P. v. Clytus
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Filed 10/2/12 See end of document for appendices CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT THE PEOPLE, B236714 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA077555) v. DONALD A. CLYTUS, Defendant and Appellant. APPEAL from the judgment of the Superior Court of Los Angeles County. Steven Van Sicklen, Judge. Vacated and remanded. Kari E. Hong, 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, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, and Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent. ______________________ Defendant Donald A. Clytus was sentenced in 2010 to a term of three years and eight months in state prison after pleading no contest to unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)) and identity theft (Pen. Code, § 530.5, subd. (a)).1 The trial court suspended execution of sentence and granted three years probation. Defendant did not comply with the terms of his probation, and the court revoked probation. At a probation violation hearing held October 14, 2011, defendant admitted violating his probation. The trial court declined to reinstate probation and executed the previously suspended sentence, ordering defendant to serve his term in state prison. The sole question raised on appeal is whether the Criminal Justice Realignment Act of 2011 (hereafter Realignment Act, or Act) (Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1; § 1170, subd. (h)), which [r]ealign[ed] low-level felony offenders who do not have prior convictions for serious, violent, or sex offenses to locally run community-based corrections programs (§ 17.5, subd. (a)(5)), permitted the trial court to order defendant s sentence to be served in prison. When the court imposed and suspended sentence in 2010, all felony sentences were served in prison. However, when the sentence was executed, the Realignment Act prescribed that punishment for defendant s felony convictions shall be served in county jail. We conclude that a trial court executing a suspended sentence for a probation violation on and after October 1, 2011, the effective date of the Realignment Act, has no discretion to send to prison a defendant who qualifies under the Act to serve the sentence in county jail. DISCUSSION The Realignment Act enacted sweeping changes to long-standing sentencing laws, including replacing prison commitments with county jail commitments for certain felonies and eligible defendants. 2 Section 1170, subdivision (h)(6) specifies the 1 All further undesignated statutory references are to the Penal Code. 2 See appendix A, post, pages A1-A2, for the Judicial Council of California Advisory Committee Report, Criminal Justice Realignment: Abstract of Judgment Forms (Nov. 17, 2011). 2 Act will be effective for all persons sentenced on or after October 1, 2011. In enacting the realignment legislation, the Legislature declared: Criminal justice policies that rely on building and operating more prisons to address community safety concerns are not sustainable, and will not result in improved public safety. [¶] . . . California must reinvest its criminal justice resources to support community-based corrections programs and evidence-based practices that will achieve improved public safety returns on this state s substantial investment in its criminal justice system. [¶] . . . Realigning lowlevel felony offenders who do not have prior convictions for serious, violent, or sex offenses to locally run community-based corrections programs, which are strengthened through community-based punishment, evidence-based practices, improved supervision strategies, and enhanced secured capacity, will improve public safety outcomes among adult felons and facilitate their reintegration back into society. (§ 17.5, subd. (a)(3)(5).) The justice partners responsible for implementing the Realignment Act, including judges, prison and jail authorities, parole and probation officers, and others, have encountered uncertainty in interpreting some of its terms. An ad hoc steering committee, including the chair of the Trial Court Presiding Judges Advisory Committee, the chair of the Court Executives Advisory Committee, and other subject matter experts, with the assistance of staff in the Administrative Office of the Court s (AOC) Office of the General Counsel and the Office of Governmental Affairs, prepared a document offering answers to frequently asked questions about the Act. The AOC created a Web site for publication of the work of this ad hoc group, called the Criminal Justice Realignment Resource Center. The center offers information, and updates its Web site from time to time, with the cautionary statement that its proffered answers are not to be construed as legal opinion or advice. (Crim. Justice Realignment Resource Center, Frequently Asked Questions at<http://www.courts.ca.gov/partners/892.htm> [as of Sept. 27, 2012].) 