PEOPLE v. SCOTTAppellant’s Petition for ReviewCal.June 28, 2013S211670 COPY Sn the Supreme Court of the State of Califurnia SUPREME COURT 1) THE PEOPLE OF THE STATE OF F | L E CALIFORNIA, JUN 2.8 2013 Plaintiff and Appellant, Case No. | Vv. Frank A. McGuire Clerk JAMES RUSSELL SCOTT, Deputy Defendant and Respondent. Sixth Appellate District, Case No. H037923 Monterey County Superior Court, Case No. SS080912 The Honorable Mark E. Hood, Judge PETITION FOR REVIEW KAMALA D. HARRIS Attorney General of California DANE R, GILLETTE ChiefAssistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAURENCE K. SULLIVAN Supervising Deputy Attorney General BRIDGET BILLETER Deputy Attorney General State Bar No. 183758 455 Golden Gate Ave, Suite 110000 San Francisco, CA 94102 Telephone: (415) 703-1340 Fax: (415) 703-1234 Email: Bridget.Billeter@doj.ca.gov Attorneysfor Appellant TABLE OF CONTENTS Page Issue Presented ...........sccsececesseessceceesseeesesecaseesssseeeeseesensesensesenseeeneesenseesete 1 Statement of the Case.....csccecscsscsssersecsssssseesssesesctsesscssecesereseseseseseneeareas 1 Reason for Granting ReVieW..........c:csccesesscesseseeseeceeseseensceceeeseeeaeeeessecenateesees 4 I, Review is required to determine whether the realignmentact applies when a previously-imposed state prison sentence is ordered executedon orafter the operative date of the aCtoceeecesseeceeeetectsteeserereeeeees 5 COMnCIUSION 00... seeessesesesessecscesscesseesecescessersceseensesasecateonssessseraeevsevaneneeesesenees 10 TABLE OF AUTHORITIES Page CASES People v. Clytus (2012) 209 Cal.App.4th 1001 occeessceeeceeesessessenseescetseeteseersreeseeaes 4,8 People v. Flores (1974) 12 Cal.3d 85 vcccessssssesseesescsssesssecsssnsessssesssasseeessesaressesscceseasenaseeens 8 People v. Gipson (2013) 213 Cal.App.4th 1523 ooeeesessssesscseneseeteeseteessenssosensenseneeees 4,6,7 People v. Howard : (1997) 16 Cal.4th 1081cecccsesseceseetsenssesssseeseeseeneeseressesseres 5, 6, 7,8 People v, Kelly (2013) 215 CalApp.4th 297 oo.eeeccssssesessecsecneerssssssessenecseansenserseneestees 4,7 People y. Mora (2013) 214 Cal.App.4th 1477 occccsescsecssessersesessessesareecesssesassesenseeneses 4,7 People v. Ramirez (2008) 159 Cal.App.4th 1412 vcceeessssstesssescescssseesssssessrseescaseseeseseessees 9 People v. Robinson (1954) 43 Cal.2d 143 vocccscssssssesscsssessssesssseersessesssssessssssserenssesssseseresssares 7 People v. Wilcox (2013) Cal.App.4th [2013 Cal. App. LEXIS 508]..........csescscee 4, 8,9 STATUTES Health and Safety Code § 11350, Sub. (@)..... eeecceesesseessssenessecsescesesesscsssncenesscetsnesseeesusstesegeessesasesones 1 SLBSLSeesctsetessessesssenseseeeeseressessesecsceasssesessssacaesevatsenesseneseeetsaeeeseneneess 1 § 11352, subd. (a)... ecccsesssescssscssccsecsnsssesseescescssessssesseuseessesseeseesssessesss 1,5 § 11364, SUDA, (€)....ceeesssessesssssterssensetsresesessssscsssesnesttseetscatsene retedetesneeesenees 1 § 11370.2, SUD. (8)0... cscessecrssetsereeseesseecetsssensesssessessesceessssssaesessessevseensenses 1 ii Penal Code § LTSeacstccessscesetscccscnscetscsnssssseesssescusssssesseesaessneescsssesstesseuacensssecensacsecuseasevsnes 5 § L170.eeecesssecsssscssscesssssesseseecsseenseceenesscevseecsusesssensesaseesevauosensasseseavenseseas 7 § 1170, SUbG. (€)(3) oo.ee eeeeseteessescnsececsecnensesesensseserseveesersneseseseeanssesessessesas 7 § 1170, subd. (h) oo...ee cessesssceresssceecssesssseesseesessasssssscserensseessenseserssrsaseeessass 5 § 1170, subd. (h)(1) and (2) aeccccsesescsssssevesssesssaessessesessrssseeeseaseseseens 3,5 § 1170, subd. ()(3).... ec cseccscssetesssscsesessessssssstsssseseessescesseseesseseusnssscseeeesseass 5 § 1170, subd. (1)(6).... cc cccecsscsccsscecectsesscscesecsnsssessceseesessnscsessenerevsesiensesoess 5 § 12038Deeeceeseeeeseesesenesscteessccnevsessessesecarcsacsessesecensaesansuessesaneensessseseteees 2 § 1203.2, Subd. (C).....ccscssccceseeseesscesecssesscssesseeesscsssaesenessenatssecseesseusesaseseavas 7 § BBSesescccssescosssecssssessecssesvecssesesececctseesesecessesseuseessecssacasesacesssacsessensersas 2 § 3450... cssssccessecessececsssserseseescossevevssessessssesscessessssessesseseusesssececuecsessssesersns 5 Vehicle Code § 23222, SUBGIVISION (D) ........:cceesssssssssssseescessesscossecseceessessessecseescerssatseeeesssses 1 CouRT RULES California Rules of Court TUNE 435(D)(2) .cceressccsorerevetsecessscsseserseeesesseceseesseesssesaessesssssseessensenssseesnserenteey 7 TUle 4.435(D)(2) vr eeeecccscseeseeereesessecneneeeswe seeecescesetessevsessaeaesnatseeeseesesessennes 6, 7 TULE 8.500(€) ..ceecsessscressecceessesessseeassatscsesesscesssessesssscssenseessessseeeereseseeersesseases 1 ill Respondentrespectfully petitions for review of the decision of the Court ofAppeal for the Sixth Appellate District. The decision, attached as Exhibit A, was filed on May 23, 2013. It is published at 216 Cal.App.4th 848. Neither party sought rehearing. This petition is timely. (Cal. Rules of Court, rule 8.500(e).) ISSUE PRESENTED Whether the defendantis “sentenced on or after October 1, 2011,” wherethe trial court suspends the execution of a prison sentencepriorto | the Realignment Act’s operative date and later executes the sentence upon revoking probation after that date? STATEMENT OF THE CASE Defendant was charged by a May 7, 2009 information with sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a); count 1), possession of cocaine base for sale (Health & Saf. Code, § 11351.5; count 2), possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a); count 3), misdemeanor possession of marijuana while driving (Veh. Code, § 23222, subd. (b); count 4), and misdemeanorpossession of controlled substance paraphernalia (Health & Saf. Code, § 11364, subd. (a); count 5). (1 CT 182-184.) The information further alleged that defendant had previously been convicted of a controlled substance offense within the meaning of Health and Safety Code section 11370.2, subdivision (a). (1 CT 183.) On May7, 2009, defendant pleaded no contest to count 2 and admitted the prior conviction allegation, on condition that he be placed on felony probation with a seven-year suspendedprison sentence. (1 CT 186- 187, 191.) On June 12, 2009,the trial court sentenced defendantto the California Department of Corrections and Rehabilitation (CDCR)for a period of seven years, suspended execution of sentence, and ordered defendant to serve three years’ formal probation. (1 CT 210.) At the time of sentencing, the trial court stated: So as to Count 2, the Court imposes the middle term of four years. Court imposes an additional three years pursuant to 1170,2(a) [sic] for a total of seven years. Court stays execution of that sentence and orders defendant placed on probation .... [T] --- C9 The Court orders defendant