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Name: People v. Guillen
Case #: B239163
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 01/15/2013

Under the 2011 Realignment Act, a defendant convicted of violating Vehicle Code section 23152, subdivision (b) (driving with blood alcohol of .08% or greater) with a true section 23550.5 (prior conviction for felony driving under the influence) finding is not eligible for local custody, but must serve the sentence in state prison. Appellant pled no contest to a section 23152, subdivision (b) violation, admitted a prior conviction under section 23550.5, and was sentenced to a two-year term in state prison. On appeal, he argued he was entitled to be sentenced to local custody because, absent disqualifying factors not present here, Penal Code section 1170, subdivision (h) provides that where the term for the offense is not specified, the underlying offense shall be punishable by imprisonment in a county jail for 16 months, two years or three years. Vehicle Code section 42000 provides unless a different penalty is expressly provided by this code, every person convicted of a felony for a violation of a provision of this code shall be punished pursuant to Penal Code section 1170, subdivision (h). Under appellant’s reasoning, since section 23550.5 provides for, “imprisonment in the state prison,” but does not provide for a specific term, he was eligible for local custody. Affirmed. Section 23550, subdivision (a), but not section 23550.5 provides for sentencing pursuant to section 1170, subdivision (h). By failing to include language in section 23550.5 authorizing local custody, the Legislature intentionally excluded those convicted under this statute from serving the term in local custody.