Filed 1/15/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Appellant,

v.

DAVID VEGA,

Defendant and Respondent.

F065909

(Super. Ct. No. VCF260981A)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. 

Kalashian, Judge.

Tim Ward, District Attorney, Shani D. Jenkins, Assistant District Attorney, 

Afreen A. Kaelble, John F. Sliney, and Barbara Greaver, Deputy District Attorneys for 

Plaintiff and Appellant.

Salvatore Sciandra and Lisa M. Sciandra for Defendant and Respondent.

INTRODUCTION

When the underlying felony offense specifies imprisonment in the county jail and 

an enhancement to that felony specifies imprisonment in state prison, which provision 

controls placement of the felon when he or she is denied probation? The People contend 
2.

the trial court imposed an illegal sentence when it modified its commitment of defendant 

David Vega from five years in a state prison facility to five years in the county jail

pursuant to Penal Code1section 1170, subdivision (h), the Criminal Justice Realignment 

Act of 2011 (Realignment Act). More specifically, the People assert that because Health 

and Safety Code section 11379.7, subdivision (a), a sentencing enhancement, expressly 

requires an additional punishment of “two years in the state prison,” defendant was not 

eligible for county jail placement. This is so, it is argued, even though the underlying 

offense of which defendant was convicted would otherwise allow for a local jail 

commitment. We agree and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND2

As a result of an investigation following a traffic stop in Oregon where four 

pounds of methamphetamine were seized, Tulare County law enforcement officials were 

advised of a possible methamphetamine manufacturer operating out of a residence in 

Pixley, California. When officials served a search warrant on defendant’s residence, an 

active methamphetamine laboratory was found. Present in the home were defendant’s 

wife and their 7-, 10-, and 17-year-old children, as well as their 19-year-old son, his 17-

year-old girlfriend, and defendant’s seven-month-old grandson. A search revealed 

significant amounts of methamphetamine in various forms of production. Also found 

were various items used to “cook” or convert the drug, indicia of drug sales, varying 

sums of currency, and over 200 grams of marijuana. At about the same time, defendant 

was taken into custody at his place of employment. An inventory search of his vehicle 

yielded more than $20,000 in cash.

The Tulare County District Attorney filed a felony complaint on December 9, 

2011, alleging the following crimes: count 1—manufacturing a controlled substance, to 

 

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

2The facts are taken from the 52-page crime report that was made a part of the clerk’s 

transcript on appeal.
3.

wit: methamphetamine (Health & Saf. Code, § 11379.6, subd. (a)), including a special 

allegation that the offense occurred in a structure where a child under the age of 16 years 

was present (id., § 11379.7, subd. (a)); count 2—possession of methamphetamine for sale

(id., § 11378); and counts 3 through 6—child endangerment (§ 273a, subd. (a)).

On March 9, 2012, before a preliminary hearing, the court gave an “indicated 

sentence” of five years. Thereafter, defendant pled no contest to manufacturing 

methamphetamine (Health & Saf. Code, § 11379.6) and admitted the special allegation 

that minors were present in the structure where the manufacturing took place (id., 

§ 11379.7, subd. (a)). The remaining counts were dismissed, and the parties agreed the 

special allegation barred section 1170, subdivision (h) eligibility for purposes of count 1. 

In May 2012, defendant was sentenced to five years in prison: three years for the 

manufacturing offense and an additional two years for the presence of the minors in the 

structure where the manufacturing occurred.

Following defendant’s commitment to state prison, the California Department of 

Corrections and Rehabilitation asked the court to review its sentencing determination 

because it had concluded the “the commitment offense ... meets the criteria to serve the 

commitment in a county jail facility” in accordance with “Assembly Bill 109, the 

Criminal Realignment Act.” Over the People’s objections, at a hearing in August 2012, 

the court modified defendant’s sentence. More particularly, the court sentenced him “to 

the Tulare County Jail pursuant to ... Section 1170(h) for the lower term of two years, 

plus an additional and consecutive three years for a total of five years. [¶] ... Two years 

of the sentence is suspended ....” The People appeal this sentence.

