1 Filed 7/31/13 P. v. Zubko CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), pr ohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (Yolo)

----

THE PEOPLE, Plaintiff and Appellant,

v. SERGEI ZUBKO, Defendant and Appellant. C070833 (Super. Ct. No. CRF111504)

ORDER MODIFYING OPINION AND DENYING REHEARING

THE COURT: It is ordered that the opinion filed in th is case on July 10, 2013, be modified as
follows: Insert a new footnote on pa ge 3, second full paragraph, after the second sentence ending “and to prepare an amen ded abstract of judgment.” The text of footnote 4 reads
as follows:2 4 Because we are directing the superior co urt to order that defendant’s sentence be served in state prison, there is no need for us to address his contention that one of his probation conditions is unc onstitutionally vague. This modification does not change the judgment. The petition for rehearing is denied.

BLEASE , Acting P. J.

MAURO , J.

HOCH , J.1 Filed 7/10/13 (unmodified version) NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), pr ohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (Yolo)

----

THE PEOPLE, Plaintiff and Appellant,

v. SERGEI ZUBKO, Defendant and Appellant. C070833 (Super. Ct. No. CRF111504)

Defendant Sergei Zubko plea ded no contest to driving u nder the influence of drugs (Veh. Code, § 23152, subd. (a)) within 10 years of three or more prior convictions for driving under the influence (V eh. Code, § 23550, subd. (a)), and admitted serving a prior prison term (Pen. Code , § 667.5, subd. (b)). 1 The trial court sentenced defendant to four

1 Undesignated statutory references are to the Penal Code.2 years in state prison, but suspended exec ution of sentence and placed defendant on probation for four years. Less than four months later, the Crimin al Justice Realignment Act of 2011 (the Realignment Act) 2 took effect on October 1, 2011. With certain exceptions, felons sentenced under the Realignment Act are committ ed to jail rather than prison, may have a concluding portion of their senten ce suspended in lieu of probation, and are not subject to parole. (§§ 3000 et. seq., 1170, subds (h)(1)-(3), (5).) Prison sentences are imposed, however, for felons who have current or prio r serious or violent felony convictions, who are required to register as sex offenders , or who have sustai ned a section 186.11 aggravated white collar crim e enhancement. (§ 1170, subd. (h)(3).) Defendant’s offenses in this case are not among the cr imes exempted from a jail commitment under the Realignment Act. Noneth eless, the Realignment Act sentencing scheme applies prospectively to defendants “s entenced on or after Octobe r 1, 2011.” (§ 1170, subd. (h)(6).)
After the effective date of the Reali gnment Act, defendant admitted violating probation. The trial court revoked probati on and executed the prev iously imposed fouryear sentence. But because the Realignment Act was in effect, the trial court ordered defendant, over the People’s objection, to serv e the four years in county jail rather than state prison. The People appeal, arguing the Realignm ent Act’s requirement of county jail time does not apply to defendant because he wa s sentenced to state prison before the Realignment Act took effect. The People contend that because the trial court imposed sentence and merely suspended execution of sentence prior to th e effective date of the

2 (Stats. 2011, 1st Ex. Sess. 2011-2 012, ch. 12, § 1; § 1170, subd. (h).)3 Realignment Act, the trial court had no author ity to change the pris on sentence previously imposed. 3 Defendant counters that it is proper for him to serve his sentence in county jail
because the trial court executed sentence after the effective date of the Realignment Act. In addition, he argues that serving his term in county jail is consistent with the Legislature’s intent in enacting the Realignment Act. We conclude the trial court was required to execute defendant’s sentence exactly as previously imposed. We will reverse the tr ial court’s order that defendant’s sentence be served in county jail, and remand the matter to the trial court with directions to order
that defendant’s sentence be served in state prison and to prepare an amended abstract of judgment. We will otherwise affirm the judgment.
DISCUSSION A number of appellate courts have addr essed the issue presented in this case, resulting in a split in authority.
In People v. Clytus (2012) 209 Cal.App.4th 1001 ( Clytus ), the defendant was convicted of identity theft and un lawfully taking a vehicle. ( Id. at p. 1004.) The trial court imposed a state prison sentence of three years eight months but suspended execution of sentence and placed the defendant on probation. After the effective date of the Realignment Act, the defend ant admitted violating probation. The trial court declined to reinstate probation and ordered the suspe nded sentence served in state prison. ( Ibid .) The defendant appealed, arguing that he was qualified for county jail under the Realignment Act. ( Clytus, supra, 209 Cal.App.4th at p. 1006.) The Court of Appeal agreed, concluding that “a trial court execu ting a suspended sentence as punishment for a probation violation on and afte r October 1, 2011, has no discretion to send to prison a

