California Court of Appeal Nov 13, 2015 No. D066752Unpublished
Filed 11/13/15 P. v. Pitchie CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066752
Plaintiff and Respondent,
v. (Super. Ct. No. JCF30752)
DARREN JAMES PITCHIE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Donal B.
Donnelly, Judge. Affirmed.
Law Offices of John E. Edwards and John E. Edwards, under appointment by the
Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson, Daniel Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
Darren James Pitchie pleaded no contest to one count of felony elder abuse (Pen.
Code,1 § 368, subd. (b)(1)). In exchange, the People agreed to dismiss another felony
1 All statutory references are to the Penal Code.
elder abuse count against Pitchie. Pursuant to the plea agreement, the trial court
suspended the three-year state prison term and placed Pitchie on probation for five years.
After Pitchie violated probation a second time, the trial court revoked probation and
Jerome on April 3, 2013. Count 2 alleged Pitchie committed felony elder abuse against
Margaret on March 15, 2013.
On the May 30, 2013 plea agreement form, the word "state" was twice crossed out
from the term "state prison" under the section captioned, "Consequences of Pleading
Guilty or No Contest."4 However, Pitchie agreed he could serve a maximum term of
three years in prison for violating probation. At the August 16, 2013 sentencing hearing,
Pitchie affirmed his understanding that he could spend up to three years "in custody" if he
4 The parties acknowledge that nothing in the record explains why the term "state" was twice struck from the plea agreement form. 3
violated probation. The court suspended imposition of Pitchie's three-year term and
placed him on formal probation for five years.
Probation Violations
On March 14, 2014, Pitchie admitted to violating probation after he was arrested
twice for disobeying court orders and failed to report those arrests to his probation
officer. The trial court reinstated probation, imposed a 64-day county jail term, granted
him credit of 64 days for time served, and converted the earlier grant of probation to a
three-year sentence, which it suspended.
On May 29, 2014, Pitchie asked his parents if they had pain medication and
became upset when they did not have any. He pointed his finger one to two inches from
Margaret's eye and advanced towards her. Margaret retreated to the living room. Jerome
told Pitchie to leave Margaret alone. Pitchie became angry and pounded his fist on
Jerome's television tray, causing items to fall off the tray. Pitchie grabbed a phone from
Jerome, causing the phone to break and cut Jerome's finger.
On September 3, 2014, the trial court found Pitchie had violated probation a
second time. Before the sentencing hearing, the probation department recommended
imposition of the three-year state prison term. It also determined Pitchie was ineligible
for a county jail sentence under section 1170, subdivision (h) because of his prior serious
felony conviction for criminal threats (§ 422) and his felony elder abuse conviction.
At the September 30, 2014 sentencing hearing, defense counsel asked the court to
sentence Pitchie to county jail for eight to ten months. The People responded, "[Pitchie]'s
already been sentenced to three years state prison. It's just a matter of executing that
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suspended prison sentence at this time." The court asked defense counsel to verify the
sentence would be a state prison commitment. Defense counsel answered, "It's my
understanding, your Honor, that this particular offense is not 1170 [subdivision] (h), so it
would be a state prison [commitment]." The court permanently revoked probation and
ordered the three-year state prison term executed, granting Pitchie 609 days of credit for
time served. Pitchie timely appealed.
DISCUSSION
A. Legal Principles
Pitchie's challenge to his sentence presents a pure question of statutory
interpretation, which we review de novo. (People v. Borynack (2015) 238 Cal.App.4th
958, 962.)
Section 18, subdivision (a), the default sentencing provision for felonies, provides:
"Except in cases where a different punishment is prescribed by any law of this state,
every offense declared to be a felony is punishable by imprisonment for 16 months, or
two or three years in the state prison unless the offense is punishable pursuant to
subdivision (h) of Section 1170." (§ 18, subd. (a), emphasis added.) "Thus, state prison
remains the default punishment for felony convictions even after [the Realignment Act]."
(People v. Vega (2014) 222 Cal.App.4th 1374, 1382.)
The Realignment Act "significantly changes felony punishment" by making
certain offenses previously punishable by state prison terms eligible for county jail terms.
(People v. Lynch (2012) 209 Cal.App.4th 353, 357.) However, the Realignment Act only
affects certain offenses, and state prison remains the sole punishment for many other
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offenses. (People v. Guillen (2013) 212 Cal.App.4th 992, 995.) "A felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a county jail for the
term described in the underlying offense." (§ 1170, subd. (h)(2), emphasis added.) Thus,
the plain language of section 1170, subdivision (h)(2) requires the underlying statute to
expressly invoke section 1170, subdivision (h) to make a felony offense punishable in
county jail. (People v. Vega, supra, 222 Cal.App.4th at pp. 1384-1385; People v.
Guillen, supra, 212 Cal.App.4th at pp. 995-996.) Otherwise, the defendant is sentenced
to state prison under section 18 or the underlying statute. (§ 18, subd. (a).)
Subdivision (h)(3) of section 1170 excludes defendants from realignment if they
have suffered a prior or current conviction for a serious or violent felony or are required
to register as a sex offender. Section 1170, subdivision (h)(6) states: "The sentencing
changes made by [the Realignment Act] shall be applied prospectively to any person
sentenced on or after October 1, 2011."
B. Analysis
As stated, section 1170, subdivision (h) does not apply unless the underlying
offense expressly provides for it. Pitchie pleaded no contest to a charge under section
368, subdivision (b)(1), which specifies "imprisonment in the state prison for two, three,
or four years" as the only punishment for felony elder abuse. This section makes no
reference to section 1170, subdivision (h). Accordingly, as Pitchie's defense counsel
recognized, Pitchie was ineligible for sentencing under the Realignment Act.
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The Realignment Act modified subdivisions (d), (e), and (f) of section 368 to
make them punishable "pursuant to subdivision (h) of Section 1170 for two, three, or four
years" but did not amend subdivision (b)(1) in a similar manner. (Stats. 2011, ch. 15,
§ 336.) We therefore conclude the Legislature intentionally excluded felony elder abuse
from realignment. (See People v. Guillen, supra, 212 Cal.App.4th at p. 996; People v.
Vega, supra, 222 Cal.App.4th at p. 1385.) A state prison term is the only sentencing
option available for felony elder abuse convictions under section 368, subdivision (b)(1),
because section 1170, subdivision (h) is inapplicable. The court did not err by sentencing
Pitchie to a three-year state prison term.
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DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.
8
AI Brief
AI-generated · verify before citing
Holding. The court held that a conviction for felony elder abuse under Penal Code section 368, subdivision (b)(1) is not subject to the Criminal Justice Realignment Act of 2011, as the statute does not expressly invoke section 1170, subdivision (h).
Issues
Whether the trial court erred by sentencing the defendant to state prison instead of county jail under the Criminal Justice Realignment Act of 2011.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Pitchie pleaded no contest to a charge under section 368, subdivision (b)(1), which specifies "imprisonment in the state prison for two, three, or four years" as the only punishment for felony elder abuse.”
“We therefore conclude the Legislature intentionally excluded felony elder abuse from realignment.”