P. v. McNair

















Filed 5/8/13 P. v. McNair
CA2/2









NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS



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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND APPELLATE DISTRICT



DIVISION TWO




>

THE PEOPLE, Plaintiff and Respondent, v. LAVANCE MCNAIR, Defendant and Appellant.

B238976 (Los Angeles County Super. Ct. No. NA083700)

APPEAL from a judgment of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Charles D.
Sheldon, Judge. Affirmed.



Jonathan
B. Steiner and Suzan E. Hier, under appointment by the Court of Appeal, for
Defendant and Appellant.



Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.



In his second appeal
after his original sentence was vacated,href="#_ftn1" name="_ftnref1" title="">^[1] defendant and appellant Lavance McNair
(defendant) contends that because he was resentenced January 19, 2012, the
trial court should have sentenced him to local custody under the recently
enacted Criminal Justice Realignment Act of 2011 (Realignment Act or Act),
which applies prospectively only to those sentenced on or after October 1,
2011.href="#_ftn2" name="_ftnref2" title="">^[2] Respondent contends that acceptance of
defendant’s position would contravene the Legislature’s intent that the Act
apply prospectively. We affirm the
judgment.

>BACKGROUND

In
2010, after a jury trial, defendant was convicted of unlawfully driving or
taking a car (count 1), in violation of Vehicle Code section 10851, subdivision
(a), and unlawfully driving or taking a car with a prior conviction, in
violation of section 666.5 (count 2). In
addition, defendant was found to have served six prior prison terms within the
meaning of section 667.5, subdivision (b).
On August 4, 2010,
the trial court sentenced defendant to the upper term of four years as to count
2, enhanced by one year for each of six prior prison terms, for a total term of
10 years in state prison. The trial
court did not pronounce sentence as to count 1, although the minute order and
abstract of judgment reflected a concurrent sentence of the high term of three
years. Defendant was thereafter
delivered to state prison and began
serving his sentence.

Defendant
appealed, and in McNair >I, we affirmed the judgment but vacated
the sentence and remanded for both resentencing by oral pronouncement and
finding under section 654. On remand,
defendant asked to be sentenced under the Realignment Act to local
custody. The trial court denied the
request and on January 19, 2012,
resentenced defendant to state prison.
The trial court reinstated the total term of 10 years as to count 2,
comprised of the high term of four years, plus one year for each of six prior
prison terms served. (§ 667.5,
subd. (b).) As to count 1, the trial
court imposed the high term of three years, which it stayed pursuant to section
654.

Defendant filed a timely
notice of appeal challenging his sentence to state prison.

>DISCUSSION

Defendant
contends that the trial erred in refusing to sentence him to county jail under
the Realignment Act, which added subdivision (h) to section 1170, providing
that eligible felons are to serve their terms of imprisonment in local custody
rather than state prison. The
Legislature expressly mandated prospective application of the Act by including
the following language in subdivision (h)(6) of section 1170: “The sentencing changes made by the act that
added this subdivision shall be applied prospectively to any person sentenced
on or after October 1, 2011.”

Defendant contends that
this court’s order vacating his entire sentence placed him in the position of
never having been sentenced; he thus concludes that his resentencing after October 1, 2011, was a new sentence
to which the Act applied. We agree with
respondent that the answer to defendant’s contention lies in the construction
of subdivision (h)(6) of section 1170 and whether the Legislature intended the
meaning of “sentencing” to include resentencing after remand by the reviewing
court. Like respondent, we conclude that
it did not.

In People v. Gipson (2013) 213 Cal.App.4th 1523 (Gipson), this court noted that Division Eight of our district had
held that, for purposes of the Realignment Act, a defendant is sentenced on the
date that a trial court orders execution of a previously imposed but suspended
sentence. (Id. at p. 1526; see People v.
Clytus (2012) 209 Cal.App.4th 1001, 1004, 1009.) We disagreed with Clytus, holding that “a defendant is sentenced on the date that
sentence is first announced and imposed even if execution of the sentence does
not happen until a later date.” (>Gipson, at p. 1526.)

We observed in >Gipson that section 1170, subdivision
(h)(6) clearly applies the Realignment Act to “‘any person sentenced on or
after October 1, 2011,’”
without qualification. We concluded that
the sentencing referred to in this provision plainly meant the occasion when
the trial court first announced and imposed the sentence as opposed to the
occasion when the sentenced was executed.
(Gipson, supra, 213
Cal.App.4th at p. 1529.) We declined to
force additional meaning into the word “sentenced” with the result that
“sentenced” in reality would mean that the sentence was both imposed and
executed. (Ibid.)

