Filed 6/23/15 P. v. McCabe 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                                          NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                       (Tehama)
                                                            ----




THE PEOPLE,                                                                            C074110

                   Plaintiff and Respondent,                              (Super. Ct. No. NCR83744)

         v.

RYAN SCOTT MCCABE,

                   Defendant and Appellant.




         Defendant Ryan Scott McCabe appeals his conviction for being a felon in
possession of a firearm. He contends this conviction violates the Second Amendment.
We disagree and shall affirm the conviction. Defendant also contends he is entitled to
additional presentence custody credits. We remand the matter to the trial court for a
factual determination of whether, and when, defendant was delivered into the custody of
the Department of Corrections and Rehabilitation (CDCR). Defendant’s last contention
is that the abstract of judgment requires correction to clearly indicate that the first abstract

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of judgment issued in case No. NCR83093 is no longer in effect given the resentencing of
defendant in case No. NCR83744. The People agree the abstract should be clarified. We
will order the trial court to correct the abstract.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On the afternoon of July 12, 2011, defendant shot Charles Shirer in the leg with a
small semiautomatic pistol. At the time, defendant had a prior felony conviction. Just
prior to the shooting, Stephanie Allen had seen defendant pull a small semiautomatic
pistol partially out of his pocket and heard him say he was going to shoot Shirer.

       An information charged defendant with assault with a semiautomatic firearm (Pen.
Code, § 245, subd. (b)),1 with an allegation he personally used a firearm (§ 12022.5,
subd. (a)), and possession of a firearm by a felon (former § 12021, subd. (a)(1)).2 The
information also alleged defendant had a prior serious felony conviction (§§ 667, subd.
(a)(1), 1170.12) and two prior prison terms (§ 667.5, subd. (b)). A jury found defendant
guilty of misdemeanor assault, as a lesser included offense, and guilty of being a felon in
possession of a firearm. In bifurcated proceedings, defendant admitted the prior serious
felony conviction and prior prison term allegations.

       The trial court sentenced defendant to the doubled upper term of six years for
being a felon in possession of a firearm, plus two years for the prior prison terms, and a
six-month concurrent term on the misdemeanor assault. In addition, he was resentenced
on a prior case, case No. NCR83093, a conviction for felony evading an officer (Veh.
Code, § 2800.2, subd. (a)), to a consecutive 16-month term (one-third the midterm


1 Undesignated statutory references are to the Penal Code.

2 Former section 12021 was repealed operative January 1, 2012. The statutory
prohibition against a felon possessing a firearm is now found in section 29800. (Stats.
2010, ch. 711, § 6, operative Jan. 1, 2012). For analysis of the issue raised by defendant,
we will refer to the currently operative section 29800.


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doubled). The trial court calculated defendant had 1,040 days of presentence credit (693
actual days and 347 conduct credit) under section 4019.

                                       DISCUSSION

                               I. Second Amendment Claim

       Relying on the United States Supreme Court’s decision in District of Columbia v.
Heller (2008) 554 U.S. 570 [171 L.Ed.2d 637] (Heller), defendant contends his
possession of a firearm was protected by the Second Amendment, and therefore his
conviction for being a felon in possession of a firearm violates the Second Amendment.
He argues section 29800 violates the Second Amendment on its face. It does not.

       “A facial challenge to the constitutional validity of a statute or ordinance considers
only the text of the measure itself, not its application to the particular circumstances of an
individual.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084) “If a statute is
constitutional in its general and ordinary application, the statute is not facially
unconstitutional merely because ‘there might be some instances in which application of
the law might improperly impinge upon constitutional rights.’ (American Academy of
Pediatrics v. Lungren (1997) 16 Cal.4th. 307, 347.)” (People v. Mitchell (2012)
209 Cal.App.4th 1364, 1373.)

       The Second Amendment provides: “A well regulated militia, being necessary to
the security of a free state, the right of the people to keep and bear arms, shall not be
infringed.” (U.S. Const., 2d Amend.)

