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Name: People v. Gipson, Jr.
Case #: B241551
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 02/28/2013

Appellant whose state prison sentence was imposed but suspended prior to the effective date of the Realignment Act was properly committed to state prison upon revocation of his probation following the effective date of the Act. On October 12, 2010, appellant was convicted various offenses. He was sentenced to five years in state prison, with execution of sentence suspended, and was granted three years probation. In 2012, probation was revoked and appellant was sentenced to the five-year term, to be served in prison. Appellant contended that under the Realignment Act, he should have been committed to local custody rather than state prison. Affirmed. The court considered whether, for purposes of the Realignment Act, appellant was sentenced when the court imposed, but suspended, execution of the five-year term, or when the court ordered execution of the imposed term following revocation of probation. (Penal Code section 1170, subdivision (h) applies the Realignment Act to “any person sentenced on or after October 1, 2011,” allowing the lesser offender to serve the term in local custody.) Referencing People v. Howard (1997) 16 Cal.4th 1081, the court found that if a trial court has previously imposed sentence, upon revocation of probation the former judgment is brought into full force and effect. Here, because appellant was sentenced to prison before the effective date of the Realignment Act, his commitment to state prison did not violate the Act. The court disagreed with People v. Clytus (2012) 209 Cal.App.4th 1001.

There was sufficient evidence that appellant associated with known gang members in violation of his probation. Appellant, who is a member of the Grape Street Crips, contested the trial court’s finding that he had violated the term of probation prohibiting him from associating with gang members. At the revocation hearing, a police detective testified that he had a lot of contact with appellant and that he knew most of the Grape Street Crips, as well as the places where they hung out. According to the detective, the members of the gang all grew up together and they all know each other for personal safety reasons. The detective had observed appellant talking to a member of the Grape Street Crips in a parking lot that is a known hang-out for the gang in its territory. The appellate court found the cumulative testimony was sufficient to establish that appellant knowingly associated with a gang member.