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Name: People v. Clytus
Case #: B236714
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 10/02/2012

A trial court executing a suspended-execution sentence on or after October 1, 2011 has no discretion to order that a county jail felony offense be served in state prison, where the defendant is not otherwise ineligible for such treatment. Appellant was convicted of unlawfully taking a vehicle and identity theft (Veh. Code, § 10851; Pen. Code, § 530.5, subd. (a)). A three year sentence was imposed in 2010 but suspended in execution incident to a grant of probation. Upon revocation of probation the court executed the previously imposed sentence on October 14, 2011, ordering appellant to serve his term in state prison. He appealed, claiming the term should be served in county jail pursuant to the Realignment Act. Held: Reversed. Under Penal Code section 1170, subdivisions (h)(2) and (3), the sentence for appellant’s offenses must be served in county jail and defendant has no disqualifying offenses. The plain meaning of section 1170, subdivision (h)(6) requires county jail felonies to be served locally when the court sentences “any person” on or after October 1, 2011. Although appellant was initially sentenced prior to October 1, that does not mean he was not also sentenced after that date, when the court executed his term. The holding of People v. Howard (1997) 16 Cal.4th 1081 does not mandate a different result. In Howard the Supreme Court held that a trial court is without jurisdiction to modify a previously imposed, suspended-execution, sentence upon revocation of probation and commitment of the defendant to custody. The question of where a defendant would serve his term was not decided in Howard. The Court of Appeal declined to decide whether on remand the trial court had discretion to order a split sentence.