P. v. Agasihorn















Filed 3/25/13 P. v. Agasihorn 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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

(Amador)

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>

THE PEOPLE, Plaintiff and Respondent, v. CODY AGASIHORN, Defendant and Appellant.

C070535 (Super. Ct. No. 11CR18594)

Defendant
Cody Agasihorn pleaded guilty to felony leaving the scene of an accident (Veh.
Code, § 20001, subds. (a), (b)(1)) with a stipulated term of 16 months in
county jail to be served concurrently with a three-year county jail term
previously imposed in Calaveras County Case No. F4550.

The trial
court later indicated that a felony violation of Vehicle Code section 20001,
subdivision (a) was not subject to the provisions of Penal Code section 1170,
subdivision (h), but was instead punishable by confinement in state
prison. After briefing and argument on
the matter, the trial court ruled that defendant could not be sentenced to
county jail and was subject to state
prison. Defendant declined the trial
court’s invitation to withdraw his plea, and the trial court sentenced him to a
16-month state prison term concurrent to the three-year county prison term in Calaveras
County Case No. F4550.

On appeal,
defendant contends the trial court was without authority to impose a state
prison rather than a county jail term.
We affirm the judgment.

Discussion

We need not
set forth the facts underlying defendant’s offense because they are unnecessary
to the resolution of the issue defendant raises on appeal.

Defendant
contends the trial court should have imposed a county jail term pursuant Penal
Code section 1170, subdivision (h), because his offense was neither pleaded nor
proved as a serious felony.

Penal Code
section 1170, subdivision (h) states in pertinent part: “(h) (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 term described in the underlying
offense.” These provisions do not apply
if the defendant has a current or prior serious or violent felony conviction,
is required to register as a sex offender, or is subject to an enhancement
under Penal Code section 186.11. (Pen.
Code, § 1170, subd. (h)(3).)

Vehicle
Code section 20001, subdivision (a) makes it a crime to leave the scene of an
accident when another person is injured.
Subdivisions (b)(1) and (2) set forth the punishment for leaving the
scene of an accident as follows: “(1)
Except as provided in paragraph (2), a person who violates subdivision (a)
shall be punished by imprisonment in the state prison, or in a county jail for
not more than one year, or by a fine of not less than one thousand dollars ($1,000)
nor more than ten thousand dollars ($10,000), or by both that imprisonment and
fine. [¶] (2) If the accident
described in subdivision (a) results in death or permanent, serious injury, a
person who violates subdivision (a) shall be punished by imprisonment in the
state prison for two, three, or four years, or in a county jail for not less
than 90 days nor more than one year, or by a fine of not less than one thousand
dollars ($1,000) nor more than ten thousand dollars ($10,000), or by both that
imprisonment and fine. However, the
court, in the interests of justice and for reasons stated in the record, may
reduce or eliminate the minimum imprisonment required by this paragraph.”

Defendant
admits that if he had been sentenced under Vehicle Code section 20001,
subdivision (b)(2), then he would be excluded from county prison under Penal
Code section 1170, subdivision (h).
According to defendant, the relevant statutory language of the provision
he was sentenced under, Vehicle Code section 20001, subdivision (b)(1), “shall
be punished by imprisonment in the state prison, or in a county jail for not
more than one year,” does not provide an exception to Penal Code section 1170,
subdivision (h). Defendant notes that
this offense does not come under any of the exceptions listed in section 1170,
subdivision (h)(3), and is not among the other felonies not subject to county
prison sentences as set forth in an attachment to defendant’s trial brief. We note that the attachment, and an excerpt
from a paper titled “Prosecutor’s Analysis of 2011 Criminal Justice
Realignment,” lists felonies not subject to county prison sentences and does
not list Vehicle Code section 20001.
However, the paper also correctly states: “This
list is not exhaustive[.]” (Original bold face.)

Vehicle
Code section 20001, subdivision (b)(1) does not state that the crime is
punished pursuant to Penal Code section 1170, subdivision (h). By its terms, it is punished as a felony by
an unspecified term of imprisonment.
Penal Code section 18 states in pertinent part: “Except in cases where a different punishment
is prescribed by any law of this state, every offense declared to be a felony
is punishable by imprisonment for 16 months, or two or three years in the state
prison unless the offense is punishable pursuant to subdivision (h) of Section
1170.” Since defendant’s crime did not
provide for sentencing under Penal Code section 1170, subdivision (h), the
trial court correctly sentenced him to state prison.

Disposition

The
judgment is affirmed.







HULL , Acting P. J.







We concur:







ROBIE ,
J.







HOCH ,
J.