Filed 10/29/13




                          CERTIFIED FOR PUBLICATION


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                 F064261
        Plaintiff and Respondent,
                                                       (Super. Ct. Nos. CRM009080,
                 v.                                    CRM010998 & CRM015638)

KIRK ALLEN MONTROSE,
                                                               OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Merced County. John D.
Kirihara, Judge.
        Carol Foster, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Ryan B.
McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.
                                        -ooOoo-
       Following the termination of his probation, defendant Kirk Allen Montrose was
sentenced to state prison. On appeal, he claims he instead should have been committed to
county jail pursuant to Penal Code section 1170, subdivision (h). We disagree. That
statute does not apply to persons whose sentences, imposed but suspended prior to
October 1, 2011, were executed after that date. We affirm.
                              PROCEDURAL HISTORY1
       On April 14, 2010, a complaint was filed in Merced County Superior Court case
No. CRM009080 (case No. 9080), charging defendant with possessing methamphetamine
(Health & Saf. Code, § 11377, subd. (a)), and alleging he had suffered a prior conviction
under the “Three Strikes” law (Pen. Code,2 § 1170.12, subd. (c)(1)) and had served five
prior prison terms (§ 667.5, subd. (b)). On April 29, 2010, defendant pled no contest to
the possession charge in exchange for dismissal of the special allegations.
       On July 2, 2010, a complaint was filed in Merced County Superior Court case
No. CRM010998 (case No. 10998), charging defendant with carrying a concealed dirk or
dagger (former § 12020, subd. (a)(4), now § 21310; count 1) and possessing
methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2), and alleging he had
suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and had served six
prior prison terms (§ 667.5, subd. (b)). On July 19, 2010, defendant pled no contest to
count 2 in exchange for dismissal of count 1 and all special allegations. That same day,
he was sentenced to prison for the upper term of three years in case No. 10998, plus eight
months (one-third of the middle term) in case No. 9080. Execution of sentence was
suspended in both cases, and defendant was placed on probation on various terms and
conditions.

1     As the facts underlying defendant’s offenses are not pertinent to the issue raised
on appeal, we omit a summary thereof.
2      Further statutory references are to the Penal Code unless otherwise stated.



                                             2.
       On January 31, 2011, a complaint was filed in Merced County Superior Court case
No. CRM015638 (case No. 15638), charging defendant with possessing a concealed dirk
or dagger (former § 12020, subd. (a)(4), now § 21310), and alleging he had suffered a
prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and had served five prior prison
terms (§ 667.5, subd. (b)). On March 2, 2011, defendant pled no contest to the
possession charge, and admitted violating his probation in case Nos. 9080 and 10998, in
exchange for dismissal of the remaining allegations. On March 16, 2011, defendant was
sentenced in case No. 15638 to eight months in prison, to be served consecutively to the
sentences in case Nos. 9080 and 10998. However, the court suspended execution of
sentence for three years and placed defendant on probation for that period, on terms and
conditions that included completion of a previously ordered one-year residential drug
treatment program. Defendant was ordered reinstated on probation, on the terms and
conditions previously ordered, in case Nos. 9080 and 10998.
       On June 15, 2011, affidavits of probation violation were filed in all three cases,
based on defendant’s June 13, 2011, admission of methamphetamine use. On July 5,
2011, the court revoked defendant’s probation in all three cases.
       On August 26, 2011, defendant admitted violating the conditions of his probation.
Probation was reinstated in all three cases on the previously existing terms and
conditions, except that defendant was now ordered to enroll in and successfully complete
the Hobie House program, which consisted of six months of residential treatment and six
months of aftercare. On September 20, 2011, the court was informed Hobie House
would not accept defendant. On October 13, 2011, defendant was given the option of
withdrawing his admissions, but he declined because he wanted to be placed in a
program. No program was available to him, however. On October 21, 2011, the court
noted that it was prepared to impose the suspended prison time, but it continued the
matter so the parties could attempt to find a viable alternative. On November 18, 2011,
the court again offered defendant the opportunity to withdraw his probation violation

                                             3.
admissions. When defendant declined and asked that the original agreement be enforced,
the court continued the matter one final time to allow the defense to find a suitable
program.
       On December 9, 2011, the trial court terminated defendant’s probation and
ordered execution of the previously imposed consecutive prison sentences of three years
in case No. 10998, and eight months each in case Nos. 9080 and 15638. Defendant’s
total term was thus four years four months in state prison.
                                      DISCUSSION
       On October 1, 2011, the “2011 Realignment Legislation addressing public safety”
(Stats. 2011, ch. 15, § 1) became operative.3 Realignment “shifted responsibility for
housing and supervising certain felons from the state to the individual counties.” (People
v. Cruz (2012) 207 Cal.App.4th 664, 671.) Felons eligible to be sentenced under
realignment now serve their terms of imprisonment in local custody rather than state
prison. (Ibid.; § 1170, subd. (h).)
       Defendant says his offenses of conviction are qualifying felonies under
realignment. The Attorney General does not dispute this, or contend defendant is
disqualified pursuant to subdivision (h)(3) of section 1170.4 Accordingly, defendant

