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Name: People v. Butcher
Case #: B261774
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 05/09/2016
Summary

Trial court appropriately imposed a state prison term rather than a county jail sentence for felony evading. In April 2012, Butcher pleaded no contest to felony evading (Veh. Code, § 2800.2, subd. (a)). A three year prison term was imposed with execution suspended, and Butcher was placed on probation. His probation was subsequently revoked and reinstated on multiple occasions, including in June 2013, when Butcher pleaded no contest to a new charge of threatening a public officer (Pen. Code, § 71). Ultimately his probation was revoked and the prison term executed. Butcher appealed. One issue on appeal was whether felony evading is punishable by imprisonment in the state prison or county jail (Pen. Code, § 1170, subd. (h)). Held: State prison sentence required. Vehicle Code section 2800.2, subdivision (a) was not amended by the Realignment Act, which allows low-level offenders who have no prior serious or violent felony convictions, and who are not sex registrants, to serve their felony terms in county jail. Even after Realignment, felonies are punishable by state prison unless the applicable statute expressly states it is punishable pursuant to Penal Code section 1170, subdivision (h). Vehicle Code section 42000, which sets forth the punishment for a “felony” under that code, provides for Penal Code section 1170, subdivision (h) punishment, “unless a different penalty is expressly provided by this code.” Vehicle Code section 2800.2, which is punishable either as a felony or a misdemeanor, expressly provides that a felony violation of the section is punishable by imprisonment in the state prison. As a result, Butcher was lawfully sentences to state prison.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B261774.PDF