C.A. Says Judge Erred at Resentencing, Orders Third Sentencing

Friday, December 9, 2016

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C.A. Says Judge Erred at Resentencing, Orders Third Sentencing

By a MetNews Staff Writer

The Fourth District Court of Appeal’s Div. Two yesterday ordered a Riverside Superior Court judge to re-resentence a man who had pled guilty in 2013 to several counts of unlawful possession of explosive devices and materials.

The same panel on June 24, 2015, ordered the resentencing of defendant Zackariah William Borynack, who was found in possession of a home-made rocket launcher, armor piercing incendiary projectiles, and numerous other devices, in violation of Penal Code §18710 et seq.

Although he faced the potential of 60 years in prison, Riverside Superior Court Judge Becky Dugan sentenced him to two years in prison and suspended execution of the sentence, and placed him on mandatory supervision.

The Court of Appeal reversed, in an opinion by Justice Thomas Hollenhorst, who said the sentence was unauthorized in light of §18780, which provides: “A person convicted of a violation of this chapter shall not be granted probation, and the execution of the sentence imposed upon that person shall not be suspended by the court.”

Dugan resentenced Borynack last Jan. 12, giving him credit for time served on mandatory supervision. That left only 32 days to be served, in jail.

Credits Improperly Awarded

Div. Two reversed again, yesterday, holding that credits may not be awarded based on the unauthorized sentence of mandatory supervision. Hollenhorst cited the California Supreme Court’s 2002 holding in People v. Statum, 28 Cal.4th 682, where a judge was found to have impermissibly reduced a felony to a misdemeanor.

The majority said that imposing the statutorily required sentence now would not mean that “defendant will suffer a punishment in excess of the legal maximum,” declaring:

“As the People point out, defendant’s jail term will be credited against any state prison term that may be imposed….So long as the punishment defendant has already suffered is “fully ‘credited’ “against any new sentence, the constitutional guarantee against multiple punishments is not compromised.”

Hollenhorst declared that Borynack must be given the opportunity, on remand, to withdraw his plea, and if he doesn’t, he is to “resentenced to the legally required amount of time in custody with credit for time actually served.”

The case is People v. Borynack, E065549. The opinion was not certified for publication.

Another Reversal

Dugan was also reversed yesterday by Div. Two in People v. Jordan, E063761, which was also unpublished.

There, the defendant sought to have his felony conviction for second degree burglary reduced to a misdemeanor, shoplifting, under Proposition 47. Dugan denied the motion on the ground that defendant Jason Scott Jordan with the intent not of committing larceny, but identity theft, which cannot be reduced.

Writing for the panel, Acting Presiding Justice Art McKinster said:

“We conclude the trial court erred. Defendant’s crime of false pretenses theft satisfied the larceny element for shoplifting under Proposition 47. Characterizing defendant’s crime as identity theft does not alter our conclusion.”

He explained:

“The record demonstrates defendant entered a drug store with a stolen credit card and used it to purchase goods. In other words, defendant admitted he committed theft by false pretenses when he fraudulently passed off another person’s credit card as his own to obtain products or services….Because defendant entered a drug store with the intent to commit a larceny, his crime satisfied the intent for shoplifting…, and he is entitled to reclassification and resentencing….”