Filed 6/24/15 P. v. Borynack CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     or ordered published for purposes of rule 8.1115.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Appellant,                                        E061733

v.                                                                       (Super.Ct.No. BAF1100559)

ZACKARIAH WILLIAM BORYNACK,                                              OPINION

         Defendant and Respondent.



         APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed in part, reversed in part and remanded with directions.

         Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District

Attorney, for Plaintiff and Appellant.

         Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and

Respondent.




                                                             1
       On November 22, 2013, defendant and appellant Zackariah William Borynack

pled guilty to one count of possession of a destructive device (Pen. Code,1 § 18715, subd.

(a)(1)); 39 counts of possession of a destructive device and explosive (§ 18715, subd.

(a)(3)); one count of possession of substances with the intent to make a destructive device

and explosive without a permit (§ 18720); one count of possession of a zip gun

(§ 33690); and one count of possession of a shuriken (§ 22410). On June 27, 2014, the

trial court sentenced him to two years for possession of a destructive device (§ 18715,

subd. (a)) and concurrent two-year terms on all remaining counts. After applying

defendant’s 117 days of custody credits, the court suspended execution of the entire

remaining sentence and placed him on mandatory supervision pursuant to section 1170,

subdivision (h)(5).

       On appeal, the People challenge the court’s sentence as unlawful (§ 1238, subd.

(a)(10)), contending that while defendant’s crimes were subject to local custody

confinement under section 1170, subdivision (h), section 18780 prohibits suspending

execution of his sentence to place him on mandatory supervision. We agree and reverse.

                                          I. FACTS

       On August 7, 2011, when defendant was pulled over for a traffic violation, it was

discovered that he was carrying a homemade explosive in the car’s glove compartment.




       1   All further statutory references are to the Penal Code unless otherwise indicated.


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The device was made from potassium nitrate and sugar and had a fuse to ignite it.

Deputy Jeff Lundgren opined this was an Improvised Explosive Device (IED) whose

materials burned rapidly. The deputy also discovered in the vehicle a cardboard tube

with a fuse, fireworks, and “exploding targets.” Defendant admitted he had created the

IED, had exploded targets, and that he had additional explosives at his home.

       A search of defendant’s residence produced a zip gun, an improvised rocket

launcher, shurikens, materials used to construct the IEDs, as well as other materials that

could be used to make explosives, including metal shavings, firecrackers, and oxidizer.

In two nearby locked storage sheds, deputies found grenade bodies, nitro methane, black

powder, metal shavings, two .50-caliber armor piercing incendiary projectiles, 20-

millimeter training practice tracer rounds and high explosive incendiary rounds.

                                    II. DISCUSSION

       The People contend the trial court erred in finding defendant eligible under the

Criminal Justice Realignment Act of 2011 (Realignment Act) to suspend execution of his

sentence for the destructive devices and explosives charges in order to place him on

mandatory supervision. The People assert that under the provisions of section 18780, the

trial court has no authority under section 1170, subdivision (h) to suspend the execution

of a sentence for a defendant convicted under the Destructive Devices and Explosives

Chapter of the Penal Code. This assertion raises an issue of statutory interpretation,

which we review de novo. (People v. Love (2005) 132 Cal.App.4th 276, 284.)



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A. Principles of Statutory Interpretation

       “‘The fundamental purpose of statutory construction is to ascertain the intent of

the lawmakers so as to effectuate the purpose of the law. [Citations.]’” (Horwich v.

Superior Court (1999) 21 Cal.4th 272, 276 (Horwich).) “In determining intent, we look

first to the words themselves. [Citations.] When the language is clear and unambiguous,

there is no need for construction. [Citations.] When the language is susceptible of more

than one reasonable interpretation, however, we look to a variety of extrinsic aids,

including the ostensible objects to be achieved, the evils to be remedied, the legislative

history, public policy, contemporaneous administrative construction, and the statutory

scheme of which the statue is a part. [Citations.]” (People v. Woodhead (1987) 43

Cal.3d 1002, 1007-1008; see People v. Verduzco (2012) 210 Cal.App.4th 1406, 1414.)

