Filed 3/4/15 P. v. Esparza 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                                           NOT TO BE PUBLISHED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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                         (Butte)
                                                            ----



THE PEOPLE,                                                                                  C075007

                   Plaintiff and Respondent,                                    (Super. Ct. No. CM027560)

         v.

ANTONIO RICHARD ESPARZA,

                   Defendant and Appellant.




         This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
Defendant Antonio Richard Esparza filed a supplemental brief arguing that the Butte
County trial court erred in imposing consecutive state prison terms for his Sacramento
County and Butte County convictions. We address this issue, in addition to undertaking a
review of the record as required by Wende, and affirm the judgment.
         We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)




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                 FACTUAL AND PROCEDURAL BACKGROUND
       On November 14, 2007, law enforcement officers executed a search warrant at
defendant’s residence and located 548 grams of cocaine, two handguns, ammunition, a
digital scale, and a Taser. Defendant was charged in Butte County Superior Court with
possession of cocaine salt for sale, with the special allegation that he was armed with a
firearm during the commission of the offense. (Health & Saf. Code, § 11351; Pen. Code,
§ 12022, subd. (a)(1).)1
       Defendant pleaded guilty and admitted the special allegation. On January 15,
2009, the trial court sentenced defendant to the mid-term of three years for possession of
cocaine for sale and a consecutive one year for the armed enhancement. Execution of
sentence was suspended pending successful completion of probation, which was
conditioned upon, inter alia, service of 90 days in jail, a minimum of six months in
residential treatment, and 200 hours of community service. Various fines and fees were
also imposed.
       On June 10, 2009, defendant admitted violating his probation. Defendant had
terminated his participation in his residential treatment program without permission. His
probation was reinstated.
       On December 6, 2010, a second petition for violation of probation was filed
alleging defendant had been intoxicated in violation of the conditions of his probation
and had also violated the law by driving while intoxicated. A bench warrant was issued
for defendant’s arrest. On March 8, 2012, the petition for violation of probation was
amended, adding the allegation that defendant had violated the law by possessing cocaine
for sale. At that time, defendant was in custody in the Sacramento County jail.




1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.

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       On May 13, 2013, a jury found defendant guilty of possessing cocaine for sale and
the Sacramento County Superior Court sentenced defendant to the upper term of four
years, plus three years for the allegation that defendant had a prior drug conviction. The
aggregate term of seven years, to be served in county jail pursuant to section 1170,
subdivision (h), with three years of that term to be served on mandatory supervision.
       On July 16, 2013, defendant admitted violating his probation in this case by
possessing cocaine for sale, for which he had been convicted in Sacramento County.
Defendant requested the Butte County Superior Court sentence him to county jail in
accordance with the Realignment Act. (Stats. 2011, ch. 15, § 1; Stats. 2011, 1st Ex.Sess.
2011-2012, ch. 12, § 1 (the Realignment Act).) The trial court denied his request and
sentenced defendant to state prison for an aggregate term of eight years four months,
calculated as follows: the upper term of four years for possession of cocaine for sale on
the Sacramento County case; a consecutive three-year term for the prior drug conviction
in the Sacramento County case; one-third the midterm (one year) for possession of
cocaine for sale in the Butte County case; and one-third of the armed enhancement (four
months) in the Butte County case. Fines and fees were imposed in connection with each
case; 1189 days of custody credit were awarded in connection with the Sacramento
County case, and 74 days of custody credit were awarded in connection with the Butte
County case.
       Defendant appeals. This appeal relates to the Butte County case, as his appeal in
the Sacramento County case is the subject of a separate appeal. (Case No. C074121.)
                                      DISCUSSION
                        I. Imposition of Consecutive Sentences
       The Sacramento County trial court initially imposed a “split sentence” under the
Realignment Act. When the Butte County court resentenced defendant in accordance
with section 1203.2a, the Sacramento County sentence was used as the principle term for



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consecutive sentencing, and defendant’s split sentence was converted into a straight
seven-year prison term.
       Defendant argues that he was placed on probation in Sacramento County and,
accordingly, it was improper for the Butte County court to order consecutive prison
terms. Defendant, however, was not placed on probation in Sacramento County. He was
sentenced to seven years, three of which were to be served on mandatory supervision
pursuant to section 1170, subdivision (h). A county jail commitment, followed by
mandatory supervision imposed under section 1170, subdivision (h), is akin to a state
prison commitment. It is not a grant of probation or a conditional sentence. (People v.
Fandinola (2013) 221 Cal.App.4th 1415, 1422-1423.)
       To the extent defendant is arguing that the Butte County court should have ordered
three of his years be served on mandatory supervision, such a sentence would be
unauthorized.
       “[T]he Realignment Act is not applicable to defendants whose state prison
sentences were imposed and suspended prior to October 1, 2011. Upon revocation and
termination of such a defendant’s probation, the trial court ordering execution of the
previously imposed sentence must order the sentence to be served in state prison
according to the terms of the original sentence, even if the defendant otherwise qualifies
for incarceration in county jail under the terms of the Realignment Act.” (People v. Scott
(2014) 58 Cal.4th 1415, 1419.)
       Thus, because defendant’s Butte County sentence was imposed prior to October 1,
2011, the Realignment Act does not apply to his sentence. The fact that the Sacramento
County sentence was imposed after October 1, 2011, does not render any portion of
defendant’s sentence subject to the Realignment Act. In order for defendant to be subject




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to Realignment Act sentencing, every offense for which he is sentenced must be eligible
under the Realignment Act. (§ 1170.1, subd. (a).)2
                                    II. Wende Review
       Having also undertaken an examination of the entire record, we find no arguable
error that would result in a disposition more favorable to defendant.
                                     DISPOSITION
       The judgment is affirmed.



                                                       MURRAY                , J.



We concur:



      BLEASE                , Acting P. J.



      HULL                  , J.




2 Section 1170.1 provides, in pertinent part: “(a) Except as otherwise provided by law,
and subject to Section 654, when any person is convicted of two or more felonies,
whether in the same proceeding or court or in different proceedings or courts, and
whether by judgment rendered by the same or by a different court, and a consecutive term
of imprisonment is imposed under Sections 669 and 1170, the aggregate term of
imprisonment for all these convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for applicable enhancements for prior
convictions, prior prison terms, and Section 12022.1. . . . Whenever a court imposes a
term of imprisonment in the state prison, whether the term is a principal or subordinate
term, the aggregate term shall be served in the state prison, regardless as to whether or
not one of the terms specifies imprisonment in a county jail pursuant to subdivision (h) of
Section 1170.” (Italics added.)

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