Wednesday, August 7, 2013
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Man Sentenced Before Realignment Can’t Serve Time In County Jail, Though Execution Began Later—C.A.
Third District Member Cites His Own Contrary Opinion Though It Is No Longer Published
By a MetNews Staff Writer
The Sixth District held yesterday that a man who was sentenced prior to the effective date of realignment and placed on probation, with probation then revoked, cannot serve his time in the county jail even though execution of the sentence commenced after realignment began.
The 2-1 decision was authored by Justice Nathan D. Mihara. Acting Presiding Justice Eugene Premo wrote a dissent, relying on an unpublished decision.
Appellant Steven Moreno Jr., who pled no contest to felony receiving stolen property, was sentenced on April 12, 2011, to five years in state prison term, with execution of the sentence suspended, and was placed on formal probation for three years. Probation was revoked, and execution of the sentence was ordered on Nov. 3, 2011.
The trial judge determined he did not have the authority to send Moreno to County jail in light of Penal Code Sec. 1170(h)(6) which says that changes made by the Criminal Justice Realignment Act of 2011 “shall be applied prospectively to any person sentenced on or after October 1, 2011.”
Sentence Unmodifiable
Mihara wrote:
“Here, since defendant was sentenced to state prison before October 1, 2011, the Realignment Act did not apply. When the trial court revoked defendant’s probation and executed his sentence on November 3, 2011, it lacked jurisdiction to modify the sentence committing him to state prison for five years.”
The jurist noted that the decision is in accord with the April 10 decision of the Fourth District’s Div. Two in People v. Kelly, 215 Cal.App. 4th 297, and at odds with the conclusion of Div. Eight of this district in People v. Clytus, handed down on Oct. 2 of last year.
Cites Uncitable Opinion
Premo dissented, invoking a decision he wrote, filed May 23 and certified for publication, which is no longer citable owing to the Supreme Court granting review.
The jurist wrote:
“I respectfully dissent. A separate panel of this court recently decided in People v. Scott (2013) 216 Cal.App.4th 848 (review granted Jul. 24, 2013, S211670), that the provisions of the Criminal Justice Realignment Act of 2011 (Realignment Act) are applicable to those defendants whose sentence was imposed prior to October 1, 2011, the effective date of the Act, but whose sentence was executed after that date upon revocation of probation. Here, defendant’s sentence was imposed on April 12, 2011, prior to the effective date of the Realignment Act. However, sentence was not executed until November 3, 2011, after the effective date of the Realignment Act. Under the reasons set forth in Scott, I would affirm the judgment of the trial court ordering defendant serve his sentence in county jail.”
In Scott, Premo was joined by Presiding Justice Conrad Rushing and Justice Franklin D. Elia. In the present case, People v. Moreno, the third member of the panel was Justice Miguel Márquez.
California Rules of Court, rule 8.1115(a), provides that except under narrow circumstances not present in the case before the Sixth District, “an opinion of a California Court of Appeal…that is not certified for publication or ordered published must not be cited or relied on by a court….”
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