Filed: 5/9/2016

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

RYAN ALLEN BUTCHER,

Defendant and Appellant.

 B261774

 (Los Angeles County

 Super. Ct. Nos. YA083992)

APPEAL from a judgment of the Superior Court of Los Angeles County, Lauren 

Weis Birnstein, Judge. Affirmed as modified with directions.

David W. Scopp, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. 

and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

*

Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is 

certified for publication with the exception of part III(B)(2).
2

I. INTRODUCTION

Defendant, Ryan Allen Butcher, appeals from a state prison sentence imposed

following a contested probation violation proceeding pursuant to Penal Code section 

1203.2, subdivision (a).1 Defendant received a three-year, eight-month prison sentence. 

He received a three-year principal term for violating Vehicle Code section 2800.2, 

subdivision (a), felony evading. And, defendant received a consecutive eight-month 

subordinate term for violating section 71, subdivision (a) (section 71), threats against a

public officer. We affirm the finding defendant violated the terms of his probation. We 

also affirm his state prison sentence. However, we order modifications to the judgment.

II. BACKGROUND

A. Case No. YA083992

On April 5, 2012, defendant was arrested and later, on April 9, charged with two 

felonies in case No. YA083992. Defendant was charged with felony grand theft of 

personal property and evading a peace officer with willful or wanton disregard for the 

safety of persons or property. (§ 487, subd. (a); Veh. Code, § 2800.2, subd. (a).) On 

April 23, 2012, defendant pleaded no contest to the felony evading charge. The theft 

charge was dismissed. Defendant received a three-year state prison sentence, which was 

suspended. Defendant was placed on probation for three years and required to serve 365 

days in county jail. Defendant was awarded 38 days of presentence credit, 19 days for 

actual custody and 19 days for good time credit. The probation conditions imposed on 

defendant included a requirement that he “obey all laws” and court orders. Defendant 

was also subject to search and seizure conditions by any peace officer without a warrant, 

1

Further statutory references are to the Penal Code except where otherwise stated.
3

probable cause or reasonable suspicion. Defendant was assessed: $40 for court 

operations under section 1465.8, subdivision (a)(1); $30 for court facilities under 

Government Code section 70373, subdivision (a)(1); a $240 restitution fine under section 

1202.4, subdivision (b); a $240 section 1202.44 probation revocation restitution fine,

which would become effective if his probation was revoked; and a $240 parole 

revocation restitution fine under section 1202.45, which would become effective if his

parole was revoked. 

On January 23, 2013, defendant‟s probation was revoked because he was arrested 

on a new felony offense. The prosecution was unable to proceed with the preliminary 

hearing on the new charge. As a result, on February 6, 2013, probation was reinstated. 

On March 27, 2013, probation was once again revoked because defendant was 

arrested and charged with methamphetamine possession in case No. YA086737. 

Defendant admitted he had violated the terms of his probation after pleading no contest to 

the methamphetamine possession charge in case No. YA086737. Probation was 

reinstated under the original terms and conditions with an additional 42 days of jail time 

imposed. Defendant received 21 days of actual custody and 21 days good time 

presentence credit. Probation was modified to impose a new condition prohibiting 

consumption of alcohol or drugs. 

On May 2, 2013, probation was once again revoked after another 

methamphetamine possession arrest. On June 5, 2013, defendant was found to have 

violated the terms of his probation based on his no contest plea and resulting conviction 

in case No. YA087170. Defendant‟s probation was once again reinstated on the previous 

terms and conditions. The trial court lifted the stay on the previously imposed $240 

section 1202.44 probation revocation restitution fine. 

On June 12, 2013, defendant was arrested for making a criminal threat and 

charged in case No. YA087652 with violating section 422, subdivision (a). We shall 

digest those proceedings in greater detail in part II(B) of this opinion, infra. On 

September 11, 2013, defendant pled no contest in case No. YA087652 to a violation of 

section 71, threatening a public officer. Defendant was found in violation of probation in 
4

case No. YA083992, the felony evading case. Defendant‟s probation in the felony 

evading case was immediately reinstated. 

On November 13, 2013, probation was again revoked. On November 18, 2013, 

defendant was found in violation of his grant of probation based on his admission in open 

court. No oral order was issued reinstating probation but defendant was ordered released. 

No oral order was issued imposing the additional days in county jail in this case. But the 

clerk‟s minutes state that probation was reinstated and defendant was ordered to serve 12 

days in county jail. According to the abstract of judgment, defendant received six days of 

actual custody and six days of good time credits. 

On September 15, 2014, probation was revoked and defendant was ordered 

remanded. On December 26, 2014, the probation violation hearing was held. We will 

digest the probation violation proceeding in part II(C), infra, of this opinion. 

B. Case No. YA087652

On June 12, 2013, defendant was arrested for threatening a deputy sheriff. 

Defendant‟s preliminary hearing was held on July 1, 2013. In an information filed July 

15, 2013, defendant was charged with criminal threats in violation of section 422,

subdivision (a). On September 11, 2013, the information was amended to add a count of 

threatening a public officer, a felony, in violation of section 71. Defendant pled no 

contest to the section 71 charge. Defendant was placed on formal probation for a threeyear period. Defendant was also ordered to serve one year in county jail. Defendant 

received credit for 182 days served in county jail awaiting sentencing, 91 days for actual 

custody and 91 days for good time credit. Defendant was ordered to pay the following 

fines and assessments: a $280 restitution fine under section 1202.4, subdivision (b); a 

$280 probation revocation fine under section 1202.44 to become effective if his probation 

was revoked; a $40 court operations assessment fee under section 1465.8, subdivision 

(a)(1); a $30 court facilities assessment under Government Code section 70373, 

subdivision (a)(1); and the cost of probation services under section 1203.1, subdivision 
5

(b). Defendant was ordered as a condition of probation to obey all laws and further court 

orders. 