DISCUSSION

The Applicable Statutes

As a result of the Realignment Act, numerous offenses previously punishable by 

specified terms in state prison are now punishable by serving that same term in local 

custody at the county jail. (Stats. 2011, ch. 15, §§ 2-633; Legis. Counsel’s Dig., Assem. 
4.

Bill No. 109 (2011–2012 Reg. Sess.), Stats. 2011, 1st Ex. Sess. 2011–2012, ch. 12, §§ 4–

11; Legis. Counsel’s Dig., Assem. Bill No. 17 (2011–2012 1st Ex. Sess.); see § 1170, 

subd. (h).) The legislation altered the housing arrangements for individuals convicted of 

certain felonies. It “shifted responsibility for housing and supervising certain felons from 

the state to the individual counties.” (People v. Cruz (2012) 207 Cal.App.4th 664, 671.) 

It also provided the new sentencing provisions are to be applied prospectively to persons 

sentenced on or after October 1, 2011. (§ 1170, subd. (h)(6); Stats. 2011, 1st Ex. Sess. 

2011, ch. 12, § 12.)

Section 1170, subdivision (h) provides, in relevant part:

“(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.

“(3) Notwithstanding paragraphs (1) and (2), where the defendant

(A) has a prior or current felony conviction for a serious felony described in 

subdivision (c) of Section 1192.7 or a prior or current conviction for a 

violent felony described in subdivision (c) of Section 667.5, (B) has a prior 

felony conviction in another jurisdiction for an offense that has all the 

elements of a serious felony described in subdivision (c) of Section 1192.7 

or a violent felony described in subdivision (c) of Section 667.5, (C) is 

required to register as a sex offender pursuant to Chapter 5.5 (commencing 

with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime and as 

part of the sentence an enhancement pursuant to Section 186.11 is imposed, 

an executed sentence for a felony punishable pursuant to this subdivision 

shall be served in state prison.”

Health and Safety Code section 11379.6, subdivision (a) provides as follows:

“Except as otherwise provided by law, every person who manufactures, 

compounds, converts, produces, derives, processes, or prepares, either 

directly or indirectly by chemical extraction or independently by means of 

chemical synthesis, any controlled substance specified in Section 11054, 

11055, 11056, 11057, or 11058 shall be punished by imprisonment 

pursuant to subdivision (h) of Section 1170 of the Penal Code for three, 
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five, or seven years and by a fine not exceeding fifty thousand dollars

($50,000).”

Health and Safety Code section 11379.7, subdivision (a) states:

“Except as provided in subdivision (b), any person convicted of a violation 

of subdivision (a) of Section 11379.6 or Section 11383, or of an attempt to 

violate subdivision (a) of Section 11379.6 or Section 11383, as those 

sections relate to methamphetamine or phencyclidine, when the 

commission or attempted commission of the crime occurs in a structure 

where any child under 16 years of age is present, shall, in addition and 

consecutive to the punishment prescribed for the felony of which he or she 

has been convicted, be punished by an additional term of two years in the 

state prison.”

The Parties’ Positions

The People contend defendant was not eligible to serve his time in local custody

because the special allegation or enhancement imposed pursuant to Health and Safety 

Code section 11379.7, subdivision (a) expressly provides punishment be in the form of an 

additional “two years in the state prison.” The People assert the facts underlying the 

special allegation amount to aggravating circumstances, and the Legislature meant to 

punish such an offense more harshly. Further, the People maintain the Legislature did 

not overlook Health and Safety Code section 11379.7 or intend to include it in the 

Realignment Act.

On the other hand, defendant contends the enhancement must follow the 

punishment imposed for the base term since an enhancement is not an offense. Because

the punishment for the base term allows for the sentence to be served in local custody, 

defendant maintains the trial court properly modified his sentence to permit the entire 

term to be served in the Tulare County jail. Defendant asserts he is not excluded from 

serving his term in local custody pursuant to section 1170, subdivision (h)(3). He argues 

the Legislature’s failure to include Health and Safety Code section 11379.7 in its 2011 

overhaul is “almost certainly due to a drafting oversight,” and the “conflict” between 
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Health and Safety Code sections 11379.6 and 11379.7 cannot be reconciled by the plain 

language of the realignment statute.

