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 Realignment Act of 2011 (Realignment Act)1

 made 

significant changes in punishment for defendants, including confinement in county jail 

rather than state prison for certain felons. (Pen. Code, § 1170, subd. (h).)2

 These 

sentencing changes apply “to any person sentenced on or after October 1, 2011.” 

(§ 1170, subd. (h)(6).) We conclude that the Realignment Act does not apply to 

defendant Steven Moreno, whose sentence was imposed prior to October 1, 2011, and 

executed after that date when his probation was revoked.3

 Accordingly, we reverse the 

judgment. 

 

1

 Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1. 

2

 All further statutory references are to the Penal Code. 

3

 This issue is presently before the California Supreme Court in People v. Scott, 

review granted July 24, 2013, S211670. 
2 

I. Background 

 On January 3, 2011, defendant was charged by complaint with receiving stolen 

property (§ 496, subd. (a) – count 1), resisting, delaying, or obstructing a peace officer 

(§ 148, subd. (a)(1) – count 2), and possession of burglar’s tools (§ 466 – count 3). The 

complaint also alleged that defendant had failed on three separate occasions to remain 

free of prison custody for a five-year period (§ 667.5, subd. (b). 

 On January 18, 2011, defendant pleaded no contest to felony receiving stolen 

property and admitted two of the prior prison term allegations. 

 On April 12, 2011, the trial court imposed a five-year state prison term, suspended 

execution of sentence, and ordered defendant to serve formal probation for three years. 

The remaining charges and allegations were dismissed pursuant to section 1385. 

 On May 12, 2011, a petition to revoke probation was filed. On 

September 8, 2011, defendant was arrested on a bench warrant for violating the terms and 

conditions of probation. On September 22, 2011, the district attorney’s office filed a 

second petition to revoke probation on the ground that defendant had failed to obey all 

laws. 

 On September 29, 2011, defendant admitted a violation of probation for failing to 

comply with the imposed terms and conditions. The trial court dismissed the unrelated 

misdemeanor charges. As part of the negotiated disposition, defendant agreed that “the 

previously suspended prison sentence would . . . be executed.” At defendant’s request, 

the trial court continued the case. 

 On November 3, 2011, the trial court revoked defendant’s probation and ordered 

the previously imposed sentence of five years into effect. The trial court also concluded 

that defendant qualified under the Realignment Act to serve his sentence in county jail. 

On November 22, 2011, the trial court recalled the sentence pursuant to section 1170, 

subdivision (b) to determine whether defendant had a prior serious felony which 
3 

disqualified him from serving his sentence in county jail. A week later, the trial court 

found that defendant was not disqualified from serving his sentence in county jail. 

 The People filed a timely notice of appeal. 

II. Discussion 

Section 1170, subdivision (h)(6) provides that “[t]the sentencing changes made by 

[the Realignment Act] shall be applied prospectively to any person sentenced on or after 

October 1, 2011.” 

People v. Clytus (2012) 209 Cal.App.4th 1001 (Clytus) (review den. Jan. 16, 2013) 

considered the issue before us. Clytus concluded that “a trial court executing a suspended 

sentence for a violation of probation on and after October 1, 2011, the effective date of 

the Realignment Act, has no discretion to send to prison a defendant who qualifies under 

the Act to serve the sentence in county jail.” (Id. at p. 1004.) Clytus relied on “the plain 

meaning” of section 1170, subdivision (h)(6) and reasoned: “It is certainly true that in 

this case, defendant was sentenced before October 1, 2011, when the court imposed and 

suspended execution of sentence with probation. But that does not mean defendant was 

not also a ‘person sentenced’ when the court executed the suspended sentence after

October 1, 2011. (§ 1170, subd. (h)(6).) Whenever a sentence is imposed and 

suspended, it may be executed in the future after a revocation of probation if the trial 

court decides not to reinstate probation. The trial court must make and articulate the 

reasons for its discretionary choice not to reinstate probation and to execute the sentence, 

as the trial court did here. We see no reason why we should conclude defendant was a 

‘person sentenced’ when the court stayed execution of the sentence but not when the 

court executed the previously suspended sentence.” (Clytus, at pp. 1006-1007.) 

