California Court of Appeals, Second District, Eighth Division
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. MA 052511, Charles A. Chung, Judge.
Suzan E. Hier, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Brendan Sullivan, Deputy Attorneys General, for Plaintiff and Respondent.
Laniel Wilson appeals his sentence to state prison after the trial court revoked his probation. He argues the trial court should have sent him to county jail because he was effectively “sentenced” after the Criminal Justice Realignment Act of 2011 (the Realignment Act or the Act) became operative on October 1, 2011 when his probation was revoked, even though his sentence was imposed and its execution suspended before that date. A different panel of this Division decided the same issue in People v. Clytus (2012) 209 Cal.App.4th 1001 (Clytus) (review denied Jan. 16, 2013), finding in this situation the defendant must be sent to county jail. At the time, Clytus was the only decision on the issue. Since then, five published decisions have disagreed with Clytus. (People v. Moreno (2013) 218 Cal.App.4th 846, petn. for review pending, petn. filed Sept. 17, 2013; People v. Wilcox (2013) 217 Cal.App.4th 618 (Wilcox), review denied Sept. 11, 2013; People v. Kelly (2013) 215 Cal.App.4th 297, review denied June 19, 2013; People v. Mora (2013) 214 Cal.App.4th 1477, review denied June 19, 2013; People v. Gipson (2013) 213 Cal.App.4th 1523 (Gipson), review denied June 19, 2013). Two decisions have agreed with Clytus, one of which has since been ordered depublished upon grant of the petition for review by our high court. (People v. Reece (2013) __ Cal.App.4th __ [2013 WL 5503189] (Reece); People v. Scott (2013) 216 Cal.App.4th 848, review granted July 24, 2013, S211670.)
In light of the recent cases, the Attorney General urges us to revisit and overrule Clytus, while appellant urges us to continue to follow Clytus. We need not address these arguments because we agree with the Attorney General’s alternative argument not raised in Clytus that applying the Realignment Act to send appellant to county jail would impermissibly alter a material term in the parties’ plea agreement. (Clytus, supra, 209 Cal.App.4th at p. 1009.) We therefore affirm appellant’s sentence.
Appellant’s probation arose from an April 2011 complaint charging him with one count of felony second degree commercial burglary (Pen. Code, § 459) and one count of misdemeanor petty theft (§ 484, subd. (a)). On April 29 he entered a plea agreement providing that he would plead no contest to the felony commercial burglary count, and in exchange, the court would dismiss the misdemeanor count, impose and suspend execution of a two-year sentence in state prison, and impose a three-year term of probation. No evidence of the parties’ plea negotiations appears in the record. Appellant was sentenced on May 20 consistent with the terms of the agreement and was placed on probation with various conditions, including that he serve 28 days in county jail with credit for 28 days served, as well as other conditions not relevant here. The trial court also terminated probation in three misdemeanor probation cases that were pending at the time.
In June 2011, appellant’s probation was revoked as a result of allegations he had committed an assault, and in July 2011, the court found appellant had committed the violation and reinstated probation.
A year later on June 4, 2012, the district attorney filed a motion to revoke appellant’s probation, alleging a new case had been filed against him. At an August 23, 2012 hearing, appellant admitted he violated probation and pleaded no contest to two new misdemeanor counts. The court executed his previously suspended two-year state prison sentence, imposed a 180-day sentence on the new misdemeanor counts to run concurrently with the two-year state prison term, imposed other terms not relevant here, and dismissed other pending misdemeanor cases.
At this hearing, the trial court initially indicated appellant’s sentence would be served in state prison, while both appellant’s counsel and the prosecutor understood he would serve his term in county jail. After a discussion held off the record, the trial court imposed the state prison sentence and appellant agreed to it. The trial court’s sentencing minute order indicates, “The court notes that the defendant is ineligible for housing in county jail under Penal Code section 1170(h) due to the nature of the charges and/or his prior criminal history.”
Appellant filed a timely notice of appeal, and the trial court granted a certificate of probable cause.
Appellant’s sole contention on appeal is that the trial court improperly sentenced him to state prison when it revoked his probation and executed his suspended sentence because, by that time, he was subject to the Realignment Act and should have been sent to county jail. When appellant’s sentence was imposed and its execution suspended in May 2011, all felony sentences were served in state prison; however, when his sentence was executed, the Realignment Act prescribed that sentences for certain felonies shall be served in county jail. (§ 1170, subd. (h)(1); Clytus, supra, 209 Cal.App.4th at p. 1004.) As Clytus explained, “[t]he Realignment Act ‘enacted sweeping changes to long-standing sentencing laws, ’ including replacing prison commitments with county jail commitments for certain felonies and eligible defendants.” (Clytus, supra, at p. 1004.) It realigns “‘low-level felony offenders who do not have prior convictions for serious, violent, or sex offenses to locally run community-based corrections ...