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People v. Montrose

California Court of Appeals, Fifth District

October 29, 2013

THE PEOPLE, Plaintiff and Respondent,
v.
KIRK ALLEN MONTROSE, Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Merced County Nos. CRM009080, CRM010998, CRM015638John D. Kirihara, Judge.

Carol Foster, 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, Assistant Attorney General, Julie A. Hokans and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, J.

Following the termination of his probation, defendant Kirk Allen Montrose was sentenced to state prison. On appeal, he claims he instead should have been committed to county jail pursuant to Penal Code section 1170, subdivision (h). We disagree. That statute does not apply to persons whose sentences, imposed but suspended prior to October 1, 2011, were executed after that date. We affirm.

PROCEDURAL HISTORY[1]

On April 14, 2010, a complaint was filed in Merced County Superior Court case No. CRM009080 (case No. 9080), charging defendant with possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and alleging he had suffered a prior conviction under the “Three Strikes” law (Pen. Code, [2] § 1170.12, subd. (c)(1)) and had served five prior prison terms (§ 667.5, subd. (b)). On April 29, 2010, defendant pled no contest to the possession charge in exchange for dismissal of the special allegations.

On July 2, 2010, a complaint was filed in Merced County Superior Court case No. CRM010998 (case No. 10998), charging defendant with carrying a concealed dirk or dagger (former § 12020, subd. (a)(4), now § 21310; count 1) and possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 2), and alleging he had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and had served six prior prison terms (§ 667.5, subd. (b)). On July 19, 2010, defendant pled no contest to count 2 in exchange for dismissal of count 1 and all special allegations. That same day, he was sentenced to prison for the upper term of three years in case No. 10998, plus eight months (one-third of the middle term) in case No. 9080. Execution of sentence was suspended in both cases, and defendant was placed on probation on various terms and conditions.

On January 31, 2011, a complaint was filed in Merced County Superior Court case No. CRM015638 (case No. 15638), charging defendant with possessing a concealed dirk or dagger (former § 12020, subd. (a)(4), now § 21310), and alleging he had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and had served five prior prison terms (§ 667.5, subd. (b)). On March 2, 2011, defendant pled no contest to the possession charge, and admitted violating his probation in case Nos. 9080 and 10998, in exchange for dismissal of the remaining allegations. On March 16, 2011, defendant was sentenced in case No. 15638 to eight months in prison, to be served consecutively to the sentences in case Nos. 9080 and 10998. However, the court suspended execution of sentence for three years and placed defendant on probation for that period, on terms and conditions that included completion of a previously ordered one-year residential drug treatment program. Defendant was ordered reinstated on probation, on the terms and conditions previously ordered, in case Nos. 9080 and 10998.

On June 15, 2011, affidavits of probation violation were filed in all three cases, based on defendant’s June 13, 2011, admission of methamphetamine use. On July 5, 2011, the court revoked defendant’s probation in all three cases.

On August 26, 2011, defendant admitted violating the conditions of his probation. Probation was reinstated in all three cases on the previously existing terms and conditions, except that defendant was now ordered to enroll in and successfully complete the Hobie House program, which consisted of six months of residential treatment and six months of aftercare. On September 20, 2011, the court was informed Hobie House would not accept defendant. On October 13, 2011, defendant was given the option of withdrawing his admissions, but he declined because he wanted to be placed in a program. No program was available to him, however. On October 21, 2011, the court noted that it was prepared to impose the suspended prison time, but it continued the matter so the parties could attempt to find a viable alternative. On November 18, 2011, the court again offered defendant the opportunity to withdraw his probation violation admissions. When defendant declined and asked that the original agreement be enforced, the court continued the matter one final time to allow the defense to find a suitable program.

On December 9, 2011, the trial court terminated defendant’s probation and ordered execution of the previously imposed consecutive prison sentences of three years in case No. 10998, and eight months each in case Nos. 9080 and 15638. Defendant’s total term was thus four years four months in state prison.

DISCUSSION

On October 1, 2011, the “2011 Realignment Legislation addressing public safety” (Stats. 2011, ch. 15, § 1) became operative.[3] Realignment “shifted responsibility for housing and supervising certain felons from the state to the individual counties.” (People v. Cruz (2012) 207 Cal.App.4th 664, 671.) Felons eligible to be sentenced under realignment now serve ...


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