Clytus also rejected the argument that People v. Howard (1997) 16 Cal.4th 1081 

(Howard) provided relevant reasoning or authority. (Clytus, supra, 209 Cal.App.4th at 

pp. 1007-1009.) “Howard concluded that a trial court may not modify or change a 
4 

sentence that was imposed and suspended. [Citation.] In contrast, the Realignment Act 

does not modify or change the sentence for any felony. The Act directs that the court is 

to impose a ‘term described in the underlying offense’ and thus preserves the existing 

triad of terms for felonies . . . .” (Id. at pp. 1008-1009.) 

People v. Kelly (2013) 215 Cal.App.4th 297 (Kelly) (review den. June 19, 2013) 

disagreed with Clytus and concluded that the Legislature did not intend to abrogate 

Howard when it enacted the Realignment Act. (Kelly, at p. 300.) Kelly began its analysis 

by setting forth Howard’s “distinction ‘between orders suspending imposition of sentence 

and orders suspending execution of previously imposed sentences.’ [Citation.] When a 

court suspends imposition of sentence before placing a defendant on probation, there is 

no judgment pending against the defendant. Therefore, upon revoking probation, the 

court has full discretion to impose any appropriate sentence. The probation order is 

considered a final judgment only for the purpose of allowing the defendant to take an 

appeal from the order. [Citations.] In contrast, when a court imposes sentence but 

suspends its execution during a period of probation, there is a judgment, and revocation 

of the order granting probation requires execution of the existing sentence, exactly as 

imposed. [Citation.]” (Id. at p. 302.) Kelly noted Howard’s acknowledgment that these 

principles were reflected in section 1203.2, subdivision (c) and California Rules of Court, 

rule 4.435(b).4

 (Kelly, at p. 302.) Kelly questioned the failure of Clytus to “explain why 

 

4

 Section 1203.2, subdivision (c), provides that following revocation and 

termination of probation, “the court may, if the sentence has been suspended, pronounce 

judgment for any time within the longest period for which the person might have been 

sentenced. However, if the judgment has been pronounced and the execution thereof has 

been suspended, the court may revoke the suspension and order that the judgment shall 

be in full force and effect.” (Italics added.) California Rules of Court, rule 4.435(b), 

which implements section 1203.2, subdivision (c), provides that, upon revocation of 

probation, “(1) If the imposition of sentence was previously suspended, the judge must 

impose judgment and sentence after considering any findings previously made and 

hearing and determining the matters enumerated in rule 4.433(c)” or “(2) If the execution 

(continued) 
5 

the phrase ‘sentenced on or after October 1, 2011’ unambiguously has a meaning 

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

 As did Clytus, Kelly found that section 1170, subdivision (h)(6) was not 

ambiguous on its face. (Kelly, supra, 215 Cal.App.4th at p. 305.) However, Kelly

conceded that if “ ‘any person sentenced on or after October 1, 2011,’ might have the 

meaning Clytus ascribes to it—i.e., that sentencing means any proceeding in which a 

sentence is either imposed or executed—the phrase becomes ambiguous because it is 

contrary to Howard and to section 1203.2, subdivision (c). [Citations.]” (Ibid.) To 

resolve any ambiguity, Kelly turned to the “rule of statutory construction that the 

Legislature is deemed to be aware of statutes and judicial decisions already in existence 

and to have enacted a statute in light of existing statutes and decisions [citation] . . . .” 

