California Court of Appeals, Fourth District, Second Division
APPEAL from the Superior Court of Riverside County Nos. RIF1300157, RIF1105737, RIF1202860, RIF1204943 & RIF1206319. Christian F. Thierbach, Judge.
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Paul E. Zellerbach, District Attorney, and Emily R. Hanks, Deputy District Attorney, for Plaintiff and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Respondent.
The People challenge sentencing imposed under the Criminal Justice Realignment Act of 2011 (Realignment Act) (Pen. Code, § 1170, subd. (h)) as to the following criminal cases: RIF1300157 (petty theft); RIF1105737 (possession of and under the influence of methamphetamine); RIF1202860 (possession of and under the influence of methamphetamine); RIF1204943 (possession of Vicodin); and RIF1206319 (possession of methamphetamine). The trial court sentenced defendant to three years in the first case for theft (RIF1300157). The court also revoked probation as to each of the four additional cases (RIF1105737; RIF1202860; RIF1204943; and RIF1206319), imposed two-year concurrent terms for each of the felony convictions in the four cases, and imposed concurrent sentences of 365 days in jail for the misdemeanor convictions in case Nos. RIF1105737 and RIF1204843. The trial court ordered that defendant was to serve his sentences in a county jail under the Realignment Act (§ 1170, subd. (h)).
The People contend the trial court erred in finding defendant eligible under the Realignment Act to serve his state prison sentence locally. The People assert that under subpart (C) of section 1170, subdivision (h)(3), part of the Realignment Act, defendant is not qualified to serve his sentence locally because he is required to register as a sex offender under section 290. We agree.
Regardless of whether a defendant is required to register as a sex offender based on a current or prior sex crime conviction, the plain language of section 1170, subdivision (h)(3)(C), disqualifies defendant from serving his state
prison commitment locally under the Realignment Act since he is required to register as a sex offender. The provision in defendant’s sentence allowing him to serve his sentence locally under section 1170, subdivision (h), is therefore ordered stricken and defendant is required to serve his sentence in state prison. This change in defendant’s sentence violates the agreed upon terms of defendant’s plea agreement in case No. RIF1300157, in which defendant was promised local incarceration under the Realignment Act. Therefore judgment in case No. RIF1300157 is reversed and the case is remanded to the trial court to allow defendant, if he so chooses, to withdraw his guilty plea in case No. RIF1300157. Because of the reversal of judgment in case No. RIF1200157, resulting in reversal of the principal sentence term of three years in case No. RIF1300157, remand for resentencing as to the other four cases is also necessary. In all other regards, the judgment, as modified, is affirmed.
FACTS AND PROCEDURAL BACKGROUND
Defendant committed a string of drug-related crimes, for which he was prosecuted, pled guilty, was convicted, and was granted probation in the following cases:
(1) RIF1105737 (felony possession of methamphetamine; misdemeanor being under the influence of methamphetamine);
(2) RIF1202860 (felony possession of methamphetamine; misdemeanor being under the ...