Filed 10/29/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. KIRK ALLEN MONTROSE, Defendant and Appellant. F064261 (Super. Ct. Nos. CRM009080, CRM010998 & CRM015638)



### OPINION

APPEAL from a judgment of the Superi or Court of Merced County. John D. Kirihara, Judge. Carol Foster, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Julie A. Hokans and Ryan B. McCarroll, Deputy Attorn eys General, for Plaintiff and Respondent. -ooOoo-2. Following the termination of his probatio n, defendant Kirk Allen Montrose was sentenced to state prison. On appeal, he clai ms he instead should have been committed to county jail pursuant to Penal Code section 1170, subdivisi on (h). We disagree. That statute does not apply to persons whose se ntences, imposed but suspended prior to October 1, 2011, were executed af ter that date. We affirm. PROCEDURAL HISTORY 1 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 a lleging 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 Ap ril 29, 2010, defendant pled no contest to the possession charge in exchange for di smissal 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 ca rrying a concealed dirk or dagger (former § 12020, subd. (a)(4), now § 21310; count 1) and possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a); c ount 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 Ju ly 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 wa s placed on probation on various terms and conditions.

1 As the facts underlying defendant’s offens es 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.3. On January 31, 2011, a co mplaint 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), no w § 21310), and alleging he had suffered a prior strike conviction (§§ 66 7, 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 vi olating his probation in cas e Nos. 9080 and 10998, in exchange for dismissal of the remaining alle gations. 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 includ ed 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, admissi on of methamphetamine use. On July 5, 2011, the court revoked defendant’s probation in all three cases. On August 26, 2011, defendant admitted vi olating the conditions of his probation. Probation was reinstated in all three ca ses on the previously existing terms and conditions, except that defendan t was now ordered to enroll in and successfully complete the Hobie House program, which consisted of si x 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 vi able alternative. On November 18, 2011, the court again offered defend ant the opportunity to withdraw his probation violation4. admissions. When defendant declined and aske d that the original ag reement be enforced, the court continued the matter one final tim e 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 prev iously imposed consecutive pr ison sentences of three years in case No. 10998, and eight months each in case Nos. 90 80 and 15638. Defendant’s total term was thus four years fo ur months in state prison. DISCUSSION On October 1, 2011, the “2011 Realignmen t 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 th e individual counties.” ( People v. Cruz (2012) 207 Cal.App.4th 6 64, 671.) Felons eligible to be sentenced under realignment now serve their terms of impris onment in local custody rather than state prison. ( Ibid .; § 1170, subd. (h).) Defendant says his offenses of c onviction are qualifying felonies under realignment. The Attorney General does no t dispute this, or contend defendant is disqualified pursuant to subdiv ision (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 subdivis ion (h) of Section 1170 of the Penal Code.” Section 21310 was amended effective June 27, 2012, to provide for sentencing pursuant to section 1 170, 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, subdivisi on (h)(1) and (2) at a ll 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 a ll three cases. (§ 1170.1, subd. (a); see People v. Torres (2013) 213 Cal.App.4th 1151, 1159.) Section 1170, subdivision (h)(3) exclude s from sentencing under realignment any defendant who has a prior or current convicti on for a serious or violent felony, whether5. concludes, he is entitled to have his commi tment to state prison vacated, and to be committed to serve his term in county jail. We do not agree. Under the plain langua ge 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 mont hs 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 pris on. 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, do es 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 ac tually imposes sentence but suspends its
execution , and the defendant does not challenge the sentence on appeal, but instead commences a probation period reflecting acceptan ce of that sentence, then the court lacks the power ... to reduce the imposed se ntence 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 executi on of previously imposed sentences.” ( Howard , supra , 16 Cal.4th at p. 1087.) Relying heavily on

sustained in California or another jurisdicti on; who is required to register as a sex offender; or whose sentence is enhanced pu rsuant to section 186.11. Although the charging documents in all th ree cases alleged defendant ha d suffered a prior conviction for a serious or violent felony, those alle gations were dismisse d and never admitted by defendant.6. section 1203.2, subdivision (c) and what is no w rule 4.435(b) of the California Rules of Court, the court explained: “When the tr ial court suspends imposition of sentence, no judgment is then pending against the proba tioner, who is subject only to the terms and conditions of the probation. [C itations.] The probation order is considered to be a final judgment only for the ‘limited purpose of taking an app eal therefrom.’ [Citation.] On the defendant’s rearrest and revocation of ... pr obation, ‘... the court may, if the sentence has been suspended, pronounce judgment fo r any time within th e 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 ha s been imposed but its execution suspended, however. ( Ibid .) In that circumstance, “‘[t]he revoc ation of the suspension of execution of the judgment brings the former judgment in to full force and effect ....’ [Citations.]” ( Ibid .) Accordingly, “section 1203.2, subdiv ision (c), recites that following the defendant’s rearrest, and on revocation and term ination of probation, ‘if the judgment has been pronounced and the execu tion 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 ha s 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 realignmen t or a situation where the issue is not the length of the te rm 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 re alignment (see Stats. 2012, ch. 43, § 30, eff. June 27, 2012; Stats. 2013, ch. 31, § 9, eff. June 27, 20 13; Stats. 2013, ch. 32, § 7, eff. June 27, 2013), it has not seen fit to chan ge subdivision (c) of the statute. “‘[T]he Legislature is deemed to be aw are of existing laws and judicial decisions in effect at the7. 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 langua ge, purpose, or history of the realignment legislation suggesting the Legislature intend ed that a defendant would be considered “sentenced” at a certain juncture for one purpose, but not fo r purposes of realignmen t. Significantly, in section 17.5, subdivision (a)(5), the Legislat ure found and declared that “[r]ealigning low-level felony offenders who do not have pr ior convictions for serious, violent, or sex offenses to locally run comm unity-based corrections programs, which are strengthened through community-based punishment, evid ence-based practices, improved supervision strategies, and enhanced secured capacity , will improve public safety outcomes among adult felons and facilitate their reintegrati on 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 deem s it appropriate to execute a previously imposed prison term, which the de fendant 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 assi stance envisioned by realignment. Defendant points to People v. Clytus (2012) 209 Cal.App.4th 1001 ( Clytus ) as support for his position. In th at 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 defe ndant admitted violating the terms and conditions thereof. The trial court declined to reinstate probation and executed the previously suspended sentence, ordering the defendant to serv e his term in state prison. ( Clytus, supra, at p. 1004.) Division Eight of the Second District Court of Appeal concluded that “a trial court executin g a suspended sentence as punishment for a probation violation on and afte r October 1, 2011, has no discretion to send to prison a8. defendant whose criminal record and current felony convictions qualify for a county jail commitment under section 11 70, subdivision (h).” ( Id . at p. 1006.) In so holding, the appella te court relied on “basic stat utory 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 (a s we have noted) that rea lignment’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 serv ed 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 ha ve anticipated, and did not address, realignment; and declined to a ssume, absent authority, that th e Legislature acquiesced to judicial precedent when enacting a new law, es pecially 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 concl uded, instead, that because a defendant is “sentenced” on the date sentence is impos ed, a suspended prison term imposed before, but ordered executed after, Oc tober 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 [Fou rth Dist. Court of Appeal, Div. 2]; People v.
Mora (2013) 214 Cal.App.4t h 1477, 1481-1482 [Fourth Dist . Court of Appeal, Div. 1]; People v. Gipson (2013) 213 Cal.App.4t h 1523, 1525-1526, 15 28-1530 [Second Dist.9. Court of Appeal, Div. 2].) The California Su preme 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 gran ted 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 Octobe r 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 in stead 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, th e 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

.