3 The People also contend defendant was not denied equal protection. Defendant does not dispute or oppose that argum ent and hence we do not address it.4 defendant whose criminal record and current felony convictions qualify for a county jail
commitment under section 11 70, subdivision (h).” ( Ibid .) The Court of Appeal in Clytus reasoned: “Section 1170, subdivision (h)(6) provides that ‘[t]he sentencing changes made by the act that added this subdivision [(h)] shall be applied prospectively to any person sentenced on or after October 1, 2011.’ The plain meaning of this statute 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 under section 1170, subdivision (h)(2). Nowhere in the Realignment Act is there any indication the Legislature intended a different result if a prison sentence was imposed and suspended before October 1, 2011, and exec uted on or after October 1, 2 011. [Citations.] [¶] It is certainly true that in this case, defendant was sentenced before October 1, 2011, when the court imposed and suspended ex ecution of sentence with pr obation. But that does not mean defendant was not also a ‘person senten ced’ when the court executed the suspended

sentence after October 1, 2011. (§ 1170, subd. (h)(6 ).) . . . We see no reason why we should conclude defendant was a ‘person sent enced’ when the court stayed execution of
the sentence but not when the court executed the previous ly suspended sentence.” ( Clytus, supra, 209 Cal.App.4th at pp. 100 6-1007, original italics.)
The court in People v. Scott (2013) 216 Cal.App.4t h 848 reached the same
conclusion as the court in Clytus , stating that “[t]o draw a distinct line barring defendants
whose sentence was executed after the effective date of the [Realignment] Act, but whose sentence was imposed prior to the act, from serving their term s in county jail fails to promote the Legislature’s stated goals.” ( Scott, supra, 216 Cal.App.4th at p. 857.) Other decisions, however, have reach ed the opposite conclusion. In People v. Gipson (2013) 213 Cal.App.4th 1523 ( Gipson ), the Court of Appeal disagreed with Clytus and held that a defendant is sentenced on the date sentence is imposed even if
execution of the sentence does not happen until a later date. ( Gipson, supra, 213 Cal.App.4th at p. 1526.) Likewise, the court in People v. Mora (2013) 214 Cal.App.4th5 1477 ( Mora ) held that when the trial court revoked probation and executed the defendant’s previously imposed sentence, the trial court lacked jurisdiction to modify the sentence committing the defendant to state prison. ( Mora, supra, 214 Cal.App.4th at p. 1482.) In People v. Kelly (2013) 215 Cal.App.4th 297 ( Kelly ), the court held that a
defendant is not “sentenced ” within the meaning of th e Realignment Act when a previously imposed senten ce is executed upon revocation of probation. ( Kelly, supra, 215 Cal.App.4th at pp. 301-306.) And in People v. Wilcox (2013) ___ Cal.App.4th ___ [2013 Cal. App. Lexis 508, at p. *14], this court agreed with Gipson, Mora and Kelly

. As the court explained in Kelly : “Defendant’s contention is contrary to wellestablished precedent. In [ People v. Howard (1997) 16 Cal.4th 1081 ( Howard )], the California Supreme Court discussed the di stinction ‘between orders suspending imposition of sentence and orders susp ending execution of previously imposed sentences.’ ( Id . at p. 1087.) When a court suspends imposition of sentence before placing a defendant on probati on, there is no judgment pe nding against the defendant. Therefore, upon revoking probation, th e court has full discretion to impose any appropriate sentence. . . . In contrast, wh en 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.” ( Kelly, supra, 215 Cal.App.4th at p. 302; original emphasis; see also Gipson, supra, 213 Cal.App.4th at pp. 1529-1530; Mora, supra, 214 Cal.App.4th at p. 1482.)
There is no indication that the Legislature intended to abrogate Howard . ( Kelly,

supra, 215 Cal.App.4th at pp. 305- 306.) Accordingly, we conclude the trial court was required to execute defendant’s sentence exactly as previously imposed.
DISPOSITION
The trial court’s order that defendant’ s sentence be served in county jail is reversed, and the matter is remanded to the trial court. The trial court is directed to order that defendant’s sentence be served in state pr ison. The trial court is further directed to6 prepare an amended abstract of judgment refl ecting that defendant’s sentence be served in state prison, and to deliver a certified copy of the amended abstract of judgment to the California Department of Corrections and Re habilitation. In all other respects, the judgment is affirmed.

MAURO , J.

We concur:

BLEASE , Acting P. J.

HOCH , J.