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Name: People v. Kelly
Case #: E055263
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 04/10/2013

Under the Realignment Act (Act), the date a sentence is imposed, with execution suspended, is the operative date in determining where the sentence is to be served. Appellant was convicted of a felony in 2009 and, per the terms of his plea agreement, was sentenced to four years in state prison. Execution of the sentence was suspended and he was placed on probation. On October 28, 2011, he was found in violation of probation and the court ordered execution of the four-year term, to be served in state prison. On appeal, appellant argued that under the Act, he should be allowed to serve his term in local custody because the court ordered execution of sentence after the effective date of the Act. Affirmed. Under the Act, qualifying low-level felony offenders will serve the sentence in local custody. The Act provides that it is to be applied prospectively to any person sentenced on or after October 1, 2011. The court determined that the Legislature, in enacting the Act, intended to adhere to existing law as discussed in People v. Howard (1997) 16 Cal.4th 1081. Howard held that a sentence which is imposed but its execution is suspended while the defendant is on probation constitutes a judgment which cannot be modified upon revocation of probation. Thus, a defendant whose felony sentence was imposed prior to October 1, 2011, but executed after that date must serve the sentence in state prison. Although the appellate court disagreed with appellant’s argument, it stated that it tended to agree with appellant’s position that no certificate of probable cause was required to raise the issue as his challenge was not to the sentence but was a narrow legal question as to whether the California Legislature intended him to benefit from the Act. Finally, the court found no violation of equal protection in requiring appellant to serve the term in state prison. Because he was not sentenced after October 1, 2011, the trial court did not create two classes of people sentenced after the operative date of the Act and accord them different treatment.