Trial Court: Monterey County Superior Court Superior Court No. SS080912, Trial Judge: Hon. Mark E. Hood
Counsel for Plaintiff/Appellant: The People Kamala D. Harris Attorney General Dane R. Gillette Chief Assistant Attorney General Gerald A. Engler Senior Assistant Attorney General Laurence K. Sullivan Supervising Deputy Attorney General Bridget Billeter Deputy Attorney General.
Counsel for Defendant/Respondent: James Russell Scott Sixth District Appellate Program Dallas Sacher Under appointment by the Court of Appeal Laura Burgardt
Defendant James Russell Scott pleaded no contest to the crime of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) on May 7, 2009. The plea was entered on the condition that defendant be placed on felony probation with a suspended seven year prison sentence. Defendant admitted a violation of probation on November 1, 2011. The trial court then revoked defendant’s probation and ordered defendant to serve his sentence in county jail under the Criminal Justice Realignment Act (hereafter the Act, or Realignment Act), which in part modified the provisions of Penal Code section 1170, subdivision (h)(1) and (2). (Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1.) The People appeal the trial court’s order sentencing defendant to county jail. For the reasons set forth below, we affirm the judgment.
On May 7, 2009, defendant pleaded no contest to a count of possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and admitted the allegation of a prior drug-related conviction (id. § 11370.2, subd. (a)), on the condition that he be placed on felony probation with a seven-year suspended prison sentence. On June 12, 2009, the trial court sentenced defendant to the California Department of Corrections and Rehabilitation (CDCR) for a term of seven years, suspended execution of sentence, and placed defendant on three years probation.
On October 4, 2011, the probation department filed a probation violation petition pursuant to section 1203.2. Defendant admitted the violation on November 1, 2011. On December 13, 2011, the trial court indicated its intention to revoke defendant’s probation and impose a seven-year sentence in the county jail pursuant to section 1170, subdivision (h), as amended by the Realignment Act. The People objected to sentencing defendant to a term in the county jail under section 1170, subdivision (h), stating on the record that “the People’s position is that the defendant has been already sentenced.” After a sidebar discussion, the court continued the hearing to give both parties time to consider the issue and file briefs on whether or not defendant should be sentenced to state prison or county jail.
The People filed a brief on this point on December 20, 2011. In essence, the People argued that section 1170, subdivision (h) applies prospectively to cases where defendants are sentenced on or after October 1, 2011. The People contended that since defendant was sentenced on June 12, 2009, before the effective date of section 1170, subdivision (h), the court had no power to sentence defendant to county jail.
On December 22, 2011, the trial court, after review of the People’s arguments, revoked defendant’s probation and sentenced him to serve a seven-year sentence in county jail. During the hearing, the trial judge stated that “generally I agree with the People’s reasoning. And essentially, once a sentence is imposed, that sentence may not later be modified. [¶] However, the recent legislation, [section] 1170[, subdivision] (h), technically applies to all persons sentenced on or after October 1st of this year. [¶] Because the decision whether or not to reinstate the defendant on probation or not in this case is essentially a sentencing proceeding, the Court finds that under [section] 1170[, subdivision] (h) that this as it is a sentencing proceeding [sic], the defendant would qualify under [section] 1170[, subdivision] (h). [¶] In addition, because a commitment to county jail may be considered a less serious penalty than sentenced [sic] to state prison, although that may be subject to some argument... there’s issues of equal protection under the law and the defendant should receive the benefit of any lesser penalty.”
The People filed a timely notice of appeal over the imposed sentence on February 6, 2012.
On appeal, the People raise the sole argument that the trial court erred in sentencing defendant to county jail under the newly amended provisions of section 1170, subdivision (h), effectuated by the Realignment Act. For reasons we explain below, we ...