for theft (RIF1300157). The court also revoked probation as to each of the four
additional cases (RIF1105737; RIF1202860; RIF1204943; and RIF1206319), imposed
two-year concurrent terms for each of the felony convictions in the four cases, and
imposed concurrent sentences of 365 days in jail for the misdemeanor convictions in case
Nos. RIF1105737 and RIF1204843. The trial court ordered that defendant was to serve
his sentences in a county jail under the Realignment Act (§ 1170, subd. (h)).
The People contend the trial court erred in finding defendant eligible under the
Realignment Act to serve his state prison sentence locally. The People assert that under
subpart (C) of section 1170, subdivision (h)(3), of the Realignment Act, defendant is not
qualified to serve his sentence locally because he is required to register as a sex offender
under section 290. We agree.
Regardless of whether a defendant is required to register as a sex offender based
on a current or prior sex crime conviction, the plain language of section 1170, subdivision
(h)(3)(C), disqualifies defendant from serving his state prison commitment locally under
the Realignment Act since he is required to register as a sex offender. The provision in
1 Unless otherwise noted, all statutory references are to the Penal Code.
2
defendant’s sentence allowing him to serve his sentence locally under section 1170,
subdivision (h), is therefore ordered stricken and defendant is required to serve his
sentence in state prison. This change in defendant’s sentence violates the agreed upon
terms of defendant’s plea agreement in case No. RIF1300157, in which defendant was
promised local incarceration under the Realignment Act in case No. RIF1300157.
Therefore judgment in case No. RIF1300157 is reversed and the case is remanded to the
trial court to allow defendant, if he so chooses, to withdraw his guilty plea in case No.
RIF1300157. Because of the reversal of judgment in case No. RIF1200157, resulting in
reversal of the principal sentence term of three years in case No. RIF1300157, remand for
resentencing as to the other four cases is also necessary. In all other regards, the
judgment, as modified, is affirmed.
II
FACTS AND PROCEDURAL BACKGROUND
Defendant committed a string of drug-related crimes, for which he was
prosecuted, pled guilty, was convicted, and was granted probation in the following cases:
(1) RIF1105737 (felony possession of methamphetamine; misdemeanor being
under the influence of methamphetamine);
(2) RIF1202860 (felony possession of methamphetamine; misdemeanor being
under the influence of methamphetamine);
(3) RIF1204943 (possession of Vicodin); and
(4) RIF1206319 (possession of methamphetamine).
3
Subsequently, on December 28, 2012, the Riverside County District Attorney filed
a misdemeanor complaint, case No. RIM1217643,2 charging defendant with annoying a
child under the age of 18 (§ 647.6, subd. (a)) and violation of probation in the above
listed four cases (RIF1105737, RIF1202860, RIF1204943, and RIF1206319). Following
a jury trial on January 30, 2013, in case No. RIM1217643, defendant was convicted of
annoying a child under the age of 18 (§ 647.6, subd. (a)) and violating probation in the
four listed cases. Based on defendant’s conviction for violating section 647.6,
subdivision (a), defendant was required to register as a sex offender under section 290.
On January 30, 2013, the district attorney filed a complaint charging defendant
with felony petty theft with a prior (§ 484, subd. (a)) and violation of misdemeanor
probation. On March 1, 2013, defendant pled guilty to felony petty theft. Defendant’s
guilty plea was conditioned on receiving a two-year prison term concurrent with
sentencing on case No. RIF1206319 and with local custody imposed pursuant to section
1170, subdivision (h), of the Realignment Act.
On March 1, 2013, the trial court sentenced defendant on all convictions in every
case pending against him as follows. The court sentenced defendant in case No.
RIF1300157, for petty theft with a prior, to three years. As to the four other felony cases
(RIF1105737, RIF1202860, RIF1204943, and RIF10006319), the court revoked
probation and sentenced defendant to concurrent terms of two years for the felony
convictions in each of the four cases, and concurrent sentences of 365 days for the
2 Judgment in RIM1217643 is not being appealed.
4
misdemeanor convictions in the case Nos. RIF115737 and RIF1202860. The trial court
ordered that defendant serve his sentence, as to all convictions, in a county jail under
section 1170, subdivision (h), of the Realignment Act. In addition, in case No.