As noted above, in case No. YA083992, the felony evading case, defendant‟s

probation was expressly revoked on September 15, 2014. On January 2, 2015, the 

following occurred: “The Court: . . . Probation in case YA087652 . . . has never been 

revoked. So what I would like to do is ask for your permission to revoke that case nunc 

pro tunc so that we can handle both cases, Mr. Syed. [¶] [Deputy Public Defender 

Imran] Syed: Yes, your honor. [¶] The Court: That‟s okay? [¶] Mr. Syed: Yes. [¶] 

The Court: Mr. Butcher, you agree to that? [¶] The Defendant: Yes. [¶] . . . [¶] The 

Court: Then nunc pro tunc as of the defendant‟s September 15, 2014 arrest, his probation 

is revoked . . . .” 

C. Contested Probation Violation Hearing

Several judges were involved in the proceedings leading up to the probation 

revocation hearing, which led ultimately to defendant‟s state prison sentence. Judge 

Lauren Weis Birnstein presided over the final probation revocation hearing and imposed 

the state prison sentence. For clarity‟s sake, we will refer to Judge Birnstein as the trial 

court. 

On September 13, 2014, defendant was arrested in Redondo Beach and charged in 

case No. 4SY06575. Defendant was charged with: resisting or obstructing an officer in 

violation of section 148, subdivision (a)(1); assault on a peace officer in violation of 

section 241, subdivision (c); and possession of a dirk in violation of section 16470. 

Eventually, case No. 4SY06575 was dismissed after defendant was found in violation of 

probation. 

On December 26, 2014, the contested probation violation hearing commenced. 

Redondo Beach Police Officers Brian Weiss, Ryan Harrison and Aaron Plugge testified. 

They testified that defendant was involved in a three-vehicle traffic collision and was 

unusually upset when the officers arrived. Eventually, defendant was handcuffed and a 
6

search was conducted of his truck. As matters escalated, defendant tried to bite Officer 

Harrison‟s arm. Defendant was then arrested. After the three-car accident and ensuing 

altercation with the police, defendant had scratches on his head, nose, right leg and 

elbow. The incident was captured on Officer Weiss‟s body camera. 

Laura Alvarez testified that she was a passenger in defendant‟s truck when the 

accident occurred. Ms. Alvarez denied seeing defendant attempt to bite any police 

officer. Ms. Alvarez testified she had a clear view of defendant being arrested. 

However, at the time that the altercation was ensuing, Ms. Alvarez testified she was 

talking to a police officer. 

D. Probation Revocation Order

On January 2, 2015, defendant was found to have violated the terms of his 

probation for failure to obey all laws; namely for assaulting a peace officer. The trial 

court found that Ms. Alvarez was not in a position to see the biting incident. The trial 

court imposed a three-year, eight-month county jail sentence on defendant as a result of 

his convictions in case Nos. YA083992 and YA087652. The total county jail sentence 

was 1,335 days. The trial court found: defendant had 365 actual presentence custody 

credits; defendant was entitled to an additional 110 days of credit from September 15, 

2014, to January 2, 2015, for a total of 475 actual custody credits; defendant was entitled

474 days of good time credit for a total of 949 days of credit; and defendant had to serve 

the 386 remaining days in mandatory supervision. The trial court imposed “an 

additional” probation revocation restitution fine (§ 1202.44) in each case; $280 in case 

No. YA087652 and $240 in case No. YA083992. Defendant was released from custody.

On January 9, 2015, the trial court resentenced defendant. At the commencement 

of the January 9, 2015 proceedings, the trial court stated: “The other day when we 

sentenced [defendant], it was an illegal sentence because 2800.2 is straight state prison. 

It‟s not subject to the provisions of 1170(h).” The trial court resentenced defendant to 
7

state prison. The trial court ordered defendant to appear on January 12, 2015, to 

surrender to custody. This appeal followed. 

III. DISCUSSION

A. Defendant‟s Propria Persona Contentions

We appointed counsel to represent defendant on appeal. After examination of the 

record, appointed appellate counsel filed an “Opening Brief” in which no issues were 

raised. Instead, appointed appellate counsel requested this court independently review 

the entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. (See 

Smith v. Robbins (2000) 528 U.S. 259, 277-284.) On July 24, 2015, we advised 

defendant that he had 30 days within which to personally submit any contentions or 

arguments he wished us to consider. On September 11, 2015, defendant filed a late 

supplemental letter brief, which we will consider. We have examined the entire record

and find, given the applicable standard and principles of appellate review, all of 

defendant‟s pro se contentions are frivolous.

We review the trial court‟s probation revocation order for an abuse of discretion. 

(People v. Rodriguez (1990) 51 Cal.3d 437, 447; People v. Urke (2011) 197 Cal.App.4th 

766, 773; see § 1203.2, subd. (a).) The trial court‟s factual findings are reviewed for 

substantial evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681; 

People v. Urke, supra, 197 Cal.App.4th at p. 773.) The trial court found defendant had 

violated the terms of his probation. Substantial evidence supports the trial court‟s 

findings. The trial court accepted the testimony that defendant attempted to bite Officer 

Harrison. This constituted a violation of section 241, subdivision (c), assault on a police 

officer. Defendant‟s probation terms included an order that he obey all laws. 