Our Analysis

The issue presented on appeal is one of first impression. In order to determine 

whether the trial court issued an unauthorized sentence when it modified defendant’s 

sentence to permit him to serve his term in local custody, we must determine in the first 

instance whether an enhancement that expressly provides for a term in state prison 

requires the entire sentence be served in state prison even where the base or underlying 

offense would permit service of that term in local custody.

We note at the outset the parties agree defendant was not disqualified from being 

sentenced pursuant to section 1170, subdivision (h) by virtue of a current or prior 

conviction for a violent or serious felony, a prior conviction in another jurisdiction for an 

offense with corresponding elements of a violent or serious felony described in section 

667.5 or 1192.7, because he is required to register as a sex offender or because an 

enhancement pursuant to section 186.11 was imposed. (§ 1170, subd. (h)(3).) We accept 

these assertions.

In this case, the trial court apparently believed section 1170, subdivision (h) 

applied because (1) Health and Safety Code section 11379.6 specifically provides for 

punishment “pursuant to subdivision (h) of Section 1170”; and (2) the enhancement 

provision of Health and Safety Code section 11379.7 did not come within the exceptions 

specifically referenced in section 1170, subdivision (h)(3). While this seems to be a 

logical interpretation of section 1170, subdivision (h), we believe the court’s analysis 

skips a step in attempting to resolve the conflict in the statutes.

“‘“When construing a statute, we must ‘ascertain the intent of the 

Legislature so as to effectuate the purpose of the law.’” [Citation.] “[W]e 

begin with the words of a statute and give these words their ordinary 

meaning.” [Citation.] “If the statutory language is clear and unambiguous, 

then we need go no further.” [Citation.] If, however, the language supports 

more than one reasonable construction, we may consider “a variety of 
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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 statute is 

a part.” [Citation.] Using these extrinsic aids, we “select the construction 

that comports most closely with the apparent intent of the Legislature, with 

a view to promoting rather than defeating the general purpose of the statute, 

and avoid an interpretation that would lead to absurd consequences.” 

[Citation.]’ (People v. Sinohui (2002) 28 Cal.4th 205, 211–212; accord, 

People v. Hagedorn (2005) 127 Cal.App.4th 734, 741.) ‘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.] Literal 

construction should not prevail if it is contrary to the legislative intent 

apparent in the statute. The intent prevails over the letter, and the letter 

will, if possible, be so read as to conform to the spirit of the act. 

[Citations.] An interpretation that renders related provisions nugatory must 

be avoided [citation]; each sentence must be read not in isolation but in the 

light of the statutory scheme [citation]; and if a statute is amenable to two 

alternative interpretations, the one that leads to the more reasonable result 

will be followed [citation].’ (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 

735; accord, People v. Mohammed (2008) 162 Cal.App.4th 920, 927-928.)” 

(People v. Torres (2013) 213 Cal.App.4th 1151, 1160.)

Section 18, subdivision (a) provides the general rule for sentencing felonies. It 

states: “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.” Thus, state prison remains the default punishment for 

felony convictions even after realignment, unless the offense is punishable pursuant to 

subdivision (h) of section 1170. Subdivision (h) of section 1170 harmonizes its language 

with section 18 by starting both paragraphs (1) and (2) with the phrase “Except as 

provided in paragraph (3), a felony punishable pursuant to this subdivision ....” By its 

express language, paragraph (3) does not come into play until it is first determined that 

the felony in question is punishable pursuant to subdivision (h) of section 1170. 

Consequently, we conclude the trial court skipped a step in the analysis by referring to 

paragraph (3) to determine in the first instance whether subdivision (h) applied. We read 
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subdivision (h) to require a determination of its applicability before considering the 

exceptions in paragraph (3). This means the conflict between the provisions of Health 

and Safety Code sections 11379.6 and 11379.7 must be resolved first to determine 

whether subdivision (h) of section 1170 has any applicability such as to take it outside of 

the general statutory requirements of section 18. Considering the applicable extrinsic 

aids for statutory construction, we conclude the legislative intent generally is to include 

enhancement provisions in the initial determination of whether sentencing under 

subdivision (h) of section 1170 applies.