RIM1217643, the court denied probation and sentenced defendant to 365 days in county
jail.
III
THE REALIGNMENT ACT
The sole issue here is whether the trial court erred in sentencing defendant to
county jail under section 1170, subdivision (h), of the Realignment Act. The People
argue that, under section 1170, subdivision (h)(3)(C),3 defendant is required to serve his
sentence in state prison, because defendant is required to register as a sex offender under
section 290 based on a prior conviction for a sex crime in case No. RIM1217643.
Defendant asserts that the subpart (C) exclusion of section 1170, subdivision (h)(3)
(subpart (3)(C)), does not apply to prior sex crime convictions. We disagree. The
subpart (3)(C) exclusion applies here.
3As amended by the Realignment Act, the pertinent portion of section 1170, subdivision (h), now provides as follows: “(2) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision shall be punishable by imprisonment in a county jail for the term described in the underlying offense. “(3) Notwithstanding paragraphs (1) and (2), where the defendant . . . (C) is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1, . . . an executed sentence for a felony punishable pursuant to this subdivision shall be served in state prison.”
5
“The Realignment Act significantly changes felony punishment. Under prior law,
felonies were offenses punished by death or imprisonment in state prison. [Citation.]
The Realignment Act changes the definition of a felony to an offense punishable by
death, imprisonment in state prison, or by ‘imprisonment in a county jail under the
provisions of subdivision (h) of Section 1170.’ [Citation.]” (People v. Lynch (2012) 209
Cal.App.4th 353, 357.) Defendants sentenced under the Realignment Act are generally
committed to county jail instead of state prison. (People v. Griffis (2013) 212
Cal.App.4th 956, 961.) However, prison sentences are imposed if the defendant has
current or prior serious or violent felony convictions, is required to register as a sex
offender, or has sustained a section 186.11 aggravated white collar crime enhancement.
(Id. at pp. 961-962.) With certain exceptions, felons sentenced under the Realignment
Act are committed to county jail rather than state prison, may have a concluding portion
of their sentence suspended in lieu of probation, and are not subject to parole. (§§ 3000
et. seq., 1170, subd. (h)(1)-(3), (5).)
The legislative intent underlying the Realignment Act is codified in section 17.5.
(Stats. 2011, ch. 39, § 5.) Section 17.5 states that the Legislature is committed “to
reducing recidivism among criminal offenders.” (§ 17.5, subd. (a)(1).) Because “policies
that rely on building and operating more prisons . . . will not result in improved public
safety,” the Legislature declares in section 17.5 that “California must reinvest its criminal
justice resources to support community-based corrections programs and evidence-based
practices that will achieve improved public safety.” (§ 17.5, subd. (a)(3)-(4).) The
Legislature further declares in section 17.5 that “Realigning low-level felony offenders
6
who do not have prior convictions for serious, violent, or sex offenses to locally run
community-based corrections programs, which are strengthened through community-
based punishment, evidence-based practices, improved supervision strategies, and
enhanced secured capacity, will improve public safety outcomes among adult felons and
facilitate their reintegration back into society.” (§ 17.5, subd. (a)(5).)
The parties in the instant action dispute the meaning of subpart (3)(C) of the
Realignment Act. “[S]tatutory interpretation begins by examining the language of the
statute, giving the words their ordinary meaning and considering them in the context of
the statutory framework.” (People v. Kelly (2013) 215 Cal.App.4th 297, 303 [Fourth
Dist., Div. Two].) “[I]f statutory language is clear and unambiguous there is no need for
construction or to resort to external indicia of the intent of the Legislature.” (Ibid.) “In
interpreting a statute, a court’s objective is to ascertain the intent of the Legislature so as
to effectuate the purpose of the law. [Citation.] To do so, we look first at the statutory
language. If it is clear and unambiguous, we go no further. If, however, the language is
ambiguous, we apply appropriate tools of statutory construction. [Citation.]” (Id. at pp.
