P. v. Davidson
Filed 6/11/13 P. v. Davidson CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
CASEY DAVIDSON,
Defendant and
Appellant.
H037646
(Monterey
County
Super. Ct.
No. SS092733)
Before the operative date of the
Criminal Justice Realignment Act (Stats. 2011, 1st Ex.Sess. 2011-2012, ch. 12,
§ 1; Pen.Code, § 1170, subd. (h))
name="_ftnref1" title="">[1]
(hereafter the “Act†or “the Realignment Actâ€), defendant Casey Davidson
pleaded no contest to the crime of possession
of methamphetamine for sale (Health & Saf. Code, § 11378), and the
trial court placed him on probation with a suspended five-year prison
sentence. After the operative date of
the Realignment Act, defendant admitted a violation of probation, the trial
court executed the five-year sentence, and the trial court ordered defendant to
serve the sentence in prison. Defendant
appeals the order committing him to prison.
Defendant contends that, because his sentence was executed after the
operative date of the Realignment Act, the trial court was required to commit
him to county jail for service of his sentence.
For the reasons set forth below, we will reverse the order committing
defendant to prison.
Procedural Background
On May 20, 2011, defendant pleaded no
contest to one count of possession of
methamphetamine for sale (Health & Saf. Code, § 11378) and admitted a
prior drug-related conviction (Health & Saf. Code, 11370.2, subd. (c)), on
the condition that he be placed on probation with a suspended five-year prison
sentence. On June 29, 2011, the trial court imposed a
five-year prison sentence, suspended execution of the sentence, and placed
defendant on probation.
The
probation department filed a probation violation petition, pursuant to
section 1203.2, on October 5,
2011. The petition alleged
that defendant had failed to abstain from the use of narcotics, and that
defendant had failed to attend Narcotics Anonymous meetings as directed by his
probation officer. Defendant admitted
the probation violation on October
14, 2011.
On November 4, 2011, the trial court
revoked probation and executed the previously imposed five-year sentence. The trial court concluded that defendant was
not entitled to commitment to county jail under the Realignment Act, and it ordered
defendant to serve his five-year sentence in prison.
Discussion
The Realignment Act states that
the provisions of the Act “shall be applied prospectively to any person
sentenced on or after October 1, 2011.†(§ 1170, subd. (h)(6).) Defendant contends that this language in the
Act required the trial court to commit him to county jail for service of his
five-year sentence, and that the order committing him to prison must therefore
be reversed. Defendant’s position is
that he was sentenced within the meaning of the Act on November 4, 2011, the date that the trial court
executed the previously imposed five-year sentence. The People contend that the trial court
properly ordered defendant to serve his sentence in prison. The People’s position is that defendant was sentenced
for purposes of the Act on June 29,
2011, the date that the trial court imposed and suspended execution
of the five-year sentence.
At issue in
this appeal is the meaning of the word “sentenced†as used in the Realignment
Act. In People v. Scott (May 23, 2013, H037923) ___ Cal.App.4th ___ [2013
Cal. App. LEXIS 407] (Scott), we
recently held that offenders in defendant’s position—“those defendants whose
sentence was imposed but suspended before the effective date of the Act, but
whose sentence was thereafter executed after
the effective date of the Actâ€â€” are sentenced for purposes of the Act on
the date that the sentence is executed.
(Scott, supra, ___ Cal.App.4th
___ [2013 Cal. App. LEXIS 407, at
p. *5], italics in original) We
therefore conclude that defendant was sentenced within the meaning of the Act
on November 4, 2011. Accordingly, because this sentencing occurred
after October 1, 2011, we
find that the trial court erred in failing to commit defendant to county jail
for service of his five-year sentence.
Standard of Review and the Rules of Statutory Interpretation
Defendant’s appeal presents an
issue of statutory interpretation. “Issues of
v. Simmons (2012) 210 Cal.App.4th 778, 790.)