In his supplemental pro se brief, defendant asserts that the police officers lied in 

their testimony and recounts his version of events. We may not consider defendant‟s 

version of the events because it was not before the trial court because he did not testify. 
8

(In re Rogers (1980) 28 Cal.3d 429, 437, fn. 6; People v. Merriam (1967) 66 Cal.2d 390, 

397.) Additionally, we do not reweigh conflicting evidence or determine credibility on 

appeal. (People v. Whisenhunt (2008) 44 Cal.4th 174, 200; People v. Saldana (1975) 47 

Cal.App.3d 954, 958.) The trial court did not abuse its discretion when it revoked

defendant‟s probation.

B. Issues We Have Ordered Briefed

1. The 2011 Criminal Justice Realignment Act

We asked the parties to brief the question whether, under the 2011 Criminal 

Justice Realignment Act (the Realignment Act), defendant was lawfully sentenced to 

state prison rather than county jail. In other words, we asked the parties to brief whether

the sentence for a felony violation of Vehicle Code section 2800.2 subdivision (a) is a 

“straight state prison” term, as the trial court concluded. Or, is the sentence to be served

in county jail? 

The parties do not dispute the effect of a Vehicle Code section 2800.2, subdivision 

(a) prison sentence on the subordinate section 71 term. If the Vehicle Code section 

2800.2, subdivision (a) principal term must be served in state prison, then the subordinate

term must be served there likewise. Section 71 states in part, “Upon a first conviction, 

such person is punishable by a fine not exceeding ten thousand dollars ($10,000), or by 

imprisonment pursuant to subdivision (h) of section 1170, or in a county jail not 

exceeding one year, or by both that fine and imprisonment.” As can be noted, absent 

disqualifying prior convictions, a section 71 felony sentence must be served in county 

jail. If the felony evading term must be served in state prison, so too must the 

subordinate term which otherwise would be punishable by county jail custody only. 

(§ 1170.1, subd. (a) [“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 state prison, regardless as to whether or not one of the terms specifies 
9

imprisonment in a county jail pursuant to subdivision (h) of Section 1170”]; People v. 

Vega (2014) 222 Cal.App.4th 1374, 1387 [“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”]; People v. Torres (2013) 213 

Cal.App.4th 1151, 1153 [“when a sentence that otherwise would have been served in 

county jail pursuant to section 1170, subdivision (h), is ordered to run concurrently to a 

sentence already being served in state prison, the entire sentence must be served in state 

prison”]; Couzens and Bigelow, Felony Sentencing After Realignment (March 4, 2014) 

p. 28; see § 669, subd. (d) [concurrent terms must be served in state prison even if one of 

several is subject to county jail time].) Thus the dispositive issue before us is whether the

violation of Vehicle Code section 2800.2, subdivision (a) must be served in state prison.

We conclude defendant was lawfully sentenced to state prison because: a felony 

violation of Vehicle Code section 2800.2, subdivision (a) is expressly punishable “by 

imprisonment in state prison”; a felony violation of Vehicle Code section 2800.2, 

subdivision (a) is not expressly punishable pursuant to section 1170, subdivision (h);

unlike other Vehicle Code provisions, Vehicle Code section 2800.2, subdivision (a) was 

not amended by the Realignment Act; the Legislature never replaced the Vehicle Code 

section 2800.2, subdivision (a) “imprisonment in the state prison” requirement with the 

“pursuant to subdivision (h) of Section 1170” language; and if the Legislature intended to 

make a Vehicle Code section 2800.2, subdivision (a) felony violation punishable by 

county jail custody, it would have so provided.

In construing the relevant statutes, we apply settled rules: “In construing a statute, 

our role is to ascertain the Legislature‟s intent so as to effectuate the purpose of the law. 

(People v. Gardeley (1996) 14 Cal.4th 605, 621.) In determining intent, we must look 

first to the words of the statute because they are the most reliable indicator of legislative 

intent. (People v. Lawrence (2000) 24 Cal.4th 219, 230.) If the statutory language is 

clear and unambiguous, the plain meaning of the statute governs. (Id. at pp. 230-231.)” 

(People v. Lopez (2003) 31 Cal.4th 1051, 1056; accord, People v. Licas (2007) 41 Cal.4th 
10

362, 367.) With respect to the statutory language, our Supreme Court has explained: 

“„We do not . . . consider the statutory language “in isolation.” [Citation.] Rather, we 

look to “the entire substance of the statute . . . to determine the scope and purpose of the 

provision . . . . [Citation.]” [Citation.] That is, we construe the words in question “„in 

context, keeping in mind the nature and obvious purpose of the statute . . . .‟”‟ (People v. 

Murphy (2001) 25 Cal.4th 136, 142.)” (People v. Brookfield (2009) 47 Cal.4th 583, 592; 

accord, In re Reeves (2005) 35 Cal.4th 765, 783.)

