained
that the distinction between sections 1203.2 and 1203.3, when applied in the probation
context, is that section 1203.2 applies upon a probationer's rearrest on a probation
violation. (See Ramirez, supra, at p. 1425 ["Section 1203.3 does not apply after a
probationer is rearrested on a probation violation. [Citations.] Instead, when a
probationer is rearrested, the governing statute is section 1203.2"]; see also § 1203.3,
subd. (e) ["This section does not apply to cases covered by Section 1203.2"].) Although
there is no authority discussing the issue, presumably the same distinction applies in the
mandatory supervision context. However, we need not definitively resolve this issue in
order to decide the People's appeal.
                                               9
            during the term of mandatory supervision pursuant to subparagraph
            (B) of paragraph (5) of subdivision (h) of Section 1170 to revoke,
            modify, or change the conditions of the court's order suspending the
            execution of the concluding portion of the supervised person's term."

       Section 1203.3, subdivision (b) describes the manner by which a court may

exercise such authority:

            "(b) The exercise of the court's authority in subdivision (a) to revoke,
            modify, or change probation or mandatory supervision, or to
            terminate probation, is subject to the following:

            "(1) Before any sentence or term or condition of probation or
            condition of mandatory supervision is modified, a hearing shall be
            held in open court before the judge. The prosecuting attorney shall
            be given a two-day written notice and an opportunity to be heard on
            the matter, except that, as to modifying or terminating a protective
            order in a case involving domestic violence, as defined in Section
            6211 of the Family Code, the prosecuting attorney shall be given a
            five-day written notice and an opportunity to be heard.

            "(A) If the sentence or term or condition of probation or the term or
            any condition of mandatory supervision is modified pursuant to this
            section, the judge shall state the reasons for that modification on the
            record.

            "(B) As used in this section, modification of sentence shall include
            reducing a felony to a misdemeanor."

       4.      Application

       Section 1170, subdivision (h)(5)(B)(i) expressly states that a period of mandatory

supervision may be terminated by court order, and contains no limitation of any kind on a

trial court's exercise of such authority. Further there is nothing in the text of section

1170, subdivision (h)(5)(B)(i) that would indicate that a trial court does not have the

authority to modify the sentence of a defendant subject to mandatory supervision.

                                              10
       In addition, neither section 1203.2, subdivisions (a) and (b) nor section 1203.3,

which govern proceedings to revoke or modify mandatory supervision, contains any

language that would require a court to impose the suspended portion of the sentence upon

early termination of mandatory supervision. Similarly, neither statute expressly or

implicitly restricts a court from modifying a defendant's sentence. On the contrary,

section 1203.3, subdivision (b)(1)(A) expressly states that a court may modify a

defendant's "sentence" or a "term or . . . condition of mandatory supervision." (See

§ 1203.3, subd. (b)(1)(A) ["If the sentence . . . or the term or any condition of mandatory

supervision is modified pursuant to this section, the judge shall state the reasons for that

modification on the record"; see also § 1203.3, subd. (b)(1)(B) ["As used in this section,

modification of sentence shall include reducing a felony to a misdemeanor"]; cf. People

v. Leiva (2013) 56 Cal.4th 498, 504 ["Section 1203.3, subdivision (a), empowers the trial

court 'at any time during the term of probation to revoke, modify, or change its order of

suspension of imposition or execution of sentence' "].)

       The People argue that the trial court was without jurisdiction to modify Camp's

sentence because in "[Dix v. Superior Court (1991) 53 Cal.3d 442, 455 (Dix)] the

California Supreme Court held that where the sentence imposed is a state prison

commitment, a trial court lacks authority to substantially modify the original judgment

after it has been imposed and executed." We are not persuaded by this argument.

       In Dix, the California Court Supreme Court referred to "the common law rule that

the court loses resentencing jurisdiction once execution of sentence has begun." (Dix,

                                             11
supra, 53 Cal.3d at p. 455, italics added.) A trial court's authority to impose mandatory

supervision, however, is entirely statutory. We are aware of no authority that has

extended the common law rule referred to in Dix to the mandatory supervision context,

and the People offer no reasoned argument for doing so here. (Cf. People v. Howard

(1997) 16 Cal.4th 1081, 1092 (Howard) [explaining that the common law principle

referred to in Dix does not apply in the probation context because "the authority to grant

probation and to suspend imposition or execution of sentence is wholly statutory"].)

