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Filed 6/23/15 P. v. McCabe 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NOT TO BE PUBLISHED 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 This opinion has not been certified for publication 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 

(Tehama) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

RYAN SCOTT MCCABE, 

 Defendant and Appellant. 

C074110 

(Super. Ct. No. NCR83744) 

 Defendant Ryan Scott McCabe appeals his conviction for being a felon in 

possession of a firearm. He contends this conviction violates the Second Amendment. 

We disagree and shall affirm the conviction. Defendant also contends he is entitled to 

additional presentence custody credits. We remand the matter to the trial court for a 

factual determination of whether, and when, defendant was delivered into the custody of 

the Department of Corrections and Rehabilitation (CDCR). Defendant’s last contention 

is that the abstract of judgment requires correction to clearly indicate that the first abstract 
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of judgment issued in case No. NCR83093 is no longer in effect given the resentencing of 

defendant in case No. NCR83744. The People agree the abstract should be clarified. We 

will order the trial court to correct the abstract. 

FACTUAL AND PROCEDURAL BACKGROUND 

 On the afternoon of July 12, 2011, defendant shot Charles Shirer in the leg with a 

small semiautomatic pistol. At the time, defendant had a prior felony conviction. Just 

prior to the shooting, Stephanie Allen had seen defendant pull a small semiautomatic 

pistol partially out of his pocket and heard him say he was going to shoot Shirer. 

 An information charged defendant with assault with a semiautomatic firearm (Pen. 

Code, § 245, subd. (b)),1 with an allegation he personally used a firearm (§ 12022.5, 

subd. (a)), and possession of a firearm by a felon (former § 12021, subd. (a)(1)).2 The 

information also alleged defendant had a prior serious felony conviction (§§ 667, subd. 

(a)(1), 1170.12) and two prior prison terms (§ 667.5, subd. (b)). A jury found defendant 

guilty of misdemeanor assault, as a lesser included offense, and guilty of being a felon in 

possession of a firearm. In bifurcated proceedings, defendant admitted the prior serious 

felony conviction and prior prison term allegations. 

 The trial court sentenced defendant to the doubled upper term of six years for 

being a felon in possession of a firearm, plus two years for the prior prison terms, and a 

six-month concurrent term on the misdemeanor assault. In addition, he was resentenced 

on a prior case, case No. NCR83093, a conviction for felony evading an officer (Veh. 

Code, § 2800.2, subd. (a)), to a consecutive 16-month term (one-third the midterm 

 

1 Undesignated statutory references are to the Penal Code. 

2 Former section 12021 was repealed operative January 1, 2012. The statutory 

prohibition against a felon possessing a firearm is now found in section 29800. (Stats. 

2010, ch. 711, § 6, operative Jan. 1, 2012). For analysis of the issue raised by defendant, 

we will refer to the currently operative section 29800. 
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doubled). The trial court calculated defendant had 1,040 days of presentence credit (693 

actual days and 347 conduct credit) under section 4019. 

DISCUSSION 

I. Second Amendment Claim 

 Relying on the United States Supreme Court’s decision in District of Columbia v. 

Heller (2008) 554 U.S. 570 [171 L.Ed.2d 637] (Heller), defendant contends his 

possession of a firearm was protected by the Second Amendment, and therefore his 

conviction for being a felon in possession of a firearm violates the Second Amendment. 

He argues section 29800 violates the Second Amendment on its face. It does not. 

 “A facial challenge to the constitutional validity of a statute or ordinance considers 

only the text of the measure itself, not its application to the particular circumstances of an 

individual.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084) “If a statute is 

constitutional in its general and ordinary application, the statute is not facially 

unconstitutional merely because ‘there might be some instances in which application of 

the law might improperly impinge upon constitutional rights.’ (American Academy of 

Pediatrics v. Lungren (1997) 16 Cal.4th. 307, 347.)” (People v. Mitchell (2012) 

209 Cal.App.4th 1364, 1373.) 

 The Second Amendment provides: “A well regulated militia, being necessary to 

the security of a free state, the right of the people to keep and bear arms, shall not be 

infringed.” (U.S. Const., 2d Amend.) 