       In Heller, the high court evaluated the meaning of the Second Amendment, and
concluded the constitutional right to possess firearms was not limited to possession for
military use and included an individual’s right to possess firearms in the home for self-
defense. (Heller, supra, 554 U.S. at pp. 571-574, 591, 634-636.) But the court stated,
“[l]ike most rights, the right secured by the Second Amendment is not unlimited.” (Id. at


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p. 626 (maj. opn. of Scalia, J.).) The right does not extend to any sort of confrontation
nor does it extend to any type of weapon. (Id. at pp. 595, 625-626.) Rather, it is a right
to possess and carry weapons “typically possessed by law-abiding citizens for lawful
purposes.” (Id. at p. 625.) The court specifically noted that “nothing in [its] opinion
should be taken to cast doubt on longstanding prohibitions on the possession of firearms
by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive
places . . . .” (Id. at pp. 626-627.) The court further explicitly recognized “the problem
of handgun violence in this country,” and confirmed that the “Constitution leaves . . . a
variety of tools for combating that problem . . . .” (Id. at p. 636.)

       In McDonald v. City of Chicago (2010) 561 U.S. 742 [177 L.Ed.2d 894]
(McDonald) the court held the Second Amendment right is applicable to the states
through the due process clause of the Fourteenth Amendment, but “ ‘repeat [ed] [its]
assurances’ that ‘the right to keep and bear arms is not “a right to keep and carry any
weapon whatsoever in any manner whatsoever and for whatever purpose” ’ ” and
reiterated “that its holding ‘did not cast doubt on such longstanding regulatory measures
as “prohibitions on the possession of firearms by felons and the mentally ill . . . .” ’
(McDonald, supra, at p. 786, quoting Heller, supra, 554 U.S. at p. 626 [171 L.Ed.2d at
p. 678].)” (People v. Jason K. (2010) 188 Cal.App.4th 1545, 1555.)

       Defendant attempts to minimize the impact of this language by dismissing it as
dicta. As have other courts, we construe the Heller language not as dicta, but as a
limitation on Heller’s holding that individuals have a right to possess weapons under the
Second Amendment of the federal Constitution. (See, e.g., United States v. Huet (3d Cir.
2012) 665 F.3d 588, 600, fn. 11; United States v. Barton (3d Cir. 2011) 633 F.3d 168,
171; United States v. Rozier (11th Cir. 2010) 598 F.3d 768, 771, fn. 6; and United States
v. Vongxay (9th Cir. 2010) 594 F.3d 1111, 1115.) In any event, whether dictum or not,
Heller’s declaration of presumptively lawful prohibitions comes in a United States


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Supreme Court decision and must therefore be taken seriously in every Second
Amendment case to which it might be relevant. (See United States v. Marzzarella (3d
Cir. 2010) 614 F.3d 85, 90, fn. 5; see also United States v. Serawop (10th Cir. 2007)
505 F.3d 1112, 1122 [“[W]e are ‘ “bound by Supreme Court dicta almost as firmly as by
the Court’s outright holdings, particularly when the dicta is recent and not enfeebled by
later statements.” ’ ”].) Heller’s phrase “nothing in [its] opinion should be taken to cast
doubt” (Heller, supra, 554 U.S. at p. 626) is strongly worded and leaves no room for
defendant’s argument that the exceptions Heller recognizes for certain traditional
firearms regulations are inconsistent with the rest of the opinion.