       Extending the common law rule referred to in Dix to the mandatory supervision

context would create a conflict with language in section 1203.3, subdivision (b)(1)(A),

authorizing a court to modify a defendant's "sentence" in revoking or modifying

mandatory supervision. (See also Howard, supra, 16 Cal.4th at p. 1093 [noting that, with

respect to a probationer, a trial court "has authority to reduce a previously imposed but

suspended sentence at any time prior to defendant's rearrest"].) Accordingly, we reject

the People's contention that, under Dix, "once Camp began serving the custodial portion

of his sentence, the trial court was without jurisdiction to modify or alter the term of the

suspended sentence."

       The People also contend that the trial court's order terminating Camp's mandatory

supervision without ordering him to serve the suspended portion of his sentence in

custody is contrary to the California Supreme Court's decision in Howard, supra, 16

Cal.4th 1081. In Howard, the California Supreme Court addressed whether, after a

probationer has been rearrested, a trial court has discretion in a proceeding "revoking

                                             12
probation to reduce a probationer's previously imposed but suspended sentence." (Id.

at p. 1084.) In resolving this issue, the Howard court relied on the "important

distinction, in probation cases, between orders suspending imposition of sentence and

orders suspending execution of previously imposed sentences." (Id. at p. 1087.) The

Howard court explained that when a trial court suspends imposition of a sentence

before placing a defendant on probation, the court has full sentencing discretion when

revoking probation. (Ibid.) However, the Howard court further concluded that when a

trial court suspends execution of sentence, section 1203.2, subdivision (c) 10 restricts a

court's authority to impose a sentence different from that previously imposed. In

reaching this conclusion, the Howard court reasoned in part:

          "In our view, section 1203.2, subdivision (c) . . . gives the court
          discretion, on revocation and termination of probation, either (1) to
          revoke the suspension of sentence and commit the probationer to
          prison for the term prescribed in the suspended sentence, or (2) to
          decline to revoke the suspension or to order confinement. If the
          court does order a prison commitment, however, . . . section 1203.2,
          subdivision (c) . . . set[s] forth the rule that the previously suspended
          judgment shall 'be in full force and effect.' " (Howard, supra, at p.
          1094, italics omitted.)

       The People contend that the "logic of the Howard decision applies with equal

force here," reasoning that, "[s]ection 1170, subdivision (h)(5)(B)(i), which permitted the




10     The Howard court stated, "section 1203.2, subdivision (c), recites that following
the defendant's rearrest, and on revocation and termination of probation, '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.' " (Howard,
supra, 16 Cal.4th at pp. 1087-1088, quoting § 1203.2, subd. (c).)
                                             13
suspended sentence during mandatory supervision, expressly directs the court to employ

the procedures under section 1203.2, the same section addressed in Howard."

       The People's argument suffers from a fatal textual flaw. Section 1170, subdivision

(h)(5)(B)(i) provides that any proceeding to revoke or modify mandatory supervision

"shall be conducted pursuant to either subdivisions (a) and (b) of Section 1203.2 or

Section 1203.3." Howard is based on section 1203.2, subdivision (c), a provision that has

no applicability in the mandatory supervision context. Thus, Howard does not support

the People's contention that the trial court imposed an unauthorized sentence in this case.

       In any event, even assuming that section 1203.2, subdivision (c) applies in the

mandatory supervision context, the trial court did not impose an unauthorized sentence

under the reasoning of Howard. The Howard court interpreted section 1203.2,

subdivision (c) as permitting a trial court, in revoking and terminating probation, to

"decline to revoke the suspension [of sentence] or to order confinement." (Howard,

supra, 16 Cal.4th at p. 1094, italics added; see also ibid. [stating that, upon revocation

and termination of probation, "[i]f the court does order a prison commitment" (italics

added) the previously suspended judgment shall be in effect].) Thus, even assuming that

section 1203.2, subdivision (c) applies in the mandatory supervision context, the trial

court was not required, under Howard, to revoke the suspended portion of Camp's

sentence and order him to serve the remainder of the suspended portion of his sentence in

custody.