First we note the Legislative Counsel’s Digest supports this interpretation.

“‘The Legislative Counsel’s Digest is printed as a preface to every bill 

considered by the Legislature.’ [Citation.] The Legislative Counsel’s 

summaries ‘are prepared to assist the Legislature in its consideration of 

pending legislation.’ [Citation.] Although the Legislative Counsel’s 

summaries are not binding [citation], they are entitled to great weight. 

[Citation.] ‘It is reasonable to presume that the Legislature amended those 

sections with the intent and meaning expressed in the Legislative Counsel’s 

digest.’ [Citation.]” (Jones v. Lodge at Torrey Pines Partnership (2008) 

42 Cal.4th 1158, 1169-1170.)

Here, the Legislative Counsel’s Digest for Assembly Bill No. 109 (2011-2012

Reg. Sess.) noted:

“The bill provides exceptions to imprisonment in a county jail for a variety

of felonies, including serious felonies and violent felonies, as defined,

felonies requiring registration as a sex offender, and when the defendant

has a prior conviction for a serious or violent felony, or a felony subjecting

the defendant to registration as a sex offender, among other exceptions.” 

(Italics added. <http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml? 

bill_id=201120120AB109&search_keywords=> [as of Jan. 15, 2014].)

This shows the Legislature was aware there would be “other exceptions” to the 

felonies for which confinement in county jail pursuant to section 1170 would be 

permitted beyond those noted in subdivision (h)(3). As such, both the wording of section 

1170, subdivision (h) and the preface of the Legislative Counsel’s Digest support a 

finding of legislative intent to limit section 1170, subdivision (h)’s application to felonies 
9.

and circumstances beyond the exceptions provided in subdivision (h)(3). An 

enhancement calling for a state prison commitment, in our opinion, qualifies as such an 

exceptional circumstance.

To support the trial court's determination, defendant makes a distinction between a 

term imposed on an offense and a term imposed as an enhancement. But we find this to 

be a distinction without a difference for purposes of the question presented. We agree 

enhancement provisions generally increase the punishment for specified criminal acts. 

“They focus on aspects of the criminal act that are not always present and that warrant 

additional punishment.” (People v. Ahmed (2011) 53 Cal.4th 156, 163.) We 

acknowledge “[c]onduct enhancements cannot be imposed standing alone as additional 

punishment. By definition, an enhancement is ‘an additional term of imprisonment added 

to the base term.’ [Citations.] For that reason alone, an enhancement cannot be equated 

with an offense. [Citation.]” (People v. Izaguirre (2007) 42 Cal.4th 126, 134.) In this 

instance, however, our conclusion does not amount to equating the enhancement with the 

offense. Rather, it is based on the aggregation of the terms imposed for both the offense 

and the enhancement to achieve the complete sentence or complete term for a given 

count. Whether the term is imposed pursuant to the underlying offense or an 

enhancement, there remain two terms to be served in a single aggregated sum. Because 

the term imposed pursuant to the enhancement here calls for confinement in state prison, 

we hold the entire term imposed must be served in state prison.

We do not find this conclusion to be at odds with the Realignment Act. The 

Legislature enacted the Realignment Act in response to rising rates of recidivism with the 

specific goal of increasing public safety while reducing costs. This intent was clear, as 

the Legislature’s stated purpose for enacting the Realignment Act is codified in section 

17.5. (Stats. 2011, ch. 39, § 5.) First, the Legislature declared that “[d]espite the 

dramatic increase in corrections spending over the past two decades, national 

reincarceration rates for people released from prison remain unchanged or have 
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worsened. National data show that about 40 percent of released individuals are 

reincarcerated within three years. In California, the recidivism rate for persons who have 

served time in prison is even greater than the national average.” (§ 17.5, subd. (a)(2).) 