to serve 252 days in the county jail, credit for 252 days served-168 actual days and 84 conduct credit. It’s not that-not that punishment could be warranted,I think the defendant’s at a stage in his life where he can dotime, and as much as you want to give him,it’s not going to change a thing. He is where he is. And as you know,I’m sure much better than I do, any [] time you don’t get now you’re going to get later ifyou mess it up so-that’s the deal. (1 RT 8, 10,italics added.) The remaining charges and allegations were dismissed under Penal Code section 1385. (1 CT 211.) On October 4, 2011, the probation departmentfiled a petition pursuant to section 1203.2. It alleged that defendant had violated his probation byfailing to complete a drug treatment program. (1 CT 269.)” On November1, 2011, defendant admitted a violation of probation terms and conditions. (1 CT 273.) Defendantindicated that he understood that he faced a seven-year sentence. (4 RT 903.) ' All further references are to the Penal Code unless otherwise noted. ? The defendant’s probation had been revokedandreinstated two timesprior to the October 2011 petition. (1 CT 236, 264.) On December13, 2011, the court indicated its intention to revoke probation and execute the previously-imposed prison sentence of seven years. (5 RT 1205.) The court continued the case for briefing on whether defendant should serve the sentencein prison or locally. (5 RT 1207.) On December20, 2011, the district attorney filed opposition to defendant serving the prison term in county jail under section 1170, subdivision (h)(1) and (2) of the Realigment Act. (1 CT 276-284.) On December22, 2011, the trial court revoked probation and ordered defendantto serve his sentence in county jail: All right. And generally I agree with the People’s reasoning. Andessentially, once a sentence is imposed, that sentence may notlater be modified. However, recent legislation, 1170(h), technically applies to all persons sentenced on or after October 1st of this year. Because the decision whetheror notto reinstate the defendant on probation ornotin this case is essentially a sentencing proceeding, the Court finds that under 1170(h) that this as it is a sentencing proceeding, the defendant would qualify under 1170(h). In addition, because a commitment to county jail may be considered a less serious penalty than sentencedto state prison, although that may be subject to some argument by certain- depending on the individual, there’s issues of equal protection under the law and the defendant should receive the benefit of any lesser penalty. Which again, a local commitment may be considered a lesser penalty in general than a state commitment. Becauseofthat, the Court does find that sentencing the defendantto serve the execution sentence suspended does qualify under 1170(h)as to that issue. (6 RT 1502-1503.) On appeal, the People contendedthat the trial court erred by committing defendant to county jail rather than to state prison. The Court ofAppeal disagreed. The Court of Appeal held that “the provisions of the amendedstatute should apply to those qualifying defendants who committed a crime now subject to sentence in county jail prior to the passage of the Realignment Act, were placed on probation after execution of sentence was suspended, violated probation, and whose sentence was then executed after October 1, 2011.” (Slip Opn.atp. 9.) REASON FOR GRANTING REVIEW Review should be granted to resolve whether the Realignment Act applies where trial court has imposed and suspendedthe execution of a state prison sentence before the Act’s operative date of October 1, 2011, and thetrial court later revokes the defendant’s probation and orders the execution of the sentence on or after October 1, 2011. This issue requires review becauseit represents an important and recutring question of law that has divided appellate courts. This precise issue has resulted in a split of authority in the Courts of Appeal. People v. Gipson (2013) 213 Cal.App.4th 1523, People v. Mora (2013) 214 Cal.App.4th 1477, People v. Kelly (2013) 215 Cal.App.4th 297, and People v. Wilcox (2013) _ Cal.App.4th __ [2013 Cal. App. LEXIS 508] held that the Realignment Act does not apply to sentences imposed beforeits effective date, even if the sentence is not executed until after its effective date. On the other hand, the Court of Appeal in this case agreed with the decision in People v. Clytus (2012) 209 Cal.App.4th 1001, that the Realignment Act applies to previously suspended sentencesthat are executed after the Act’s operative date. This split of authority, if unresolved, will lead inevitably to inconsistent results in the trial courts. Those courts must determine, upon probation revocation, whether defendants should be committed to state prison or county jail. Thus, in light of the importance ofthis issue to the orderly administration of the criminal justice system, respondent respectfully requests that this Court grant the petition for review. I. REVIEW IS REQUIRED TO DETERMINE WHETHER THE REALIGNMENT ACT APPLIES WHEN A PREVIOUSLY-IMPOSED STATE PRISON SENTENCE IS ORDERED EXECUTED ON OR AFTER THE OPERATIVE DATE OF THE ACT On April 4, 2011, Governor Brownsigned AB 109, which redefined felonies and shifted responsibility for both supervising and housing certain felons and parolees from the state to the county. As stated in sections 17.5 and 3450, the purpose ofAB 109is to divert “low-level offenders” from state prison to locally run community-based corrections programs, with the goal of creating a morecost-effective system that reduces recidivism and improvespublic safety. AB 109 and its companion bills, AB 117, AB 118, AB 116, ABX 1 16, and ABX1 17 mandate that felony terms for approximately 500 different crimes be served in local custody instead of state prison. (§ 1170, subd. (h)(1) & (2).) Such felons must be nonviolent, nonserious, and nonsexual offenders. (§ 1170, subd. (h)(3).) Defendant’s offense of conviction-possession of cocaine base for sale-is a qualifying felony under section 1170, subdivision (h)(1) and (2). (Health & Saf. Code, § 11351.5.) However, section 1170, subdivision (h)(6) states: “The sentencing changes madebythe act that addedthis subdivision shall be applied prospectively to any person sentenced on or | after October 1, 2011.” (Xtalics added.) Defendant was sentenced to seven years in the Department of Corrections and Rehabilitation on June 12, 2009, prior to the effective date of the Realignment Act. (1 CT 210.) Thetrial court also suspended execution of defendant’s sentence on June 12, 2009. It did not order the judgmentinto effect until December 22, 2011. The fact that the stay waslifted after October 1, 2011 does not bring defendant within the sentencing provisions of section 1170, subdivision (h). Rather,at all times, defendant remained a person sentencedto state prison as of June 12, 2009. People v. Howard (1997) 16 Cal.4th 1081 explained: [I]f the trial court has suspended imposition of sentence,it ultimately mayselect any available sentencing option. However,if, as here, the court actually imposes sentence but suspendsits execution, and the defendant does not challenge the sentence on appeal, but instead commencesa probation period reflecting acceptance of that sentence, then the court lacks the power, at the precommitmentstage (see § 1170, subd. (d)), to reduce the imposed sentence onceit revokes probation. (Id. at p. 1084.) This is because “where a sentence has actually been imposedbut its execution suspended,“The revocation of the suspension of execution of the judgment brings the former judgmentinto full force and effect....’ [Citations.]” (/d. at p. 1087.) This court further stated in Howard: Therefore, section 1203.2, subdivision (c), and rule 43 5(b)(2),° by their terms, limit the court’s powerin situations in which the court chose to impose sentence but suspendedits execution pending a term ofprobation. On revocation of probation,ifthe court previously had imposed sentence, the sentencing judge must order that exact sentence into effect (People v. Chagolla (1984) 151 Cal_App.3d 1045, 1050-1051; accord, People v. Colado (1995) 32 Cal.App.4th 260, 262-264), subjectto its possible recall under section 1170, subdivision (d), after defendant has been committed to custody. (id. at p. 1088,first italics added, parallel citations omitted.) The “exact sentence” (Howard, supra, 16 Cal.Ath at p. 1088) imposed bythe trial court on June 12, 2009 was seven years in state prison. As the Gipson court explained: “[U]nder Howard, imposition of sentenceis equated with entry of final judgment. Whena final judgment is entered, 3 Now Cal. Rules of Court, rule 4.435(b)(2): “On revocation and termination ofprobation under section 1203.2, when the sentencing judge determines that the defendant will be committed to prison: ... (2) If the execution of sentence was previously suspended, the judge must orderthat the judgment previously pronouncedbein full force and effect and that the defendant be committed to the custody of the Secretary of the Department of Corrections and Rehabilitation for the term prescribed in that judgment.” everything about a defendant’s sentenceis prescribed. It would beillogical to say he has not been sentenced. Ifwe were to conclude that the word ‘sentenced’ means that sentence was both imposed and executed, we would force an extra meaning on the languageit is not susceptible to.” (213 Cal.App.4th at pp. 1529-1530; see also People v. Mora, supra, 214 Cal.App.4th at p. 1482; People v. Kelly, supra, 215 Cal.App.4th at pp. 305- 306.) . | Whenthetrial court revoked defendant’s probation on December 22, 2011, its discretion was limited under section 1203.2, subdivision (c) to ordering the previous judgment into “full force and effect.” Nothing in the Realignment Act reflects an intent to abrogate section 1203.2, subdivision (c), or this court’s decision in Howard. (See People v. Kelly, supra, 215 Cal.App.4th at p. 305 [“The rule of statutory construction that the Legislature is deemed to be aware of statutes and judicial decisions already in existence and to have enacteda statute in light of existing statutes and decisions ... assists in resolving that potential ambiguity”].) In fact, when the Legislature amended Penal Codesection 1170, it left unchanged the following language: “In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council.” (Pen. Code, § 1170, subd, (a)(3).) Thus, the Realignment Actconfirmsthe interpretation Howard gave to former Rule 435(b)(2) (now Rule 4.435(b)(2)). The distinction overlooked by the Court of Appealin this caseis that the judgment was only rendered once,i.e., when the trial court imposed sentence on June 12, 2009 and not whenthe court subsequently revoked probation and ordered execution of the sentence on December 22, 2011. (See § 1203.2, subd. (c); People v. Robinson (1954) 43 Cal.2d 143, 145 [if judgment is pronounced and probation granted, the subsequent order revoking probation is appealable as a post-judgmentorderaffecting substantial rights].) There is no distinction between passing or pronouncing sentence and pronouncing judgment: “All are deemedto occurat suchtimeasthe court imposes sentence, which act constitutes the rendition ofjudgment. [Citations.]” (People v. Flores (1974) 12 Cal.3d 85, 93, fn. 6.) The Legislature presumably meant “any person sentenced” in the Realignment Act to mean any person on whomjudgment was pronouncedonor after October 1, 2011. In this case, the trial court had pronounced sentence over two years earlier, in 2009. The Court ofAppeal’s affirmanceofthe trial court’s imposition of a sentence to county jail is inconsistent with the Legislature’s decision that the Realignment sentencing changes apply prospectively. The Court of Appeal’s ruling is also inconsistent with Howard, which required the trial court either to commit the defendantto state prison or to reinstate probation with the same suspendedstate prison sentence. Theruling also is inconsistent with Flores’s equation of the imposed sentenceto the judgment. Finally, review is needed because the decision by the Court of Appeal below,as in Clytus, incorrectly assumesthat “the Realignment Act does not modify the punishmentfor the relevant crimes.” (People v. Wilcox, supra, 2013 Cal.App.Lexis at p. *9; see Slip Opn. at p. 10.) “Althoughthe - Realignment Act appears notto lessen the term of confinement, it nonetheless reduces punishmentfor the relevant crimes... . [A] person sentenced to county jail under the Realignment Act may have a concluding portion of the sentence suspendedin lieu of de facto probation, and is not subject to postrelease supervision. Since a person sentencedto state prison is not entitled to these benefits, the county jail provisions ofthe Realignment Act effectively reduce the punishmentfor the myriad of covered crimes. [Citation.]” (/bid.) “Applying the Realignment Act to a defendant’s suspendedstate prison term would reduce the sentence and therefore modify the previously imposed term, contravening section 1203.2, subdivision (c). It would also alter the termsof the plea agreement where the suspended term waspart of a stipulated sentence underthe plea agreement. In mostcases, including this one, application of the Realignment Act wouldalter a sentence that was final and binding onthetrial court. (See People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 [sentence imposed but execution suspendedis an appealable order, if not challenged on appeal,is final and binding.when probation is revoked].)” (/d. at