“‘“The meaning of a statute may not be determined from a single word or sentence; the

words must be construed in context, and provisions relating to the same subject matter

must be harmonized to the extent possible. [Citation.]”’” (People v. Mohammed (2008)

162 Cal.App.4th 920, 928.) “‘[W]e do not construe statutes in isolation, but rather read

every statute “with reference to the entire scheme of law of which it is part so that the

whole may be harmonized and retain effectiveness.” [Citation.]’ [Citation.]” (Horwich,

supra, 21 Cal.4th at p. 276.)

B. Analysis

       In 2011, the Legislature enacted the Realignment Act, creating section 1170,

subdivision (h), and realigning housing for certain felony convictions from state prison to

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local custody. 2 Subdivision (h)(5) of section 1170 created the “split sentence” which

allows a defendant to serve a realigned sentence partially in local custody and partially on

mandatory supervision by the probation department. (§ 1170, subd. (h).) Under this

subdivision, mandatory supervision is achieved by suspending execution of the

concluding portion of the realigned sentence.

       In this case, defendant was convicted of committing offenses proscribed under the

Destructive Devices and Explosives Chapter of the Penal Code (§ 18710 et seq.). Both

sides agree that defendant’s crimes (§§ 18715, 18720) were subject to realignment;

however, they disagree on the trial court’s discretion to place defendant on mandatory




       2  In 2014, when defendant was sentenced, former section 1170, subdivision (h), in
relevant part, provided: “(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. [¶] . . . [¶] (4) Nothing in this subdivision shall be construed to
prevent other dispositions authorized by law . . . . [¶] (5) The court, when imposing a
sentence pursuant to paragraph (1) or (2) of this subdivision, may commit the defendant
to county jail as follows: [¶] . . . [¶] (B)(i) For a term as determined in accordance with
the applicable sentencing law, but suspend execution of a concluding portion of the term
selected in the court’s discretion, during which time the defendant shall be supervised by
the county probation officer in accordance with the terms, conditions, and procedures
generally applicable to persons placed on probation, for the remaining unserved portion
of the sentence imposed by the court. The period of supervision shall be mandatory, and
may not be earlier terminated except by court order. . . . [¶] (ii) The portion of a
defendant’s sentenced term during which time he or she is supervised by the county
probation officer pursuant to this subparagraph shall be known as mandatory
supervision.” (Stats. 2012, ch. 828 (S.B.9), § 1; Stats.2013, ch. 508 (S.B.463), § 5.)


                                             5
supervision. According to the People, defendant’s crimes are subject to section 18780’s

prohibition on suspended sentencing. Section 18780 provides: “A person convicted of a

violation of this chapter shall not be granted probation, and the execution of the sentence

imposed upon that person shall not be suspended by the court.” (§ 18780, italics added.)

Thus, the People argue that although defendant was subject to a local custody

commitment, the trial court was prohibited from suspending execution of that sentence by

placing defendant on mandatory supervision. We agree.

       The language in section 18780 is clear and without any ambiguity. Section

18780’s prohibition does not only apply to “traditional” suspended sentences, i.e.,

suspending execution of a sentence in conjunction with a grant of probation. Rather, it

precludes both a grant of probation and suspension of a sentence. In other words, any

suspension of a sentence for a crime defined in the Destructive Devices and Explosives

Chapter is prohibited, regardless of whether it is accompanied by a grant of probation.

       Although section 1170, subdivision (h) authorizes trial courts to impose

mandatory supervision when suspending execution of a concluding portion of a term, the

creation of mandatory supervision did not result in the creation of a “‘different animal,’”

as defendant would have it.3 In our view, the phrase “mandatory supervision” merely

describes the type of supervision the probation department must provide for certain felons


       3 According to defendant, mandatory supervision is “a unique procedure, distinct
from a grant of probation or a conditional sentence.”


