1 Filed 6/23/15 P. v. McCabe CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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THE PEOPLE, Plaintiff and Respondent,

v. RYAN SCOTT M C CABE, Defendant and Appellant. C074110 (Super. Ct. No. NCR83744)

Defendant Ryan Scott McCabe appeal s 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 conten ds he is entitled to additional presentence custody credits. We remand the matter to the trial court for a factual determination of whet her, and when, defendant was de livered into the custody of the Department of Corrections and Rehabilitation (CDCR). Defendant’s last contention is that the abstract of judgment requires correc tion to clearly indicate that the first abstract2 of judgment issued in case No. NCR83093 is no l onger in effect given the resentencing of defendant in case No. NCR83744. The People ag ree the abstract should be clarified. We will order the trial court to correct the abstract.

FACTUAL AND PROCED URAL BACKGROUND On the afternoon of July 12, 2011, defenda nt shot Charles Shirer in the leg with a small semiautomatic pistol. At the time, defe ndant 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 wa s going to shoot Shirer. An information charged defendant with a ssault with a semiauto matic 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 prio r 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, a nd guilty of being a felon in possession of a firearm. In bifurcated pro ceedings, 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 te rm on the misdemeanor assault. In addition, he was resentenced on a prior case, case No. NCR8 3093, 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 ope rative January 1, 2012. The statutory prohibition against a felon possessing a firearm is now found in section 29800. (Stats. 2010, ch. 711, § 6, operative Ja n. 1, 2012). For analysis of the issue raised by defendant, we will refer to the currently operative section 29800.3 doubled). The trial court calculated defendan t had 1,040 days of presentence credit (693 actual days and 347 conduct cr edit) 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 th e Second Amendment, and therefore his conviction for being a felon in possession of a firearm violat es the Second Amendment. He argues section 29800 violates the Sec ond Amendment on its face. It does not. “A facial challenge to the constitutional va lidity of a statute or ordinance considers only the text of the measure itself, not its appl ication 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 ap plication, 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 prov ides: “A well regulated m ilitia, being necessary to the security of a free state, the right of th e people to keep and b ear arms, shall not be infringed.” (U.S. Const., 2d Amend.)

