APPEAL from the Superior Court of San Bernardino County. Miriam I. Morton, Judge. (Super.Ct.No. FVI901834)
The opinion of the court was delivered by: McKINSTER J.
CERTIFIED FOR PUBLICATION
In this case, we consider whether, after the operative date of the
Criminal Justice Realignment Act of 2011 (Stats. 2011, 1st Ex. Sess.
2011-2012, ch. 12, § 1; Pen. Code, § 1170, subd. (h))*fn1
(hereafter the Realignment Act or the Act), a
defendant whose probation is revoked must serve his or her previously
imposed and suspended sentence in state prison, according to the terms
of the original sentence, even if the defendant otherwise qualifies
for a term in county jail under the terms of the Act. The Act
explicitly applies only to "any person sentenced on or after October
1, 2011." (§ 1170(h)(6).) Defendant contends, however, that a
hearing in which a previously imposed and suspended sentence is
executed is a sentencing proceeding for purposes of the Act.
We conclude that in enacting the Realignment Act, the Legislature intended to adhere to existing law as discussed in People v. Howard (1997) 16 Cal.4th 1081 (Howard). In that case, the court held that a sentence which is imposed and its execution suspended while the defendant is on probation constitutes a judgment which cannot be modified upon revocation of probation; it can only be executed exactly as it was imposed. (Id. at pp. 1084, 1086-1095.) Accordingly, a defendant whose felony sentence was imposed prior to October 1, 2011, but executed after that date must serve the sentence in state prison. In so concluding, we disagree with the recent opinion in People v. Clytus (2012) 209 Cal.App.4th 1001 (Clytus) (review den., Jan. 16, 2013, S206685), which holds that in enacting the Realignment Act, the Legislature intended not to apply the rule discussed in Howard, and that a sentence which is executed on or after October 1, 2011, must be served in county jail, if the offense and the defendant otherwise qualify for local custody under the Act.
We also conclude that section 1170(h)(6), as applied in this case, does not violate equal protection principles.
In 2009, defendant and appellant Drudell Rodrick Kelly pleaded guilty to one count of infliction of corporal injury on a spouse or cohabitant. (§ 273.5, subd. (a).) By plea agreement, other counts were dismissed and an allegation that defendant had served a prior felony prison term was stricken. According to the terms of the plea agreement, the court imposed and suspended the agreed-upon sentence of four years in state prison. It placed defendant on probation subject to the condition that he serve 270 days in county jail.
On October 28, 2011, after a contested probation revocation hearing, the court found that defendant had violated his probation. The court revoked probation and executed the suspended sentence, ordering defendant committed to state prison for four years.
Defendant filed a timely notice of appeal from the order revoking probation. (§ 1237, subd. (b).)
1. A Defendant Is Not "Sentenced" Within the Meaning of the Realignment Act When a Previously Imposed and Suspended Sentence Is Executed Upon Revocation of Probation.
When defendant's sentence was imposed and suspended in 2009, all felony sentences were served in prison. Pursuant to the Realignment Act, low-level felony offenders, such as defendant, who have neither a current nor a prior conviction for serious or violent offenses or other specified offenses, are to serve their sentences in county jail, or under a so-called "split" sentence in which a part of the sentence is served in county jail and a part of the sentence is ...