304-305.)
Applying these standard principles of statutory construction, we conclude the
language in subpart (3)(C) is clear and unambiguous. Contrary to defendant’s view, his
reading of the statute does not plausibly account for its language and therefore he has not
tendered an ambiguity so as to trigger the “rule of lenity.” (See People v. Cornett (2012)
53 Cal.4th 1261, 1271 [rule of lenity not applied unless two interpretations stand in
relative equipoise].) Here, there is no “egregious ambiguity” or uncertainty in which
7
“the court can do no more than guess what the legislative body intended.” (People v.
Avery (2002) 27 Cal.4th 49, 58.) “[W]e presume that the Legislature meant what it said,
rendering further inquiry into legislative intent unnecessary.” (Schmidlin v. City of Palo
Alto (2007) 157 Cal.App.4th 728, 749.) Therefore no further effort is required beyond
looking at the statutory language of subpart (3)(C) itself to discern the meaning of the
exclusion.
Under subpart (3)(C), of the Realignment Act, defendant is required to serve his
sentence in state prison, rather than county jail, because he is required to register as a sex
offender in case No. RIM1217643. The fact that defendant is required to register as a sex
offender based on a prior sex crime conviction, rather than a current conviction, does not
preclude application of the subpart (3)(C) exclusion. The subpart (3)(C) exclusion is
conditioned solely on a defendant’s status of being required to register as a sex offender.
No mention is made that registration must arise from a current conviction.
The fact that a defendant must register as a sex offender demonstrates that he
poses a significant risk to society, regardless of whether he is required to register based
on a prior or current conviction. This court cannot disregard the plain language of
subpart (3)(C) and rewrite the provision to narrow its scope to encompass only
defendants who are required to register based on a current conviction for a sex crime.
(People v. Garcia (1999) 21 Cal.4th 1, 10.) If the Legislature intended such a condition,
the Legislature could have easily included it in the statute. Since the Legislature did not
restrict application of subpart (3)(C) to registration based on current sex crime
convictions, we will not read such a condition into the statute.
8
Defendant argues that construing subpart (3)(C) to encompass registration based
on prior and current sex crime convictions leads to an absurd, unjust result in that such
construction could lead to confining a defendant in state prison based on a prior
misdemeanor sex crime conviction, when sentencing for the offense would normally only
require incarceration in jail. But under the plain meaning of the statute, it makes no
difference how or when the requirement to register arose or whether the underlying sex
crime was a misdemeanor or felony.
Defendant’s contention that the subpart (3)(C) exclusion must arise from a current
sex crime conviction is contrived and absurd. Defendant argues use of the verb “is,”
which is in the present tense, supports his construction of the statute that the subpart
(3)(C) exclusion only applies to current convictions for sex crimes. But contrary to
defendant’s argument, the word “is” in subpart (3)(C) does not refer to the current act of
the court ordering a defendant to register as a sex offender. “Is” refers to the current
requirement that defendant is required to register. It makes no difference whether the
court ordered the registration during the current proceedings or in the past based on a
prior conviction. The risk is the same, whether the conviction that led to sex offender
registration was a prior or current conviction for a sex crime. Construing the subpart
(3)(C) exclusion as simply excluding those defendants who are required to register as sex
offenders, regardless of when the court ordered registration, is consistent with the
purpose of the Realignment Act, of “Realigning low-level felony offenders who do not
have prior convictions for serious, violent, or sex offenses to locally run community-
based corrections programs.” (§ 17.5, subd. (a)(5); italics added.) The Legislature has
9
determined that those who are required to register as sex offenders have committed sex
crimes and therefore pose a greater risk to society than low-level felony offenders.