pp. *9-*10.) Considering the significant impact on the criminal justice system from the alteration of final sentences, the issue requires a speedy and definitive resolution. Accordingly, respondent respectfully requests that this Court grant the petition for review. CONCLUSION Accordingly, respondent respectfully requests that the petition for review be granted. Dated: June 28, 2013 SF2012204227 11115056.doc Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General GERALD A. ENGLER Senior Assistant Attorney General LAURENCEK. SULLIVAN Superyjsing Deputy Attorney General fool GMD» be BRIDGET BILLETER Deputy Attorney General Attorneysfor Appellant 10 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEWusesa 13 point Times New Romanfont and contains 2,635 words. Dated: June 28, 2013 KAMALA D. HARRIS Attorney General of California fave Ifbde BRIDGET BILLETER Deputy Attorney General Attorneysfor Appellant EXHIBIT A Filed 5/23/13 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE, H037923 (Monterey County Plaintiff and Appellant, Super. Ct. No. SS080912) Vv. JAMES RUSSELL SCOTT, Defendant and Respondent. Defendant James Russell Scott pleaded no contest to the crime ofpossession of cocaine basefor sale (Health & Saf. Code, § 11351.5) on May7, 2009. The plea was entered on the condition that defendantbe placed on felony probation with a suspended seven year prison sentence. Defendant admitted a violation of probation on November1, 2011. Thetrial court then revoked defendant’s probation and ordered defendant to serve his sentence in countyjail under the Criminal Justice Realignment Act (hereafter the Act, or Realignment Act), which in part modified the provisions of Penal Code section 1170, subdivision (h)(1) and (2).' (Stats. 2011, Ist Ex. Sess. 2011-2012, ch. 12, § 1.) The People appealthetrial court’s order sentencing defendant to countyjail. For the reasons set forth below, we affirm the judgment. PROCEDURAL BACKGROUND” On May7, 2009, defendant pleaded no contest to a count ofpossession forsale of cocaine base (Health & Saf. Code, § 11351.5) and admitted the allegation of a prior drug- ' All further unspecified statutory references are to the Penal Code. * The facts of the underlying case are notrelevantto the current appeal. related conviction (id. § 11370.2, subd. (a)), on the condition that he be placed on felony probation with a seven-year suspended prison sentence. On June 12, 2009,thetrial court sentenced defendant to the California Department of Corrections and Rehabilitation (CDCR)for a term of seven years, suspended execution of sentence, and placed defendant on three years probation. | On October 4, 2011, the probation departmentfiled a probation violation petition pursuantto section 1203.2.? Defendant admitted the violation on November 1, 2011. On December 13, 2011, the trial court indicated its intention to revoke defendant’s probation and impose a seven-year sentence in the county jail pursuant to section 1170, subdivision (h), as amendedby the Realignment Act. The People objected to sentencing defendantto a term in the county jail under section 1170, subdivision (h), stating on the record that “the People’s position is that the defendant has been already sentenced.” After a sidebar discussion, the court continued the hearing to give both parties time to consider the issue andfile briefs on whether or not defendant should be sentenced to state prison or county jail. The People filed a brief on this point on December 20, 2011. In essence, the People argued that section 1170, subdivision (h) applies prospectively to cases where defendants are sentenced on or after October 1, 2011. The People contendedthat since defendant was sentenced on June 12, 2009, before the effective date of section 1170, subdivision (h), the court had no powerto sentence defendant to countyjail. On December 22, 2011, the trial court, after reviewof the People’s arguments, revoked defendant’s probation and sentenced him to serve a seven-year sentence in county jail. During the hearing,thetrial judge stated that “generally I agree with the People’s reasoning. And essentially, once a sentence is imposed, that sentence may not > Defendanthad already violated his probation twice before the October 4, 2011 petition, and both times his probation was revoked andreinstated bythe trial court. later be modified. [{] However, the recent legislation, [section] 1170[, subdivision] (h), technically applies to all persons sentenced on or after October 1st of this year. [{] Because the decision whetheror not to reinstate the defendant on probation or notin this case is essentially a sentencing proceeding, the Court finds that under [section] 1170[, subdivision] (h) that this as it is a sentencing proceeding[sic], the defendant would qualify under [section] 1170[, subdivision] (h). [{]] In addition, because a commitmentto county jail may be considered a less serious penalty than sentenced[sic] to state prison, although that may be subject to some argument. . . there’s issues of equal protection under the law and the defendant should receive the benefit of any lesser penalty.” ‘The People filed a timely notice of appeal over the imposed sentence on February 6, 2012. DISCUSSION Onappeal, the People raise the sole argument thatthetrial court erred in sentencing defendant to county jail under the newly amended provisions of section 1170, subdivision (h), effectuated by the Realignment Act. For reasons we explain below, we disagree with the People’s argument, and affirm the judgment. Standard ofReview and Principles ofStatutory Construction The question of whether or not the changes madeto the Penal Code by the Legislature through the Realignment Act apply to those defendants whose sentence was imposed but suspended before the effective date of the Act, but whose sentence was executed after the effective date of the Act, is a question of law that we will review de novo. (People v. Failla (2006) 140 Cal.App.4th 1514, 1520.) To properly construe a statute, we must “ ‘ “ascertain the Legislature’s intent so as to effectuate the purpose ofthe law.” >” (People v. Canty (2004) 32 Cal.4th 1266, 1276 (Canty).) The rules of statutory construction are well settled. “Ourfirst task is to examine the language of the statute enacted asan initiative, giving the words their usual, ordinary meaning. [Citations.] If the language is clear and unambiguous, we follow the plain meaning of the measure. [Citations.] ‘[T]Jhe “plain meaning”rule does not prohibit a court from determining whetherthe literal meaning of a measure comports withits purpose or whether such a construction of one provision is consistent with other 7 99provisionsofthe statute.’ (/bid.) “The language is construed in the context of the statute as a whole andthe overall statutory scheme, and wegive‘significance to every word, phrase, sentence, and part of an act in pursuanceofthe legislative purpose. [Citation.]’ [Citations.] The intent of the law prevails overtheletter of the law, and‘ “the letter will, if possible, be so read as to conform to the spirit of the act.” ” (Id.at pp. 1276-1277.) If the Legislature “ ‘has provided an express definition of a term, that . definition ordinarily is binding on the courts.’ ” (/d. at p. 1277.) The Realignment Act The Realignment Act, enacted in 2011 and operative October 1, 2011, provides that certain defendants who would have received a sentence to prison prior to the enactmentofthe Act will now receive a sentence to county jail. (§ 1170, subd. (h)(1)- (3).) Certain defendants are excluded from this statutory scheme, including those who are required to register as sex offenders, or those who haveprior serious or violent felony convictions. (/d. subd. (h)(3).) Under the sections of the Penal Code amendedbythe Realignment Act, defendants whoplead guilty or are convicted of the same crime as defendantin this present case will now receive a term of commitment in county jail for their offenses. Section 1170, subdivision (h)(6), specifies that the amendments made by the Act apply prospectively to those defendants sentenced on or after October 1, 2011. Defendant was Properly Sentenced Underthe Realignment Provisions The People contend that defendant was sentenced in 2009, whenthetrial court placed defendant on probation and suspended the execution of his seven-year prison sentence, and not when his sentence wasactually executed in 2011 after his probation was revoked. It is the People’s position that the trial court violated section 1203.2 and Rules of Court, rule 4.435(b)(2), when it sentenced defendant to county jail instead of state prison, as originally imposed bythetrial court in 2009.* Defendant argues that the Second Appellate District, Division 8’s decision in People vy. Clytus (2012) 209 Cal.App.4th 1001 (Clytus), is instructive. In Clytus, the court held that a trial court that executes a suspended sentence after October 1, 2011, does not possess the discretion to send a defendant to state prison if he or she qualifies for confinement in county jail under the Realignment Act. (/d. at p. 1004.) The factual situation in Clytus is analogous to defendant’s present case, as the Clytus defendant was sentenced prior to October 1, 2011, but had execution of his sentenced suspended, and was placed on probation. (/bid.) Thereafter, the Clytus defendantviolated his probation, which he admitted during a hearing on October 14, 2011, after the Realignment Act becameoperative law. (bid.) The Clytus court acknowledged the California Supreme Court’s decision in People v. Howard (1997) 16 Cal.4th 1081 (Howard), which held that “once imposed, a suspended sentence may notlater be modified.” (Clytus, supra, 209 Cal.App.4that p. 1005.) However, the court found that Howard neither bound the court in any way nor guided the court in its interpretation of the Realignment Act. (/d. p. 1006.) The Clytus * Section 1203.2, subdivision (c), provides that “[u]pon any revocation and termination of probation the court may,if the sentence has been suspended, pronounce judgmentfor any time within the longest period for which the person might have been sentenced. However,ifthe judgment has been pronounced andthe execution thereof has been suspended, the court may revoke the suspension andorderthat thejudgmentshall be infullforce and effect. In either case, the person shall be delivered over to the proper officer to serve his or her sentence, less any credits herein provided for.” (Italics added.) Rules of Court, rule 4.435(b), similarly states that: “(b) On revocation and termination of probation under section 1203.2, when the sentencing judge determinesthat the defendant will be committed to prison: [] . . . [{] (2) If the execution of sentence was previously suspended, thejudge must order that thejudgmentpreviously pronouncedbeinfullforce and effect and that the defendant be committed to the custody of the Secretary of the Department of Corrections and Rehabilitation for the term prescribed in that judgment.” (Italics added.) court concluded that under the plain meaningof section 1170, subdivision (h)(6), “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.” (Clytus, supra, at p. 1006.) The court further noted that nowherein the statute was there any indication that the “Legislature intendeda different result if a prison sentence was imposed and suspended before October 1, 2011, and executed on or after October 1, 2011.” (/d. at pp. 1006-1007.) The court madethe finding that though the Clytus defendant was sentenced prior to October 1, 2011, he wasstill a “ ‘person sentenced’ ”for the purposes of section 1170, subdivision (h)(6), when the court executed the suspended sentence after October1, 2011. (Clytus, supra, at p. 1007.) In comingto its conclusion, the Clytus court in part looked to the intent of the Legislature in passing the Realignment Act. (Clytus, supra, 209 Cal.App.4th at pp. 1006- 1007.) Section 1170, subdivision (h)(6), on its face seems unambiguous, but an application of the section to the factual situation presented here requires an interpretation of what the Legislature meant by those “sentenced”on orafter the effective date of the statute. Wefind that the intent of the Legislature proscribes an interpretation of the statute such that the provisions of the Act would apply to individuals in defendant’s situation, where probation was granted, revoked, and the previously suspended sentence executed after the effective date of the Act. The Legislature enacted the Realignment Act in response to growing rates of recidivism with the specific goal of increasing public safety while reducing costs. This intent wasclear, as the Legislature’s stated purpose for enacting the Realignment Actis codified in section 17.5. (Stats. 2011, ch. 39, § 5.) First, the Legislature declared that “TdJespite the dramatic increase in corrections spending over the past two decades, national reincarceration rates for people released from prison remain unchanged or have worsened. National data show that about 40 percent of released individuals are reincarcerated within three years. In California, the recidivism rate for persons, who have served time in prison, is even greater than the national average.” (§ 17.5, subd. (a)(2).) Further, the Legislature declared that “[rJealigning low-level felony offenders who do not haveprior 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 Realignment Act was therefore enacted with this particular framework and these particular purposes in mind, These intentions are bolstered by the Legislative Analyst’s Office report published on criminal justice realignment. In its report, the Legislative Analyst’s Office analyzed that some of the benefits from realigning low-level offenders who commit certain drug- related crimes, like defendant here, to county jail instead of prison, are derived from the fact that state programsfor drug offenders are lacking compared to community-based programs, as demonstrated by the efficacy of Proposition 36 drug probation. (Legis. Analyst’s Off., 2009-2010 The Budget Analysis Series, Criminal Justice Realignment (2009-2010 Reg.Sess.) Jan. 27, 2009, pp. 11-15.)