We have
written that when faced with a question of statutory meaning, “we first examine
the words of the statute in context, giving them if possible their plain,
everyday, commonsense meaning. If we
find no ambiguity or uncertainty, we presume that the Legislature meant what it
said, rendering further inquiry into legislative intent unnecessary. [Citation.]
If, on the other hand, the statutory language is unclear or ambiguous,
i.e., it permits more than one reasonable interpretation, we may consider
various extrinsic aids to help us ascertain the Legislature’s intent, including
legislative history, public policy, settled rules of statutory construction,
and an examination of the evils to be remedied and the legislative scheme
encompassing the statute in question.
[Citations.] In such
circumstances, we select the interpretation that comports most closely with the
apparent intent of the Legislature, with a view toward promoting, rather than
defeating, the general purpose of the statute and avoiding an interpretation
that would lead to absurd consequences.
[Citation.]†(
157 Cal.App.4th 728, 749.)
The Realignment Act
The Realignment Act states that
defendants who would have served their felony sentences in prison prior to the
enactment of the Act “shall†now serve their sentences in county jail. (§ 1170, subd. (h)(1)-(2).) One of the provisions of the Act, section
1170, subdivision (h)(6), states that the Act “shall be applied prospectively
to any person sentenced on or after
October 1, 2011.†(§ 1170, subd. (h)(6),
italics added.)
The
Realignment Act prohibits certain defendants from serving their sentences in
county jail. (§ 1170, subd.
(h)(1)-(3).) Specifically, the Act
requires the following defendants to serve their sentences in prison: those who have prior or current convictions
for serious felonies, those who have prior or current convictions for violent
felonies, those who are required to register as sex offenders, and those who
are subject to aggravated white collar crime enhancements under section 186.11. (§ 1170, subd. (h)(3).)
If a
defendant meets the Realignment Act’s criteria for county jail commitment, the
trial court must order the defendant to serve his or her sentence in county
jail. (See § 1170, subd. (h)(1)-(2)
[specifying that eligible defendants “shall†be punished by imprisonment in a
county jail].) A trial court has “no
discretion to send to prison a defendant who qualifies under the Act to serve
the sentence in county jail.†(
Cal.App.4th 1001, 1004.)
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).) Section 17.5 expresses the Legislature’s
concern that, “[d]espite the dramatic increase in corrections spending over the
past two decades,†individuals who have served time in prison have a high
recidivism rate. (§ 17.5, subd.
(a)(2).) 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).) In section 17.5, the Legislature further declares: “Realigning low-level felony offenders 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 Trial Court Erred in Failing to Commit Defendant to County Jail
In the
instant case, it is undisputed that defendant belongs to the class of low-level
offenders that the Realignment Act deems suitable for commitment to county
jail. Defendant’s conviction for
possession of methamphetamine for sale is a conviction that must be punished
pursuant to the Act’s county jail prescription.
(Health & Saf. Code, § 11378 [individuals convicted of
possession of methamphetamine for sale “shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Codeâ€].) Moreover, defendant does not fall within the
category of offenders that the Act declares unsuitable for county jail: defendant has never been convicted of a
violent or serious felony, he is not required to register as a sex offender,
and he is not subject to an aggravated white collar crime enhancement. Thus, the only issue before us is whether
defendant was “sentenced†before or after the operative date of the Act.
In
whether or not the changes made to the Penal Code by the Legislature in the
Realignment Act apply to those defendants whose sentence was imposed but
suspended before the effective date of the Act, but whose sentence was
thereafter executed after the
effective date of the Act.†(
Cal. App. LEXIS 407, at p. *5], italics in original.) We noted that “[s]ection 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 or after the
effective date of the statute.†(
Cal. App. LEXIS 407, at p. *10].)
After examining the legislative
history of the Realignment Act, Scott
held: “We find that since the
legislative intent of the Realignment Act was to direct certain low-level
offenders from state prison to county jail and other community-based programs
prospectively after October 1, 2011 (§ 1170, subd. (h)(6)), the Act is
properly interpreted as to realign offenders in defendant’s situation. Namely, we find the provisions of the amended
statute should apply to those qualifying defendants who committed a crime now
subject to a 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
thereafter 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 programs over state programs.†(Scott,
supra, ___ Cal.App.4th ___ [2013 Cal. App. LEXIS 407, at p. *15], italics
in original.)
