Filed 8/6/13 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. STEVEN MORENO, JR., Defendant and Appellant. H037737 (Monterey County Super. Ct. No. SS110008)

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Steven Moreno, wh ose sentence was imposed prio r to October 1, 2011, and executed after that date when his probation was revoked. 3 Accordingly, we reverse the judgment.

1 Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1. 2 All further statutory references are to the Penal Code. 3 This issue is presently befo re the California Supreme Court in People v. Scott , review granted July 24, 2013, S211670.2 I. Background On January 3, 2011, defendant was char ged by complaint with receiving stolen property (§ 496, subd. (a) – count 1), resisting, delaying, or obstructing a peace officer (§ 148, subd. (a)(1) – count 2), and possession of burglar’s tools (§ 466 – count 3). The complaint also alleged that defendant had fa iled on three separate occasions to remain free of prison custody for a five-y ear period (§ 667.5, subd. (b). On January 18, 2011, defe ndant pleaded no contest to felony receiving stolen property and admitted two of the prior prison term allegations. On April 12, 2011, the trial court imposed a five-year state prison term, suspended execution of sentence, and ordered defendant to serve formal probation for three years. The remaining charges and allegations were dismissed pursuant to section 1385. On May 12, 2011, a petition to re voke probation was filed. On September 8, 2011, defendant was arrested on a bench warrant for vi olating the terms and conditions of probation. On Se ptember 22, 2011, the district attorney’s office filed a second petition to revoke probatio n on the ground that defe ndant had failed to obey all

laws. On September 29, 2011, de fendant admitted a violation of probation for failing to comply with the impos ed terms and conditions. The tria l court dismissed the unrelated misdemeanor charges. As part of the negotia ted disposition, defendant agreed that “the previously suspended prison se ntence would . . . be executed.” At defendant’s request,

the trial court continued the case. On November 3, 2011, the trial court revoked defendant’s probation and ordered the previously imposed sentence of five years into effect. The tria l court also concluded that defendant qualified under the Realignment Ac t to serve his sentence in county jail. On November 22, 2011 , the trial court recalled the sent ence pursuant to section 1170, subdivision (b) to determin e whether defendant had a prior serious felony which3 disqualified him from serving his sentence in co unty jail. A week later, the trial court found that defendant was not disqualified fro m serving his sentence in county jail. The People filed a timely notice of appeal.

II. Discussion Section 1170, subdivision (h)(6) provides that “[t]the sentencing changes made by [the Realignment Act] shall be applied prosp ectively to any person se ntenced on or after October 1, 2011.” People v. Clytus (2012) 209 Cal.App.4th 1001 ( Clytus ) (review den. Jan. 16, 2013)

considered the issue before us. Clytus concluded that “a trial court executing a suspended sentence for a violation of prob ation on and after October 1, 2011, the effective date of the Realignment Act, has no discretion to se nd to prison a defendant who qualifies under

the Act to serve the senten ce in county jail.” ( Id. at p. 1004.) Clytus relied on “the plain meaning” of section 1170, subdivision (h)(6) a nd reasoned: “It is certainly true that in this case, defendant was sentenced before October 1, 2011, when the court imposed and suspended execution of sentence with probation. But that does not mean defendant was not also a ‘person sentenced’ when th e court executed the suspended sentence after October 1, 2011. (§ 1170, subd. (h)(6).) Whenever a sentence is imposed and suspended, it may be executed in the future after a revocation of probation if the trial court decides not to reinstate probation. The trial court must make and articulate the reasons for its discretionary choice not to re instate probation and to execute the sentence,

as the trial court did here. We see no reas on why we should conclude defendant was a ‘person sentenced’ when the co urt stayed execution of th e sentence but not when the court executed the previous ly suspended sentence.” ( Clytus , at pp. 1006-1007.) Clytus also rejected the argument that People v. Howard (1997) 16 Cal.4th 1081 ( Howard ) provided relevant reasoning or authority. ( Clytus , supra , 209 Cal.App.4th at pp. 1007-1009.) “ Howard concluded that a trial court may not modify or change a4 sentence that was imposed and suspended. [C itation.] In contrast, the Realignment Act does not modify or change the sentence for any felony. The Act directs that the court is to impose a ‘term described in the underlyi ng offense’ and thus preserves the existing triad of terms for felonies . . . .” ( Id. at pp. 1008-1009.) People v. Kelly (2013) 215 Cal.App.4th 297 ( Kelly ) (review den. June 19, 2013) disagreed with Clytus and concluded that the Legislat ure did not intend to abrogate
Howard when it enacted the Realignment Act. ( Kelly , at p. 300.) Kelly began its analysis by setting forth Howard’s “distinction ‘between orders suspending imposition of sentence and orders suspending execution of previously imposed sentences.’ [Citation.] When a court suspends imposition of sentence before placing a de fendant on probation, there is no judgment pending against the defendant. Therefore, upon re voking probation, the court has full discretion to impose any appr opriate sentence. The probation order is considered a final judgment only for the purp ose of allowing the defendant to take an appeal from the order. [Citations.] In c ontrast, when a court imposes sentence but suspends its execution during a period of probation, th ere is a judgment, and revocation of the order granting probation requires exec ution of the existing sentence, exactly as imposed. [Citation.]” ( Id. at p. 302.) Kelly noted Howard’s acknowledgment that these principles were reflected in section 1203.2, subdivision (c) and California Rules of Court, rule 4.435(b). 4 ( Kelly , at p. 302