3      For brevity, we refer to this legislation as realignment.
4      At all times since October 1, 2011, Health and Safety Code section 11377,
subdivision (a) has provided for punishment “by imprisonment in a county jail for a
period of not more than one year or pursuant to subdivision (h) of Section 1170 of the
Penal Code.” Section 21310 was amended effective June 27, 2012, to provide for
sentencing pursuant to section 1170, subdivision (h). (Stats. 2012, ch. 43, § 94.) We will
assume, for the purpose of our discussion, that defendant’s offenses constituted
qualifying felonies under section 1170, subdivision (h)(1) and (2) at all times pertinent to
this appeal. We note that, if defendant’s weapon conviction did not so qualify, defendant
was properly sentenced to state prison in all three cases. (§ 1170.1, subd. (a); see People
v. Torres (2013) 213 Cal.App.4th 1151, 1159.)
      Section 1170, subdivision (h)(3) excludes from sentencing under realignment any
defendant who has a prior or current conviction for a serious or violent felony, whether


                                             4.
concludes, he is entitled to have his commitment to state prison vacated, and to be
committed to serve his term in county jail.
       We do not agree. Under the plain language of section 1170, subdivision (h)(6),
the sentencing changes of realignment apply only to persons “sentenced on or after
October 1, 2011.” In case Nos. 9080 and 10998, defendant was sentenced on July 19,
2010, when he was given terms of eight months and three years, respectively, in state
prison. In case No. 15638, defendant was sentenced on March 16, 2011, when he was
given a term of eight months in state prison. Thus, defendant was sentenced prior to
October 1, 2011, in all three cases, and so is not entitled to a county jail commitment
pursuant to section 1170, subdivision (h). That his sentences were not ordered executed
until after October 1, 2011, does not change this result.
       Our conclusion is supported by People v. Howard (1997) 16 Cal.4th 1081
(Howard), in which the California Supreme Court addressed a trial court’s authority to
alter a sentence upon revocation of probation. The high court concluded: “[I]f the trial
court has suspended imposition of sentence, it ultimately may select any available
sentencing option. However, if … the court actually imposes sentence but suspends its
execution, and the defendant does not challenge the sentence on appeal, but instead
commences a probation period reflecting acceptance of that sentence, then the court lacks
the power … to reduce the imposed sentence once it revokes probation.” (Id. at p. 1084.)
       Howard noted “the important distinction, in probation cases, between orders
suspending imposition of sentence and orders suspending execution of previously
imposed sentences.” (Howard, supra, 16 Cal.4th at p. 1087.) Relying heavily on


sustained in California or another jurisdiction; who is required to register as a sex
offender; or whose sentence is enhanced pursuant to section 186.11. Although the
charging documents in all three cases alleged defendant had suffered a prior conviction
for a serious or violent felony, those allegations were dismissed and never admitted by
defendant.



                                              5.
section 1203.2, subdivision (c) and what is now rule 4.435(b) of the California Rules of
Court, the court explained: “When the trial court suspends imposition of sentence, no
judgment is then pending against the probationer, who is subject only to the terms and
conditions of the probation. [Citations.] The probation order is considered to be a final
judgment only for the ‘limited purpose of taking an appeal therefrom.’ [Citation.] On
the defendant’s rearrest and revocation 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.’ [Citations.]” (Howard, supra, at p. 1087.)
In such a situation, “sentencing itself has been deferred .…” (Ibid., italics added.) A
different situation exists where a sentence has been imposed but its execution suspended,
however. (Ibid.) In that circumstance, “‘[t]he revocation of the suspension of execution
of the judgment brings the former judgment into full force and effect .…’ [Citations.]”
(Ibid.) Accordingly, “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.’ [Citation.]” (Id.
at pp. 1087-1088.)
       We recognize the Howard court was addressing the question whether, upon
revocation of probation, a trial court has the authority to reduce a probationer’s
previously imposed but suspended sentence (Howard, supra, 16 Cal.4th at pp. 1084,
1088), and it obviously could not have considered realignment or a situation where the
issue is not the length of the term served so much as it is the place where it is served.
Nevertheless, although the Legislature has amended portions of section 1203.2 since
Howard was decided and since the advent of realignment (see Stats. 2012, ch. 43, § 30,
eff. June 27, 2012; Stats. 2013, ch. 31, § 9, eff. June 27, 2013; Stats. 2013, ch. 32, § 7,
eff. June 27, 2013), it has not seen fit to change subdivision (c) of the statute. “‘[T]he
Legislature is deemed to be aware of existing laws and judicial decisions in effect at the

