P. v. Zubko
Filed 7/10/13
P. v. Zubko CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Yolo)
----
THE PEOPLE,
Plaintiff and Appellant,
v.
SERGEI ZUBKO,
Defendant and Appellant.
C070833
(Super. Ct. No. CRF111504)
Defendant Sergei Zubko pleaded no
contest to driving under the influence of drugs (Veh. Code, § 23152, subd. (a))
within 10 years of three or more prior convictions for driving under the
influence (Veh. Code, § 23550, subd. (a)), and admitted serving a prior prison
term (Pen. Code, § 667.5, subd. (b)).
years in state prison, but suspended execution of sentence and placed defendant
on probation for four years.
Less than four months later, the
Criminal Justice Realignment Act of 2011 (the Realignment Act)
took effect on October 1, 2011. With
certain exceptions, felons sentenced under the Realignment Act are committed to
jail rather than prison, may have a concluding portion of their sentence
suspended in lieu of probation, and are not subject to parole. (§§ 3000 et. seq., 1170, subds
(h)(1)-(3), (5).) Prison sentences are
imposed, however, for felons who have current or prior serious or violent
felony convictions, who are required to register as sex offenders, or who have
sustained a section 186.11 aggravated white collar crime enhancement. (§ 1170, subd. (h)(3).) Defendant’s offenses in this case are not
among the crimes exempted from a jail commitment under the Realignment
Act. Nonetheless, the Realignment Act
sentencing scheme applies prospectively to defendants “sentenced on or after
October 1, 2011.†(§ 1170, subd.
(h)(6).)
After the effective date of the
Realignment Act, defendant admitted violating probation. The trial court revoked probation and
executed the previously imposed four-year sentence. But because the Realignment Act was in
effect, the trial court ordered defendant, over the People’s objection, to
serve the four years in county jail rather than state prison.
The People appeal, arguing the
Realignment Act’s requirement of county jail time does not apply to defendant
because he was sentenced to state prison before the Realignment Act took
effect. The People contend that because
the trial court imposed sentence and
merely suspended execution of
sentence prior to the effective date of the Realignment Act, the trial court
had no authority to change the prison sentence previously imposed.
Defendant counters that it is proper
for him to serve his sentence in county jail because the trial court
date of the Realignment Act. In
addition, he argues that serving his term in county jail is consistent with the
Legislature’s intent in enacting the Realignment Act.
We conclude the trial court was
required to execute defendant’s sentence exactly as previously imposed. We will reverse the trial court’s order that
defendant’s sentence be served in county jail, and remand the matter to the
trial court with directions to order that defendant’s sentence be served in
abstract of judgment. We will otherwise
affirm the judgment.
DISCUSSION
A number of appellate courts have
addressed the issue presented in this case, resulting in a split in authority.
In People v. Clytus (2012) 209 Cal.App.4th 1001 (
vehicle. (Id. at p. 1004.) The trial court imposed a state prison
sentence of three years eight months but suspended execution of sentence and
placed the defendant on probation. After
the effective date of the Realignment Act, the defendant admitted violating
probation. The trial court declined to
reinstate probation and ordered the suspended sentence served in state
prison. (Ibid.) The defendant
appealed, arguing that he was qualified for county jail under the Realignment
Act. (Clytus, supra, 209 Cal.App.4th at p. 1006.) The Court of Appeal agreed, concluding that
“a trial court executing a suspended sentence as punishment for a probation
violation on and after October 1, 2011, has no discretion to send to
prison a defendant whose criminal record and current felony convictions qualify
for a county jail commitment under section 1170, subdivision (h).†(Ibid.)
The Court of Appeal in
that ‘[t]he sentencing changes made by the act that added this subdivision
[(h)] shall be applied prospectively to any person sentenced on or after
October 1, 2011.’ The plain meaning
of this statute is that any sentence executed on or after October 1, 2011,
for a felony that is not prison eligible shall be served in county jail under
section 1170, subdivision (h)(2).