                                             14
       The gist of the dissent is that the majority "disregards the trial court's limited

power to act in the case of a previously imposed and suspended sentence under People v.

Howard[, supra, 16 Cal.4th. at p. 1088], and section 1203.2, subdivision (c)." In support

of this contention, the dissent argues that our conclusion that section 1203.2, subdivision

(c) has no application in the mandatory supervision context is "contrary to the California

Supreme Court's recent decision in People v. Scott [(2014) 58 Cal.4th 1415, 1424

(Scott)]."

       Our conclusion is not contrary to Scott. In fact, Scott did not even involve

mandatory supervision. Rather, the Supreme Court considered whether the Realignment

Act applied to defendants who were placed on probation before the operative date of the

Realignment Act. (See Scott, supra, 58 Cal.4th at p. 1419 [considering "the applicability

of the Realignment Act to the category of defendants who, prior to October 1, 2011, have

had a state prison sentence imposed with execution of the sentence suspended pending

successful completion of a term of probation, and who, after October 1, 2011, have their

probation revoked and are ordered to serve their previously imposed term of

incarceration," italics added].) Further, there is nothing in Scott that suggests that section

1203.2, subdivision (c) applies in the mandatory supervision context, and the dissent cites

no such language.

       In addition, as noted previously, the statute that authorizes the imposition of split

sentences provides that "subdivisions (a) and (b) of Section 1203.2 or Section 1203.3"

(§ 1170, subdivision (h)(5)(B)(i), italics added) apply to proceedings to revoke or modify

                                              15
mandatory supervision, and makes no reference to section 1203.2, subdivision (c).

Moreover, section 1203.2, subdivision (c) expressly applies "[u]pon any revocation and

termination of probation," and does not refer to the revocation or termination of

mandatory supervision. (Italics added.) In short, section 1170, subdivision (h)(5)(B)

does not "mean [that] all terms, conditions, and procedures of probation apply to

mandatory supervision." (People v. Rahbari (2014) 232 Cal.App.4th. 185, 193, italics

altered [citing amendments to section 1203.2 made following the passage of section

1170, subdivision (h)(5)(B)].)11

       The People note that California Rules of Court,12 rule 4.435(b)(2) provides, "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." However, what the People fail

to acknowledge is that this provision applies only "when the sentencing judge determines

that the defendant will be committed to prison." (Rule 4.435(b).) When read in its



11     Further, as noted in the text, the Howard court interpreted section 1203.2,
subdivision (c) as permitting a trial court, in revoking and terminating probation, to
"decline to revoke the suspension [of sentence] or to order confinement." (Howard,
supra, 16 Cal.4th at p. 1094, italics added). Thus, even assuming that section 1203.2,
subdivision (c) applies in this case, the trial court was not required, upon revoking and
terminating mandatory supervision, to order confinement.

12     All rule references are to the California Rules of Court.

                                             16
entirety, rule 4.435(b) does not support the People's contention that the trial court was

required to imprison Camp upon terminating mandatory supervision.

       The People also note that, "for purposes of probation, section 1203.3 allows the

court to " 'terminate the period of probation,' " and also " 'discharge the person so held,' "

(italics added by the People), but that the discharge language is absent from the sentence

addressing the court's authority to terminate mandatory supervision.13 The People

contend that this distinction demonstrates that the Legislature "implicitly recognized" that

a trial court is not permitted to terminate a period of mandatory supervision early without

ordering the defendant into custody. We disagree.

       As noted previously, section 1170, subdivision (h)(5)(B) expressly authorizes a

trial court to terminate a defendant's mandatory supervision prior to the conclusion of the

period of supervision initially ordered by the court. In addition, neither section 1170,

subdivision (h)(5)(B))(i), nor subdivisions (a) and (b) of section 1203.2 or section 1203.3

contains any language that would suggest that a court's power to terminate mandatory

supervision is restricted in any manner. (Compare with § 1203.2, subd. (b)(1) [providing

"the court shall not terminate parole pursuant to this section," italics added].)




