P. v. Zimmerman CA3

Filed 6/13/13 P. v. Zimmerman CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (El Dorado)

THE PEOPLE, C072365

Plaintiff and Respondent, (Super. Ct. Nos. P11CRF0479 & P11CRF0562) v.

JOSEPH JAMES ZIMMERMAN,

Defendant and Appellant.

On October 3, 2011, defendant Joseph James Zimmerman pled no contest to possession of a writing pen knife (former Pen. Code, § 12020, subd. (a)(1))1 in case No. P11CRF0479 and was placed on three years’ probation. On November 28, 2011, defendant pled no contest to possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) in case No. P11CRF0562 and admitted violating his probation in case No. P11CRF0479. The trial court reinstated probation and ordered defendant to serve 90 days in jail.

1 Undesignated statutory references are to the Penal Code. Section 12020 was subsequently repealed and reenacted as former section 20910. (Stats. 2010, ch. 711, §§ 4, 6.)

1

On October 15, 2012, defendant admitted violating his probation in both cases. The trial court sentenced defendant to two years in state prison in case No. P11CRF0479 and imposed a concurrent two-year term in case No. P11CRF0562. On appeal, defendant contends the trial court erred in failing to sentence him pursuant to the county jail provisions of the Criminal Justice Realignment Act of 2011 (Stats. 2011, ch. 15, § 482; Stats. 2011, ch. 39, § 53; and Stats. 2011, 1st Ex. Sess., ch. 12, § 35; hereafter Realignment Act). Agreeing with defendant, we vacate the sentence and remand for resentencing pursuant to section 1170, subdivision (h). DISCUSSION2 Defendant claims he should be sentenced under the Realignment Act’s county jail provisions because the Legislature changed the law to make his primary offense subject to the Realignment Act before he was sentenced. A felon sentenced under the Realignment Act is committed to county jail instead of state prison (§ 1170, subd. (h)(1), (2)), may have a concluding portion of his or her sentence suspended in lieu of probation (§ 1170, subd. (h)(5)), and is not subject to parole (§ 3000 et seq.). The Realignment Act applies “prospectively to any person sentenced on or after October 1, 2011.” (§ 1170, subd. (h)(6).) When defendant entered his plea in case No. P11CRF0479, his crime was not subject to Realignment Act sentencing. (See former § 12020, subd. (a).)3 When former section 12020 was repealed and reenacted, operative