° The report also outlined that consolidating responsibility for these offenders to local authorities would foster innovation,as the state itself faces inherent obstacles in managing a substance abuse program in a prison setting. (/d. at p. 13.) The report additionally stated that realigning > “To determine the purposeoflegislation, a court may consult contemporary legislative committee analyses of that legislation, which are subject to judicial notice.” (In re J.W. (2002) 29 Cal.4th 200, 211.) The Legislative Analyst’s Office report, and the legislative history of the Realignment Act,is not a part of the record before us on appeal. Nonetheless, all are official government documents that are the proper subject ofjudicial notice. (Evid. Code, §§ 452, subd. (c), 459.) We therefore take judicial notice of the legislative history of the Realignment Act on our own motion. low-level offenders wouldprioritize state prison spaces for serious and violent offenders. (Id. at p. 14.) Notably, in passing the Act, the Legislature codified that the amendments madeto the Penal Code were to be made prospective. In Assembly Bill No. 109, the Legislature initially included a provision, then located in section 1170, subdivision (h)(5), which specified that the amendments madeto the statute would be madeprospective only to those defendants sentenced on or after July 1, 2011. (Stats. 2011, ch. 15, § 450.) The Senate Rules Committee’s third reading for Assembly Bill No. 109 on March 14, 2011, stated changes madeby the Act would be “applied prospectively beginning July 1, 2011.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 109 (2011-2012 Reg. Sess.) Mar. 14, 2011, p. 4.) Later, the language in section 1170, subdivision (h)(5) was renumbered to subdivision (h)(6) by Assembly Bill No. 117,to its present form where it now mandates that the changes madeby the Realignment Act will apply prospectively to all those sentenced on or after October 1, 2011. (Stats. 2011, ch. 39, § 27.) In its analysis of the amendments made tothelegislation, the Senate Rules Committee’s third reading of Assembly Bill No. 117 stated that the operative date of the Act would change from July 1, 2011, to October 1, 2011. (Sen. Rules Com. Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 117 (2011-2012) as amended Jun. 28, 2011, p. 2.) From this, weglean that the Legislature intended that the changes to section 1170 be made prospective, which is why the Legislature included the language in section 1170, subdivision (h)(6). The question is thus whether or not the Legislature intendedthis prospective application to include defendantsin the situation presented here. Wefind thatsince the legislative intent of the Realignment Act wasto direct certain low-level offenders from state prison to county jail and other community-based programsprospectively after October 1, 2011 (§ 1170, subd. (h)(6)), the Act is properly interpreted as to realign offenders in defendant’s situation. Namely, wefind the provisions of the amendedstatute should apply to those qualifying defendants who committed a crime now subject to a sentence in county jail prior to the passage ofthe Realignment Act, were placed on probation after execution of sentence was suspended, violated probation, and whose sentence wasthen executed after October 1, 2011. This interpretation satisfies the stated purposes of realignment: reducing recidivism by redirecting low-level felons, such as defendant here, to county and other locally-based programsoverstate programs. This interpretation also furthers the Legislature’s intent to . apply the Act prospectively, to apportion prison space to moreseriousor violent offenders, and to reduce recidivism by directing offenders to locally-based programs. To draw a distinct line barring defendants whose sentence was executedafter the effective date of the Act, but whose sentence was imposedpriorto the act, from serving their terms in county jail fails to promote the Legislature’s stated goals.° Wedo notagree with the People’sassertion that the California Supreme Court’s decision in Howard controls. In Howard, the court determined that once a sentenceis imposed, even if the execution of the sentence is thereafter suspended, that sentence may not be modified bythe trial court. (Howard, supra, 16 Cal.4th at p. 1085.) “[I]f the court has actually imposed the sentence, and the defendant has begun a probation term representing acceptanceofthat sentence, then the court has no authority, on revoking probation, to imposea lesser sentence at the precommitmentstage.” (/d. at p. 1095.) Here, the People’s argumentis that once the sentence was imposed--seven yearsin state ° Other amendments made to the Penal Code by the Realignment Actalso underscore the Legislature’s intent. For example,sections 3000.08 and 3451, added by the Legislature to address postrelease supervision for felony offenders released on or after October 1, 2011, specify that unless a parolee committed certain offenses, such as a serious or violent felony, the parolee would be subject to postrelease supervision by county authorities, not state authorities. Again, this furthers the legislative intent to shift responsibility for certain felony offenders, whether it be for postrelease supervision or for incarceration, from the state to local governments after October 1, 2011. prison--thetrial court had no authority to modify this sentence such that defendant would be sentenced to seven years in countyjail. Asthe court in Howard explained,there is a vital difference betweena trial court suspending imposition of a sentence and suspending execution of a sentenceprior to | placing a defendant on probation. (Howard, supra, 16 Cal.4th at p. 1087.) In the former, no judgment has been imposed, and the defendantis only subject to the agreed-upon terms of probation. (/bid.) In the latter, a judgment has been imposed,it is only that the execution of the sentence has been suspended. (/bid.) Once probation is revoked, the judgment comes“ ‘into full force and effect’ ” (ibid.) such that the former sentence, with no modifications made bythetrial court, will be executed. (/d. at pp. 1087-1088.) In defendant’s case here,the trial