                                              6.
time legislation is enacted and to have enacted and amended statutes “‘in the light of such
decisions as have a direct bearing upon them.’” [Citations.]’ [Citation.]” (People v.
Licas (2007) 41 Cal.4th 362, 367.)
       We find nothing in the language, purpose, or history of the realignment legislation
suggesting the Legislature intended that a defendant would be considered “sentenced” at
a certain juncture for one purpose, but not for purposes of realignment. Significantly, in
section 17.5, subdivision (a)(5), the Legislature found and declared that “[r]ealigning
low-level felony offenders who do not have prior convictions for serious, violent, or sex
offenses to locally run community-based corrections programs, which are strengthened
through community-based punishment, evidence-based practices, improved supervision
strategies, and enhanced secured capacity, will improve public safety outcomes among
adult felons and facilitate their reintegration back into society.” A defendant who has
been placed on probation and who has then violated the terms and conditions of the
probationary grant to such an extent that the court deems it appropriate to execute a
previously imposed prison term, which the defendant knew he or she was facing in the
event of noncompliance, has already proven him- or herself unamenable to the type of
community-based programs and assistance envisioned by realignment.
       Defendant points to People v. Clytus (2012) 209 Cal.App.4th 1001 (Clytus) as
support for his position. In that case, the defendant was sentenced to prison in 2010 for
offenses that subsequently became punishable pursuant to section 1170, subdivision (h),
but execution of sentence was suspended and he was placed on probation. Probation was
subsequently revoked and, on October 14, 2011, the defendant admitted violating the
terms and conditions thereof. The trial court declined to reinstate probation and executed
the previously suspended sentence, ordering the defendant to serve his term in state
prison. (Clytus, supra, at p. 1004.) Division Eight of the Second District Court of
Appeal concluded that “a trial court executing a suspended sentence as punishment for a
probation violation on and after October 1, 2011, has no discretion to send to prison a

                                             7.
defendant whose criminal record and current felony convictions qualify for a county jail
commitment under section 1170, subdivision (h).” (Id. at p. 1006.)
       In so holding, the appellate court relied on “basic statutory interpretation and the
absence of any language in the Realignment Act to suggest a contrary intent or purpose.”
(Clytus, supra, 209 Cal.App.4th at p. 1006.) It looked to subdivision (h)(6) of
section 1170, which provides (as we have noted) that realignment’s sentencing changes
“shall be applied prospectively to any person sentenced on or after October 1, 2011,” and
concluded the language’s plain meaning is “that any sentence executed on or after
October 1, 2011, for a felony that is not prison eligible shall be served in county jail .…”
(Clytus, supra, at p. 1006, italics added.) The court acknowledged the defendant was
sentenced before October 1, 2011, but reasoned that, because the trial court had to make
and articulate the reasons for its discretionary choices not to reinstate probation and to
execute the sentence, defendant was also a “‘person sentenced’” when the court executed
the suspended sentence after October 1, 2011. (Id. at p. 1007.) The appellate court found
Howard not controlling, since it could not have anticipated, and did not address,
realignment; and declined to assume, absent authority, that the Legislature acquiesced to
judicial precedent when enacting a new law, especially when the judicial precedent and
the new law addressed different issues. (Clytus, supra, at pp. 1008-1009.)
       With the exception of the Sixth District, every appellate court to address the
subject has disagreed with Clytus. These courts have concluded, instead, that because a
defendant is “sentenced” on the date sentence is imposed, a suspended prison term
imposed before, but ordered executed after, October 1, 2011, is to be served in state
prison and not county jail pursuant to section 1170, subdivision (h). (People v. Wilcox
(2013) 217 Cal.App.4th 618, 623-627 [Third Dist. Court of Appeal]; People v. Kelly
(2013) 215 Cal.App.4th 297, 300-306 [Fourth Dist. Court of Appeal, Div. 2]; People v.
Mora (2013) 214 Cal.App.4th 1477, 1481-1482 [Fourth Dist. Court of Appeal, Div. 1];
People v. Gipson (2013) 213 Cal.App.4th 1523, 1525-1526, 1528-1530 [Second Dist.

                                              8.
Court of Appeal, Div. 2].) The California Supreme Court has granted review in the Sixth
District Court of Appeal opinion that follows Clytus. (People v. Scott (2013) 216
Cal.App.4th 848, review granted July 24, 2013, S211670.)5
        We add our voice to those that have disagreed with Clytus. Defendant having
been sentenced to prison in all three cases prior to October 1, 2011, the court correctly
executed — without change — the sentence already imposed. Defendant is not entitled
to have his state prison commitment vacated and to be committed instead to serve his
term in county jail.
                                     DISPOSITION
        The judgment is affirmed.
                                                                _____________________
                                                                           DETJEN, J.
WE CONCUR:


    _____________________
    KANE, Acting P.J.


    _____________________
    POOCHIGIAN, J.




5      Recently, separate panels of the Sixth District have taken contradictory positions
on the subject. In People v. Moreno (2013) 218 Cal.App.4th 846, 848, 849-851, petition
for review pending, petition filed September 17, 2013, the majority disagreed with Clytus
and held that realignment does not come into play where a defendant is sentenced before
October 1, 2011, then probation is revoked and sentence executed after that date. In
People v. Reece (2013) 220 Cal.App.4th 204 [2013 Cal.App.Lexis 793, *1, *11-*16], the
court again followed Clytus.



                                             9.