Defendant contends that
another recent opinion demonstrates that the Legislature intended the Act to
apply to persons whose pre-Act sentences were later found to be invalid. He relies on language in People v. Cruz (2012) 207
Cal.App.4th 664, in which the appellate court rejected an equal protection
challenge to section 1170, subdivision (h)(6).
In particular, defendant refers to the court’s observation that among
other reasons, prospective-only application was “necessary so as not to
overwhelm trial court resources by requiring the resentencing of numerous
inmates [and to maintain] the integrity of sentences that were valid when
imposed . . . .” (Cruz, supra, at p. 679, fn. omitted.) Defendant’s reliance on Cruz is unhelpful as that court was considering only the
constitutionality of disparate treatment of a defendant with a valid sentence
entered prior to October 1, 2011,
and never considered the issue presented here, even indirectly. (See id.
at p. 680.)

We thus turn to the rules
of statutory construction to discern the Legislature’s meaning. “‘[T]he fundamental purpose of statutory
construction is to ascertain the intent of the lawmakers so as to effectuate
the purpose of the law.’
[Citation.] As with any question
of statutory interpretation, the best indication of legislative intent appears
in the language of the enactment.
[Citation.] Further, ‘we do not
construe statutes in isolation, but rather read every statute “with reference
to the entire scheme of law of which it is a part so that the whole may be
harmonized and retain effectiveness.”’
[Citations.]” (>Peracchi v. Superior Court (2003) 30
Cal.4th 1245, 1253 (Peracchi).) We interpret words in context, give them
their plain and ordinary meaning, and avoid constructions that would render
words surplusage. (People v. Loeun (1997) 17 Cal.4th 1, 9.)

“[T]he best indication of
legislative intent appears in the language of the enactment. [Citation.]”
(Peracchi, >supra, 30 Cal.4th at p. 1253.) As respondent notes, the Legislature used the
term “resentence” multiple times in section 1170. Subdivision (d) of section 1170 gives the
superior court the authority under specified conditions to resentence the
defendant after recalling the original sentence. A sentence recall has been described by the
California Supreme Court as analogous to an appellate remand for resentencing. (People
v. Johnson (2004) 32 Cal.4th 260, 265-266 (Johnson), citing People v.
Hill (1986) 185 Cal.App.3d 831, 834 (Hill).) We agree with respondent that by using both
words in different parts of the same statute, the Legislature meant what it
said, and the “persons sentenced” in section 1170, subdivision (h), do not
include “persons resentenced” after an appellate remand.

Additionally, an
examination of the procedural and practical distinctions between sentencing and
resentencing may be helpful in determining legislative intent. (See Peracchi,
supra, 30 Cal.4th at p. 1256
[definition of “new trial” not intended to include a resentencing hearing after
appellate remand].) The distinctions
between “sentenced” and “resentenced” are well illustrated by the analogous
distinction between presentence status and postsentence status for purposes of
custody credit. That issue has arisen in
cases involving claims of presentence custody credit after a recall or
appellate remand after the defendant had already begun a prison sentence. (See, e.g., People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter); In re Martinez
(2003) 30 Cal.4th 29, 31; Johnson, >supra, 32 Cal.4th at pp. 263, 265.) In Buckhalter,
when the defendant claimed that the reversal of his invalid sentence meant that
he was, in legal effect, unsentenced and thus entitled to presentence custody
credits, the California Supreme Court was called on to construe the phrases
‘“prior to sentencing”’ and ‘“prior to the imposition of sentence”’ in section
2900.5, subdivision (d), and section 4019, subdivision (a)(4), the statutes
providing for presentence custody credit.
(Buckhalter, >supra, at pp. 32, 34.) The California Supreme Court rejected the
defendant’s contention that he reacquired presentence status, noting that a
remand for resentencing without a reversal of the defendant’s conviction, even
where the sentencing court substantially modifies the sentence, does not render
the original sentence void ab initio. (Id.
at pp. 36, 40-41.)

Defendant suggests that
the reasoning of Buckhalter is
inapplicable here because this court “vacated” his original sentence, thus
requiring full resentencing. Citing
section 1260href="#_ftn3" name="_ftnref3"
title="">^[3] and People
v. Rodriguez (1998) 17 Cal.4th 253, 258 (Rodriguez), defendant points out that a limited remand to consider
a sentencing issue does not necessarily require full resentencing. Defendant suggests that if we had reversed
only the sentence as to count 1, rather than vacating the entire sentence in >McNair I, his position might be
different.