Defendant’s
case presents the same question that we considered in Scott. Like
and suspended before the operative date of the Realignment Act, and the
previously imposed sentence was executed after the operative date of the
Act. Scott
made clear that offenders in defendant’s position are sentenced within the
meaning of the Realignment Act on the date that the trial court orders
execution of the sentence. Thus, under
the principles articulated in Scott,
defendant was sentenced for purposes of the Realignment Act on November 4,
2011, the date that the trial court executed the previously imposed five-year
sentence. Accordingly, because defendant
was sentenced within the meaning of the Act after October 1, 2011, the trial
court was required to commit defendant to county jail for service of his
five-year sentence. (See § 1170, subd.
(h)(1)-(2) [defendants who meet the Act's criteria for county jail commitment
“shall†be punished by imprisonment in county jail]; People v. Clytus, supra, 209 Cal.App.4th at p. 1004 [if a defendant
meets the Act’s criteria for commitment to county jail, the trial court has “no
discretion†to send the defendant to prison].)
The People
argue the California Supreme Court’s holding in People v. Howard (1997) 16 Cal.4th 1081 (Howard) required the trial court to commit defendant to
prison. In Howard, the defendant pleaded guilty to transportation of cocaine
base, and the trial court placed her on probation with a suspended four-year
prison sentence. (Id. at p. 1084.) When
the trial court later determined that the defendant had violated the terms of
her probation, it executed the previously imposed four-year prison
sentence. (Id. at p. 1086.) On
appeal, the defendant argued that she was “entitled to a remand for
resentencing because the trial court improperly failed to exercise its
discretion to impose a mitigated sentence of three years, based on evidence
that she had reliably reported to her probation officer, had tested negative
for drug use, had maintained steady employment, and had complied with her other
probation conditions.†(
sentence, and the defendant has begun a probation term representing acceptance
of that sentence, then the court has no authority, on revoking probation, to
impose a lesser sentence at the precommitment stage.†(Id. at
p. 1095.) Howard reasoned that “[o]n revocation of probation, if the court
previously had imposed sentence, the sentencing judge must order that exact
sentence into effect.†(
The People
assert that the exact sentence imposed in defendant’s case was five years in
state prison, not five years in county jail.
The People therefore contend that Howard
required the trial court to commit defendant to prison when it revoked
probation and executed the five-year sentence.
Contrary to the People’s assertion, Howard
did not require the trial court to commit defendant to prison. Howard considered
whether a trial court had discretion to reduce a previously imposed sentence
upon the defendant’s presentation of mitigating evidence. Howard did
not consider the issue presented in the instant appeal—whether a trial court
must order a defendant to serve a previously imposed prison sentence in county
jail in light of the newly-enacted Realignment Act. Thus, because “cases are not authority for
propositions not considered,†we find that Howard
does not control in defendant’s case.
(People v. Brown (2012)
54 Cal.4th 314, 330.) Indeed, in
trial court orders a previously imposed prison sentence to be served in county
jail due to the sentencing changes effected by the Realignment Act. (Scott,
supra, ___ Cal.App.4th ___ [2013 Cal. App. LEXIS 407, at p. *18].) Scott noted
that, in such a situation, “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.†(Ibid.) The People’s reliance
on Howard therefore is
unavailing.
For the
foregoing reasons, we conclude that the Realignment Act required the trial
court to commit defendant to county jail for service of his five-year
sentence. We accordingly reverse the
trial court order committing defendant to prison.
Disposition
We reverse
the order committing defendant to prison.
We remand to the trial court with the directive to commit defendant to
county jail for service of his five-year sentence.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA
J.
are to the Penal Code.
relevant to the issue presented on appeal.
