P. v. Clarke CA2/6

Filed 3/27/13 P. v. Clarke CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B239010 (Super. Ct. Nos. F451161, F454029, Plaintiff and Respondent, F464113) (San Luis Obispo County) v.

MICHAEL STEVEN CLARKE,

Defendant and Appellant.

The Criminal Justice Realignment Act of 2011 (Act) became effective on October 1st of that year. Under the Act, persons convicted of low grade felonies, and who were not otherwise disqualified due to their criminal records, are sentenced to county jail instead of state prison. Trial courts have discretion to either commit the defendant to county jail for a full term in custody, or impose a "split" sentence consisting of county jail followed by a period of mandatory supervision. (Pen. Code, § 1170, subds. (h)(5)(A), (h)(5)(B)(i).)1 Here we confront the anomaly of a plea bargain entered before the Act's effective date, but for which sentencing occurred after that date. The "bargain" was that the defendant would serve two years in state prison, a sentence that could not be

1 All undesignated statutory references are to the Penal Code. References to subdivision (h) of the Act are to section 1170.

imposed. We conclude that this bargain did not preclude the court from imposing a split sentence under the Act. Michael Steven Clarke appeals the judgment entered following his no contest plea to second degree commercial burglary (§ 459) and his admission of two probation violations and a prior prison term (§ 667.5, subd. (b)). The trial court sentenced him to two years in county jail under subdivision (h)(5)(A) of the Act. Appellant contends the court erred in concluding it lacked discretion to impose a split sentence under subdivision (h)(5)(B)(i) of the Act due to the fact that appellant's pre-Act plea bargain referred to a two-year state prison term. We agree, and accordingly remand for resentencing. BACKGROUND On April 14, 2011, appellant pled no contest to three counts of second degree burglary in case number F451161 and one count of second degree burglary in case number F454029. In entering his pleas, he also admitted serving two prior prison terms. Imposition of sentence was suspended and appellant was placed on probation with terms and conditions including that he serve 180 days in county jail. On July 16, 2011, the court revoked appellant's probation and ordered him arrested for failure to report to his probation officer following his release from jail. On August 22, 2011, a new complaint was filed in case number F464113, charging appellant with another count of second degree burglary and alleging three prior prison terms. On September 13, 2011, he pled no contest to the charge, admitted violating his probation in case numbers F454029 and F451161, and also admitted one prior prison term. In exchange for appellant's plea, the prosecution agreed to dismiss the other two prison priors. It was also agreed that appellant would be sentenced to the midterm of two years in state prison, followed by up to four years on parole. The court accepted the plea, found appellant in violation of his probation, and revoked probation.