Our Supreme Court discussed the Realignment Act in People v. Scott (2014) 58 

Cal.4th 1415, 1418-1419: “In 2011, the Legislature enacted and amended the 

[Realignment Act] (Stats. 2011, ch. 15, § 1; Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, 

§ 1 . . . . [T]he Realignment Act significantly changes the punishment for some felony 

convictions. Under the terms of the Act, low-level felony offenders who have neither 

current nor prior convictions for serious or violent offenses, who are not required to 

register as sex offenders and who are not subject to an enhancement for multiple felonies 

involving fraud or embezzlement, no longer serve their sentences in state prison. Instead, 

such offenders serve their sentences either entirely in county jail or partly in county jail 

and partly under the mandatory supervision of the county probation officer. (. . . § 1170, 

subd. (h)(2), (3), (5).) Felony offenders who are sentenced to county jail may be eligible

for a county home detention program in lieu of confinement (§ 1203.016, subd. (a)) and 

are not subject to parole, which extends only to persons who have served state prison 

terms. (§ 3000 et seq.) The Legislature provided that the sentencing changes made by 

the Realignment Act „shall be applied prospectively to any person sentenced on or after 

October 1, 2011.‟ (§ 1170, subd. (h)(6) . . . .)” (Fn. omitted.) Defendant‟s sentences 

were imposed after October 1, 2011. Therefore, the Realignment Act applies to him. 

(§ 1170, subd. (h)(6); People v. Scott, supra, 58 Cal.4th at p. 1419.)

Under the Realignment Act, felonies are punishable by state prison custody unless 

the governing statute reflects that the offense is punishable pursuant to section 1170, 

subdivision (h). If the governing statute so provides that the offense is punishable 

pursuant to section 1170, subdivision (h), the felony sentence must be served in the 
11

county jail. Section 18 governs felony punishment generally. As amended by the 

Realignment Act, section 18, subdivision (a) 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.” (Italics 

added.) With exceptions not applicable to defendant, section 1170, subdivision (h) states

in part: “(1) . . . [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) . . . [A] felony punishable 

pursuant to this subdivision shall be punishable by imprisonment in a county jail for the 

term described in the underlying offense.” (Italics added.) By its express terms, section 

1170, subdivision (h) is invoked when a crime is punishable pursuant to that subdivision. 

Vehicle Code section 2800.2, subdivision (a) states in part: “(a) If a person flees 

or attempts to elude a pursuing peace officer . . . and the pursued vehicle is driven in a 

willful or wanton disregard for the safety of persons or property, the person driving the 

vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by 

confinement in the county jail for not less than six months nor more than one year. The 

court may also impose a fine . . . or may impose both that imprisonment or confinement 

and fine.” (Italics added.) Vehicle Code section 2800.2, subdivision (a) is an alternative 

felony-misdemeanor offense. (People v. Statum (2002) 28 Cal.4th 682, 685; see People 

v. Williams (2005) 35 Cal.4th 817, 831.) A felony violation of that statute is expressly 

punishable by imprisonment in the state prison. (§ 2800.2, subd. (a); see People v. 

Statum, supra, 28 Cal.4th at pp. 685, 700.) Vehicle Code section 2800.2, subdivision (a)

was not amended by the Realignment Act. A felony violation of Vehicle Code section 

2800.2, subdivision (a) is not expressly punishable to section 1170, subdivision (h).

Vehicle Code section 42000, which governs the terms imposed for felony 

violations of the Vehicle Code generally, does not apply to Vehicle Code section 2800.2, 

subdivision (a). Vehicle Code section 42000 was consistent with Vehicle Code section 

2800.2, subdivision (a) prior to the Realignment Act. Prior to realignment, Vehicle Code 
12

section 42000 stated: “Unless a different penalty is expressly provided by this code, 

every person convicted of a felony for a violation of any provision of this code shall be 

punished by a fine . . . or by imprisonment in the state prison or by both such fine and 

imprisonment.” (Stats. 1983, ch. 1092, § 401, italics added.) As amended by the 

Realignment Act, Vehicle Code section 42000 provides: “Unless a different penalty is 

expressly provided by this code, every person convicted of a felony for a violation of any 

provision of this code shall be punished by a fine of not less than one thousand dollars 

($1,000) or more than ten thousand dollars ($10,000), or by imprisonment pursuant to 

subdivision (h) of Section 1170 of the Penal Code, or by both such fine and 

imprisonment.” (Stats. 2011, ch. 15, § 615, italics added.) The post-realignment version 

of Vehicle Code section 2800.2, subdivision (a) falls within the initial phrase of Vehicle 

Code section 42000, “Unless a different penalty is expressly provided by this code . . . .” 

Unlike other vehicle related criminal provisions, Vehicle Code section 2800.2, 

subdivision (a) was not amended by the Realignment Act to delete the “imprisonment in 

the state prison” language. The Legislature could have amended Vehicle Code section 

2800.2, subdivision (a) to provide for realignment sentencing if that was its intent. In 639 

separate sections, the Realignment Act amended individual criminal statutes from various 

codes to delete a reference to the “imprisonment in the state prison” language. In those 

639 separate sections, the “imprisonment in the state prison” requirement was replaced 

by the imprisonment “pursuant to subdivision (h) of Section 1170 of the Penal Code”

language. (Stats. 2011, ch. 15, §§ 1-639.) This includes 17 Vehicle Code sections, 

specifically, Vehicle Code sections 2478, 2800.4, 4463, 10501, 10752, 10801, 10802, 

10803, 10851, 21464, 21651, 23104, 23105, 23109, 23109.1, 23110 and 23550. (Stats. 

2011, ch. 15, §§ 598-614.) Vehicle Code section 2800.2, subdivision (a) was not among 

the amended Vehicle Code provisions. 

