(Los Angeles County Super. Ct. No. YA077555) APPEAL from the judgment of the Superior Court of Los Angeles County. Steven Van Sicklen, Judge.
The opinion of the court was delivered by: Grimes, J.
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CERTIFIED FOR PUBLICATION
Defendant Donald A. Clytus was sentenced in 2010 to a term of three years and eight months in state prison after pleading no contest to unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)) and identity theft (Pen. Code, § 530.5, subd. (a)).*fn1 The trial court suspended execution of sentence and granted three years' probation. Defendant did not comply with the terms of his probation, and the court revoked probation. At a probation violation hearing held October 14, 2011, defendant admitted violating his probation. The trial court declined to reinstate probation and executed the previously suspended sentence, ordering defendant to serve his term in state prison.
The sole question raised on appeal is whether the Criminal Justice Realignment Act of 2011 (hereafter Realignment Act, or Act) (Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1; § 1170, subd. (h)), which "[r]ealign[ed] low-level felony offenders who do not have prior convictions for serious, violent, or sex offenses to locally run community-based corrections programs" (§ 17.5, subd. (a)(5)), permitted the trial court to order defendant's sentence to be served in prison. When the court imposed and suspended sentence in 2010, all felony sentences were served in prison. However, when the sentence was executed, the Realignment Act prescribed that punishment for defendant's felony convictions shall be served in county jail. We conclude that a trial court executing a suspended sentence for a probation violation 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.
The Realignment Act "enacted sweeping changes to long-standing sentencing laws," including replacing prison commitments with county jail commitments for certain felonies and eligible defendants.*fn2 Section 1170, subdivision (h)(6) specifies the Act will be effective for all persons sentenced on or after October 1, 2011. In enacting the realignment legislation, the Legislature declared: "Criminal justice policies that rely on building and operating more prisons to address community safety concerns are not sustainable, and will not result in improved public safety. [¶] . . . California must reinvest its criminal justice resources to support community-based corrections programs and evidence-based practices that will achieve improved public safety returns on this state's substantial investment in its criminal justice system. [¶] . . . Realigning 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." (§ 17.5, subd. (a)(3)-(5).)
The "justice partners" responsible for implementing the Realignment Act, including judges, prison and jail authorities, parole and probation officers, and others, have encountered uncertainty in interpreting some of its terms. An ad hoc steering committee, including the chair of the Trial Court Presiding Judges Advisory Committee, the chair of the Court Executives Advisory Committee, and other subject matter experts, with the assistance of staff in the Administrative Office of the Court's (AOC) Office of the General Counsel and the Office of Governmental Affairs, prepared a document offering answers to frequently asked questions about the Act. The AOC created a Web site for publication of the work of this ad hoc group, called the Criminal Justice Realignment Resource Center. The center offers information, and updates its Web site from time to time, with the cautionary statement that its proffered answers "are not to be construed as legal opinion or advice." (Crim. Justice Realignment Resource Center, Frequently Asked Questions at [as of Sept. 27, 2012].)
The question of where a defendant will serve a felony sentence if, before October 1, 2011, the court imposed and suspended execution of a sentence to state prison for a crime now punishable in county jail and, after October 1, 2011, the court revoked probation and executed the sentence, has been an uncertain issue on which there was no legally binding authority. The unofficial answer of the Criminal Justice Realignment Resource Center posted on the Web site in October 2011 was, "There is no clear answer," and it may be "[l]ikely the defendant will serve the term in county jail[,]" while acknowledging the "traditional rule is that once imposed, a suspended sentence may not later be modified. (People v. Howard (1997) 16 Cal.4th 1081, 1095 [(Howard)].)" (See appen. B, post, p. B4, for copy of the 2011 Criminal Justice Realignment Frequently Asked Questions (Oct. 3, 2011).)
We conclude 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 defendant whose criminal record and current felony convictions qualify for a county jail commitment under section 1170, subdivision (h). We rest our conclusion on basic statutory interpretation and the absence of any language in the Realignment Act to suggest a contrary intent or purpose. As explained below, we do not find the holding or reasoning of Howard binds us or even guides us in construing the Realignment Act. Because we rest our opinion on the language of the statute, we will not address defendant's equal protection challenge.
Defendant made a plea bargain for which he was granted probation with a suspended prison sentence. Defendant did not comply with the terms of his probation, and at the October 14, 2011 probation violation hearing, defendant admitted he was in violation of probation, and the court executed the sentence. The court was uncertain whether the Department of Corrections and Rehabilitation or county jail authorities might decide that defendant should serve the term in county jail rather than in prison, since the Realignment Act had become effective only two weeks earlier.
On appeal, it is not disputed that under section 1170, subdivision (h)(2) and (3), the sentence for the felonies of which defendant was convicted shall be served in county jail. Section 1170, subdivision (h)(2) provides that a felony shall be punishable in county jail except as provided in subdivision (h)(3). Subdivision (h)(3) provides a defendant may not be sentenced to county jail if he has a prior or current California or out-of-state serious or violent felony conviction, is required to register as a sex offender, or is sentenced for a crime with an enhancement for aggravated theft under section 186.11. Defendant here did not commit a prison-eligible crime, and he had no disqualifying previous felony conviction; indeed, he had no previous felony conviction at all.
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 executed on or after October 1, 2011. (Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126, 131 [statutory interpretation begins by examination of the language of the statute, giving the words their ordinary meaning and considering them in the context of the statutory ...