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Name: People v. Morena
Case #: H037737
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 08/06/2013

The Realignment Act does not apply to a defendant whose sentence was imposed prior to October 1, 2011, but executed after that date when probation was revoked. Appellant was convicted of receiving stolen property and two prior prison term enhancements. On April 12, 2011, the court sentenced him to five years in state prison, suspended execution of sentence, and granted probation. On September 29, 2011, appellant admitted violating probation. As part of the negotiated disposition which included dismissal of a new misdemeanor charge, it was agreed that the sentence would be executed. On November 3, 2011, the court executed the sentence, finding that appellant was qualified to serve the term locally. The People appealed. Held: Reversed. The Realignment Act provides that the term for certain felonies is to be served locally. The language of the statute states the changes apply to any person sentenced on or after October 1, 2011. Agreeing with People v. Kelly (2013) 215 Cal.App.4th 297, the court found that since appellant’s sentence was imposed prior to October 1, 2011, the Realignment Act did not apply. Pursuant to People v. Howard (1997) 16 Cal.4th 1081, when the court executed the sentence, it lacked jurisdiction to modify the previously imposed term. Contrary to defendant’s request, there is no need for remand to allow the court the opportunity to recall the sentence pursuant to section 1170, subdivision (d), as the trial court stated it did not intend to alter the sentence initially imposed, but only to implement its understanding of the Realignment Act. [Editor’s Note: Justice Premo dissented, noting a separate panel of the court recently held that the Realignment Act applies to defendants whose sentences were imposed prior to October 1, 2011, but then executed after that date upon revocation of probation. (People v. Scott (2013) 216 Cal.App.4th 848, review granted 7/24/13 (S211670).)]