 In Heller, the high court evaluated the meaning of the Second Amendment, and 

concluded the constitutional right to possess firearms was not limited to possession for 

military use and included an individual’s right to possess firearms in the home for selfdefense. (Heller, supra, 554 U.S. at pp. 571-574, 591, 634-636.) But the court stated, 

“[l]ike most rights, the right secured by the Second Amendment is not unlimited.” (Id. at 
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p. 626 (maj. opn. of Scalia, J.).) The right does not extend to any sort of confrontation 

nor does it extend to any type of weapon. (Id. at pp. 595, 625-626.) Rather, it is a right 

to possess and carry weapons “typically possessed by law-abiding citizens for lawful 

purposes.” (Id. at p. 625.) The court specifically noted that “nothing in [its] opinion 

should be taken to cast doubt on longstanding prohibitions on the possession of firearms 

by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive 

places . . . .” (Id. at pp. 626-627.) The court further explicitly recognized “the problem 

of handgun violence in this country,” and confirmed that the “Constitution leaves . . . a 

variety of tools for combating that problem . . . .” (Id. at p. 636.) 

 In McDonald v. City of Chicago (2010) 561 U.S. 742 [177 L.Ed.2d 894] 

(McDonald) the court held the Second Amendment right is applicable to the states 

through the due process clause of the Fourteenth Amendment, but “ ‘repeat [ed] [its] 

assurances’ that ‘the right to keep and bear arms is not “a right to keep and carry any 

weapon whatsoever in any manner whatsoever and for whatever purpose” ’ ” and 

reiterated “that its holding ‘did not cast doubt on such longstanding regulatory measures 

as “prohibitions on the possession of firearms by felons and the mentally ill . . . .” ’ 

(McDonald, supra, at p. 786, quoting Heller, supra, 554 U.S. at p. 626 [171 L.Ed.2d at 

p. 678].)” (People v. Jason K. (2010) 188 Cal.App.4th 1545, 1555.) 

 Defendant attempts to minimize the impact of this language by dismissing it as 

dicta. As have other courts, we construe the Heller language not as dicta, but as a 

limitation on Heller’s holding that individuals have a right to possess weapons under the 

Second Amendment of the federal Constitution. (See, e.g., United States v. Huet (3d Cir. 

2012) 665 F.3d 588, 600, fn. 11; United States v. Barton (3d Cir. 2011) 633 F.3d 168, 

171; United States v. Rozier (11th Cir. 2010) 598 F.3d 768, 771, fn. 6; and United States 

v. Vongxay (9th Cir. 2010) 594 F.3d 1111, 1115.) In any event, whether dictum or not, 

Heller’s declaration of presumptively lawful prohibitions comes in a United States 
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Supreme Court decision and must therefore be taken seriously in every Second 

Amendment case to which it might be relevant. (See United States v. Marzzarella (3d 

Cir. 2010) 614 F.3d 85, 90, fn. 5; see also United States v. Serawop (10th Cir. 2007) 

505 F.3d 1112, 1122 [“[W]e are ‘ “bound by Supreme Court dicta almost as firmly as by 

the Court’s outright holdings, particularly when the dicta is recent and not enfeebled by 

later statements.” ’ ”].) Heller’s phrase “nothing in [its] opinion should be taken to cast 

doubt” (Heller, supra, 554 U.S. at p. 626) is strongly worded and leaves no room for 

defendant’s argument that the exceptions Heller recognizes for certain traditional 

firearms regulations are inconsistent with the rest of the opinion. 

 California cases have followed the same approach. In People v. Delacy (2011) 

192 Cal.App.4th 1481 (Delacy), the First Appellate District, Division One, upheld the 

defendant’s convictions for unlawful firearm and ammunition possession where the 

firearms and ammunition were found during probation searches of the defendant’s home. 