       California cases have followed the same approach. In People v. Delacy (2011)
192 Cal.App.4th 1481 (Delacy), the First Appellate District, Division One, upheld the
defendant’s convictions for unlawful firearm and ammunition possession where the
firearms and ammunition were found during probation searches of the defendant’s home.
(Id. at p. 1486.) There, the defendant challenged the constitutionality of former section
12021, subdivision (c)(1), which prohibited the possession of firearms by persons
convicted of specified misdemeanors. (Id. a p. 1488.) The court explained, “there is a
significant difference between the D.C. handgun ban and [former] section 12021. The
D.C. statute was one of general application that did not fit within the traditional
regulations described by Heller as ‘presumptively lawful.’ [Citation.] In contrast, as
[People v. Flores (2008) 169 Cal.App.4th 568] held, [former] section 12021 is analogous
to a prohibition on felon weapon possession, a type of restriction expressly listed by
Heller as untouched by its holding. Relying on this reasoning, both California and
federal decisions have upheld the type of ‘presumptively lawful’ regulations identified in
Heller, including prohibitions on firearm possession by certain ‘disqualified’ persons,
without applying constitutional scrutiny that balances the objectives of the statute against
the means used to accomplish those ends.” (Delacy, at p. 1489.)



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       Because defendant’s conduct falls outside the scope of the Second Amendment’s
protection, we need not balance the objectives of the statute against the means used to
accomplish those ends. (Delacy, supra, 192 Cal.App.4th at p. 1489.) Like the Delacy
court, we conclude Heller did not “intend[ ] to open felon-in-possession prohibitions and
similar categorical weapons possession bans to constitutional means-end scrutiny. On the
contrary, following virtually all other federal and California appellate courts, we read
Heller’s ‘presumptively lawful’ language to do just the opposite.” (Delacy, supra, at
pp. 1491-1492.)

                           II. Calculation of Custody Credits

       Defendant contends the trial court erred in the calculation of his custody credits.
He claims he is entitled to 668 days of presentence credit for the period from May 14,
2012, to June 10, 2013. Specifically, he argues that since he was never delivered into the
custody of the Director of Corrections, he never started serving his prison sentence in
case No. NCR83093; rather, he remained in pretrial custody.
                                     A. Background
Case No. NCR83093

       On March 22, 2012, defendant pleaded guilty to felony evasion (Veh. Code,
§ 2800.2, subd. (a)) and admitted a prior strike (Pen. Code, § 1170.12, subds. (a)-(d)).
Defendant agreed to waive all presentence credit accrued until the day of his plea. On
May 14, 2012, the trial court sentenced defendant to six years in prison. The trial court
awarded defendant 80 days of presentence custody credit (54 actual and 26 conduct).
The abstract of judgment remanded defendant to the custody of the sheriff “forthwith” to
be delivered to “the reception center designated by the director of the California
Department of Corrections and Rehabilitation.”




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Case No. NCR83744

         On March 23, 2012, the day after defendant pleaded guilty in case
No. NCR83093, the People filed a complaint in case No. NCR83744, charging defendant
with numerous offenses, including possession of a firearm by a felon. Defendant
remained in custody and appeared regularly at the trial proceedings. On March 14, 2013,
a jury found defendant guilty of being a felon in possession of a firearm and
misdemeanor assault, and defendant admitted a prior serious felony conviction and prior
prison term.

         On June 10, 2013, the trial court imposed sentence in case No. NCR83744 and
resentenced defendant in case No. NCR83093. As noted previously, in case
No. NCR83744, the trial court sentenced defendant to a six-year term on the possession
of a firearm count, six months on the misdemeanor assault, plus two years on the prison
priors. In case No. NCR83093, the trial court imposed a consecutive 16-month term.

         At the sentencing hearing, defense counsel indicated defendant’s prison
commitment in case No. NCR83093 “has been hanging fire” waiting on the resolution of
case No. NCR83744. The probation report indicated defendant was not entitled to
confinement credit in case No. NCR83744. “He was arrested on July 19, 2011, not only
for the present offense but for the crimes in Case NCR83093, for which he is currently
serving a prison term (albeit at the moment in the county jail). All prior confinement
credit from July 19, 2011 to the day of sentencing on May 14, 2012 was awarded in that
case.”

         The trial court indicated it believed probation was correct that defendant was
serving time on case No. NCR83093 while in custody during pretrial proceedings and
trial on case No. NCR83744. The trial court noted the credits needed to be updated, as of
the date of sentencing, and found defendant was entitled to 693 days of actual credit and
347 conduct credits, for a total of 1,040 days of credit.


