People v. SheehyPeople v. Sheehy
Case Information
*1 Filed 4/9/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plаintiff and Appellant, E058373 v. (Super.Ct.Nos. RIF1300157,
RIF1105737, RIF1202860, JAMES MICHAEL SHEEHY, RIF1204943 & RIF1206319)
Defendant and Respondent. OPINION APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed in part with directions; reversed in part with directions.
Paul E. Zellerbach, District Attorney, and Emily R. Hanks, Deputy District Attorney, for Plaintiff and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Respondent.
I
INTRODUCTION
The People challenge sentencing imposed under the Criminаl Justice Realignment
*2
Act of 2011 (Realignment Act) (
The People contend the trial court erred in finding defendant eligible under the
Realignment Act to serve his state prison sentence locally. The People assert that under
subpart (C) of
Regardless of whether a defendant is required to register as a sex offender based
on a current or рrior sex crime conviction, the plain language of
II
FACTS AND PROCEDURAL BACKGROUND
Defendant committed a string of drug-related crimes, for which he was prosecuted, pled guilty, was convictеd, and was granted probation in the following cases:
(1) RIF1105737 (felony possession of methamphetamine; misdemeanor being under the influence of methamphetamine);
(2) RIF1202860 (felony possession of methamphetamine; misdemeanor being under the influence of methamphetamine);
(3) RIF1204943 (possession of Vicodin); and
(4) RIF1206319 (possession of methamphetamine).
Subsequently, on December 28, 2012, the Riverside County District Attorney filed a misdemeanor complaint, case No. RIM1217643, 2 charging defendant with annoying a child under the age of 18 (§ 647.6, subd. (a)) and violation of probation in the above listed four cases (RIF1105737, RIF1202860, RIF1204943, and RIF1206319). Following a jury trial on January 30, 2013, in case No. RIM1217643, defendant was convicted of annoying a child under the age of 18 (§ 647.6, subd. (a)) and violating probation in the four listed cases. Based on defendant’s conviction for violating section 647.6, subdivision (a), defendant was required to register as a sex offender under section 290.
On January 30, 2013, the district attorney filed a complaint charging defendant
with felony petty theft with a prior (§ 484, subd. (a)) and violation of misdemeanor
probation. On March 1, 2013, defendant pled guilty to felony petty theft. Defendant’s
guilty plea was conditioned on receiving a two-year prison term concurrent with
sentencing on case No. RIF1206319 and with local custody imposed pursuant to
On March 1, 2013, the trial court sentenced defendant on all convictions in evеry case pending against him as follows. The court sentenced defendant in case No. RIF1300157, for petty theft with a prior, to three years. As to the four other felony cases (RIF1105737, RIF1202860, RIF1204943, and RIF10006319), the court revoked probation and sentenced defendant to concurrent terms of two years for the felony convictions in each of the four cases, and concurrent sentences of 365 days for the 2 Judgment in RIM1217643 is not being appealed.
misdemeanor convictions in the case Nos. RIF115737 and RIF1202860. The trial court
ordered that defendant serve his sentence, as to all convictions, in a county jail under
III
THE REALIGNMENT ACT
The sole issue here is whether the trial court erred in sentencing defendant to
county jail under
3
As amended by the Realignment Act, the pertinent portion of
“(2) Except as providеd 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.
“(3) Notwithstanding paragraphs (1) and (2), where the defendant . . . (C) is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1, . . . an executed sentence for a felony punishable pursuant to this subdivision shall be served in state prison.”
“The Realignment Act significantly changes felony punishment. Under prior law,
felonies were offenses punished by death or imprisonment in state prison. [Citation.]
The Realignment Act changes the definition of a felony to an offense punishable by
death, imprisonment in state prison, or by ‘imprisonment in a county jail under the
provisions of subdivision (h) of
The legislative intent underlying the Realignment Act is codified in section 17.5. (Stats. 2011, ch. 39, § 5.) Section 17.5 states that the Legislature is committed “to reducing recidivism among criminal offenders.” (§ 17.5, subd. (a)(1).) Because “policies that rely on building and operating more prisons . . . will not result in imрroved public safety,” the Legislature declares in section 17.5 that “California must reinvest its criminal justice resources to support community-based corrections programs and evidence-based practices that will achieve improved public safety.” (§ 17.5, subd. (a)(3)-(4).) The Legislature further declares in section 17.5 that “Realigning low-level felony offenders *7 who do not have prior convictions for serious, violent, or sex offenses to locally run community-based corrections programs, which are strengthened through community- based punishment, evidence-based practices, improved supervision strategies, and enhanced secured capacity, will improve public safety outcomes among adult felons and facilitate their reintegration back into society.” (§ 17.5, subd. (a)(5).)