court suspended execution of defendant’s seven- year state prison sentence in 2009. Underthe rationale set forth in Howard, oncethetrial court revoked defendant’s probation in 2011, the full force of the prior judgment should have taken effect. However, what the Howard court did not contemplate is the situation that is laid out before us here, in which througha legislative change of law the sentence proscribed is now a term in jail instead of prison. Since “cases are not authority for propositions not considered,” we find that Howard does notcontrol in thissituation. (People v. Brown (2012) 54 Cal.4th 314, 330 (Brown).) Here, the trial court is not modifying a prior suspended sentence by reducing or otherwise ameliorating the term of commitment. Instead, it is following the letter of the new law. Wenote that not all courts have followed this same rationale. The Fourth Appellate District recently published an opinion holding that Howard andsection 1203.2, subdivision (c) control as the Legislature did not expressly abrogate or amend these sections whenit enacted section 1170. (People v. Kelly (April 10, 2013, E055263) ___ Cal.App.4th [2013 WL 1449756] (Kelly).) It is true that when the Legislature passes a new law,it is presumed to do so in light of existing cases and statutes. (People v. Yartz (2005) 37 Cal.4th 529, 538.) However, as we previously discussed ante, Howardis not 10 instructive in this particular case. It follows that simply because the Legislature did not expressly abrogate section 1203.2 or Howard when enacting the provisions of the Realignment Act does not necessarily render the amendedportions of section 1170, subdivision (h), inapplicable to defendants in our situation. We therefore respectfully disagree with the Kelly court’s conclusion in that regard. Additionally, in Peoplev. Gipson (Feb. 28, 2013, B241551)_ - Cal.App.4th __ [2013 WL 746637] (Gipson), Division 2 of the Second Appellate District determined that a defendantis “sentenced” when the sentence is imposed, not whenit is executed, for purposesofinterpreting section 1170, subdivision (h)(6).’ The court in Gipson disagreed with the holding in Clytus, and found Howard persuasive. In so doing, the Gipson court found that a defendant is sentenced when the judgmentis imposed, but suspended,a _ defendantis not sentenced again when the sentence is executed. The analysis in Gipson focused primarily on the interpretation of the word “sentenced” in section 1170, subdivision (h)(6). (Gipson, supra, at p. *3.) If we follow the rationale of the Gipson court, the resolution of this present case depends on what the Legislature intended whenit limited the application of the Realignment Act to those defendants “sentenced”on orafter the operative date of October 1, 2011. (§ 1170, subd. (h)(6).) We agree that the definition of “sentenced” intendedby the Legislatureis the crux ofthis particular issue. However, we must respectfully disagree with the Gipson court’s interpretation of the Legislature’s intent as ’ The Fourth Appellate District also recently published an opinion adoptingthe rationale set forth in Gipson, concluding that the provisions of the Realignment Act do not apply to a defendant who was sentenced and had execution of sentence suspended prior to the effective date of the Realignment Act, but whose sentence was executed after October 1, 2011. (People v. Mora (Mar. 29, 2013, D062007)_--- Cal.App.4th -_ [2013 WL 1277829].) Both Mora and Kelly were decided by the Fourth Appellate District, though Mora was decided by Division 1 of the Fourth Appellate District and Kelly was decided by Division 2 of the Fourth Appellate District. 11 to the word “sentenced.” In Gipson, the court determined that Howard controlled and that “imposition of sentence is equated with entry of a final judgment”andsinceat that point “everything about a defendant’s sentenceis prescribed[,] [i]t wouldbeillogical to say he has not been sentenced.”® (Gipson, supra, _Cal.App.4th __ at p. *3.) The court therefore concluded that to construe that “sentenced” meant that a sentence must be both imposed and executed would force extra meaning on the languageofthe statute, whichit is not susceptible to. ([bid.) Wedonotfind that such an interpretation would force extra meaning into the statutory language. Section 1170, subdivision (h)(6) specifies that the provisions ofthe Realignment Act would only apply to those who would be sentenced on or after October 1, 2011. If we were to examinethis issue in a vacuum, without reference to the Legislature’s intent, we would agree with the People that this definition would exclude individuals such as defendant here as he was “sentenced” prior to October 1, 2011. However, given the Legislature’s intent was to reduce recidivism byredirecting low-level offenders to county and community-based programs, wefind that such an interpretation ® The Gipson court similarly found that People v. Chagolla (1984) 151 Cal.App.3d 1045 (Chagolla), bolstered its argument. In Chagolla, the court noted that “where sentence is imposed and execution thereof suspended, an appeal maybe taken from the sentence to state prison as the final judgmentor an order granting probation as an order madeafter judgment.” (/d. at p. 1049.) Accordingly,the trial court is “without jurisdiction to modify or changethe final judgment andis required to order into execution that judgmentafter revocation of probation. The attempted modification of{a] previously imposed sentence [is] beyondthetrial court’s jurisdiction and subject to review.” (/bid.) The Gipson court surmised that under the authority provided by Chagolla and Howard, “[hlere, we fail to see howthetrial court had jurisdiction to do anything other than order the execution of the previously imposedprison sentence.” (Gipson, supra, _ Cal.App.4th at p. *3.) We find Chagollais not instructive for similar reasons that we found Howard unpersuasive, as Chagolla concerneda trial court’s improper modification of a suspended sentence, and did not contemplate a modification or change made due to an amendmentto the statutory sentencing scheme. (Chagolla, supra, at pp. 1047-1048.) 