The facts of this case
bear no similarity to those in Rodriguez. In Rodriguez,
the court ordered a limited remand to consider dismissing prior strikes and for
resentencing if the trial court decided to do so. (Rodriguez,
supra, 17 Cal.4th at p. 260; see >Buckhalter, supra, 26 Cal.4th at p. 34.)
In McNair I, we vacated the
entire sentence because a determinate sentence that comprises more than one
term has interdependent components, and the invalidity of one component
entitles the trial court “to rethink the entire sentence to achieve its
original and presumably unchanged goal.”
(Hill, supra, 185 Cal.App.3d at p. 834; see also People v. Rosas (2010) 191 Cal.App.4th 107, 117-118 (>Rosas) [determinate sentence as to
multiple counts has interlocking quality].)
Thus the result would have been the same if instead of using the word
“vacated” in McNair I, we had
reversed the sentence as to count 1 or simply remanded the matter for
resentencing. (See Rosas, supra, at pp.
118-119 & fn. 5; People v. Burbine
(2003) 106 Cal.App.4th 1250, 1258-1259 (Burbine).)

Defendant also relies on >Rosas and Burbine to argue that it is precisely the interlocking quality of a
determinate sentence on multiple counts that returns him to presentence status,
because a remand for resentencing reinvests the trial court with jurisdiction
over the entire sentence. (See >Rosas, supra, 191 Cal.App.4th at pp. 117-118 [trial court has jurisdiction
to consider all aspects of sentence after reversal of nonseverable component]; >Burbine, supra, 106 Cal.App.4th at p. 1258 [same].) Defendant interprets this jurisdictional
power as having removed him from state prison jurisdiction. It did not.
Once defendant was delivered into custody of the Department of
Corrections and Rehabilitation, he remained under the physical jurisdiction of
the Director of Corrections as a postsentence prisoner, “even while temporarily
confined in local custody to attend the resentencing hearing.” (Johnson,
supra, 32 Cal.4th at p. 263; >Buckhalter, supra, 26 Cal.4th at pp. 36, 40-41.)

Further, we do not agree
with the suggestion inherent in defendant’s argument that the trial court’s
jurisdictional authority to revisit an entire sentence renders a sentence void >ab initio. Indeed, the California Supreme Court has
extended the reasoning of Buckhalter
to defendants whose entire convictions have been reversed on appeal, holding
that the status of such a defendant remains that of a postsentence prisoner who
is not entitled to presentence custody credits.
(In re Martinez, >supra, 30 Cal.4th at p. 31.) The court also rejected a claim that a
sentence recall voided the initial sentence and reinstated defendant’s
presentence status. (>Johnson, supra, 32 Cal.4th at pp. 263, 265-266.)

Our high court has also
extended the reasoning of Buckhalter
beyond the issue of custody credits, holding that the reversal of a sentence
and remand for resentencing does not permit a defendant to enter a peremptory
challenge to the sentencing judge as permitted by former Code of Civil
Procedure section 170.6, subdivision (2), upon reversal of a final judgment. (Peracchi,> supra, 30 Cal.4th at pp. 1249, 1254-1256.) The Buckhalter
reasoning is equally persuasive for purposes of section 1170, subdivision
(h). Thus, once a defendant is
sentenced, committed to prison, and delivered to the custody of the href="http://www.fearnotlaw.com/">Department of Corrections and Rehabilitation,
he remains in that status until lawfully released. (See Buckhalter,
supra, 26 Cal.4th at pp. 36,
40-41.) Defendant’s postsentence status
was thus maintained throughout the resentencing process. (See Johnson,
supra, 32 Cal.4th at pp. 265-266.)

We conclude that vacating
an entire sentence due to its invalidity as to one count does not render the
original sentence void ab initio; nor
does it reinstate the presentence status of a defendant. We construe the words, “sentenced on or after
October 1, 2011,” in section 1170, subdivision (h)(6), to exclude the
resentencing of felons such as defendant whose sentences were imposed and
executed prior to that date. The trial
court did not err in refusing to resentence defendant under the href="http://www.fearnotlaw.com/">Realignment Act.

>DISPOSITION

The
judgment is affirmed.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.





__________________________,
J.

CHAVEZ



We concur:







__________________________,
P. J.

BOREN







__________________________,
J.

ASHMANN-GERST