Defendant further argues that because “prior” appears in other exclusions from the
Realignment Act but not in the part of the statute pertaining to sexual offender
registrants, the subpart (3)(C) exclusion only applies to defendants ordered to register
based on a current conviction for a sex crime. We disagree. The other provisions
exclude persons who have “a prior or current” serious or violent felony or a “prior”
foreign conviction that would be serious or violent if committed in California. The
subpart (3)(C) exclusion refers to a person’s status, which might arise from a current or
prior conviction in California or elsewhere, provided that such conviction triggers sexual
Had the Legislature wanted to limit the exclusion to persons ordered to comply with
Realignment Act in current cases but not prior registrants—assuming there was some
rational reason to do so—it would not have phrased the exclusion the way it did, to cover
any person who “is required to register as a sex offender pursuant to” the Sex Offender
Registration Act (§ 290, et seq.; § 1170, subd. (h)(3)(C)). “The plain language of the
statute suggests that anyone required to register, whether or not for the current offense,
will be excluded from sentencing under section 1170(h).” (Couzens & Bigelow, Felony
Sentencing After Realignment (Jan. 2014) p. 30.)
The trial court’s order allowing defendant to serve his state prison term locally
under the Realignment Act violates the plain language of the subpart (3)(C) exclusion of
the Realignment Act. Therefore defendant’s sentence is reversed and he must serve his
10
sentence in state prison. Defendant does not qualify for local confinement under the
Realignment Act because he is required to register as a sex offender. (§ 1170, subd.
(h)(3)(C).)
IV
SUFFICIENCY OF EVIDENCE
Defendant alternatively argues the People failed to meet their burden of proof in
establishing that the subpart (3)(C) exclusion of the Realignment Act applies. Defendant
asserts that there was insufficient evidence that he was convicted of a sex crime and
ordered to register as a sex offender under section 290. The record, however, shows this
was well established and undisputed.
During the sentencing hearing on March 1, 2013, in case No. RIM1217643, the
trial court noted that defendant was convicted of the misdemeanor of annoying and
molesting a child (§ 647.6), and violated probation in case Nos. RIF1206319,
RIF1204943, RIF1105737, and RIF1202860. The court also noted that a new case
against defendant had been filed, case No. RIF1300157. Neither party disputed these
facts. The trial court requested the deputy district attorney to see if the parties could
resolve at the time of the March 1, 2013 sentencing hearing, the new case and other
pending criminal cases, including the theft case and cases for violation of probation.
After the parties met during a recess in the sentencing hearing, defendant’s
attorney informed the court that defendant would plead guilty to the new charge,
depending on the likely sentence. The court stated that it was inclined to impose a three-
year term under the Realignment Act, with the sentences on all defendant’s other cases to
11
be served concurrently. The court further noted that defendant’s misdemeanor conviction
in case No. RIM1217643 required registration as a sex offender. Defendant signed a
felony plea agreement, which advised him that one of the consequences of pleading
guilty in case No. RIF130057 was that the court would impose a two-year concurrent
sentence under the Realignment Act.
After advising defendant of his constitutional rights and the consequences of
pleading guilty, defendant waived his rights and pled guilty to the theft charge in case
No. RIF130057. The court then sentenced defendant in all of the pending criminal cases
against defendant, including RIF1217643. The judge noted that defendant had been tried
and convicted in case No. RIF1217643. The trial court sentenced defendant in case No.
RIF1217643 to a 365-day jail term and ordered him to pay a $300 fine pursuant to section
290.3. Section 290.3 provides that those convicted of sex offenses specified in section
290 are required to pay a $300 fine upon the first conviction, unless the defendant does
not have the ability to pay the fine. (§ 290.3, subd. (a).)
The record shows that it was undisputed defendant was convicted by trial of a sex
crime in case No. RIM1217643 and was required to register as a sex offender under
section 290. The reporter’s transcript of the sentencing hearing on March 1, 2013,
confirms this, as does defendant’s probation report. During sentencing regarding case
No. RIM1217643, the judge told defendant: “I can’t say that the jury verdict, based on
the way the testimony shook out, was unreasonable. But unfortunately for you, you are
going to have to register as a sex offender.” The court added, with regard to defendant’s
three-year prison term in local custody in case No. RIF130057: “And I suspect you are
12
going to be out sooner rather than later, just given the crowding situation in the county
jail.” For this reason, those required to register as sex offenders are exempted from the
Realignment Act provision allowing incarceration of defendants in local jails. Those
who are required to register as sex offenders are considered a risk to the public, as are
those who have been convicted of violent or serious felony offenses, and therefore must
serve their sentences in state prison without the possibility of early release into the
community.