13     (Compare § 1203.3, subd. (a) ["The court may at any time when the ends of justice
will be subserved thereby, and when the good conduct and reform of the person so held
on probation shall warrant it, terminate the period of probation, and discharge the person
so held"] with ibid. ["The court shall also have the authority at any time during the term
of mandatory supervision pursuant to subparagraph (B) of paragraph (5) of subdivision
(h) of Section 1170 to revoke, modify, or change the conditions of the court's order
suspending the execution of the concluding portion of the supervised person's term"].)
                                              17
       If the Legislature intended to restrict a trial court's sentencing authority upon the

revocation and termination of mandatory supervision, we presume that it would have

adopted statutory language evincing such intent. For example, the Legislature could have

drafted the statute to state, "Upon any revocation and termination of mandatory

supervision, the court shall revoke the suspension of execution of sentence and order that

the judgment shall be in full force and effect," thereby requiring the court to impose the

suspended portion of the custodial term. (Cf. § 1203.2, subd. (c) [providing that "[u]pon

any revocation and termination of probation," that " 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 the absence of any such

statutory language, we reject the People's argument that section 1203.3 contains an

implicit limitation on the trial court's sentencing authority when terminating mandatory

supervision.

       Finally, we observe that the People's position that a trial court lacks jurisdiction to

terminate a period of mandatory supervision without placing the defendant in custody

would mean, as a practical matter, that a trial court would be unable to terminate

mandatory supervision early based on a defendant's good behavior. As J. Couzens and T.

Bigelow state in their treatise, Felony Sentencing After Realignment, "rewarding good

behavior generally does not translate into additional custody time." (Couzens and

Bigelow, Felony Sentencing After Realignment (rev. Mar. 4, 2014) p. 23; available at

<http:// www.courts.ca.gov/partners/documents/felony_sentencing.pdf> [as of Jan. 12,

                                              18
2015]).)14 In discussing whether a trial court may terminate a defendant's mandatory

supervision without placing the defendant in custody, Couzens and Bigelow explain:

          "It is not logical to conclude the Legislature intended that a court
          must order a defendant into custody once he has shown the interests
          of justice no longer demonstrate a need for further supervision. It is
          logical for the Legislature to grant the court authority to terminate
          mandatory supervision early when the defendant has reformed and
          because the mandatory supervision portion of the sentence occurs
          after the custody portion has been completed." (Ibid.)

       In an attempt to avoid this absurd result, the dissent offers an interpretation of

section 1203.3, subdivision (a) that has no basis in the text of the applicable statutes. The

dissent concludes that a trial court's "sole authority" to terminate mandatory supervision

is "on grounds of a defendant's good conduct and reform, if the ends of justice are

served." The only support the dissent offers in support of this assertion is the following

sentence of section 1203.3, subdivision (a): "The court may at any time when the ends of

justice will be subserved thereby, and when the good conduct and reform of the person so

held on probation shall warrant it, terminate the period of probation, and discharge the

person so held."15 (§ 1203.3, subdivision (a), italics added.) On its face, this provision



14    California courts have frequently cited this memorandum, noting that it reflects the
views of "two preeminent sentencing authorities." (People v. Hul (2013) 213
Cal.App.4th 182, 187.)

15     According to the dissent, this is because section 1170, subdivision (h)(5)(B)(i)
provides that "mandatory supervision . . . shall be done 'in accordance with the terms,
conditions, and procedures generally applicable to persons placed on probation.' " What
section 1170, subdivision (h)(5)(B)(i) actually says is that "the defendant shall be
supervised by the county probation officer in accordance with the terms, conditions, and
                                             19
expressly authorizes the court to terminate probation for good conduct. We decline to

interpret this provision as limiting a trial court's authority to terminate a period of

mandatory supervision.

       Accordingly, we conclude that the trial court did not act in excess of its

jurisdiction in terminating Camp's mandatory supervision and in modifying his

sentence.16




procedures generally applicable to persons placed on probation," (italics added) but that
"proceeding[s] 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." (§ 1170, subdivision (h)(5)(B)(i).) As is made clear in the text, subdivisions (a)
and (b) of section 1203.2 and section 1203.3 have particular provisions that apply to
mandatory supervision, and other provisions that apply to probation. (See People v.
Rahbari, supra, 232 Cal.App.4th. at p. 193.)

