Metropolitan News-Enterprise


Wednesday, October 3, 2012


Page 1


Court of Appeal Applies Realignment Act to Revocation Of Probation and Execution of Suspended Sentence




A defendant whose probation was revoked, and whose suspended sentence was ordered executed, after the effective date of the Criminal Justice Realignment Act cannot be sentenced to state prison if the offense is one for which the act provides for a county jail sentence, the Court of Appeal for this district ruled yesterday.

Acknowledging that judges and others responsible for implementing realignment “have encountered uncertainty in interpreting some of its terms,” Justice Elizabeth Grimes of Div. One said the panel’s interpretation of Penal Code Sec. 1170(h)(2) is consistent with legislative intent. 

The statute provides that “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 offenders subject to the provision are essentially “low-level” felons without prior convictions for serious or violent felonies or sex crimes.

The realignment legislation, which applies to defendants sentenced on or after Oct. 1 of last year, seeks to cut costs by transferring large numbers of felons who would otherwise be in prison to “locally run community-based corrections programs.” The enactment remains controversial, as critics say it is causing high-risk offenders to be released early as a consequence of strained county budgets.

Yesterday’s ruling vacates a prison term of three years, eight months imposed on Donald A. Clytus by Los Angeles Superior Court Judge Steven Van Sicklen and sends the case back to the trial court for a new sentence hearing.

Clytus received probation and a suspended sentence after pleading no contest to unlawfully taking a vehicle and identity theft two years ago. At an Oct. 14 hearing last year, he admitted violating probation and the judge ordered execution of the previously suspended sentence.

Van Sicklen—whom Grimes noted yesterday “had little or no authority to guide [him] in interpreting the Act”—ordered the sentence served in state prison, while suggesting that the Department of Corrections and Rehabilitation could send Clytus to jail instead of prison if it chose.

Grimes, however, said Clytus was a “person sentenced” on or after Oct. 1, as the term appears in the statute.

She distinguished People v. Howard (1997) 16 Cal.4th 1081, which held that the trial court could not reduce a suspended sentence before committing a probation violator to custody. The case preceded realignment, and “is not authority for a proposition it did not consider,” the justice said.

Nor can the court consider the question of whether the plea offer that Clytus accepted would have been made had prosecutors known he would not serve the sentence in prison, Grimes wrote, because the issue was not presented to the panel.

Attorneys on appeal were Kari E. Hong, by appointment, for the defendant and Deputy Attorney General Chung L. Mar for the prosecution.

The case is People v. Clytus, B236714.


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