The reporter’s transcript and clerk’s transcript establish there was sufficient
evidence upon which the trial court reasonably concluded that defendant was convicted
of a sex crime and was required to register as a sex offender. Furthermore, nothing in the
record calls into question defendant’s status as a sex offender registrant and this was
undisputed at the time of sentencing.
V
CASE NO. RIF1300157 GUILTY PLEA
The parties agree that, in the event this court holds that the Realignment Act does
not apply, defendant is entitled to withdraw his guilty plea solely in case No.
RIF1300157, because one of the agreed-upon consequences of defendant’s guilty plea in
case No. RIF1300157 was that he would be sentenced under the Realignment Act and
thus serve his two-year concurrent sentence imposed in case No RIF1300157 in local jail.
(People v. Segura (2008) 44 Cal.4th 921, 929-930.) The People assert that, although
defendant is entitled to withdraw his guilty plea in case No. RIF1300157, the remaining
13
misdemeanor and felony probation violations and the three-year prison sentence should
remain unaffected.
We disagree as to sentencing. Revocation of probation in case Nos. RIF1105737,
RIF1202860, RIF1204943, and RIF1206319 was not contingent upon defendant being
convicted of theft in case No. RIF1300157. Probation revocation was based on
defendant’s conviction in case No. RIM1217643. However, the two-year sentences
imposed on each of the four cases are concurrent sentences, with the three-year term
imposed in case No. RIF1300157 serving as the principal term. Since defendant is
entitled to withdraw his guilty plea in case No. RIF1300157, this matter must be
remanded for resentencing as to case Nos. RIF1105737, RIF1202860, RIF1204943, and
RIF1206139.
VI
DISPOSITION
The provision in defendant’s sentence allowing defendant to serve his sentence
locally under section 1170, subdivision (h), is ordered stricken.
In addition, as to case No. RIF1300157, judgment is reversed and the case is
remanded to the trial court to allow defendant, if he chooses, to withdraw his guilty plea
solely in case No. RIF1300157.
This case is also remanded for resentencing in case Nos. RIF1105737,
RIF1202860, RIF1204943, and RIF1206319, since the principal term was the three-year
14
sentence imposed in case No. RIF130057, with concurrent two-year terms imposed in the
other four cases. In all other regards, judgment is affirmed as modified.
CERTIFIED FOR PUBLICATION
CODRINGTON J.
We concur:
RAMIREZ P. J.
MILLER J.
15
AI Brief
AI-generated · verify before citing
Holding. A defendant who is required to register as a sex offender is disqualified from serving a state prison sentence in county jail under the Criminal Justice Realignment Act, regardless of whether the registration requirement arises from a current or prior conviction. Because the defendant's plea agreement was predicated on local incarceration, the judgment is reversed and remanded to allow the defendant to withdraw his guilty plea.
Issues
Whether a defendant required to register as a sex offender is disqualified from serving a sentence in county jail under the Criminal Justice Realignment Act if the registration requirement is based on a prior conviction.
Whether there was sufficient evidence to establish the defendant's status as a sex offender registrant.
Whether the defendant is entitled to withdraw his guilty plea when the sentencing terms of the plea agreement are invalidated by the Realignment Act's exclusions.
Disposition. Affirmed in part; reversed in part; remanded with directions.
Quotations verified verbatim against the opinion
“the plain language of section 1170, subdivision (h)(3)(C), disqualifies defendant from serving his state prison commitment locally under the Realignment Act since he is required to register as a sex offender.”
“The subpart (3)(C) exclusion is conditioned solely on a defendant’s status of being required to register as a sex offender. No mention is made that registration must arise from a current conviction.”
“The plain language of the statute suggests that anyone required to register, whether or not for the current offense, will be excluded from sentencing under section 1170(h).”