P. v. Zimmerman
Filed 6/13/13 P. v. Zimmerman CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(El
Dorado)
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH JAMES ZIMMERMAN,
Defendant and Appellant.
C072365
(Super. Ct. Nos.
P11CRF0479 & P11CRF0562)
On
October 3,
2011, defendant
Joseph James Zimmerman pled no contest to
of a writing pen knife (former ADDIN
BA xc <@st> xl 32 s FKKPCD000001 xpl 1 l "Pen. Code, § 12020, subd. (a)(1)" Pen. Code,
§ 12020, subd. (a)(1))
three years’ probation.
On November 28,
2011, defendant
pled no contest to possession of methamphetamine
(
ADDIN BA xc <@st> xl 27 s FKKPCD000003 xpl 1 l "Health & Saf. Code, § 11377" Health & Saf.
Code, § 11377, subd. (a)) in case No. P11CRF0562 and admitted violating
his probation in case No. P11CRF0479.
The trial court reinstated probation and ordered defendant to serve 90
days in jail.
On October 15,
2012, defendant
admitted violating his probation in both cases.
The trial court sentenced defendant to two years in
prison in case No. P11CRF0479 and imposed a
concurrent two-year term in case No. P11CRF0562.
On appeal, defendant contends the
trial court erred in failing to sentence him pursuant to the county jail
provisions of the ADDIN BA xc <@st> xl 40 s
FKKPCD000004 l "Criminal Justice Realignment
Act of 2011" Criminal Justice
Realignment Act of 2011 (Stats. 2011, ch. 15, § 482; Stats. 2011, ch. 39, §
53; and Stats. 2011, 1st Ex. Sess., ch. 12, § 35; hereafter Realignment
Act). Agreeing with defendant, we vacate
the sentence and remand for resentencing pursuant to ADDIN
BA xc <@osdv> xl 29 s FKKPCD000013 l "section 1170, subdivision (h)" section 1170,
subdivision (h).
DISCUSSION
name="_ftnref2" title="">[2]
Defendant claims he should be
sentenced under the Realignment Act’s county jail provisions because the
Legislature changed the law to make his primary offense subject to the
Realignment Act before he was sentenced.
A felon sentenced under the
Realignment Act is committed to county jail instead of state prison ( ADDIN BA xc <@osdv> xl 25 s
FKKPCD000014 xpl 1 l "§ 1170, subd. (h)(1),
(2)" § 1170, subd.
(h)(1), (2)), may have a concluding portion of his or her sentence
suspended in lieu of probation ( ADDIN BA xc <@osdv> xl 20 s
FKKPCD000015 xpl 1 l "§ 1170, subd. (h)(5)"
§ 1170, subd.
(h)(5)), and is not subject to parole ( ADDIN BA xc <@osdv> xl 14 s
FKKPCD000016 xpl 1 l "§ 3000 et seq."
§ 3000 et seq.).
The Realignment Act applies
“prospectively to any person sentenced on or after October 1,
2011.†( ADDIN BA xc <@osdv> xl 20 s
FKKPCD000017 xpl 1 l "§ 1170, subd. (h)(6)"
§ 1170, subd.
(h)(6).) When defendant entered his
plea in case No. P11CRF0479, his crime was not subject to Realignment Act
sentencing. (See former ADDIN
BA xc <@osdv> xl 18 s FKKPCD000018 xpl 1 l "§ 12020, subd. (a)" § 12020, subd.
(a).)
former ADDIN BA xc <@$st> xl 13 s
FKKPCD000002 section 12020 was
repealed and reenacted, operative January 1, 2012, as former ADDIN
BA xc <@$osdv> xl 13 s FKKPCD000010 section 20910, it
was still not subject to Realignment Act sentencing. (Former ADDIN
BA xc <@osdv> xl 7 s FKKPCD000021 xpl 1 l "§ 20920" § 20910; Stats. 2010, ADDIN
BA xc <@$osdv> xl 12 s FKKPCD000011 xpl 1 ch. 711, § 6.) The Legislature then amended former ADDIN
BA xc <@$osdv> xl 13 s FKKPCD000010 section 20910 to make it subject to
Realignment Act sentencing, with an operative date of June
27, 2012. ( ADDIN BA xc <@$osdv> xl 7 s
FKKPCD000010 xpl 1 § 20910; Stats. 2012, ADDIN
BA xc <@osdv> xl 12 s FKKPCD000022 xpl 1 l "ch. 43, § 92" ch. 43, § 92.)