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                                        B. Analysis
       “The term of imprisonment fixed by the judgment in a criminal action commences
to run only upon the actual delivery of the defendant into the custody of the Director of
Corrections at the place designated by the Director of Corrections as a place for the
reception of persons convicted of felonies.” (§ 2900, subd. (a).)

       “A judgment of imprisonment must direct that the defendant be delivered to the
Director’s custody at a designated state prison. (§ 1202a.) Upon receipt of a certified
abstract of the judgment, the sheriff must deliver the defendant to prison authorities.
(§ 1216.) Once so delivered, the defendant ‘shall be imprisoned until duly released
according to law.’ (§ 2901.) Service of the sentence commences upon such delivery
(§ 2900, subd. (a)), and time thereafter served in an institution designated by the Director
‘shall be credited as service of the term of imprisonment’ (id., subd. (c)). The agency to
which the defendant is committed, not the trial court, has the responsibility to calculate
and apply any custody credits that have accrued between the imposition of sentence and
physical delivery of the defendant to the agency. (§ 2900.5, subd. (e).)” (People v.
Buckhalter (2001) 26 Cal.4th 20, 30-31 (Buckhalter).) “These statutes instruct that
delivery, the physical act of transporting the defendant to a state penal institution, is what
triggers the running of a prison sentence. After sentencing and before delivery, the
defendant’s custody is considered presentence time to be credited against the actual
prison term. Logically, a person cannot be ‘confined in a state prison’ until he has been
‘delivered’ to a state prison.” (People v. Holdsworth (1988) 199 Cal.App.3d 253, 258.)

       In Buckhalter, the defendant was sentenced, committed, and delivered to state
prison. Upon remand from the court of appeal for resentencing, he was transported from
prison to local custody for the further proceedings. (Buckhalter, supra, 26 Cal.4th at
pp. 24-26.) The trial court, in calculating credits, refused to award additional time and
good behavior credits for the period the defendant was confined in a local facility
awaiting the remand hearing, concluding that he was still under the jurisdiction of the

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Department of Corrections during that period. (Id. at pp. 26-27.) On review in the
Supreme Court, the defendant argued that his credits, by virtue of the remand order,
should have been calculated up to the time of the resentencing as having been entirely
presentence custody. (Id. at p. 28.) The high court rejected that position and held that “a
convicted felon who has once been sentenced, committed, and delivered to prison, who
received all credits for confinement prior to the original sentencing, and who remains
behind bars pending an appellate remand solely for correction of sentencing errors, is not
eligible to earn additional credits for good behavior as a presentence detainee.” (Id. at
p. 29.) It reasoned that “an appellate remand solely for correction of a sentence already
in progress does not remove a prisoner from the Director’s custody or restore the prisoner
to presentence status as contemplated by section 4019. . . . [A] defendant’s temporary
removal from state prison to county jail as a consequence of the remand did not transform
him from a state prisoner to a local presentence detainee. When a state prisoner is
temporarily away from prison to permit court appearances, he remains in the constructive
custody of prison authorities and continues to earn sentence credit, if any, in that status.”
(Id. at p. 33.)

       Similarly, in People v. Johnson (2004) 32 Cal.4th 260, the defendant had been
convicted, sentenced to imprisonment, and delivered into the custody of the Department
of Corrections. (Id. at p. 264.) After delivery, “the trial court ordered [the] defendant to
be produced and returned to the sheriff’s custody,” and on the date of the rehearing, it
recalled the sentence and resentenced the defendant. (Ibid.) The trial court refused to
grant the defendant presentence conduct credit pursuant to section 4019 for the period
between his original sentencing to the time of resentencing. (Johnson, at p. 264.) The
Supreme Court rejected the defendant’s contention that the recall of the sentence had the
effect of voiding the initial sentence and that he should therefore be considered under the
presentence custody credit scheme. (Id. at p. 265.) The high court relied on its holding



                                              9
in Buckhalter, and concluded: “The trial court here recalled the sentence solely for
correction of a prison sentence already in progress and reimposed a state prison sentence
at the recall hearing. As with an appellate remand solely for correction of a sentence
already in progress, a recall of sentence does not remove a prisoner from the Director’s
custody or restore the prisoner to presentence status as contemplated by section 4019.”
(Johnson, at p. 267, citing Buckhalter, supra, 26 Cal.4th at pp. 29-30, 32-34, 40.)