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sentenced under the Realignment Act. The purpose of the Realignment Act was to shift

“responsibility for the custodial housing and postrelease supervision of certain felons

from the state to the local jails and probation departments. [Citations.] . . . [To that end,]

[t]he Legislature stated that California must support ‘community-based corrections

programs and evidence-based practices that will achieve improved public safety,’ and

that realigning low-level felony offenders 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.” [Citation.] . . . [¶] . . . [¶] To implement this shift from the state to

local communities, the Realignment Act provides that eligible felons will serve their

prison terms in local jails rather than state prison. [Citations.] When imposing these

local sentences, the trial court may select a straight commitment to jail for the applicable

term, or it may select ‘a hybrid sentence in which it suspends execution’ of a portion of

the term and releases the felon into the community under the mandatory supervision of

the county probation department. [Citations.] Describing the split sentence option,

section 1170, subdivision (h), provides that the court shall ‘suspend execution’ of the

portion of the term to be served under mandatory supervision in the community, and

during the mandatory supervision period the defendant shall be supervised by the

probation department ‘in accordance with the terms, conditions, and procedures



                                               7
generally applicable to persons placed on probation . . . .’ [Citation.]” (Wofford v.

Superior Court (2014) 230 Cal.App.4th 1023, 1032-1033, fn. omitted, original italics.)

       Furthermore, the phrase “suspend execution of a sentence” is a term of art. As the

People point out, there are several sections of the Penal Code that use this phrase or

words very similar, as follows: Section 1203, subdivision (k) [“Probation shall not be

granted to, nor shall the execution of, or imposition of sentence be suspended for,” a

person convicted of a violent or serious felony who was on probation at the time of the

current offense]; section 1203.06, subdivision (a) [“probation shall not be granted to, nor

shall the execution or imposition of sentence be suspended for,” a person who used

firearms during the commission of enumerated serious and violent felonies]; sections

1203.065, subdivision (a) and 1203.066, subdivision (a) [“probation shall not be granted

to, nor shall the execution or imposition of sentence be suspended for,” persons convicted

of enumerated sex offenses]; section 1203.075, subdivision (a) [“probation shall not be

granted to, nor shall the execution or imposition of sentence be suspended for,” persons

who personally inflicted great bodily injury upon another during the commission of

certain offenses]; section 1203.08, subdivision (a) [“probation shall not be granted to, nor

shall the execution or imposition of sentence be suspended for,” persons convicted of

designated felonies who were previously convicted of at least two prior designated

felonies within 10 years]; and section 1203.09, subdivision (a) [“probation shall not be

granted to, nor shall the execution or imposition of sentence be suspended for,” persons

who committed designated crimes against elderly or disabled victims]. When the

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Legislature uses a term of art, it is presumed to be aware of its established meaning and

“a court construing that use must assume the Legislature was aware of the ramifications

of its choice of language.” (Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 829

[Fourth Dist., Div. Two].) Thus, by using the words “suspend execution” in section

1170, subdivision (h)(5), the Legislature indicated its intent to adopt the established

meaning of the term, such that placing defendant on mandatory supervision simply means

suspending the execution of his or her sentence and placing him or her on probation.

       In requiring defendant be subject to mandatory supervision by the probation

department, the trial court suspended the execution of his remaining sentence and, in

effect, placed him on probation. However, section 18780 prohibits such action. Thus,

we conclude the trial court imposed an unlawful sentence.

                                      III. DISPOSITION

       The judgment is reversed as to defendant’s sentence, and the case is remanded for

resentencing consistent with the views expressed herein. In all other respects, the

judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                HOLLENHORST
                                                                                          J.
We concur:

       RAMIREZ
                               P.J.

       KING
                                 J.

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