Kelly

In this case, we consider whether, after the operative date of the Criminal Justice Realignment Act of 2011 (Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1; Pen. Code, § 1170, subd. (h)) 1 (hereafter the Realignment Act or the Act), a defendant whose probation is revoked must serve his or her previously imposed and suspended sentence in state prison, according to the terms of the original sentence, even if the defendant otherwise qualifies for a term in county jail under the terms of the Act. The Act explicitly applies only to “any person sentenced on or after October 1, 2011.” (§ 1170(h)(6).) Defendant contends, however, that a hearing in which a previously imposed and suspended sentence is executed is a sentencing proceeding for purposes of the Act.

We conclude that in enacting the Realignment Act, the Legislature intended to adhere to existing law as discussed in People v. Howard (1997) 16 Cal.4th 1081 [ 68 Cal.Rptr.2d 870 , 946 P.2d 828 ] (Howard). In that case, the court held that a sentence which is imposed and its execution suspended while the defendant is on probation constitutes a judgment which cannot be modified upon revocation of probation; it can only be…