Similar amendments to a related Vehicle Code provision support our conclusions 

in this regard. The Vehicle Code provisions amended by the Realignment Act include 

Vehicle Code section 2800.4, evading a police officer by driving in the wrong direction 

on a highway. This offense is very similar to the Vehicle Code section 2800.2, 
13

subdivision (a) evading offense found in this case—evading a police officer by driving in 

a reckless manner. Prior to the Realignment Act, Vehicle Code section 2800.4 provided: 

“Whenever a person willfully flees or attempts to elude a pursuing peace officer in 

violation of Section 2800.1, and the person operating the pursued vehicle willfully drives 

that vehicle on a highway in a direction opposite to that in which the traffic lawfully 

moves upon that highway, the person upon conviction is punishable by imprisonment for 

not less than six months nor more than one year in a county jail or by imprisonment in the 

state prison, or by a fine . . . , or by both that fine and imprisonment.” (Stats. 2006, ch. 

688, § 1, p. 5608, italics added.) As originally amended by the Realignment Act, Vehicle 

Code section 2800.4 provided, “[T]he person upon conviction [of a felony violation] is 

punishable by imprisonment for not less than six months nor more than one year in a 

county jail or by imprisonment pursuant to subdivision (h) of Section 1170 . . . .” (Stats.

2011, ch. 15, § 599, p. 600.) However, in 2012, the Legislature again amended section 

2800.4. As amended in 2012, Vehicle Code section 2800.4 states in part: “[T]he person 

upon conviction is punishable by imprisonment for not less than six months nor more 

than one year in a county jail or by imprisonment in the state prison . . . .” (Stats. 2012, 

ch. 43, § 111, p. 2043.) As amended in 2012, a felony violation of Vehicle Code section 

2800.4 must be served in state prison.

Division Six of the Court of Appeal for this appellate district addressed the present 

issue with respect to Vehicle Code section 23550.5, subdivision (a). In People v. Guillen 

(2013) 212 Cal.App.4th 992, 995-996, the defendant was convicted of a felony violation 

of Vehicle Code section 21352, subdivision (a) driving under the influence. The 

defendant admitted he had previously been convicted of driving under the influence

within the meaning of Vehicle Code section 23550.5, subdivision (a). Vehicle Code 

section 23550.5, subdivision (a) specifies that certain recidivists, including the defendant, 

be punished “by imprisonment in the state prison” or county jail confinement for less 

than one year. There is no reference in Vehicle Code section 23550.5, subdivision (a) to 

sentencing in county jail pursuant to section 1170, subdivision (h). Our colleagues in 

Division Six of this appellate district affirmed the state prison commitment. They 
14

reasoned: Vehicle Code section 23550.5, subdivision (a) does not refer to imprisonment 

pursuant to section 1170, subdivision (h); other statutes defining many other substantive 

offenses were amended to provide for felony punishment under section 1170, subdivision 

(h); and, “[B]y failing to include language in [Vehicle Code] section 23550.5 authorizing 

punishment pursuant to . . . section 1170, subdivision (h), the Legislature intentionally 

excluded defendants convicted of that offense from eligibility for a county jail sentence.” 

(People v. Guillen, supra, 212 Cal.App.4th at pp. 995-996.) Our Division Six colleagues 

further held: “[Defendant‟s] reliance upon section 42000 is misplaced because that 

section states that it applies „[u]nless a different penalty is expressly provided by this 

code.‟ Section 23550.5, subdivision (a) provides for „imprisonment in the state prison or 

confinement in a county jail.‟ Penal Code section 18, subdivision (a) then claries that 

unspecified term: „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.‟” (People v. Guillen, supra, 212 Cal.App.4th at p. 

996.) 

The analysis in Guillen is controlling. Vehicle Code section 2800.2, subdivision 

(a) does not state that a felony violation is punishable pursuant to section 1170, 

subdivision (h). Instead, Vehicle Code section 2800.2, subdivision (a) expressly states 

that a felony violation shall be punished by imprisonment in the state prison. Other 

criminal provisions of the Vehicle Code, including section 2800.4, were amended as part 

of the Realignment Act. Vehicle Code section 2800.2, subdivision (a) was not. By not 

amending Vehicle Code section 2800.2, subdivision (a) the Legislature excluded section 

2800.2, subdivision (a) from realignment sentencing. Moreover, the Legislature‟s 

amendments to Vehicle Code section 2800.4 are telling: Vehicle Code section 2800.4, 

like Vehicle Code section 2800.2, criminalizes eluding a peace officer in a specific 

manner; Vehicle Code section 2800.4 applies to a person who drives backwards; Vehicle 

Code section 2800.2, subdivision (a) applies to a person who drives recklessly; and 

Vehicle Code section 2800.4 was amended in 2011 to provide for realignment 
15

sentencing; Vehicle Code section 2800.4 was later amended in 2012 to reinstate state 

prison sentencing. The Legislature has clearly indicated it considers driving recklessly 

while eluding a peace officer not to be a low-level felony. Defendant was correctly 

sentenced to state prison.

[Part III(B)(2) is deleted from publication. See post at page 23 where publication is to 

resume.]

