Can a defendant who is convicted of a charge under section 2800.2 of the California Penal Code, serve his sentence in county jail rather than state prison?

Defendant argues he qualified for sentencing under the Realignment Act, which directs that those subject to the Realignment Act be sentenced to incarceration in county jail. (Pen. Code, 17.5, subd. (a), 1170, subd. (h)(1), (2).) The People disagree. Citing People v. Guillen (2013) 212 Cal.App.4th 992, 995, the People argue a section 2800.2 offense is not subject to the Realignment Act because the statute expressly states that a felony offense under section 2800.2 shall be punished by imprisonment in state prison.

The Realignment Act generally provides that low-level felons who do not have prior convictions for serious, violent, or sex offenses, are eligible to serve their terms of imprisonment in local custody rather than state prison. (Pen. Code, 17.5, subd. (a); People v. Cruz (2012) 207 Cal.App.4th 664, 671.) If the statute for the charged offense specifies the defendant shall be punished by imprisonment pursuant to Penal Code section 1170, subdivision (h), without specifying a particular term of punishment, the crime is "punishable by a term of imprisonment in a county jail for 16 months, or two or three years." (Id., subd. (h)(1).) "If the penal statute calls for punishment pursuant to section 1170, subdivision (h), and specifies a term, the offense is 'punishable by imprisonment in a county jail for the term described in the underlying offense' (id., subd. (h)(2)), even when the sentence exceeds the 16-month, two-year, or three-year triad." (People v. Cruz, supra, 207 Cal.App.4th at p. 671.)

In People v. Guillen, supra, 212 Cal.App.4th 992, the defendant was convicted of driving under the influence of alcohol. The defendant admitted having a prior felony

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