3 The question of where a defendant will serve a felony sentence if, before October 1, 2011, the court imposed and suspended execution of a sentence to state prison for a crime now punishable in county jail and, after October 1, 2011, the court revoked probation and executed the sentence, has been an uncertain issue on which there was no legally binding authority. The unofficial answer of the Criminal Justice Realignment Resource Center posted on the Web site in October 2011 was, There is no clear answer, and it may be [l]ikely the defendant will serve the term in county jail[,] while acknowledging the traditional rule is that once imposed, a suspended sentence may not later be modified. (People v. Howard (1997) 16 Cal.4th 1081, 1095 [(Howard)].) (See appen. B, post, p. B4, for copy of the 2011 Criminal Justice Realignment Frequently Asked Questions (Oct. 3, 2011).) We conclude that a trial court executing a suspended sentence as punishment for a probation violation on and after October 1, 2011, 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). We rest our conclusion on basic statutory interpretation and the absence of any language in the Realignment Act to suggest a contrary intent or purpose. As explained below, we do not find the holding or reasoning of Howard binds us or even guides us in construing the Realignment Act. Because we rest our opinion on the language of the statute, we will not address defendant s equal protection challenge. Defendant made a plea bargain for which he was granted probation with a suspended prison sentence. Defendant did not comply with the terms of his probation, and at the October 14, 2011 probation violation hearing, defendant admitted he was in violation of probation, and the court executed the sentence. The court was uncertain whether the Department of Corrections and Rehabilitation or county jail authorities might decide that defendant should serve the term in county jail rather than in prison, since the Realignment Act had become effective only two weeks earlier. 4 On appeal, it is not disputed that under section 1170, subdivision (h)(2) and (3), the sentence for the felonies of which defendant was convicted shall be served in county jail. Section 1170, subdivision (h)(2) provides that a felony shall be punishable in county jail except as provided in subdivision (h)(3). Subdivision (h)(3) provides a defendant may not be sentenced to county jail if he has a prior or current California or out-of-state serious or violent felony conviction, is required to register as a sex offender, or is sentenced for a crime with an enhancement for aggravated theft under section 186.11. Defendant here did not commit a prison-eligible crime, and he had no disqualifying previous felony conviction; indeed, he had no previous felony conviction at all. Section 1170, subdivision (h)(6) provides that [t]he sentencing changes made by the act that added this subdivision [(h)] shall be applied prospectively to any person sentenced on or after October 1, 2011. The plain meaning of this statute is that any sentence executed on or after October 1, 2011, for a felony that is not prison eligible shall be served in county jail under section 1170, subdivision (h)(2). Nowhere in the Realignment Act is there any indication the Legislature intended a different result if a prison sentence was imposed and suspended before October 1, 2011, and executed on or after October 1, 2011. (Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126, 131 [statutory interpretation begins by examination of the language of the statute, giving the words their ordinary meaning and considering them in the context of the statutory framework]; S. B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 379 [ If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature ].) It is certainly true that in this case, defendant was sentenced before October 1, 2011, when the court imposed and suspended execution of sentence with probation. But that does not mean defendant was not also a person sentenced when the court executed the suspended sentence after October 1, 2011. (§ 1170, subd. (h)(6).) Whenever a sentence is imposed and suspended, it may be executed in the future after a 5 revocation of probation if the trial court decides not to reinstate probation. The trial court must make and articulate the reasons for its discretionary choice not to reinstate probation and to execute the sentence, as the trial court did here. We see no reason why we should conclude defendant was a person sentenced when the court stayed execution of the sentence but not when the court executed the previously suspended sentence. We recognize that in executing sentence in this case, the trial court had little or no authority to guide it in interpreting the Act. The Realignment Act launched a dramatic and unexpected sea change in felony sentencing for which many criminal justice partners were not fully prepared when the new law became operative in October 2011. However, the trial court was mistaken when it stated that the Department of Corrections might decide to send defendant to jail instead of prison. California s Department of Corrections and Rehabilitation has no power to decide whether under the Realignment Act a defendant will serve a sentence in prison or in county jail. The sentencing court must make that determination in conformance with the Realignment Act. (See § 1170, subd. (h)(2) [ a felony punishable pursuant to this subdivision shall be punishable by imprisonment in a county jail for the term described in the underlying offense ].) The uncertainty whether section 1170, subdivision (h)(2) applied to a defendant with a prison sentence that was imposed and suspended before October 1, 2011, arose from the rule of Howard, supra, 16 Cal.4th 1081. The sole ground urged by respondent in support of the argument that courts retained power after October 1, 2011, to order a prison commitment for felonies that are no longer prison eligible is that Howard compels that conclusion. In Howard, the Supreme Court held that when a court imposes sentence but suspends its execution, and the defendant does not appeal the sentence but accepts it by undertaking probation, then