2. Sentencing Issues

a. Unpaid assessments, penalties and fines

The October 28, 2014 supplemental probation report in case No. YA083992 

reflects unpaid fines in the sum of $3,852. We asked the parties to brief the following 

questions. “Was the trial court obligated to impose and must the abstract of judgment 

reflect the balance of unpaid fines in the sum of $3,852 set forth in the October 2[8], 

2014 probation report? Or should the trial court be directed to calculate the amount of 

unsatisfied assessments, penalties and fines imposed in case Nos. Y[A]087652 and 

YA083992 and include only those unpaid sums on the abstract of judgment?” The 

parties agree, upon remittitur issuance, the trial court should calculate the amount of 

unsatisfied assessments, penalties and fines and include only those unpaid sums on an 

amended abstract of judgment. (See People v. High (2004) 119 Cal.App.4th 1192, 1200; 

People v. Sanchez (1998) 64 Cal.App.4th 1329, 1331-1332.) 

In making that calculation, the trial court must consider the following. In case No. 

YA083992, on April 23, 2012, when a suspended sentence was imposed and probation 

was initially granted in the felony evading matter, the following was imposed: a $240 

restitution fine (§ 1202.4, subd. (b)); a $240 probation revocation restitution fine

(§ 1202.44); a $240 parole revocation restitution fine (§ 1202.45); a $40 court operations 

assessment (§ 1465.8, subd. (a)(1)); and a $30 court facilities assessment. (Gov. Code, 
16

§ 70373, subd. (a)(1).) The parole revocation restitution fine is discussed below. Also in

case No. YA083992, on May 2, 2013, when defendant‟s probation was revoked and 

reinstated, the stay on the $240 section 1202.44 probation revocation restitution fine was 

lifted. In case No. YA087652, on September 11, 2013, when probation was initially 

granted, the following was imposed in the section 71 matter: a $280 restitution fine 

(§ 1202.4, subd. (b)); a $280 probation revocation restitution fine (§ 1202.44); a $40 

court operations assessment (§ 1465.8, subd. (a)(1)); and a $30 court facilities 

assessment. (Gov. Code, § 70373, subd. (a)(1)). Upon remittitur issuance, the trial court 

is to calculate the unpaid sums. Thereafter, the trial court is to supervise the preparation 

of an amended abstract of judgment that specifically sets forth the amounts and statutory 

bases therefore. (People v. Johnson (2015) 234 Cal.App.4th 1432, 1459; People v.

Hamed (2013) 221 Cal.App.4th 928, 937-940.) 

b. Restitution fines

i. overview of restitution fine structure

Sections 1202.44 and 1202.45 impose revocation restitution fines. Section 

1202.44 imposes a probation revocation restitution fine. And section 1202.45 imposes 

parole, postrelease community supervision or mandatory supervision revocation 

restitution fines. Where applicable, the revocation restitution fine must be in the same 

amount as the section 1202.4, subdivision (b)(1) restitution fine. (§§ 1202.44 [“in the 

same amount as that imposed pursuant to subdivision (b) of Section 1202.4”]; 1202.45, 

subd. (a) [same].)

ii. additional section 1202.44 probation revocation restitution fines

Section 1202.4, subdivision (b)(1) restitution fines and section 1202.44 probation 

revocation restitution fines were imposed in each case upon defendant‟s convictions. The 
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restitution and probation revocation restitution fines were imposed on April 23, 2012, 

$240 in case No. YA083992 and on September 11, 2013, $280 in case No. YA087652. 

On January 2, 2015, when defendant was erroneously sentenced to county jail, the trial

court orally imposed “additional” probation revocation restitution fines under section 

1202.44 of $240 in case No. YA083992 and $280 in case No. YA087652. No section 

1202.44 probation revocation restitution fine is included in the abstract of judgment. It is 

well established that revocation restitution fines may be imposed only once, at the time of 

conviction. The trial court had no authority to impose additional section 1202.44 

probation revocation restitution fines when it sentenced defendant on January 2, 2015. 

(People v. Preston (2015) 239 Cal.App.4th 415, 422-423; People v. Rios (2013) 222 

Cal.App.4th 542, 575-576; People v. Perez (2011) 195 Cal.App.4th 801, 805; People v. 

Cropsey (2010) 184 Cal.App.4th 961, 964-966; People v. Chambers (1998) 65 

Cal.App.4th 819, 822-823.) As discussed above, upon remittitur issuance, the trial court

is to calculate the amount of assessments, penalties and fines imposed in the cases 

including: probation restitution (§ 1202.4, subd. (b)); probation revocation restitution 

fines (§ 1202.44); and parole or supervision revocation restitution fines (§ 1202.45.) 

Further, the trial court is to personally supervise preparation of the amendments to the 

corrected abstract of judgment to reflect only the unpaid sums and their statutory bases.

iii. section 1202.45 parole revocation restitution fines

The abstract of judgment reflects section 1202.45 parole revocation restitution 

fines in the amount of $240 in case No. YA083992 and $280 in case No. YA087652. 

However, no section 1202.45 parole revocation restitution fine was orally imposed in 

either case on January 2 or 9, 2015. No section 1202.45 parole revocation restitution fine 

was ever imposed at any time in case No. YA087652. A $240 parole revocation 

restitution fine was imposed in case No. YA083992 at the time of defendant‟s felony 

evading conviction, on April 23, 2012. At that time, defendant entered a no contest plea, 

received a suspended three-year state prison sentence and was granted probation. It was 
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error to impose the section 1202.45 parole revocation restitution fine on April 23, 2012,

because defendant was placed on probation which does not include a period of parole. 

(People v. Hunt (2013) 213 Cal.App.4th 13, 16-20; People v. Hannah (1999) 73 

Cal.App.4th 270, 272-275; but see contra, People v. Preston, supra, 239 Cal.App.4th at

pp. 419, 423-425; People v. Calabrese (2002) 101 Cal.App.4th 79, 86-87; People v. Tye 

(2000) 83 Cal.App.4th 1398, 1400-1402.) 

