Error and/or relief
The trial court erred by failing to apply Penal Code section 1170(h)(5)(A) and (B), regarding mandatory supervision, after sentencing the defendant to county jail.
First Holding:
Punishment for a conviction of possession for sale of methamphetamine is governed by section 1170(h), which provides that punishment shall be by imprisonment in county jail. Although the section 12022(c) firearm enhancement directed imprisonment in state prison, section 1170(h)(9) required the sentence to be punishable as directed by the underlying offense. Under section 1170(h)(5)(A) and (B), a court imposing a sentence under subdivision (h)(1) must suspend execution of a concluding portion of the term for a period selected at the court’s discretion, known as mandatory supervision, unless it finds, in the interest of justice, that it is not appropriate in a particular case.
This section creates a statutory presumption in favor of the imposition of a period of mandatory supervision in all applicable cases, and, if the court denies mandatory supervision, it must state its reasons on the record. Given that the court ordered a term of imprisonment in county jail under section 1170(h), it is appropriate to remand for resentencing for consideration of mandatory supervision.
Authority:
PEN 1170(h)
Second Holding:
After the date of offense in this matter, section 12022(c)(2) was amended and now provides for imprisonment in state prison as punishment for a violation with a firearm enhancement under that section, not under section 1170(h). Applying this statute retroactively would likely violate the ex post facto clause.
Authority:
PEN 12022(c)
U.S. Const., art. I, secs. 9, 10
People v. White (2017) 2 Cal.5th 349, 360 [A statute violates the prohibition against ex post facto laws if it increases the punishment for a crime after it is committed]