People v. Kelly
215 Cal. App. 4th 297
Cal. Ct. App.2013Background
- In 2009, Kelly pleaded guilty to a felony count and was sentenced to four years in state prison, with 270 days to be served in county jail on probation terms.
- On October 28, 2011, after a probation revocation hearing, the court revoked probation and executed the suspended four-year sentence in state prison.
- The Criminal Justice Realignment Act of 2011 (Realignment Act) generally requires low-level felons to serve terms in county jail, with some split-sentence options, for sentences imposed on or after October 1, 2011.
- Section 1170(h)(6) directs that the Realignment Act’s sentencing changes apply prospectively to persons sentenced on or after October 1, 2011, raising questions about whether a revocation proceeding constitutes a “sentencing” proceeding under the Act.
- Prior case law (Howard) distinguishes between suspending imposition of sentence and suspending execution of a previously imposed sentence, with the latter creating a judgment that must be carried out as imposed when probation is revoked.
- The appellate court must decide whether Howard controls after Realignment and whether §1170(h)(6) can be applied to Kelly’s circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Realignment abrogates Howard’s rule. | Howard applies; execution of a pre-Realignment suspension cannot be modified. | Realignment changes apply; execution on/after Oct. 1, 2011 may be served in county jail if eligible. | Realignment does not abrogate Howard; execution must follow the original sentence. |
| Whether a probation-revocation execution is a ‘sentencing’ proceeding under §1170(h)(6). | Execution of a suspended sentence is a sentencing event after Realignment. | No; it is enforcing an existing judgment, not a new sentence. | Not a sentencing proceeding under §1170(h)(6); Howard governs. |
| Whether §1170(h)(6) violates equal protection as applied. | Creates two classes of defendants based on timing, violating equal protection. | No unequal treatment because the defendant’s sentence predated Realignment. | No equal protection violation; defendant’s sentence was not after Oct. 1, 2011. |
| Whether the issue is cognizable on appeal without a certificate of probable cause. | Threshold issue is cognizable to determine applicability of §1170(h). | Challenging the plea terms requires a certificate; otherwise not cognizable. | §1170(h) applicability is cognizable; outcome on appeal follows. |
Key Cases Cited
- People v. Howard, 16 Cal.4th 1081 (Cal. 1997) (distinguishes suspension of imposition vs. execution; execution cannot be modified)
- People v. Clytus, 209 Cal.App.4th 1001 (Cal. App. 2012) (Realignment context; held no abrogation of Howard by §1170(h)(6))
- People v. Gipson, 213 Cal.App.4th 1523 (Cal. App. 2013) (contrasts with Clytus on when sentencing occurs under Realignment)
- People v. Amons, 125 Cal.App.4th 855 (Cal. App. 2005) (timing of appeal from probation-imposed sentences)
- People v. Buttram, 30 Cal.4th 773 (Cal. 2003) (certificate of probable cause standards for bargained sentences)
- People v. Cruz, 207 Cal.App.4th 664 (Cal. App. 2012) (equal protection and timing issues under Realignment)