16      The People also contend that the trial court's modification of Camp's sentence
violated the parties' plea agreement. Assuming the People did not forfeit this contention
by failing to object on this ground in the trial court, there is nothing in the plea agreement
purporting to restrict the court from exercising its statutorily granted authority to
terminate Camp's mandatory supervision (§ 1170, subd. (h)(5)(B)(i)) or to modify his
sentence (§ 1203.3 subd. (b)(1)(A)). Thus, since "plea bargains in California are
' "deemed to incorporate and contemplate . . . the existing law" (Doe v. Harris (2013) 57
Cal.4th 64, 69), we reject the People's contention that the trial court's exercise of its
statutorily granted authority violated the parties' plea agreement.
                                               20
                                          IV.

                                    DISPOSITION

       The trial court's order terminating Camp's mandatory supervision and modifying

his sentence is affirmed.



                                                                            AARON, J.

I CONCUR:



         McINTYRE, Acting P. J.




                                          21
O'ROURKE, J., Dissenting



       I respectfully dissent. Reading the Criminal Justice Realignment Act of 2011 (the

Realignment Act) in a plain, commonsense manner (see People v. Scott (2014) 58 Cal.4th

1415, 1421), the trial court erred by terminating Hugo Joseph Camp's period of

mandatory supervision and releasing him from serving the remainder of his suspended

sentence. In reaching the contrary conclusion, the majority engages in an overly broad

construction of the language of Penal Code1 sections 1170, subdivision (h)(5)(B)(i)

("The period of supervision shall be mandatory, and may not be earlier terminated except

by court order") and 1203.2, subdivision (b)(1) ("Upon its own motion or upon the

petition of the supervised person, the probation or parole officer, or the district attorney,

the court may modify, revoke, or terminate supervision of the person pursuant to this

subdivision, except that the court shall not terminate parole pursuant to this section").

These provisions cannot reasonably be read as broad or unlimited grants of authority to

terminate the mandatory supervision period. The majority also disregards the trial court's

limited power to act in the case of a previously imposed and suspended sentence under

People v. Howard (1997) 16 Cal.4th 1081, 1088 and section 1203.2, subdivision (c).

(See also People v. Scott, at pp. 1422-1424; People v. Kelly (2013) 215 Cal.App.4th 297,

302-303.) In my view, the relevant statutes limit termination of the mandatory




1      Statutory references are to the Penal Code.
supervision period to situations where either the defendant is rearrested for a probable

violation of the terms and conditions of his supervision (section 1203.2, subd. (a)),

or when the court finds that termination is warranted based on a showing of the

defendant's "good conduct and reform." (§ 1203.3, subd. (a)). Because neither

circumstance was shown here, "[t]he period of supervision shall be mandatory. . . ."

(§ 1170, subd. (h)(5)(B)(i).)

       As the majority points out, section 1170, subdivision (h)(5)(B)(i) requires that

mandatory supervision revocation and modification proceedings be conducted under the

procedures set forth in subdivisions (a) and (b) of sections 1203.2 and 1203.3. Section

1203.2, subdivision (a) authorizes the court to "revoke and terminate" a defendant's

period of mandatory supervision upon the defendant's rearrest or issuance of a warrant for

his or her rearrest, as long as the court has reason to believe the defendant has violated

any of his or her mandatory supervision conditions and the interests of justice require.

Under these circumstances, probation revocation procedures, including the relevant

California Rules of Court, apply. (See People v. Rahbari (2014) 232 Cal.App.4th 185;

Stats. 2012, ch. 43, § 30; see Legis. Counsel's Dig., Sen. Bill No. 1023 (2011-2012 Reg.

Sess.) ["The bill would require the revocation or modification of mandatory supervision

to be made pursuant to provisions of existing law providing for the revocation of

probation."].) Thus, "upon revocation and suspension of execution of the judgment, the

court lacks jurisdiction 'to do anything other than order the execution of the previously

imposed . . . sentence.' " (People v. Scott, supra, 58 Cal.4th at p. 1422; see also People v.

                                              2
Howard, supra, 16 Cal.4th at pp. 1087-1088.)2 " 'The revocation of the suspension of

execution of the judgment brings the former judgment into full force and effect . . . .' "

(People v. Howard, at p. 1087; see also People v. Mora (2013) 214 Cal.App.4th 1477,

1482; Cal. Rules of Court, rule 4.435(b)(2) ["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"].)