Nowhere in the Realignment Act is there any indication the Legislature intended
a different result if a prison sentence was imposed and suspended before
October 1, 2011, and executed on or after October 1, 2011. [Citations.]
[¶] It is certainly true that in
this case, defendant was sentenced before
October 1, 2011, when the court imposed and suspended execution of sentence
with probation. But that does not mean
defendant was not also a ‘person sentenced’ when the court executed the
suspended sentence after October 1,
2011. (§ 1170, subd. (h)(6).) . . . We see no reason why we should conclude
defendant was a ‘person sentenced’ when the court stayed execution of the
sentence but not when the court executed the previously suspended
sentence.†(Clytus, supra, 209 Cal.App.4th at pp. 1006-1007, original
italics.)
The court in People v. Scott (2013) 216 Cal.App.4th 848 reached the same
conclusion as the court in Clytus,
stating that “[t]o draw a distinct line barring defendants whose sentence was
executed after the effective date of the [Realignment] Act, but whose sentence
was imposed prior to the act, from serving their terms in county jail fails to
promote the Legislature’s stated goals.â€
(Scott, supra, 216 Cal.App.4th
at p. 857.)
Other decisions, however, have
reached the opposite conclusion. In
1523 (Gipson), the Court of Appeal
disagreed with Clytus and held that a
defendant is sentenced on the date sentence is imposed even if execution of the
sentence does not happen until a later date.
(Gipson, supra, 213
Cal.App.4th at p. 1526.) Likewise, the
court in People v. Mora (2013) 214
Cal.App.4th 1477 (Mora) held that
when the trial court revoked probation and executed the defendant’s previously
imposed sentence, the trial court lacked jurisdiction to modify the sentence
committing the defendant to state prison.
(Mora, supra, 214 Cal.App.4th
at p. 1482.) In
297 (Kelly), the court held that a
defendant is not “sentenced†within the meaning of the Realignment Act when a
previously imposed sentence is executed upon revocation of probation. (Kelly,
supra, 215 Cal.App.4th at pp. 301-306.)
And in People v. Wilcox (2013)
___ Cal.App.4th ___ [2013 Cal. App. Lexis 508, at p. *14], this court agreed
with Gipson, Mora and Kelly.
As the court explained in
“Defendant’s contention is contrary to well-established precedent. In [People
v. Howard (1997) 16 Cal.4th 1081 (Howard)],
the California Supreme Court discussed the distinction ‘between orders
suspending imposition of sentence and orders suspending execution of previously
imposed sentences.’ (
there is no judgment pending against the defendant. Therefore, upon revoking probation, the court
has full discretion to impose any appropriate sentence. . . .
In contrast, when a court imposes sentence but suspends its
there is a judgment, and revocation of the order granting probation requires
execution of the existing sentence, exactly as imposed.†(Kelly,
supra, 215 Cal.App.4th at p. 302; original emphasis; see also
1529-1530; Mora, supra, 214
Cal.App.4th at p. 1482.)
There is no indication that the
Legislature intended to abrogate Howard. (Kelly,
supra, 215 Cal.App.4th at pp. 305-306.)
Accordingly, we conclude the trial court was required to execute
defendant’s sentence exactly as previously imposed.
DISPOSITION
The trial court’s order that
defendant’s sentence be served in county jail is reversed, and the matter is
remanded to the trial court. The trial
court is directed to order that defendant’s sentence be served in
prepare an amended abstract of judgment reflecting that defendant’s sentence be
served in state prison, and to deliver a certified copy of the amended abstract
of judgment to the California Department
of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
MAURO , J.
We concur:
BLEASE , Acting P. J.
HOCH , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Penal Code.
name="_ftn2" title="">[2] (Stats. 2011, 1st Ex. Sess. 2011-2012, ch.
12, § 1; § 1170, subd. (h).)
