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People v. Moreno

California Court of Appeals, Sixth District

August 6, 2013

THE PEOPLE, Plaintiff and Respondent,
v.
STEVEN MORENO, JR., Defendant and Appellant.

Monterey County Superior Court, No. SS110008 Honorable Adrienne M. Grover, Judge.

Attorneys for Plaintiff and Appellant: Kamala D. Harris Attorney General of California Dane R. Gillette Chief Assistant Attorney General Gerald A. Engler Senior Assistant Attorney General, Laurence K. Sullivan Supervising Deputy Attorney General, Seth K. Schalit Supervising Deputy Attorney General, Amy Haddix Deputy Attorney General, Bridget Billeter Deputy Attorney General.

Attorney for Defendant and Respondent: Renee Paradis Under Appointment by the Sixth District Appellate Program.

MIHARA, J.

The Criminal Justice Realignment Act of 2011 (Realignment Act)[1] made significant changes in punishment for defendants, including confinement in county jail rather than state prison for certain felons. (Pen. Code, § 1170, subd. (h).)[2] These sentencing changes apply “to any person sentenced on or after October 1, 2011.” (§ 1170, subd. (h)(6).) We conclude that the Realignment Act does not apply to defendant Steven Moreno, whose sentence was imposed prior to October 1, 2011, and executed after that date when his probation was revoked.[3] Accordingly, we reverse the judgment.

I. Background

On January 3, 2011, defendant was charged by complaint with receiving stolen property (§ 496, subd. (a) – count 1), resisting, delaying, or obstructing a peace officer (§ 148, subd. (a)(1) – count 2), and possession of burglar’s tools (§ 466 – count 3). The complaint also alleged that defendant had failed on three separate occasions to remain free of prison custody for a five-year period (§ 667.5, subd. (b).

On January 18, 2011, defendant pleaded no contest to felony receiving stolen property and admitted two of the prior prison term allegations.

On April 12, 2011, the trial court imposed a five-year state prison term, suspended execution of sentence, and ordered defendant to serve formal probation for three years. The remaining charges and allegations were dismissed pursuant to section 1385.

On May 12, 2011, a petition to revoke probation was filed. On September 8, 2011, defendant was arrested on a bench warrant for violating the terms and conditions of probation. On September 22, 2011, the district attorney’s office filed a second petition to revoke probation on the ground that defendant had failed to obey all laws.

On September 29, 2011, defendant admitted a violation of probation for failing to comply with the imposed terms and conditions. The trial court dismissed the unrelated misdemeanor charges. As part of the negotiated disposition, defendant agreed that “the previously suspended prison sentence would... be executed.” At defendant’s request, the trial court continued the case.

On November 3, 2011, the trial court revoked defendant’s probation and ordered the previously imposed sentence of five years into effect. The trial court also concluded that defendant qualified under the Realignment Act to serve his sentence in county jail. On November 22, 2011, the trial court recalled the sentence pursuant to section 1170, subdivision (b) to determine whether defendant had a prior serious felony which disqualified him from serving his sentence in county jail. A week later, the trial court found that defendant was not disqualified from serving his sentence in county jail.

The People filed a timely notice ...


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