       Neither Johnson nor Buckhalter stand for the proposition that a defendant who is
convicted and sentenced but not delivered into the CDCR’s custody is nonetheless
serving his prison term while in local custody. To the contrary, the fact of the actual
delivery to prison authorities was a critical requirement in both cases, as actual delivery
was what commenced the running of the prison term. In both Johnson and in Buckhalter,
the defendants had been physically transferred to prison officials after initial sentencing
and the term of each defendant had thus commenced within the meaning of section 2900,
subdivision (a); their constructive custodial status as a prisoner stemmed from the fact of
this original delivery to the prison authorities after sentencing.

       The People ignore this essential requirement of delivery to commence a prison
term. The above authorities make clear that the commencement of the term of
imprisonment requires an actual delivery of the defendant to the CDCR. The abstract of
judgment, and section 1216, requires the sheriff to deliver the defendant to prison upon
receipt of the abstract. The record on appeal does not contain jail records or records from
the sheriff’s department. On the record before us, we cannot determine when or if
defendant was actually delivered to prison authorities. This is a factual question best
determined by the trial court.3 Accordingly, we will remand the matter to the trial court


3 We asked the parties for supplemental briefing on the effect, if any, of defendant’s
parole violation and hearing on August 3, 2011—at which he received 12 months based
on a “new” offense—on the issue of his entitlement to presentence custody credits. It is

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for a determination of whether and when defendant was delivered to prison authorities in
case No. NCR83093. The trial court shall then recalculate defendant’s presentence
credits accordingly.

                                III. Abstract of Judgment

       Defendant also contends the abstract of judgment requires clarification, as it does
not clearly indicate that one of the sentenced counts is the prior conviction from case
No. NCR83093. At oral argument, the People agreed the abstract of judgment could be
clearer. We will order the trial court to correct the abstract of judgment.

       The trial court imposed a three-year sentence on case No. NCR83093 on May 14,
2012. Following defendant’s conviction in case No. NCR83744, on June 26, 2013, the
trial court imposed a six-year term in case No. NCR83744 and, pursuant to section
1170.1, resentenced defendant to a consecutive 16-month term in case No. NCR83093.
The only reference in the June 26, 2013 abstract to case No. NCR83093 is as an
incomplete consecutive sentence. The June 26, 2013 abstract of judgment does not
identify the 16-month consecutive sentence as the sentence in case No. NCR83093-B.
We will order the trial court to correct the abstract of judgment to make clear that
defendant was resentenced in case No. NCR83093-B and therefore, the abstract of
judgment issued on May 31, 2012 is no longer in effect.

                                      DISPOSITION

       The matter is remanded to the trial court for further proceedings to determine if,
and when, defendant was delivered to the CDCR in case No. NCR83093 and to calculate
defendant’s presentence custody credits accordingly. The trial court is ordered to correct



unclear whether defendant was returned to prison for any period between August 3, 2011,
and August 3, 2012, for the parole violation. This may be another factor relevant on the
issue of delivery.


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the June 26, 2013 abstract of judgment in case No. NCR83744 to list case
No. NCR83093 as case “-B,” to correct count “1N” to “1B” in item No. 1 of the abstract,
and to reflect that due to resentencing, the abstract issued May 31, 2012, in case
No. NCR83093, is no longer operative. In all other respects, the judgment is affirmed. A
certified copy of the corrected abstract shall be sent to the CDCR.




                                                                   BUTZ              , J.



We concur:



      RAYE                  , P. J.



      BLEASE                , J.




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