(Id. at p. 1486.) There, the defendant challenged the constitutionality of former section 

12021, subdivision (c)(1), which prohibited the possession of firearms by persons 

convicted of specified misdemeanors. (Id. a p. 1488.) The court explained, “there is a 

significant difference between the D.C. handgun ban and [former] section 12021. The 

D.C. statute was one of general application that did not fit within the traditional 

regulations described by Heller as ‘presumptively lawful.’ [Citation.] In contrast, as 

[People v. Flores (2008) 169 Cal.App.4th 568] held, [former] section 12021 is analogous 

to a prohibition on felon weapon possession, a type of restriction expressly listed by 

Heller as untouched by its holding. Relying on this reasoning, both California and 

federal decisions have upheld the type of ‘presumptively lawful’ regulations identified in 

Heller, including prohibitions on firearm possession by certain ‘disqualified’ persons, 

without applying constitutional scrutiny that balances the objectives of the statute against 

the means used to accomplish those ends.” (Delacy, at p. 1489.) 
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 Because defendant’s conduct falls outside the scope of the Second Amendment’s 

protection, we need not balance the objectives of the statute against the means used to 

accomplish those ends. (Delacy, supra, 192 Cal.App.4th at p. 1489.) Like the Delacy

court, we conclude Heller did not “intend[ ] to open felon-in-possession prohibitions and 

similar categorical weapons possession bans to constitutional means-end scrutiny. On the 

contrary, following virtually all other federal and California appellate courts, we read 

Heller’s ‘presumptively lawful’ language to do just the opposite.” (Delacy, supra, at 

pp. 1491-1492.) 

II. Calculation of Custody Credits 

 Defendant contends the trial court erred in the calculation of his custody credits. 

He claims he is entitled to 668 days of presentence credit for the period from May 14, 

2012, to June 10, 2013. Specifically, he argues that since he was never delivered into the 

custody of the Director of Corrections, he never started serving his prison sentence in 

case No. NCR83093; rather, he remained in pretrial custody. 

A. Background 

Case No. NCR83093 

 On March 22, 2012, defendant pleaded guilty to felony evasion (Veh. Code, 

§ 2800.2, subd. (a)) and admitted a prior strike (Pen. Code, § 1170.12, subds. (a)-(d)). 

Defendant agreed to waive all presentence credit accrued until the day of his plea. On 

May 14, 2012, the trial court sentenced defendant to six years in prison. The trial court 

awarded defendant 80 days of presentence custody credit (54 actual and 26 conduct). 

The abstract of judgment remanded defendant to the custody of the sheriff “forthwith” to 

be delivered to “the reception center designated by the director of the California 

Department of Corrections and Rehabilitation.” 
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Case No. NCR83744 

 On March 23, 2012, the day after defendant pleaded guilty in case 

No. NCR83093, the People filed a complaint in case No. NCR83744, charging defendant 

with numerous offenses, including possession of a firearm by a felon. Defendant 

remained in custody and appeared regularly at the trial proceedings. On March 14, 2013, 

a jury found defendant guilty of being a felon in possession of a firearm and 

misdemeanor assault, and defendant admitted a prior serious felony conviction and prior 

prison term. 

 On June 10, 2013, the trial court imposed sentence in case No. NCR83744 and 

resentenced defendant in case No. NCR83093. As noted previously, in case 

No. NCR83744, the trial court sentenced defendant to a six-year term on the possession 

of a firearm count, six months on the misdemeanor assault, plus two years on the prison 

priors. In case No. NCR83093, the trial court imposed a consecutive 16-month term. 

 At the sentencing hearing, defense counsel indicated defendant’s prison 

commitment in case No. NCR83093 “has been hanging fire” waiting on the resolution of 

case No. NCR83744. The probation report indicated defendant was not entitled to 

confinement credit in case No. NCR83744. “He was arrested on July 19, 2011, not only 

for the present offense but for the crimes in Case NCR83093, for which he is currently 

serving a prison term (albeit at the moment in the county jail). All prior confinement 

credit from July 19, 2011 to the day of sentencing on May 14, 2012 was awarded in that 

case.” 

