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Name: People v. Montrose
Case #: F064261
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 10/29/2013

Defendant whose prison sentence was imposed prior to Realignment, but executed after the effective date of the law, is not entitled to serve his sentence in county jail. In 2010 and 2011, appellant pled guilty to drug and weapon possession offenses in three separate cases. At sentencing in each case, the court imposed a felony sentence, suspended its execution, and granted appellant probation. In August 2011, appellant admitted he violated the terms of his probation in all three cases. On December 9, 2011, the court executed the previously imposed sentences, ordering that the time be served in state prison. On appeal, appellant challenged the location of his incarceration based on Realignment. Held: Affirmed. Eligible felons who are sentenced under Realignment serve their sentences in local custody rather than state prison. Although appellant is not otherwise disqualified from a county jail term, under the plain language of Penal Code section 1170, subdivision (h)(6), the changes in the law apply prospectively to defendants sentenced on or after October 1. Here, appellant was sentenced at the time probation was granted in each case, with execution of sentence suspended. The fact that his sentences were not executed until after October 1, 2011 does not change this result. The reasoning of People v. Howard (1997) 16 Cal.4th 1081, which relies on Penal Code section 1203.2, subdivision (c), supports this conclusion. Although the Legislature has amended portions of section 1203.2 since Howard was decided and since Realignment, it has not altered subdivision (c), which provides that a court may terminate probation and order that a previously imposed judgment shall be in full force and effect. Nothing in the language, purpose, or history of the Realignment legislation suggests a different result. [Editor’s Note: This issue is currently pending in People v. Scott (2013) 216 Cal.App.4th 848, review granted July 24, 2013, S211670.]