Beaty v. Gold Springs West Assn
Filed 5/22/13
P. v. Ibarra CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
HERIBERTO GABRIEL IBARRA,
Defendant and
Appellant.
F064494
(Super.
Ct. No. BF130654A)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court of
Judges.
Michele A.
Douglass, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
On January
13, 2010, police officers executed a search
warrant at appellant Heriberto Gabriel Ibarra’s residence, where they
found, among other things, cocaine and a fully loaded shotgun. A defense motion to quash the search warrant
and suppress evidence was heard and denied.
Later, appellant pled no contest to a single count of possession of
cocaine for sale (Health & Saf. Code, § 11351) and entered into a
stipulated sentence of two years in state
prison. On September 29, 2011, the
court sentenced defendant to two years in state prison.
The sole
ground for appellant’s appeal is his contention that the October 1, 2011,
amendment to Penal Code section 1170, subdivision (h), should be applied
retroactively, notwithstanding that the legislation expressly states that it
shall be applied prospectively.
Appellant contends that equal protection principles mandate retroactive
application of the statutory amendments.
We disagree and affirm.
DISCUSSION
Effective
October 1, 2011, as part of the 2011 realignment legislation, a new
category of legislatively deemed low level felonies was created. Penal Code section 1170, subdivision
(h)(2), provides that a felony punishable under this subdivision shall be punishable
by imprisonment in a county jail for the term described in the underlying
offense. Exceptions to this are persons
who have been convicted of prior or current violent or serious felonies or
enhancements, or who are required to register as sex offenders. (Pen. Code, § 1170,
subd. (h)(3).) A defendant who
otherwise qualifies is eligible for the additional benefit of a split sentence,
in which the prisoner can serve the concluding portion of the term selected on
supervised release from custody. (Pen.
Code, § 1170, subd. (h)(5)(B).)
Appellant contends
he should be afforded the benefits of serving his term in the county jail or
having his sentence split between county jail and supervised release even
though the latest amendment to Penal Code section 1170,
subdivision (h), states it is meant to apply prospectively to persons sentenced on or after October 1,
2011. (Pen. Code, § 1170,
subd. (h)(6).) Appellant was
sentenced on September 29, 2011.
The People
maintain that a prospective application is mandated by the provisions of the
realignment legislation and does not violate equal protection principles. The People also contend that appellant is
estopped from raising this argument, since he specifically entered into a plea
agreement in which one of the terms was that he receive two years in state
prison. We need not address the
forfeiture argument because we find appellant’s equal protection contention
lacks merit.
Under equal
protection analysis, the first question is whether the state has adopted a
classification that affects two or more similarly situated groups in an unequal
manner. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199.) The guarantee of equal protection of the laws
does not require absolute equality. A
state may provide for differences as long as the result does not amount to
invidious discrimination. (
196.)
The two
classes described by appellant are those inmates sentenced before the effective
date of the amendment and those sentenced after. As the People point out, appellant has cited no
case that recognizes an equal protection violation arising from the timing of
the effective date of the statute affecting punishment for a particular
offense. (People v. Floyd (2003) 31 Cal.4th 179, 188-191 [prospective
application of Proposition 36 did not violate equal protection].) In addition, a refusal to apply a statute
retroactively does not violate the Fourteenth
Amendment to the United States Constitution. (Baker
v. Superior Court (1984) 35 Cal.3d 663, 668-669 [14th Amend. does not forbid statutory changes to have a
beginning and thus to discriminate between the rights of an earlier and later
time]; Sperry &
Hutchinson Co. v. Rhodes
(1911) 220 U.S. 502, 505; see also Califano v. Webster (1977) 430 U.S.
314, 321.)
The delineation of these two
classes does not involve a suspect classification or a fundamental
interest. Appellant has cited no
authority and we have found none which denominates these two groups (prisoners
sentenced before the effective date of the legislation and those sentenced
after) a suspect classification for Fourteenth Amendment purposes. Nor does this legislation affect a
fundamental interest requiring application of the compelling state interest
test. (In re Stinnette (1979) 94 Cal.App.3d 800, 805 [new sentencing
scheme allowing inmates opportunity to shorten time served did not involve
fundamental interest].)
The equal protection standard
employed where there are no suspect classifications or classifications
impinging upon fundamental interests is the rational basis test. This test invests the questioned legislation with a presumption of
constitutionality and requires merely that the distinction drawn by a
challenged statute bears some rational relationship to a conceivable legitimate
state purpose. (In re Stinnette, supra,
94 Cal.App3d at p. 805, citing Serrano v. Priest (1971) 5 Cal.3d
584, 597; McGinnis v. Royster (1973) 410 U.S. 263, 270.)
The remaining question is whether
the Legislature’s decision to make the amendment prospective only is served by
any rational state purpose. We have no
difficulty in concluding it does.
Prospective application serves the state interest in preserving the
finality of sentencing proceedings that have already occurred. On the other hand, retroactive application
would impose a significant burden on the administration of justice by, among
other things, inviting a large population of prison inmates, who otherwise
qualify, to petition the courts for resentencing under the new legislation. The Legislature’s decision to limit
application of these new provisions to a prospective time period serves
rational state objectives.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Kane, J. and Poochigian, J.
name="_ftn2" title="">†Judge
Etcheverry accepted appellant’s plea; Judge Bush sentenced appellant.