The parties in the instant action dispute the mеaning of subpart (3)(C) of the
Realignment Act. “[S]tatutory interpretation begins by examining the language of the
statute, giving the words their ordinary meaning and considering them in the context of
the statutory framework.” (
People v. Kelly
(2013)
Applying these standard principles of statutory construction, we conclude the
language in subpart (3)(C) is clear and unambiguous. Contrary to defendant’s view, his
reading of the statute does not plausibly account for its language and therefore he has not
tendered an ambiguity so as to trigger the “rule of lenity.” (See
People v. Cornett
(2012)
Under subpart (3)(C), of the Realignment Act, defendant is required to serve his sentence in state prison, rather than county jail, because he is required to register as a sex offender in case No. RIM1217643. The fact that defendant is rеquired to register as a sex offender based on a prior sex crime conviction, rather than a current conviction, does not preclude application of the subpart (3)(C) exclusion. The subpart (3)(C) exclusion is conditioned solely on a defendant’s status of being required to register as a sex offender. No mention is made that registration must arise from a current conviction.
The fact that a defendant must register as a sex offender demonstrates that he
poses a significant risk to society, regardless of whether he is required to register based
on a prior or current conviction. This court cannot disregard the plain language of
subpart (3)(C) and rewrite the provision to narrow its scope to encompass only
defendants who are required to register based on a current conviction for a sex crime.
(
People v. Garcia
(1999)
Defendant argues that construing subpart (3)(C) to encompass registration based on prior and current sex crime convictions leads to an absurd, unjust result in that such construction could lead to confining a defendant in state prison based on a prior misdemeanor sex crime conviction, when sentencing for the offense would normally only require incarceration in jail. But under the plain meaning of the statute, it makes no difference how or when the requirement to register arose or whether the underlying sex crime was a misdemeanor or felony.
Defendant’s contention that the subpart (3)(C) exclusion must arise from a current sex crime conviction is contrived and absurd. Defendant argues use of the verb “is,” which is in the present tense, supports his construction of the statute that the subpart (3)(C) exclusion only applies to current convictions for sex crimes. But contrary to defendant’s argument, the word “is” in subpart (3)(C) does not refer to the current act of the court ordering a defendant to register as a sex offender. “Is” refers to the current requirement that defendant is required to register. It makes no difference whether the court ordered the registration during the current proceedings or in the past based on a prior conviction. The risk is the same, whether the conviction that led to sex offender registration was a prior or current conviction for a sex crime. Construing the subpart (3)(C) exclusion as simply excluding those defendants who are required to register as sex offenders, regardless of when the court ordered registration, is consistent with the purpose of the Realignment Act, of “Realigning low-level felony offenders who do not have prior convictions for serious, violent, or sex offenses to locally run community- based corrections programs.” (§ 17.5, subd. (a)(5); italics added.) The Legislature has *10 determined that those who are required to register as sex offenders havе committed sex crimes and therefore pose a greater risk to society than low-level felony offenders.
Defendant further argues that because “prior” appears in other exclusions from the
Realignment Act but not in the part of the statute pertaining to sexual offender
registrants, the subpart (3)(C) exclusion only applies to defendants ordered to register
based on a current conviction for а sex crime. We disagree. The other provisions
exclude persons who have “a prior or current” serious or violent felony or a “prior”
foreign conviction that would be serious or violent if committed in California. The
subpart (3)(C) exclusion refers to a person’s status, which might arise from a current or
prior conviction in California or elsewhere, provided that such conviction triggers sexual
offender registrаtion. (See §§ 290, subds. (b) & (c), 290.005, 1170, subd. (h)(3)(C).)
Had the Legislature wanted to limit the exclusion to persons ordered to comply with
Realignment Act in current cases but not prior registrants—assuming there was some
rational reason to do so—it would not have phrased the exclusion the way it did, to cover
any person who “is required to register as a sex offender pursuant to” the Sex Offender
Registration Act (§ 290, et seq.;
The trial court’s order allowing defendant to serve his state prison term locally
under the Realignment Act violates the plain language of the subpart (3)(C) exclusion of
the Realignment Act. Therefore defendant’s sentence is reversed and he must serve his
*11
sentence in state prison. Defendant does not qualify for local confinement under the
Realignment Act because he is required to register as a sex offender. (
IV
SUFFICIENCY OF EVIDENCE
Defendant alternatively argues the People failed to meet their burden of proof in establishing that the subpart (3)(C) exclusion of the Realignment Act applies. Defendant asserts that there was insufficient evidence that he was convicted of a sex crime and ordered to register as a sex offender under section 290. The record, however, shows this was well established and undisputed.