on a later probation revocation, the court has no power to reduce the sentence before committing the defendant to custody. The Supreme Court relied upon section 1203.2, subdivision (c) and former 6 California Rules of Court, rule 435(b)(2) (now rule 4.435(b)(2)),3 and cited with approval the opinion of the Court of Appeal in People v. Chagolla (1984) 151 Cal.App.3d 1045, 1050-1051, which held trial courts are without jurisdiction to modify or change a sentence that was imposed and suspended and are required to order into execution the suspended judgment after revocation of probation. (Howard, at p. 1088.) These authorities are clear and well established but do not apply here. The trial court was never asked to impose a different sentence than the sentence that was imposed and suspended when defendant was placed on probation. That sentence was final long before the court revoked defendant s probation. We find Howard does not help us decide the entirely different question whether the trial court had jurisdiction to order that defendant serve his sentence in state prison when it executed sentence after October 1, 2011, for felonies that are no longer prison eligible. A case is not authority for a proposition it did not consider. (Flatley v. Mauro (2006) 39 Cal.4th 299, 320; Bosworth v. Whitmore (2006) 135 Cal.App.4th 536, 550 [ appellate opinions are not authority for unconsidered propositions ].) The Howard court could not have anticipated realignment, and the question of where a defendant would be committed, when it decided a sentence is final when imposed and suspended. We are also not persuaded by respondent s argument that the Legislature intended Howard to govern when it enacted section 1170, subdivision (h) without specifying what was to happen to a sentence imposed and suspended with probation. We will not assume, in the absence of any authority, that the Legislature acquiesced to Section 1203.2, subdivision (c) provides that upon revocation of probation, if the judgment has been pronounced and the execution thereof has been suspended, the court may revoke the suspension and order that the judgment shall be in full force and effect. Former rule 435(b)(2) of California Rules of Court, which is nearly identical to rule 4.435(b)(2), provided: If the execution of sentence was previously suspended, the judge shall order that the judgment previously pronounced be in full force and effect and that the defendant be committed to the custody of the Director of Corrections for the term prescribed in that judgment. (Howard, supra, 16 Cal.4th at p. 1088, quoting former rule 435(b)(2).) 3 7 judicial precedent when enacting a new law. (See People v. Brown (2012) 54 Cal.4th 314, 327-328.) This is especially true when the precedent addresses an entirely different issue than is addressed by the new law. Howard concluded that a trial court may not modify or change a sentence that was imposed and suspended. (Howard, supra, 16 Cal.4th at p. 1088.) In contrast, the Realignment Act does not modify or change the sentence for any felony. The Act directs that the court is to impose a term described in the underlying offense and thus preserves the existing triad of terms for felonies (and also clarifies the triad shall be 16 months, or two years or three years when the term is not specified in the underlying offense). (§ 1170, subd. (h)(1) & (2).) Respondent cites no language in the Realignment Act, nor any legislative history or public policy, in support of the argument that the trial court had authority to order defendant to serve his sentence in state prison instead of county jail after October 1, 2011. Respondent does not contend the prosecutor would not have offered the plea bargain to defendant if the many changes effected by realignment had been anticipated. We refrain from addressing here issues the parties did not ask us to consider, such as whether they might have negotiated their plea agreement differently if they had known defendant would serve his sentence in county jail with supervised release and not parole. We hold only that in executing a sentence on and after October 1, 2011, for a felony that is not prison eligible under the Realignment Act, the sentencing court must order that the defendant be committed to county jail. Sentencing courts have discretion under section 1170, subdivision (h)(5) to impose either a straight jail commitment for the full term of the sentence, or to suspend execution of a concluding portion of the term[,] during which time the defendant shall be supervised by the probation department. (§ 1170, subd. (h)(5)(B)(i).) The sentencing court has considerable discretion in imposing such a so-called split or blended sentence under section 1170, subdivision (h)(5)(B). But, as of October 1, 2011, the court no longer had the power to sentence defendant to prison for vehicle theft and identity theft, because they 8 were no longer prison-eligible felonies. The parties did not address the question whether on remand the court may impose a split sentence rather than a straight jail sentence, and we therefore decline to address that issue as well. DISPOSITION The sentence committing defendant to state prison is vacated. The matter is remanded so that the trial court may conduct a new sentencing hearing in conformance with the requirements of the Realignment Act and consistent with this opinion. In all other respects, the judgment of conviction is affirmed. CERTIFIED FOR PUBLICATION GRIMES, J. WE CONCUR: RUBIN, Acting P. J. FLIER, J. 9
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