12 of the word “sentenced” does not comport with our understanding of the statutory scheme of the Realignment Act. As the reviewing court, we not only look at the plain meaning of the statute, but at the spirit and intent of the Act, which wefind is best understood as codifying the Legislature’s intent to direct offenders in defendant’s situation to county- based programs. (See Canty, supra, 32 Cal.4th at pp. 1276-1277 [“The intent of the law prevails over the letter of the law, and ‘ “the letter will, if possible, be so read as to conform to the spirit of the act.” ’ ”].) Placing individuals, such as defendant, to prison over county jail when he or she would unequivocally be sentenced to county jail under the amended provisions of section 1170, subdivision (h), produces an anomalous situation that frustrates the purpose behind realignment. Wealso do not agree with the People’s contention that People v. Amons (2005) 125 Cal.App.4th 855 (Amons) is instructive. In Amons,the appellate court held the sentencing rules announced by Blakely v. Washington (2004) 542 U.S. 296 regarding the imposition of upper-term sentences did not apply to a criminal defendant whose sentence was imposedprior to the published date of the Blakely opinion, but executed after the published date of the opinion. (Amons, supra, at p. 860.) There, the appellate court noted that “ ‘[w]hen a decision of [the United States Supreme] Court results in a “new rule,” that rule appliesto all criminal cases still pending on direct review.’ (Schrirov. Summerlin (2004) 542 U.S. 348, 350-352.)” (Ud. at p. 863.) The appellate court then concludedthat the sentencing provisions in Blakely was not retroactive to defendants in Amons’situation, who was sentenced, had execution of sentence suspended, was placed on probation, and whose sentence waslater executed after revocation of probation. (Jd. at pp. 860, 869-870.) Here, unlike Amons, we are not concernedthe retroactive application of a change in law dueto a decision from our nation’s highest court. We are concerned with a legislative change in the law, and the Legislature’s intent in amending the Penal Code. 13 Given our understanding of the Legislature’s intent in passing the Realignment Act, andit’s intent in including the language in section 1170, subdivision (h)(6), we concludethat the benefits of the Act are properly construed to apply to the individuals in defendant’ssituation. Section 1170, subdivision (h)(6) and the Estrada Rule The People argue that the Legislature’s inclusion of section 1170, subdivision (h)(6), functions as an express saving clause that prohibits retroactive application of the Realignment Act under the Estrada rule. We agree with the People’s interpretation of the subdivision as a saving clause, but disagree with the People’s understanding of what constitutes a prospective-only application of the RealignmentAct. The Estrada rule is derived from the California Supreme Court’s decision in Jn re Estrada (1965) 63 Cal.2d 740, 742. In Estrada, the Supreme Court concludedthatifthe Legislature amendsa statute to mitigate the punishmentfor a specific crime, it must be assumedthat the Legislature intended that the statute be retroactively applied to all defendants whose judgments of convictionwere notfinal at the time of the statute’s operative date if there is no other evidence to the contrary. (/d. at pp. 742-748; Brown supra, 54 Cal.4th at p. 323.) The rule articulated by Estrada is inapplicable when the statute at hand contains an express saving clause,or its functional equivalent, which mandates a prospective application of the statute. (See People v. Nasalga (1996) 12 Cal.4th 784, 793.) The People argue that section 1170, subdivision (h)(6), functions as an express saving clause. Weagreethat setting the operative date of the statute to October 1, 2011, and further specifying that the changes to section 1170 shall apply only to those defendants sentenced on or after October 1, 2011, functions as a saving clause. It is clear that it was not the Legislature’s intention to retroactively apply the amended portions of section 1170 to all defendants who may qualify for sentences in countyjail, such as those defendants who werealready serving timein prison for their convicted offenses prior to 14 October 1, 2011. However, for the reasons we outlined above,it seems equally clearthat the Legislature’s goal behind enacting the Act wasto shift low-level offenders convicted of certain felonies from state to county supervision in an effort to reduce recidivism and to conservestate fiscal resources. The interpretation most in line with this intentis to read section 1170, subdivision (h)(6), as including individuals in defendant’ssituation within the scope of the Realignment Act. So while we agree with the People’s contention that section 1170, subdivision (h)(6) functions as an express saving clause, we do not believe the section acts to exclude those in defendant’s situation from sentencing under the Realignment Act. The People’s Equal Protection Argument Lastly, the trial court indicated during the sentencing hearingthat it believed that not sentencing defendantto county jail may be a violation of defendant’s equal protection rights. Hence, the People argue here on appeal that sentencing defendant to prison would not violate the principles of equal protection. However, since we determinethat defendant should be sentenced to county jail and not prison underthe Realignment Act, we neednot reach the issue ofwhether or not a sentence to prison would actually violate defendant’s right to equal protection under the law. DISPOSITION The judgmentis affirmed. Premo,J. WE CONCUR: Rushing,P.J. Elia, J. 15 Trial Court: Monterey County Superior Court Superior Court No. $S080912 Trial Judge: Hon. Mark E. Hood Counsel for Plaintiff/Appellant: The People Kamala D. Harris Attorney General Dane R.Gillette Chief Assistant Attorney General Gerald A. Engler SeniorAssistant Attorney General Laurence K. Sullivan Supervising Deputy Attorney General Bridget Billeter Deputy Attorney General Counsel for Defendant/Respondent:James Russell Scott Sixth District Appellate ProgramDallas SacherUnder appointment by the Court of AppealLaura Burgardt People v. Scott H037923 16 DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. James Russell Scott No.: I declare: I am employedin the Office ofthe Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office ofthe Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On June 28, 2013, I served the attached PETITION FOR REVIEWbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Laura Burgardt Attn: Executive Director Attorney at Law Sixth District Appellate Program P.O. Box 3084 . 100 North Winchester Blvd., Suite 310 Berkeley, CA 94703 Santa Clara, CA 95050 (2 copies) County ofMonterey Sixth Appellate District Salinas Division Court of Appeal ofthe State of California Superior Court of California 333 West Santa Clara Street, Suite 1060 240 ChurchStreet, Suite 318 San Jose, CA 95113 Salinas, CA 93901 The Honorable Dean D. Flippo District Attorney Monterey County District Attorney's Office P.O. Box 1131 Salinas, CA 93902 I declare under penalty of perjury under the lawsof the State of California the foregoingis true and correct and that this declaration was executed on June 28, 2013, at San Francisco, California. Tan Nguyen Mr PAO WWA Declarant Signatufe | $F2012204227 20706035.doc