But, as to both cases, the trial court should have imposed parole revocation 

restitution fines on January 9, 2015, when it sentenced defendant to state prison. (People 

v. Smith (2001) 24 Cal.4th 849, 853 [when a trial court imposes a § 1202.4, subd. (b)(1)

restitution fine where the sentence includes parole, it must also impose a § 1202.45 parole 

revocation restitution fine]; People v. Tillman (2000) 22 Cal.4th 300, 302 [same]; see 

People v. Hunt, supra, 213 Cal.App.4th at pp. 16-20; People v. Hannah, supra, 73 

Cal.App.4th at pp. 272-275.) The failure to do so resulted in an unauthorized sentence 

which this court may correct on appeal. (People v. Rodriguez (2000) 80 Cal.App.4th 

372, 378; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255.) Accordingly, the January 

9, 2015 oral pronouncement of judgment is modified to acknowledge the previously 

imposed parole revocation restitution fine in the amount of $240 in case No. YA083992. 

Also, the oral pronouncement of judgment is modified to impose a parole revocation 

restitution fine in the amount of $280 in case No. YA087652. The abstract of judgment 

is therefore correct insofar as it reflects those fines subject to the trial court‟s 

determination whether they remain unpaid.

c. Presentence custody credit

The trial court awarded defendant 475 days of presentence custody credit and 474 

days of conduct credit. The abstract of judgment erroneously reflects only 110 days of 

actual custody credit. We asked the parties to brief the question whether defendant‟s 

presentence custody credits were properly calculated. The failure to award a correct 

amount of credits is a jurisdictional error, which may be raised at any time. (People v. 
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Smith (2001) 24 Cal.4th 849, 854; People v. Scott (1994) 9 Cal.4th 331, 354; People v. 

Cardenas (2015) 239 Cal.App.4th 220, 235; People v. Chilelli (2014) 225 Cal.App.4th 

581, 591.)

Following additional briefing, we find defendant was entitled to 401 days of actual 

presentence custody credit as follows: 183 days served as a condition of his probation; 

15 days served after his probation was revoked, from January 23 to February 6, 2013; 87 

days served while awaiting probation revocation proceedings, from June 17 to September 

11, 2013; 6 days served after probation was revoked, from November 13 to 18, 2013; and 

110 days in custody after probation was revoked on September 15, 2014 and defendant 

was remanded to custody, until defendant was sentenced and released, on January 2, 

2015. The trial court erroneously found defendant had served 365 actual days in county 

jail as a probation condition in case No. YA083992, the felony evading case. Defendant 

was entitled to release after serving one-half of his 365-day term. There is no substantial 

evidence defendant was unlawfully confined after serving 183 days in custody. And, 

there is a rebuttable presumption that he in fact was not held beyond the maximum period 

of confinement. (Evid. Code, § 664; People v. Hinze (1950) 97 Cal.App.2d 1, 3 [it is 

presumed the sheriff correctly released the prisoner at the conclusion of the sentence].) 

There is no evidence defendant was held for 365 rather than 183 days. 

Also, defendant argues he is entitled to custody credit for 120 days served from 

September 15, 2014, when his probation was revoked, until January 12, 2015. As noted, 

on January 12, 2015, defendant was sentenced to prison. Defendant was incorrectly 

sentenced to the county jail on January 2, 2015, released from custody and ordered to 

return on January 9, 2015. Defendant was not in custody from January 2 through 9, 

2015, when he was correctly sentenced to state prison. Nor was he in custody between 

January 9 through 12, 2015, when he surrendered to custody. As noted, defendant was 

entitled to credit for 110 days in custody after his probation was revoked on September 

15, 2014, until his January 2, 2015 release from custody.

Further, defendant argues he is entitled to 64 days credit for actual time served on 

the subordinate section 71 conviction, case No. YA087652. On September 11, 2013, 
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defendant was placed on probation and required to serve 365 days in the county jail as a 

result of the section 71 conviction. Defendant was awarded 182 days of presentence 

credits for time actually served and proper conduct. However, it was not until November 

13, 2013, when probation was revoked in case No. YA083992. Defendant argues that he 

was not in custody between September 11 and November 13, 2013, on the felony evading 

principal term. Thus, defendant argues he is entitled to credit for time served between 

September 11 and November 13, 2013 on the section 71 subordinate term. (People v. 

Cooksey (2002) 95 Cal.App.4th 1407, 1413-1415; see 3 Witkin and Epstein, Cal. 

Criminal Law (4th ed. 2012) § 471, p. 749.) It is defendant‟s burden to establish he is 

entitled to those credits. (People v. Jacobs (2013) 220 Cal.App.4th 67, 81; People v. Huff 

(1990) 223 Cal.App.3d 1100, 1106.) The record before us does not support that claim.