. ) Kelly questioned the failure of Clytus to “explain why

4 Section 1203.2, subdivision (c), pr ovides that following revocation and termination of probation, “the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced. However, if the judgment has b een pronounced and the execution thereof has been suspended, the court may revoke the suspension and or der that the judgment shall be in full force and effect .” (Italics added.) California Rules of Court, rule 4.435(b), which implements section 1 203.2, subdivision (c), provid es that, upon revocation of probation, “(1) If the imposition of sentence was previously suspended, the judge must impose judgment and sentence after consider ing any findings previously made and hearing and determining the matters enumerated in rule 4.433(c)” or “(2) If the execution (continued)5 the phrase ‘sentenced on or after Octobe r 1, 2011’ unambigu ously has a meaning

different from the traditiona l rule as discussed in Howard. ” ( Kelly , at p. 303.)

As did Clytus , Kelly found that section 1170, subdivision (h)(6) was not ambiguous on its face. ( Kelly , supra , 215 Cal.App.4th at p. 305.) However, Kelly conceded that if “ ‘any person sentenced on or after October 1, 2011,’ might have the meaning Clytus ascribes to it—i.e., that sentenci ng means any proceeding in which a sentence is either imposed or executed—the phrase becomes ambiguous because it is contrary to Howard and to section 1203.2, subdi vision (c). [Citations.]” ( Ibid .) To resolve any ambiguity, Kelly turned to the “rule of statutory construction that the Legislature is deemed to be aware of statutes and judicial decisions already in existence and to have enacted a statute in light of exis ting statutes and decisions [citation] . . . .” ( Ibid .) Given that Howard was decided several years prior to the enactment of the Realignment Act, Kelly concluded that “[t]he enactmen t of section 1170(h)(6) without either amending or repealing statutes [d istinguishing orders suspending imposition from those suspending execution of sentence] or providing a definition of ‘sentenced’ in section 1170(h)(6) which differs from the rule enunciated in Howard can be interpreted to mean only that the Legislature did not intend to do so.” ( Kelly , at pp. 305-306.) Kelly also noted that the Realignment Act itself re cognized “the distinction between imposition and execution of sentence.” ( Kelly , at p. 306 [“section 1170(h)(5) refers to imposing a term in county jail but suspending execution of a portion of the se ntence and placing the defendant under the supervision of the county probation offi cer. (§ 1170(h)(5) [introductory sentence ], (B)(i))”].) Thus, Kelly concluded that “the Realignment Act does not abrogate Howard, and that a defendant who is ‘sentenced on or after

of sentence was previously suspended, the j udge must order that the judgment previously pronounced be in full force and effect and th at 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 October 1, 2011,’ is one whose sentence is imposed on or after that date, not one whose previously imposed and suspended sentence is executed on or after that date.” ( Ibid. ) 5 We agree with Kelly . Here, since defendant was se ntenced to state prison before October 1, 2011, the Realignment Act did not apply. When the trial court revoked defendant’s probation and executed his sent ence on November 3, 2011, it lacked jurisdiction to modify the se ntence committing him to state prison for five years. Defendant contends that if the judgmen t is reversed, the case must be remanded for the trial court to exercise its power to recall defendant’s sentence and resentence him under section 1170, subdivision (d). Section 1170, subdivision (d) provides that a trial court can recall a sentence on its own motion within 120 days after co mmitting a defendant to prison. ( Dix v. Superior

Court (1991) 53 Cal.3d 442, 456.) After it recalled the sentence, the trial court stated: “And so again, I’m not departing from Judge Curtis’ sentencing determin ation that upper term is appropriate. I’m not departing from his sentencing determina tion that two prior pr ison terms should be added to that for a consecutive two years. I’m not making any other changes to the penalty that was identified by Judge Curtis. [¶] But I am followi ng the dictate of the [L]egislature that Mr. Moreno se rve that sentence in the county jail rather than in the state prison.” Since the trial court’ s determination was based solely on its interpretation of the Realignment Act, remand is unnecessary.

5 People v. Gipson (2013) 213 Cal.Ap p.4th 1523 (review den. June 19, 2013), People v. Mora (2013) 214 Cal.App. 4th 1477 (review den. June 19, 2013), and People v. Wilcox (2013) 217 Cal.App.4th 618 also disagreed with Clytus , supra , 209 Cal.App.4th 1001.7 III. Disposition The judgment is reversed. The trial cour t is directed to order into effect the originally imposed state prison term.

____ _______________ __________ Mihara, J.

I CONCUR:

Márquez, JPREMO, Acting P.J., Dissenting:

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

Premo, Acting P. J.9 Trial Court: Monterey County Superior Court

Trial Judge: Honorable Adrienne M. Grover

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

Dane R. Gillette Chief Assistant Attorney General Gerald A. Engler Senior Assistant Attorney General

Laurence K. Sullivan Supervising Deputy Attorney General

Seth K. Schalit Supervising Deputy Attorney General Amy Haddix Deputy Attorney General Bridget Billeter Deputy Attorney General

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