Nothing in this provision authorizes a trial court to terminate a defendant's mandatory

supervision and discharge or relieve him from serving the remainder of his sentence.

2       The majority asserts that People v. Howard, supra, 16 Cal.4th 1081 is based on
section 1203.2, subdivision (c), which they maintain has no application in the mandatory
supervision context. The conclusion is contrary to the California Supreme Court's recent
decision in People v. Scott, supra, 58 Cal.4th at page 1424, in which the court
acknowledged that the Legislature intended the term "sentenced" in the Realignment Act
to be consistent with that subdivision. (See also People v. Kelly, supra, 215 Cal.App.4th
at pp. 305-306; People v. Montrose (2013) 220 Cal.App.4th 1242, 1248 [Legislature did
not see fit to change section 1203.2, subdivision (c) of the Realignment Act when it
amended the statute and it is deemed aware of existing laws at the time legislation is
enacted].) Additionally, I disagree with the majority's reading of the statute and its
implementing rule of court (Cal. Rules of Court, rule 4.435(b)(2)). Section 1170,
subdivision (h)(5)(B)(i) specifies how the court must conduct modification and
revocation proceedings. Section 1203.2, subdivision (c) governs what happens after
those revocation and termination proceedings have occurred, providing in part: "Upon
any revocation and termination of probation . . . , 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." (See People v. Rahbari, supra,
232 Cal.App.4th at p. 192 [mandatory supervision imposed under section 1170, subd. (h)
is akin to a state prison commitment].) Finally, the majority cites Howard for the
proposition that a court has authority during the period of probation to reduce a
previously imposed but suspended sentence at any time prior to rearrest, but Howard
makes clear that that authority is "subject to statutory restrictions . . . ." (People v.
Howard, 16 Cal.4th at pp. 1092-1093.)
                                               3
       Subdivision (b) of section 1203.2 permits, upon motion of the court or other

specified parties, modification, revocation, and termination of supervision, "pursuant to

this subdivision . . . ." (§ 1203.2, subd. (b)(1), italics added.) This provision merely

authorizes the court or parties to initiate such proceedings by motion in accordance with

specified procedural requirements.3 This subdivision does not broadly authorize early

termination of the period of mandatory supervision; it is conditioned on the defendant's

rearrest and the court's reason to believe the defendant violated his or her supervision

conditions.




3       Subdivision (b)(1) of section 1203.2 continues: "The court in the county in which
the person is supervised has jurisdiction to hear the motion or petition, or for those on
parole, either the court in the county of supervision or the court in the county in which the
alleged violation of supervision occurred. A person supervised on parole or postrelease
community supervision pursuant to Section 3455 may not petition the court pursuant to
this section for early release from supervision, and a petition under this section shall not
be filed solely for the purpose of modifying parole. Nothing in this section shall prohibit
the court in the county in which the person is supervised or in which the alleged violation
of supervision occurred from modifying a person's parole when acting on the court's own
motion or a petition to revoke parole. The court shall give notice of its motion, and the
probation or parole officer or the district attorney shall give notice of his or her petition to
the supervised person, his or her attorney of record, and the district attorney or the
probation or parole officer, as the case may be. The supervised person shall give notice
of his or her petition to the probation or parole officer and notice of any motion or
petition shall be given to the district attorney in all cases. The court shall refer its motion
or the petition to the probation or parole officer. After the receipt of a written report from
the probation or parole officer, the court shall read and consider the report and either its
motion or the petition and may modify, revoke, or terminate the supervision of the
supervised person upon the grounds set forth in subdivision (a) if the interests of justice
so require."


                                               4
       Section 1203.3, subdivision (a) grants the court authority during the period of

mandatory supervision to "revoke, modify or change the conditions of the court's order

suspending the execution of the concluding portion of the supervised person's term."

(Italics added.) This provision does not govern termination of the supervision period,

which the Legislature knows how to expressly and separately address. In my view, the

language used by the Legislature limits revocation, modification or changes with regard

to mandatory supervision to the supervised release terms and conditions, that is, those

conditions either forbidding acts or requiring certain acts during the defendant's period of

mandatory supervision.