Further, the Legislature declared that “[r]ealigning low-level felony offenders who do not 

have prior convictions for serious, violent, or sex offenses to locally run communitybased 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.” (§ 17.5, subd. (a)(5).) The Realignment Act was 

therefore enacted with this particular framework and these particular purposes in mind.

We find nothing in the purpose of the realignment legislation suggesting the 

Legislature intended an enhancement such as the one at issue here was to be considered a 

low-level felony. A penal enhancement is designed to increase or make greater the

punishment that would otherwise be imposed. The absence of any reference in section 

17.5 to enhancements or special allegations we believe weighs in favor of a finding the 

Legislature intended the terms associated with enhancements or special allegations to 

remain unchanged unless specifically modified.

Our conclusion is also supported by the plain language of the enhancement statute 

itself. In this case, defendant’s crime was manufacturing methamphetamine. But the 

crime is aggravated—and the punishment for the offense greater—where that 

manufacturing occurred in a structure where children under the age of 16 years were 

present. Health and Safety Code section 11379.7 was enacted because of the danger 

posed by methamphetamine labs to young people who have no choice but to be in close 

proximity to them. (Sen. Com. on Crim. Proc., Analysis of Assem. Bill No. 3392 (1995-

1996 Sess.) as amended June 18, 1996, p. 2.)3 Persons who commit the offense in the 

 

3<http://www.leginfo.ca.gov/pub/95-96/bill/asm/ab_3351-3400/ab_3392_cfa_960618_ 

123738_sen_comm.html> [as of Jan. 15, 2014].
11.

presence of minor children are to be punished more harshly than those who do not. The 

enhancement adds an additional two years’ confinement to the underlying offense, either 

a violation of Health and Safety Code section 11379.6, as here, or 11383. It expressly 

requires the term be served in state prison. We find the Legislature intended therefore 

that those persons who manufacture methamphetamine or PCP in the presence of minors 

are to be distinguished from lower level offenders; they are offenders properly committed 

to serve their terms in state prison. Logically then, we believe the Legislature never 

intended an enhancement provision such as Health and Safety Code section 11379.7 to be 

equated with a low-level offense subject to the Realignment Act provisions.

Defendant disagrees with the above conclusion pertaining to legislative intent and 

instead argues the plain language rule should not apply because the language was not 

changed due to an obvious legislative oversight. We disagree for several reasons.

First, we note that while the Legislature amended Health and Safety Code section 

11379.6 so as to make section 1170, subdivision (h) applicable, it did not also amend 

Health and Safety Code section 11379.7, which is the very next section. This is so even 

though Health and Safety Code section 11379.7 is actually referenced in Health and

Safety Code section 11379.6, subdivision (b).4 It is highly unlikely this was a mere 

oversight.

Second, other similar enhancement provisions were amended to conform to 

application of section 1170, subdivision (h). For example, Health and Safety Code 

section 11353.6, subdivision (c), an enhancement providing for an additional term of 

imprisonment for certain narcotics sales at or near schools involving a minor four years 

younger than the defendant includes the language “imprisonment pursuant to subdivision 

 

4That subdivision reads: “(b) Except when an enhancement pursuant to [Health and 

Safety Code] Section 11379.7 is pled and proved, the fact a person under 16 years of age resided 

in a structure in which a violation of this section involving methamphetamine occurred shall be 

considered a factor in aggravation by the sentencing court.”
12.

(h) of section 1170 ....” (See also § 600, subds. (c) & (d); Health & Saf. Code,

§§ 1522.01, subd. (c), 11380.7, subd. (a).) If defendant’s contention that enhancements 

cannot affect whether an offense is eligible for sentencing pursuant to section 1170, 

subdivision (h) were correct, the language “pursuant to subdivision (h) of Section 1170”

would not be needed in any of these enhancement provisions.

