APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Super. Ct. No. VCF260981A).
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[166 Cal.Rptr.3d 507] Tim Ward, District Attorney, Shani D. Jenkins, Assistant District Attorney, Afreen A. Kaelble, John F. Sliney, and Barbara Greaver, Deputy District Attorneys, for Plaintiff and Appellant.
Salvatore Sciandra, Fresno, and Lisa M. Sciandra, San Leandro, for Defendant and Respondent.
When the underlying felony offense specifies imprisonment in the county jail and an enhancement to that felony specifies imprisonment in state prison, which provision controls placement of the felon when he or she is denied probation? The People contend the trial court imposed an illegal sentence when it modified its commitment of defendant David Vega from five years in a state prison facility to five years in the county jail pursuant to Penal Code  section 1170, subdivision (h), the Criminal Justice Realignment Act of 2011 (Realignment Act). More specifically, the People assert that because Health and Safety Code section 11379.7, subdivision (a), a sentencing enhancement, expressly requires an additional punishment of " two years in the state prison," defendant was not eligible for county jail placement. This is so, it is argued, even though the underlying offense of which defendant was convicted would otherwise allow for a local jail commitment. We agree and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
As a result of an investigation following a traffic stop in Oregon where four pounds of methamphetamine were seized, Tulare County law enforcement officials were advised of a possible methamphetamine manufacturer [166 Cal.Rptr.3d 508]
operating out of a residence in Pixley, California. When officials served a search warrant on defendant's residence, an active methamphetamine laboratory was found. Present in the home were defendant's wife and their 7-, 10-, and 17-year-old children, as well as their 19-year-old son, his 17-year-old girlfriend, and defendant's seven-month-old grandson. A search revealed significant amounts of methamphetamine in various forms of production. Also found were various items used to " cook" or convert the drug, indicia of drug sales, varying sums of currency, and over 200 grams of marijuana. At about the same time, defendant was taken into custody at his place of employment. An inventory search of his vehicle yielded more than $20,000 in cash.
The Tulare County District Attorney filed a felony complaint on December 9, 2011, alleging the following crimes: count 1— manufacturing a controlled substance, to wit: methamphetamine (Health & Saf.Code, § 11379.6, subd. (a)), including a special allegation that the offense occurred in a structure where a child under the age of 16 years was present ( id., § 11379.7, subd. (a)); count 2— possession of methamphetamine for sale ( id., § 11378); and counts 3 through 6— child endangerment (§ 273a, subd. (a)).
On March 9, 2012, before a preliminary hearing, the court gave an " indicated sentence" of five years. Thereafter, defendant pled no contest to manufacturing methamphetamine (Health & Saf.Code, § 11379.6) and admitted the special allegation that minors were present in the structure where the manufacturing took place ( id., § 11379.7, subd. (a)). The remaining counts were dismissed, and the parties agreed the special allegation barred section 1170, subdivision (h) eligibility for purposes of count 1. In May 2012, defendant was sentenced to five years in prison: three years for the manufacturing offense and an additional two years for the presence of the minors in the structure where the manufacturing occurred.
Following defendant's commitment to state prison, the California Department of Corrections and Rehabilitation asked the court to review its sentencing determination because it had concluded the " the commitment offense ... meets the criteria to serve the commitment in a county jail facility" in accordance with " Assembly Bill 109, the Criminal Realignment Act." Over the People's objections, at a hearing in August 2012, the court modified defendant's sentence. More particularly, the court sentenced him " to the Tulare County Jail pursuant to ...Section 1170(h) for the lower term of two years, plus an additional and consecutive three years for a total of five years. [¶] ... Two years of the sentence is suspended...." The People appeal this sentence.
The Applicable Statutes
As a result of the Realignment Act, numerous offenses previously punishable by specified terms in state prison are now punishable by serving that same term in local custody at the county jail. (Stats.2011, ch. 15, §§ 2-633; Legis. Counsel's Dig., Assem. Bill No. 109 (2011-2012 Reg. Sess.), Stats.2011, 1st Ex.Sess.2011-2012, ch. 12, §§ 4-11; Legis. Counsel's Dig., Assem. Bill No. 17 (2011-2012 1st Ex.Sess.); see § 1170, subd. (h).) The legislation altered the housing arrangements for individuals convicted of certain felonies. It " shifted responsibility for housing and supervising certain felons from the state to the individual counties." ( People v. Cruz (2012) 207 Cal.App.4th 664, 671, 143 Cal.Rptr.3d 742.) It also provided the new sentencing provisions are to be applied prospectively to persons sentenced on or [166 Cal.Rptr.3d 509] after October 1, 2011. (§ 1170, subd. (h)(6); Stats.2011, 1st Ex.Sess.2011, ch. 12, § 12.)
Section 1170, subdivision (h) provides, in relevant part:
" (1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.
" (2) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision shall be punishable by imprisonment in a county jail for the ...