(Ibid.) Given that Howard was decided several years prior to the enactment of the 

Realignment Act, Kelly concluded that “[t]he enactment of section 1170(h)(6) without 

either amending or repealing statutes [distinguishing orders suspending imposition from 

those suspending execution of sentence] or providing a definition of ‘sentenced’ in 

section 1170(h)(6) which differs from the rule enunciated in Howard can be interpreted 

to mean only that the Legislature did not intend to do so.” (Kelly, at pp. 305-306.) Kelly

also noted that the Realignment Act itself recognized “the distinction between imposition 

and execution of sentence.” (Kelly, at p. 306 [“section 1170(h)(5) refers to imposing a 

term in county jail but suspending execution of a portion of the sentence and placing the 

defendant under the supervision of the county probation officer. (§ 1170(h)(5) 

[introductory sentence], (B)(i))”].) Thus, Kelly concluded that “the Realignment Act 

does not abrogate Howard, and that a defendant who is ‘sentenced on or after 

 

of sentence was previously suspended, the judge must order that the judgment previously 

pronounced be in full force and effect and that the defendant be committed to the custody 

of the Secretary of the Department of Corrections and Rehabilitation for the term 

prescribed in that judgment.” 
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 sentenced to state prison before 

October 1, 2011, the Realignment Act did not apply. When the trial court revoked 

defendant’s probation and executed his sentence on November 3, 2011, it lacked 

jurisdiction to modify the sentence committing him to state prison for five years. 

 Defendant contends that if the judgment is reversed, the case must be remanded 

for the trial court to exercise its power to recall defendant’s sentence and resentence him 

under section 1170, subdivision (d). 

 Section 1170, subdivision (d) provides that a trial court can recall a sentence on its 

own motion within 120 days after committing a defendant to prison. (Dix v. Superior 

Court (1991) 53 Cal.3d 442, 456.) 

 After it recalled the sentence, the trial court stated: “And so again, I’m not 

departing from Judge Curtis’ sentencing determination that upper term is appropriate. 

I’m not departing from his sentencing determination that two prior prison terms should be 

added to that for a consecutive two years. I’m not making any other changes to the 

penalty that was identified by Judge Curtis. [¶] But I am following the dictate of the 

[L]egislature that Mr. Moreno serve that sentence in the county jail rather than in the state 

prison.” Since the trial court’s determination was based solely on its interpretation of the 

Realignment Act, remand is unnecessary. 

 

5

 People v. Gipson (2013) 213 Cal.App.4th 1523 (review den. June 19, 2013), 

People v. Mora (2013) 214 Cal.App.4th 1477 (review den. June 19, 2013), and People v. 

Wilcox (2013) 217 Cal.App.4th 618 also disagreed with Clytus, supra, 209 Cal.App.4th 

1001. 
7 

III. Disposition 

 The judgment is reversed. The trial court is directed to order into effect the 

originally imposed state prison term. 

 _____________________________ 

 Mihara, J. 

I CONCUR: 

 

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

I respectfully dissent. A separate panel of this court recently decided in People v. Scott

(2013) 216 Cal.App.4th 848 (review granted Jul. 24, 2013, S211670), that the provisions 

of the Criminal Justice Realignment Act of 2011 (Realignment Act) are applicable to 

those defendants whose sentence was imposed prior to October 1, 2011, the effective date 

of the Act, but whose sentence was executed after that date upon revocation of probation. 

Here, defendant’s sentence was imposed on April 12, 2011, prior to the effective date of 

the Realignment Act. However, sentence was not executed until November 3, 2011, after 

the effective date of the Realignment Act. Under the reasons set forth in Scott, I would 

affirm the judgment of the trial court ordering defendant serve his sentence in county jail. 

 

 Premo, Acting P. J. 
9 

Trial Court: Monterey County Superior Court 

Trial Judge: Honorable Adrienne M. Grover 

 

Attorneys for Plaintiff and Appellant: Kamala D. Harris 

 Attorney General of California 

 Dane R. Gillette 

 Chief Assistant Attorney General 

 Gerald A. Engler 

 Senior Assistant Attorney General 

 Laurence K. Sullivan 

 Supervising Deputy Attorney General 

 Seth K. Schalit 

 Supervising Deputy Attorney General 

 Amy Haddix 

 Deputy Attorney General 

 Bridget Billeter 

 Deputy Attorney General 

Attorney for Defendant and Respondent: Renee Paradis 

 Under Appointment by the Sixth District 

 Appellate Program