Third, the Legislature’s amendment of other sentencing statutes after enactment of 

the Realignment Act also tends to defeat defendant’s legislative oversight argument. For 

example, until it was amended on June 27, 2012, former section 12022.1, subdivision (b) 

provided:

“Any person arrested for a secondary offense which was alleged to have 

been committed while that person was released from custody on a primary 

offense shall be subject to a penalty enhancement of an additional two years 

in state prison which shall be served consecutive to any other term imposed 

by the court.”

After it was amended on June 27, 2012, section 12022.1, subdivision (b) now 

provides:

“Any person arrested for a secondary offense which was alleged to have 

been committed while that person was released from custody on a primary 

offense shall be subject to a penalty enhancement of an additional two years 

which shall be served consecutive to any other term imposed by the court.”

It is logical to conclude the Legislature would have corrected any legislative oversight of 

Health and Safety Code section 11379.7 at the same time. It did not and has not.

Finally, our conclusion is supported, we believe, by another amendment enacted 

following the imposition of the Realignment Act, as well as the reasoning behind our 

holding in People v. Torres, supra, 213 Cal.App.4th 1151.

We begin with section 669. The Realignment Act did not speak to where a 

prisoner should serve time if the court imposed concurrent sentences for a state prison 

offense and a county jail offense; it addressed only consecutive sentences. Hence, the 
13.

Legislature moved to amend section 669, adding the following language, effective 

June 27, 2012:

“(d) When a court imposes a concurrent term of imprisonment and 

imprisonment for one of the crimes is required to be served in the state 

prison, the term for all crimes shall be served in the state prison, even if the 

term for any other offense specifies imprisonment in a county jail pursuant 

to subdivision (h) of Section 1170.”

As we noted in People v. Torres, supra, 213 Cal.App.4th at pages 1159 through 1161, 

“[T]he language of subdivision (d) of section 669 tracks the language of the 

portion of section 1170.1, subdivision (a) that mandates, where consecutive 

sentences are imposed and at least one is to be served in state prison, 

service of the aggregate term in state prison even if one of the terms 

specifies imprisonment in the county jail pursuant to section 1170, 

subdivision (h)....

“In our view, it would be illogical to treat concurrent sentences 

differently from consecutive sentences in terms of specifying where those 

sentences are to be served when the term for at least one offense must be 

served in state prison while the term for another offense must be served in a 

county jail due to realignment.... [¶] ... [¶]

“We conclude section 669, subdivision (d) applies where, as here, 

the concurrent terms at issue were imposed in different courts and 

proceedings. Express language at page 1 of the Senate Budget and Fiscal 

Review Committee, third reading analysis of Senate Bill No. 1023 (2011–

2012 Reg. Sess.) as amended June 25, 2012, demonstrates the Legislature’s 

intent, in amending section 669, was to clarify a point left unclear by the 

original realignment legislation. Thus, regardless of whether section 669, 

subdivision (d) could be retroactively applied to defendant’s case—a 

question we need not, and do not, decide—it is unmistakable that the 

Legislature’s intent with respect to cases such as defendant’s has always 

been that the entire sentence is to be served in state prison.” (Fn. omitted.)

The analysis in People v. Torres applies with equal force here. In resolving the 

issue presented, it would be illogical to treat a term for an enhancement differently from a 

term for the underlying or base offense.

We recognize that enhancements are not principal or subordinate terms, as those 

words are used in section 1170.1. Nevertheless, the same reasoning employed in Torres
14.

is relevant here. When a term is imposed that calls for that term to be served in state 

prison, any other term to be served—even one imposed by virtue of the underlying or 

base offense—must be served in state prison. (See People v. Torres, supra, 213 

Cal.App.4th at p. 1159.)

To conclude, we hold that, absent evidence of a contrary legislative intent, where 

an enhancement specifically provides for a term to be served “in the state prison” the 

entire term imposed shall be served in state prison even where the underlying offense 

would otherwise be served in local custody.

DISPOSITION

The judgment is reversed and remanded for resentencing.

___________________________

PEÑA, J.

WE CONCUR:

________________________________

GOMES, Acting P.J.

________________________________

OAKLEY, J.*

 

*

Judge of the Madera Superior Court assigned by the Chief Justice pursuant to article VI, 

section 6 of the California Constitution.