During the sentencing hearing on March 1, 2013, in case No. RIM1217643, the trial court noted that defendant was convicted of the misdemeanor of annoying and molesting a child (§ 647.6), and violated probation in case Nos. RIF1206319, RIF1204943, RIF1105737, and RIF1202860. The court also noted that a new case against defendant had beеn filed, case No. RIF1300157. Neither party disputed these facts. The trial court requested the deputy district attorney to see if the parties could resolve at the time of the March 1, 2013 sentencing hearing, the new case and other pending criminal cases, including the theft case and cases for violation of probation.
After the parties met during a recess in the sentencing hearing, defendant’s attorney informed thе court that defendant would plead guilty to the new charge, depending on the likely sentence. The court stated that it was inclined to impose a three- year term under the Realignment Act, with the sentences on all defendant’s other cases to *12 be served concurrently. The court further noted that defendant’s misdemeanor conviction in case No. RIM1217643 required registration as a sex offender. Defendant signed a felony plea agreement, which advised him that one of the consequences of pleading guilty in case No. RIF130057 was that the court would impose a two-year concurrent sentence under the Realignment Act.
After advising defendant of his constitutional rights and the consequences of pleading guilty, defendant waived his rights and pled guilty to the theft charge in case No. RIF130057. The court then sentenced defendant in all of the pending criminal cases against defendant, including RIF1217643. The judge noted that defendant had been tried and convicted in case No. RIF1217643. The trial court sentenced defendant in case No. RIF1217643 to a 365-day jail term and ordered him to pay a $300 fine pursuant to section 290.3. Section 290.3 provides that those convicted of sex offenses specified in section 290 are required to pay a $300 fine upon the first conviction, unless thе defendant does not have the ability to pay the fine. (§ 290.3, subd. (a).)
The record shows that it was undisputed defendant was convicted by trial of a sex crime in case No. RIM1217643 and was required to register as a sex offender under section 290. The reporter’s transcript of the sentencing hearing on March 1, 2013, confirms this, as does defendant’s probation report. During sentencing regarding case No. RIM1217643, the judge told defendant: “I can’t say thаt the jury verdict, based on the way the testimony shook out, was unreasonable. But unfortunately for you, you are going to have to register as a sex offender.” The court added, with regard to defendant’s three-year prison term in local custody in case No. RIF130057: “And I suspect you are *13 going to be out sooner rather than later, just given the crowding situation in the county jail.” For this reason, those required to register as sex offendеrs are exempted from the Realignment Act provision allowing incarceration of defendants in local jails. Those who are required to register as sex offenders are considered a risk to the public, as are those who have been convicted of violent or serious felony offenses, and therefore must serve their sentences in state prison without the possibility of early release into the сommunity.
The reporter’s transcript and clerk’s transcript establish there was sufficient evidence upon which the trial court reasonably concluded that defendant was convicted of a sex crime and was required to register as a sex offender. Furthermore, nothing in the record calls into question defendant’s status as a sex offender registrant and this was undisputed at the time of sentencing.
V
CASE NO. RIF1300157 GUILTY PLEA
The parties agree thаt, in the event this court holds that the Realignment Act does
not apply, defendant is entitled to withdraw his guilty plea solely in case No.
RIF1300157, because one of the agreed-upon consequences of defendant’s guilty plea in
case No. RIF1300157 was that he would be sentenced under the Realignment Act and
thus serve his two-year concurrent sentence imposed in case No RIF1300157 in local jail.
(
People v. Segura
(2008)
We disagree as to sentencing. Revocation of probation in case Nos. RIF1105737, RIF1202860, RIF1204943, and RIF1206319 was not contingent upon defendant being convicted of theft in case No. RIF1300157. Probation revocation was based on defendаnt’s conviction in case No. RIM1217643. However, the two-year sentences imposed on each of the four cases are concurrent sentences, with the three-year term imposed in case No. RIF1300157 serving as the principal term. Since defendant is entitled to withdraw his guilty plea in case No. RIF1300157, this matter must be remanded for resentencing as to case Nos. RIF1105737, RIF1202860, RIF1204943, and RIF1206139.
VI
DISPOSITION
The provision in defendant’s sentence allowing defendant to serve his sentence
locally under
In addition, as to case No. RIF1300157, judgment is reversed and the case is remanded to the trial court to allow defendant, if he chooses, to withdraw his guilty plea solely in case No. RIF1300157.
This case is also remanded for resentencing in case Nos. RIF1105737, RIF1202860, RIF1204943, and RIF1206319, since the principal term was the three-year *15 sentence imposed in case No. RIF130057, with concurrent two-year terms imposed in the other four cases. In all other regards, judgment is affirmed as modified.
CERTIFIED FOR PUBLICATION
CODRINGTON J. We concur:
RAMIREZ
P. J.
MILLER
J.