California Court of Appeals, Third District, San Joaquin
APPEAL from a judgment of the Superior Court of San Joaquin County, No. SF107668A Anthony P. Lucaccini, Judge.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Charles A. French, Julie A. Hokins, and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
NICHOLSON, Acting P. J.
Numerous felonies are no longer punished by confinement in state prison, but are instead punished by confinement in county jail for the term prescribed for the underlying offense. (Pen. Code, § 1170, subd. (h)(1), (2)). Felons sentenced to county jail may have a concluding portion of the county jail term suspended and be placed under the mandatory supervision of the county probation department. (§ 1170, subd. (h)(5)(B)(i).) Defendants sentenced to county jail are not subject to parole or any other form of supervision upon the conclusion of their term. (§§ 3000 et. seq., § 3450; People v. Cruz (2012) 207 Cal.App.4th 664, 672.)
These unique circumstances are born of the Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011, 1st Ex. Sess. 2011–2012, ch. 15, § 1).
The Realignment Act’s sentencing scheme applies only to defendants “sentenced on or after October 1, 2011.” (§ 1170, subd. (h)(6).) The question before us is whether the Realignment Act applies when the trial court imposes a state prison sentence and stays execution before October 1, 2011, and executes the sentence after that date.
In People v. Clytus (2012) 209 Cal.App.4th 1001, review denied January 16, 2013 (Clytus), Division Eight of the Second District Court of Appeal held when a state prison sentence imposed and stayed before October 1, 2011, but executed on or after that date, a trial court “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).” (Clytus, supra, at p. 1006.) We disagree, and hold that a state prison sentence imposed and stayed before the effective date of the Realignment Act is not subject to county jail commitment under section 1170, subdivision (h). A court executing such a sentence on or after October 1, 2011, must impose the previously stayed prison term, even if the defendant’s current criminal convictions would qualify for county jail under section 1170, subdivision (h).
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Vernon Louis Wilcox pleaded guilty to possession of methamphetamine (Health & Saf. Code, § 11377). The trial court suspended imposition of sentence and placed defendant on five years’ formal probation with 120 days in county jail. When defendant later admitted to violating his probation, the trial court imposed a 16-month state prison term, stayed execution of sentence, and reinstated probation. After defendant admitted another probation violation, the trial court terminated probation and ordered execution of the previously imposed 16-month state prison term.
On appeal, defendant contends the trial court erred in failing to sentence him to county jail under the Realignment Act. We disagree and affirm.
The facts of defendant’s crime are unnecessary to the resolution of his appeal.
Defendant pleaded guilty and was granted probation on July 23, 2008. He admitted his first probation violation on September 27, 2010, and the trial court imposed the 16-month state prison term and stayed execution of sentence. After he admitted the second probation violation on November 22, 2011, the trial court revoked ...