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Name: People v. Borynack
Case #: E061733
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 06/24/2015

Provisions of the Realignment Act of 2011 that allow the court to impose a split sentence may not be applied to a conviction for possession of a destructive device. Borynack pled guilty to a number of counts related to possession of destructive devices (Pen. Code, §§ 18715, subds. (a)(1), (a)(3), 18720) and other offenses. The trial court imposed a two-year term for possession of a destructive device (Pen. Code, § 18715, subd. (a)) and ordered the remaining counts served concurrently. After applying credits, the court suspended execution of the remainder of the sentence and placed appellant on mandatory supervision (Pen. Code, § 1170, subd. (h)(5)). The prosecution appealed. Held: Reversed. Section 1170, subdivision (h)(5) of the Realignment Act created the “split sentence,” which allows a defendant to serve a sentence partially in local custody and partially on mandatory supervision by the probation department. Trial courts are authorized to impose mandatory supervision when suspending execution of a concluding portion of a term. However, Penal Code section 18780 provides that a person convicted of committing a crime proscribed under the Destructive Devices and Explosives Chapter (Pen. Code, § 18710, et seq.) “shall not be granted probation, and the execution of the sentence imposed upon that person shall not be suspended by the court.” The phrase “suspend execution” is a term of art and, by using that phase in section 1170, subdivision (h)(5), the Legislature indicated its intent to adopt the established meaning of the term. Placing a “defendant on mandatory supervision simply means suspending the execution of his or her sentence and placing him or her on probation.” Although Borynack’s crimes were subject to Realignment, section 18780 prohibited the trial court from placing him on mandatory supervision.