 The trial court indicated it believed probation was correct that defendant was 

serving time on case No. NCR83093 while in custody during pretrial proceedings and 

trial on case No. NCR83744. The trial court noted the credits needed to be updated, as of 

the date of sentencing, and found defendant was entitled to 693 days of actual credit and 

347 conduct credits, for a total of 1,040 days of credit. 
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B. Analysis 

 “The term of imprisonment fixed by the judgment in a criminal action commences 

to run only upon the actual delivery of the defendant into the custody of the Director of 

Corrections at the place designated by the Director of Corrections as a place for the 

reception of persons convicted of felonies.” (§ 2900, subd. (a).) 

 “A judgment of imprisonment must direct that the defendant be delivered to the 

Director’s custody at a designated state prison. (§ 1202a.) Upon receipt of a certified 

abstract of the judgment, the sheriff must deliver the defendant to prison authorities. 

(§ 1216.) Once so delivered, the defendant ‘shall be imprisoned until duly released 

according to law.’ (§ 2901.) Service of the sentence commences upon such delivery 

(§ 2900, subd. (a)), and time thereafter served in an institution designated by the Director 

‘shall be credited as service of the term of imprisonment’ (id., subd. (c)). The agency to 

which the defendant is committed, not the trial court, has the responsibility to calculate 

and apply any custody credits that have accrued between the imposition of sentence and 

physical delivery of the defendant to the agency. (§ 2900.5, subd. (e).)” (People v. 

Buckhalter (2001) 26 Cal.4th 20, 30-31 (Buckhalter).) “These statutes instruct that 

delivery, the physical act of transporting the defendant to a state penal institution, is what 

triggers the running of a prison sentence. After sentencing and before delivery, the 

defendant’s custody is considered presentence time to be credited against the actual 

prison term. Logically, a person cannot be ‘confined in a state prison’ until he has been 

‘delivered’ to a state prison.” (People v. Holdsworth (1988) 199 Cal.App.3d 253, 258.) 

 In Buckhalter, the defendant was sentenced, committed, and delivered to state 

prison. Upon remand from the court of appeal for resentencing, he was transported from 

prison to local custody for the further proceedings. (Buckhalter, supra, 26 Cal.4th at 

pp. 24-26.) The trial court, in calculating credits, refused to award additional time and 

good behavior credits for the period the defendant was confined in a local facility 

awaiting the remand hearing, concluding that he was still under the jurisdiction of the 
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Department of Corrections during that period. (Id. at pp. 26-27.) On review in the 

Supreme Court, the defendant argued that his credits, by virtue of the remand order, 

should have been calculated up to the time of the resentencing as having been entirely 

presentence custody. (Id. at p. 28.) The high court rejected that position and held that “a 

convicted felon who has once been sentenced, committed, and delivered to prison, who 

received all credits for confinement prior to the original sentencing, and who remains 

behind bars pending an appellate remand solely for correction of sentencing errors, is not 

eligible to earn additional credits for good behavior as a presentence detainee.” (Id. at 

p. 29.) It reasoned that “an appellate remand solely for correction of a sentence already 

in progress does not remove a prisoner from the Director’s custody or restore the prisoner 

to presentence status as contemplated by section 4019. . . . [A] defendant’s temporary 

removal from state prison to county jail as a consequence of the remand did not transform 

him from a state prisoner to a local presentence detainee. When a state prisoner is 

temporarily away from prison to permit court appearances, he remains in the constructive 

custody of prison authorities and continues to earn sentence credit, if any, in that status.” 

(Id. at p. 33.) 

 Similarly, in People v. Johnson (2004) 32 Cal.4th 260, the defendant had been 

convicted, sentenced to imprisonment, and delivered into the custody of the Department 

of Corrections. (Id. at p. 264.) After delivery, “the trial court ordered [the] defendant to 

be produced and returned to the sheriff’s custody,” and on the date of the rehearing, it 

recalled the sentence and resentenced the defendant. (Ibid.) The trial court refused to 

grant the defendant presentence conduct credit pursuant to section 4019 for the period 

between his original sentencing to the time of resentencing. (Johnson, at p. 264.) The 

Supreme Court rejected the defendant’s contention that the recall of the sentence had the 

effect of voiding the initial sentence and that he should therefore be considered under the 

presentence custody credit scheme. (Id. at p. 265.) The high court relied on its holding 
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in Buckhalter, and concluded: “The trial court here recalled the sentence solely for 

correction of a prison sentence already in progress and reimposed a state prison sentence 

at the recall hearing. As with an appellate remand solely for correction of a sentence 

already in progress, a recall of sentence does not remove a prisoner from the Director’s 

custody or restore the prisoner to presentence status as contemplated by section 4019.” 