       Subdivision (a) of section 1203.3 also provides that the court may terminate and

discharge the person held on probation "when the good conduct and reform of the person

so held on probation warrant it . . . ." (§ 1203.3, subd. (a), italics added.) This clause,

though it refers to persons on probation, applies under section 1170, subdivision

(h)(5)(B)(i) to mandatory supervision, which shall be done "in accordance with

the terms, conditions, and procedures generally applicable to persons placed on

probation . . . ."4 Under section 1203.3 the trial court's sole authority to terminate the

period of mandatory supervision is on grounds of a defendant's good conduct and reform,

if the ends of justice are served. (§ 1203.3, subd. (a).)


4      More fully, section 1170, subdivision (h)(5) provides: "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
                                               5
       The limitations on the trial court's power to terminate mandatory supervision as I

have described is reflected in the Legislature's phrasing of section 1203.3, subdivision

(b): "The exercise of the court's authority in subdivision (a) to revoke, modify, or change

probation or mandatory supervision, or to terminate probation, is subject to the

following . . . ." (See also § 1203.3, subd. (b)(1) ["Before any sentence or term or

condition of probation, or condition of mandatory supervision is modified . . . .] &

(b)(1)(A) ["If the sentence or term or condition of probation or the term or any condition

of mandatory supervision is modified pursuant to this section . . . ."], italics added.) The

Legislature's use of the terms "revoke, modify, or change" with respect to mandatory

supervision, and the word "terminate" only with respect to probation, reflects that

termination of the period of supervision is limited to the "good conduct and reform"

grounds set out in subdivision 1203.3, subd. (a). The remainder of section 1203.3 merely

sets out the manner in which the court is permitted to act, requiring, "[b]efore any




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. . . . [¶] (ii) The portion of a
defendant's sentencing term during which time he or she is supervised by the county
probation officer pursuant to this subparagraph shall be known as mandatory
supervision." Nothing in this language changes my conclusion as to the application of
probation revocation procedures to persons on mandatory supervision. (See People v.
Rahbari, supra, 232 Cal.App.4th at p. 193 [observing the Legislature amended the statute
governing probation revocation to provide that its procedures also apply to mandatory
supervision].)

                                              6
sentence or. . . condition of mandatory supervision is modified," a hearing in open court

with specified notice, and a statement of reasons. (§ 1203.3, subd. (b)(1).)

       Here, Camp agreed to his split sentence including mandatory supervision as part

of a plea. The People and the courts are bound to uphold the terms of a plea agreement,

which is a form of contract. (Doe v. Harris (2013) 57 Cal.4th 64, 69; People v. Segura

(2008) 44 Cal.4th 921, 930-931; People v. Blount (2009) 175 Cal.App.4th 992, 997.)

The court's statutory authority to modify conditions of mandatory supervision in the

exercise of its jurisdiction over Camp (§ 1203.3) cannot extend to modifying a material

term of his plea. (Segura, at pp. 925, 936.) " ' "Once the court has accepted the terms of

the negotiated plea, '[i]t lacks jurisdiction to alter the terms of [the] plea bargain so that it

becomes more favorable to a defendant unless, of course, the parties agree.' " ' " (Blount,

at p. 997, quoting Segura, at p. 931.) Because it was impossible due to subsequent events

for the plea agreement to be performed and the court could not effectuate the terms of the

plea, the court was required to permit Camp to withdraw his plea. (See § 1192.5; People

v. Jackson (1981) 121 Cal.App.3d 862, 869; People v. Pinon (1973) 35 Cal.App.3d 120,

125.) The trial court has no discretion "to make its own ad hoc adjustment to fit what it

perceives as equity and justice." (In re Chamberlain (1978) 78 Cal.App.3d 712, 718.)

       If Camp declines to withdraw his plea, he would be out of compliance with his

conditions of mandatory supervision, giving the court authority to revoke and terminate

the period of mandatory supervision and order him to return to local custody for the

concluding portion of his term. " 'The revocation of the suspension of execution of the

                                                7
judgment brings the former judgment into full force and effect . . . .' " (People v.

Howard, supra, 16 Cal.4th at p. 1087.)

       For the foregoing reasons, I would reverse the order and remand the matter to give

Camp an opportunity to withdraw his plea and absent that, for the court to order him to

serve the remainder of his term in local custody.




                                                                             O'ROURKE, J.




                                              8