Defendant relies on the rule that
statutes mitigating punishment should be applied retroactively unless the
Legislature states otherwise. “[W]here
the amendatory statute mitigates punishment and there is no saving clause, the
rule is that the amendment will operate retroactively so that the lighter
punishment is imposed.†( ADDIN BA xc <@cs> xl 39 s
FKKPCD000006 xhfl Rep xpl 1 l "
Cal.2d 740" In re Estrada (1965) 63 Cal.2d 740, 748 (Estrada).) Citing ADDIN
BA xc <@$cs> xl 7 s FKKPCD000006 xqt Estrada,
he claims the trial court should have applied the most recent amendment to ADDIN
BA xc <@$osdv> xl 13 s FKKPCD000010 section 20910 to
his sentence.
The Attorney General asserts
defendant’s contention is not cognizable on appeal because he did not obtain a
certificate of probable cause. According
to the Attorney General, defendant is challenging a part of his plea agreement,
which is not cognizable without a certificate of probable cause. (See ADDIN
BA xc <@cs> xl 44 s FKKPCD000007 xhfl Rep xpl 1 l "People v. Shelton (2006)
challenge to a negotiated sentence imposed as part of a plea bargain is
properly viewed as a challenge to the validity of the plea itself’ â€].)
The Attorney General is wrong. When defendant pled no contest to former ADDIN
BA xc <@$st> xl 13 s FKKPCD000002 section 12020, the
trial court suspended imposition of sentence and placed defendant on
probation. “When the trial court
suspends imposition of sentence, no judgment is then pending against the
probationer, who is subject only to the terms and conditions of the
probation. . . . On the defendant’s rearrest and revocation of
. . . probation, ‘. . . the court may, if the sentence has
been suspended, pronounce judgment for any time within the longest period for which
the person might have been sentenced.’
[Citations.]†( ADDIN BA xc <@cs> xl 45 s
FKKPCD000008 xhfl Rep xpl 1 l "
Cal.4th 1081" People v. Howard (1997) 16 Cal.4th 1081, 1087.) The sentence thus could not be a part of the
original plea agreement. Defendant’s claim addresses whether the trial court
had the authority to sentence him to state prison. This is an issue “regarding proceedings held
subsequent to the plea for the purpose of determining the degree of the crime
and the penalty to be imposed,†which does not need a
of probable cause. ( ADDIN BA xc <@cs> xl 44 s
FKKPCD000009 xhfl Rep xpl 1 l "
Cal.4th 773" People v. Buttram (2003) 30 Cal.4th 773, 780.)
We do not need to rely on ADDIN
BA xc <@$cs> xl 7 s FKKPCD000006 Estrada
to accept defendant’s contention because the Legislature’s mandate is
clear. If a defendant is sentenced on or
after October 1, 2011, and the Realignment Act applies to every crime for which he is
sentenced, then the trial court must impose sentence in accordance with ADDIN
BA xc <@$osdv> xl 29 s FKKPCD000013 section 1170,
subdivision (h). Defendant was
sentenced after the Realignment Act’s operative date. Since ADDIN
BA xc <@$osdv> xl 13 s FKKPCD000010 section 20910 and ADDIN
BA xc <@$st> xl 36 s FKKPCD000003 Health and Safety Code
section 11377 were both subject to Realignment Act sentencing at the time
defendant was sentenced, the trial court should have imposed sentence pursuant
to ADDIN BA xc <@$osdv> xl 29 s
FKKPCD000013 section 1170,
subdivision (h). We shall therefore
vacate the sentence and remand for sentencing under the Realignment Act.
DISPOSITION
The sentence committing defendant to
state
prison is vacated.
The matter is remanded so that the trial court may conduct a new
sentencing hearing in conformance with the requirements of the Realignment Act
and consistent with this opinion. In all
other respects, the judgment of conviction is affirmed.
BLEASE , Acting
P. J.
We concur:
NICHOLSON , J.
MAURO , J.
name="_ftn1" title="">[1] Undesignated statutory references are
to the ADDIN BA xc <@st> xl 26 s
FKKPCD000002 l "Penal
Code. Section 12020" Penal
Code. Section 12020 was subsequently
repealed and reenacted as former ADDIN BA xc
<@osdv> xl 13 s FKKPCD000010 l "section 20910" section
20910. (Stats. 2010, ADDIN BA xc <@osdv> xl 12 s FKKPCD000011
xpl 1 l "ch.
711, § 6" ch. 711,
§§ 4, 6.)
name="_ftn2" title="">[2] The facts of defendant’s crimes are
unnecessary to resolve this appeal.