The record as to certain parts of defendant‟s custody is unclear. The September 

11, 2013 reporter‟s transcript reflects: defendant pled no contest to the section 71 charge; 

he was placed on 3 years formal probation; and he was ordered to serve 1 year in county 

jail, with credit for 182 days. In 2013, defendant would typically be released from 

custody after serving 183 days in county jail on a 1-year term. (People v. Brown (2012) 

54 Cal.4th 314, 319-328; People v. Garcia (2012) 209 Cal.App.4th 530, 541.) 

Additionally, the trial court inquired of defendant‟s counsel, Deputy Public Defender 

Richard Ewell, “When is he going to be out?” Mr. Ewell responded: “He has credit for 

180 days, so maybe at the most 30 days.” Thirty days from September 11 was October 

11, 2013. According to the probation officer‟s report dated November 8, 2013, defendant 

reported “in office” to a probation officer on September 24, 2013. At that time,

defendant submitted proof of enrollment at Behavioral Health Services. Defendant was 

given a follow-up appointment for October 23, 2013, but failed to appear on that date. At 

the outset of the November 13, 2013 hearing, Mr. Ewell advised the trial court, “He‟s out

of custody.” At the outset of the November 18, 2013 hearing, a Monday, Mr. Ewell 

represented: “Mr. Butcher came in out of custody on Wednesday, [November 13,] but 

the court was concerned because he had missed a probation meeting in October. I had 

explained to the court that Mr. Butcher had said that he missed the meeting and he didn‟t 
21

have a valid legal excuse for not going to the probation meeting, but that his parents had 

gone out of town to Arizona. [¶] He was having trouble with transportation. He was 

planning on going to the probation department on Wednesday [November 13] right after 

he left court, however, he was taken into custody. I do have proof that he is . . . attending 

[Narcotics Anonymous] meetings. I have a sign-in sheet right here. Looks like he is 

attending [Narcotics Anonymous] meetings three times a week.” 

To summarize the uncertain record: as a result of his conviction for violating 

section 71 on September 11, 2013, defendant was ordered to serve 365 days in county jail 

as a condition of probation; defendant received presentence credits for time served and 

proper conduct of 182 days; this amount of credit would typically lead to the imminent 

release of county jail inmates serving a 1-year term imposed as a probation condition; 

defense counsel calculated defendant would be released from county jail on or about 

October 11, 2013; defendant was arrested in Redondo Beach for peace officer assault on 

September 13, 2014; defendant reported in person to a probation officer on September 

24, 2013; defendant was not in custody when the meeting with a probation officer was 

missed in October 2014; defendant had been attending Narcotics Anonymous meetings in 

the fall of 2013; defendant was not in custody on November 13, 2013; and defendant was

taken into custody on November 13, 2013, as he left a courthouse. Defendant has not 

shown he was in custody in case No. YA087652 from September 11, 2013, when he was 

placed on probation and required to serve 365 days in county jail, until November 13, 

2013. As noted, on November 13, 2013, probation was revoked in the felony evading 

matter, case No. YA083992. Based upon the evidentiary record presented to us in the 

context of a direct appeal, defendant has failed to demonstrate his right to additional 

credits against the subordinate term. 
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d. excess credits

Defendant argues he has excess credits that should be applied to reduce his fines at 

a rate of $30 per day. (Former § 2900.5, subd. (a); People v. Morris (2015) 242 

Cal.App.4th 94, 99-101; People v. Robinson (2012) 209 Cal.App.4th 401, 406.) At the 

time defendant committed his crimes, section 2900.5, subdivision (a) provided that 

excess custody credit was to be credited to fines, including restitution fines, at a rate of 

not less than $30 per day. (Stats. 2011, ch. 15, § 466, eff. April 4, 2011, op. Oct. 1, 2011-

Dec. 31, 2013, italics added.) Section 2900.5, subdivision (a) was subsequently amended 

to delete the reference to restitution fines. (Stats. 2013, ch. 59, § 7.)Defendant has been 

sentenced to state prison for 3 years and 8 months, or, assuming a 30-day month, 1,335 

days. Defendant is entitled to 583 days of custody credit and 582 days of conduct credit. 

(People v. Chilelli (2014) 225 Cal.App.4th 581, 591.) This means defendant was entitled 

to a total of 1,165 days of credit against the prison sentence. Defendant has not shown 

that his credits exceed his sentence.

In his supplemental reply brief filed on January 25, 2016, defendant argues that his 

excess credits must be applied to his community supervision after he was released from 

prison. Defendant adds a caveat to this argument, “[T]o the extent [defendant] is still 

subject to community supervision.” Defendant has been sentenced to state prison. The 

trial court awarded him excessive presentence credits. There is no evidence he is 

currently subject to any period of community supervision. Therefore, there is no 

evidence of excessive custody credits that can be applied to reduce any community 

supervision period. 
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[The balance of the opinion is to be published.]

IV. DISPOSITION

The finding defendant violated the terms of his probation is affirmed. The state 

prison sentence is affirmed. The January 2, 2015 oral pronouncement of judgment is 

modified to omit the additional probation revocation restitution fines (Pen. Code, 

§ 1202.44) imposed in each case. The January 9, 2015 oral pronouncement of judgment 

is modified to: acknowledge the previously imposed parole revocation restitution fine in 

the amount of $240 in case No. YA083992; impose a parole revocation restitution fine in 

the amount of $280 in case No. YA087652; and order 583 days of presentence custody 

credit and 582 days of conduct credit for a total of 1,165 days of credit. Upon remittitur 

issuance, the abstract of judgment must be amended to reflect those credits. Also upon 

remittitur issuance, the trial court is to calculate the amount of unsatisfied assessments, 

penalties and fines. An amended abstract of judgment is to be prepared that specifically 

sets forth the amounts and statutory bases thereof. The trial court is to actively and 

personally ensure the clerk accurately prepares a correct amended abstract of judgment 

which reflects the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 

105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.) 

CERTIFIED FOR PARTIAL PUBLICATION

TURNER, P. J.

We concur:

BAKER, J. KUMAR, J.



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.