P. v. Malavasi

















Filed 2/13/13
P. v. Malavasi CA4/3













NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FOURTH APPELLATE
DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. DENNIS PATRICK MALAVASI, Defendant and Appellant.

G046629 (Consol. with G046630) (Super. Ct. Nos. 08NF3873, 10WF1505) O P I N I O N

Appeal
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Thomas M. Goethals, Judge.
Affirmed.

Gregory Marshall, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Steve Oeting and Collette C. Cavalier,
Deputy Attorneys General, for Plaintiff and Respondent.



INTRODUCTION

Defendant Dennis Patrick
Malavasi appeals from post-conviction orders executing previously imposed href="http://www.fearnotlaw.com/">state prison sentences in two separate
cases which have been consolidated for the purpose of argument and
opinion. Malavasi contends the trial
court erroneously denied him placement in the county jail under The Criminal
Justice Act of 2011 (hereafter Realignment Act). (Stats. 2011, 1st Ex. Sess. 2011-2012, ch.
12, § 1; Pen. Code, §1170, subd. (h), (hereafter section 1170(h).)href="#_ftn1" name="_ftnref1" title="">[1] This presents a pure question of statutory
construction which we review de novo. (>People ex rel. Lockyer v. Shamrock Foods Co.
(2000) 24 Cal.4th 415, 432.) We find no
error and affirm.

FACTS

The facts of the
underlying offenses are not relevant to this appeal.

In January 2009,
Malavasi was sentenced to four years in state prison in case No. 08NF3873 after
he pled guilty to felony possession of methamphetamine (Health & Saf. Code,
§ 11377) and various misdemeanors, and admitted five prison prior conviction
enhancements (§ 667.5, subd. (b)). At
that time execution of the state prison sentence was suspended and he was
placed on probation.

In August 2011, Malavasi
was sentenced to six years in state prison in case No. 10WF1505 after a jury
found him guilty of felony driving under the influence and driving with a blood
alcohol of .08 or more, with a prior felony driving under the influence
conviction within 10 years (Veh. Code, § 23550.5, subd. (a)), and the trial
court found the five prison prior conviction enhancements were true. Again execution of the state prison sentence
was suspended and he was placed on probation.


In February 2012,
following a contested probation violation hearing, the trial court revoked
Malavasi’s probation in both cases, executed the previously imposed state
prison sentences and ordered them to be served concurrently.

DISCUSSION

“The Realignment Act
‘enacted sweeping changes to long-standing sentencing law,’ including replacing
prison commitments with county jail commitments for certain felonies and
eligible defendants.” (>People v. Clytus (2012) 209 Cal.App.4th
1001, 1004, fn. omitted.) Malavasi
contends the Realignment Act replaced prison commitments with county jail
commitments for violations of Vehicle Code section 23550.5, subdivision
(a). We are not persuaded.

Habitual driving under
the influence offenders like Malavasi, with prior felony driving under the
influence convictions within 10 years, may be punished “by imprisonment in the
state prison or confinement in the county jail for not more than one
year . . . .” (Veh. Code, § 23550.5, subd.
(a).) If the sentencing judge selects
state prison rather than county jail (as the sentencing judge did here) then he
or she must impose a term of “16 months, or two or three years in the state
prison unless the offense is punishable
pursuant to subdivision (h) of section 1170.”href="#_ftn2" name="_ftnref2" title="">[2]> (§
18(a), italics added.)

Malavasi contends
violations of Vehicle Code section 23550.5, subdivision (a) are punishable
pursuant to section 1170(h) because “the term is not specified in the
underlying offense . . . .”
(§ 1170, subd. (h)(1).) However,
this contention ignores the immediately preceding language in the statute which
limits its application to “a felony punishable pursuant to this subdivision.” (Ibid.) In other words, Malavasi assumes the very
point to be decided and his interpretation is entirely circular.

Malavasi also contends
Vehicle Code section 42000 makes violations of
Vehicle Code section 23550.5, subdivision (a) punishable under section
1170(h) because “a felony . . . violation of any provision of
this code shall be punished . . . by imprisonment pursuant to
subdivision (h) of Section 1170 . . . .” (Veh. Code, § 42000.) This contention ignores the limiting language
“[u]nless a different penalty is expressly provided by this
code . . . .” (>Ibid.)
And, of course, Vehicle Code section 23550.5, subdivision (a) does
expressly provide a different penalty – namely “imprisonment in the state
prison . . . .”

Finally, while the Legislature
took care to add express section 1170(h) cross-references to some Vehicle Code
offenses previously punishable “by imprisonment in the state prison,” Vehicle
Code section 23550.5, subdivision (a) is not among them. (Compare Veh. Code, § 23550.5, subd. (a) with Veh. Code § 23550, subd. (a) [drunk driving with prior
reckless driving conviction “punished by imprisonment pursuant to subdivision
(h) of section 1170 of the Penal Code”].)
We have no reason to think this was an inadvertent oversight by the
Legislature. Rather, it makes sense that
habitual felony drunk driving offenders like Malavasi should serve their
sentences in state prison rather than in county jail, because of the recidivist
and dangerous nature of their offenses.

For all of these reasons
we conclude habitual drunk driving under Vehicle Code section 23550.5,
subdivision (a) is punishable only by commitment to state prison, and not by
commitment to the county jail pursuant to section 1170(h). Our conclusion is consistent with and supported
by the recent decision on the very same issue in People v. Guillen (2013) 212 Cal. App. 4th 992. “Thus, by failing to include language in
section 23550.5 authorizing punishment pursuant to Penal Code section 1170,
subdivision (h), the Legislature intentionally excluded defendants convicted of
that offense from eligibility for a county jail sentence.” (Id.
at p. 994.)

It follows the trial
court did not err in failing to consider county jail placement when executing
the state prison sentences previously imposed on Malavasi, even though the
offenses in case no. 08NF3873 might otherwise be subject to imprisonment in the
county jail pursuant to section 1170(h).
Obviously Malavasi cannot be in two places at one time. So long as the sentence for one of the
offenses requires a state prison commitment, the sentences for all offenses
must be served in state prison.href="#_ftn3"
name="_ftnref3" title="">[3]

DISPOSITION

The judgment is
affirmed.





THOMPSON,
J.



WE CONCUR:







FYBEL, ACTING
P. J.







IKOLA, J.