In Heller , the high court evaluated the mean ing 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. at4 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 la w-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 forb idding the carrying of firearms in sensitive places . . . .” ( Id. at pp. 626-627.) The court further explicitly recogniz ed “the problem of handgun violence in this country,” and co nfirmed that the “Cons titution leaves . . . a variety of tools for combati ng 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 Seco nd Amendment right is a pplicable to the states through the due process clause of the Fourteenth Amendmen t, 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 whatso ever and for whatever purpose” ’ ” and reiterated “that its holding ‘did not cast dou bt on such longstandi ng regulatory measures as “prohibitions on the possessi on 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 mini mize 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 States5 Supreme Court decision and must therefor e 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 ar e ‘ “bound by Supreme Court di cta 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] opi nion should be taken to cast doubt” ( Heller , supra , 554 U.S. at p. 626) is strong ly worded and le aves no room for defendant’s argument that the exceptions Heller recognizes for certain traditional firearms regulations are inconsiste nt 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 fo r 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 challe nged the constitutionality of former section 12021, subdivision (c)(1), which prohibite d 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, [fo rmer] section 12021 is analogous to a prohibition on felon weapon possession, a type of restriction expressly listed by Heller as untouched by its holding. Relyin g on this reasoning, both California and federal decisions have upheld the type of ‘presumptively lawf ul’ regulations identified in Heller , including prohibitions on firearm possessi on by certain ‘disqualified’ persons, without applying constitutional sc rutiny that balances the objec tives of the statute against the means used to accomplish those ends.” ( Delacy , at p. 1489.)6 Because defendant’s conduct falls outside the scope of the Second Amendment’s protection, we need not balance the objectives of the statute agains t 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 fe lon-in-possession prohibitions and similar categorical weapons possession bans to constitutional means-end scrutiny. On the contrary, following virtually all other federa l 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 tria l court erred in the calcula tion 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. Specifi cally, 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 rema ined in pretrial custody. A. Background Case No. NCR83093 On March 22, 2012, defe ndant pleaded guilty to fe lony evasion (Veh. Code, § 2800.2, subd. (a)) and admitted a prior stri ke (Pen. Code, § 1170 .12, subds. (a)-(d)). Defendant agreed to waive a ll presentence credit accrued un til the day of his plea. On May 14, 2012, the trial court sentenced defendan t 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 sh eriff “forthwith” to be delivered to “the reception center desi gnated by the director of the California Department of Corrections and Rehabilitation.”7 Case No. NCR83744 On March 23, 2012, the day afte r 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 appear ed regularly at the trial proc eedings. 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 impos ed sentence in case No. NCR83744 and resentenced defendant in case No. NCR 83093. 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 misd emeanor assault, plus two years on the prison priors. In case No. NCR83093 , the trial court imposed a c onsecutive 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 sent encing on May 14, 2012 was awarded in that case.” The trial court indicated it believed pr obation was correct that defendant was serving time on case No. NCR83093 while in custody during pretri al proceedings and trial on case No. NCR83744. The trial court noted the credits needed to be updated, as of the date of sentencing, and f ound defendant was entitled to 693 days of actual credit and 347 conduct credits, for a total of 1,040 days of credit.8 B. Analysis “The term of imprisonment fixed by the judgment in a criminal action commences to run only upon the actual de livery of the defendant into th e custody of the Director of Corrections at the place designated by the Di rector of Corrections as a place for the reception of persons convicted of fe lonies.” (§ 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 defe ndant to prison authorities. (§ 1216.) Once so de livered, the defendant ‘shall be imprisoned until duly released according to law.’ (§ 2901.) Service of the sentence co mmences upon such delivery (§ 2900, subd. (a)), and time ther eafter 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 tria l court, has the responsibility to calculate and apply any custody credits that have accrued between the imposition of sentence and physical delivery of the de fendant 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 de fendant 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 presente nce time to be credite d against the actual prison term. Logically, a person cannot be ‘c onfined in a state pris on’ 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, co mmitted, 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 the9 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 calcu lated up to the time of the resent encing as having been entirely presentence custody. ( Id. at p. 28.) The high court reject ed 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 cr edits 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 s ection 4019. . . . [A] defendant’s temporary removal from state prison to county jail as a consequence of the re mand 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 a ppearances, he remains in the constructive custody of prison authorities and c ontinues 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 de livered into the custo dy 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 cred it 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 conten tion 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 holding10 in Buckhalter , and concluded: “The trial court he re recalled the sentence solely for correction of a prison sentence already in progress and reimpos ed 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 doe s not remove a prisoner from the Director’s custody or restore the prisoner to presentence status as cont emplated 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 requi rement in both cases, as actual delivery was what commenced th e 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 construc tive custodial status as a prisoner stemmed from the fact of this original delivery to the pris on 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 th e defendant to the CDCR . The abstract of judgment, and section 1216, re quires the sheriff to deliver the defendant to prison upon receipt of the abstract. The record on appe al does not contain jail records or records from the sheriff’s department. On the record be fore 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 brie fing 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 is11 for a determination of whether and when defendant was deliver ed 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 sentence d counts is the prio r 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 se ntence 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 cas e 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 ab stract to case No. NC R83093 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, 20 12 is no longer in effect.

DISPOSITION

The matter is remanded to the trial court for further proceedings to determine if, and when, defendant was deliver ed to the CDCR in case No . NCR83093 and to calculate defendant’s presentence custody credits accordingly. The tria l court is ordered to correct

unclear whether defendant was returned to pr ison 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.12 the June 26, 2013 abstract of judgme nt 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, th e abstract issued Ma y 31, 2012, in case No. NCR83093, is no long er operative. In all other resp ects, 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.