(Johnson, at p. 267, citing Buckhalter, supra, 26 Cal.4th at pp. 29-30, 32-34, 40.) 

 Neither Johnson nor Buckhalter stand for the proposition that a defendant who is 

convicted and sentenced but not delivered into the CDCR’s custody is nonetheless 

serving his prison term while in local custody. To the contrary, the fact of the actual 

delivery to prison authorities was a critical requirement in both cases, as actual delivery 

was what commenced the running of the prison term. In both Johnson and in Buckhalter, 

the defendants had been physically transferred to prison officials after initial sentencing 

and the term of each defendant had thus commenced within the meaning of section 2900, 

subdivision (a); their constructive custodial status as a prisoner stemmed from the fact of 

this original delivery to the prison authorities after sentencing. 

 The People ignore this essential requirement of delivery to commence a prison 

term. The above authorities make clear that the commencement of the term of 

imprisonment requires an actual delivery of the defendant to the CDCR. The abstract of 

judgment, and section 1216, requires the sheriff to deliver the defendant to prison upon 

receipt of the abstract. The record on appeal does not contain jail records or records from 

the sheriff’s department. On the record before us, we cannot determine when or if 

defendant was actually delivered to prison authorities. This is a factual question best 

determined by the trial court.3 Accordingly, we will remand the matter to the trial court 

 

3 We asked the parties for supplemental briefing on the effect, if any, of defendant’s 

parole violation and hearing on August 3, 2011—at which he received 12 months based 

on a “new” offense—on the issue of his entitlement to presentence custody credits. It is 
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for a determination of whether and when defendant was delivered to prison authorities in 

case No. NCR83093. The trial court shall then recalculate defendant’s presentence 

credits accordingly. 

III. Abstract of Judgment 

 Defendant also contends the abstract of judgment requires clarification, as it does 

not clearly indicate that one of the sentenced counts is the prior conviction from case 

No. NCR83093. At oral argument, the People agreed the abstract of judgment could be 

clearer. We will order the trial court to correct the abstract of judgment. 

 The trial court imposed a three-year sentence on case No. NCR83093 on May 14, 

2012. Following defendant’s conviction in case No. NCR83744, on June 26, 2013, the 

trial court imposed a six-year term in case No. NCR83744 and, pursuant to section 

1170.1, resentenced defendant to a consecutive 16-month term in case No. NCR83093. 

The only reference in the June 26, 2013 abstract to case No. NCR83093 is as an 

incomplete consecutive sentence. The June 26, 2013 abstract of judgment does not 

identify the 16-month consecutive sentence as the sentence in case No. NCR83093-B. 

We will order the trial court to correct the abstract of judgment to make clear that 

defendant was resentenced in case No. NCR83093-B and therefore, the abstract of 

judgment issued on May 31, 2012 is no longer in effect. 

DISPOSITION 

 The matter is remanded to the trial court for further proceedings to determine if, 

and when, defendant was delivered to the CDCR in case No. NCR83093 and to calculate 

defendant’s presentence custody credits accordingly. The trial court is ordered to correct 

 

unclear whether defendant was returned to prison for any period between August 3, 2011, 

and August 3, 2012, for the parole violation. This may be another factor relevant on the 

issue of delivery. 
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the June 26, 2013 abstract of judgment in case No. NCR83744 to list case 

No. NCR83093 as case “-B,” to correct count “1N” to “1B” in item No. 1 of the abstract, 

and to reflect that due to resentencing, the abstract issued May 31, 2012, in case 

No. NCR83093, is no longer operative. In all other respects, the judgment is affirmed. A 

certified copy of the corrected abstract shall be sent to the CDCR. 

 BUTZ , J. 

We concur: 

 RAYE , P. J. 

 BLEASE , J.