The People v. Moreno
160 Cal. Rptr. 3d 512
Cal. Ct. App.2013Background
- Moreno pleaded no contest to felony receiving stolen property on January 18, 2011, admitted prior prison-term enhancements, and received a five-year state prison sentence on April 12, 2011; execution of that sentence was suspended and he was placed on probation.
- Probation revocation petitions were filed in May and September 2011; Moreno admitted a probation violation and the court agreed the previously suspended sentence could be executed.
- On November 3, 2011, after the Realignment Act’s October 1, 2011 effective date, the trial court revoked probation and executed the previously imposed five-year state prison term but concluded Moreno qualified to serve the sentence in county jail under the Realignment Act.
- The People appealed the trial court’s decision that Moreno could serve his term in county jail. The Court of Appeal considered whether section 1170(h)(6) (Realignment Act) applies when a sentence was imposed before but executed after October 1, 2011.
- The majority held the Realignment Act did not apply because Moreno was sentenced (i.e., judgment pronounced) before October 1, 2011; upon revocation the court lacked authority to alter the previously imposed state prison commitment.
- The court reversed and directed the trial court to order into effect the originally imposed state prison term; a dissent would have applied the Realignment Act to executions after October 1, 2011.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Realignment Act applies when a sentence was imposed before but executed after Oct. 1, 2011 | Realignment should apply because a sentence is "a person sentenced" when it is executed; thus executing after Oct. 1 brings the defendant within §1170(h)(6) (as in Clytus) | Realignment should not apply because Howard and §1203.2 distinguish between imposition and execution; defendant was sentenced before Oct. 1 so statute does not reach him (as in Kelly) | Realignment does not apply; where judgment was pronounced before Oct. 1, 2011, the court must execute the original prison sentence on revocation and cannot convert it to county jail under §1170(h)(6) |
| Whether remand for resentencing under §1170(d) is required | N/A (People argued reversal should effect original prison term) | Moreno argued resentencing recall might be necessary if Realignment inapplicable | Remand unnecessary because trial court’s recall and county-jail decision rested solely on its (erroneous) Realignment interpretation; court ordered original prison term into effect |
Key Cases Cited
- People v. Howard, 16 Cal.4th 1081 (Cal. 1997) (distinguishes orders suspending imposition from suspending execution of sentence)
- People v. Clytus, 209 Cal.App.4th 1001 (Cal. Ct. App. 2012) (held Realignment applies when suspended sentence is executed after Oct. 1, 2011)
- People v. Kelly, 215 Cal.App.4th 297 (Cal. Ct. App. 2013) (held Realignment does not apply to sentences imposed before Oct. 1, 2011; Legislature did not abrogate Howard)
- People v. Scott, 216 Cal.App.4th 848 (Cal. Ct. App. 2013) (contrary panel decision applying Realignment to executions after Oct. 1, 2011)
- People v. Gipson, 213 Cal.App.4th 1523 (Cal. Ct. App. 2013) (disagreed with Clytus)
- People v. Mora, 214 Cal.App.4th 1477 (Cal. Ct. App. 2013) (disagreed with Clytus)
- People v. Wilcox, 217 Cal.App.4th 618 (Cal. Ct. App. 2013) (disagreed with Clytus)
- Dix v. Superior Court, 53 Cal.3d 442 (Cal. 1991) (discusses recall of sentence within 120 days)