P. v. Depicciotto
Filed 9/23/13 P. v. Depicciotto CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
ELIZABETH FRANCES
DEPICCIOTTO,
Defendant and Appellant.
C071236
(Super. Ct. No. 08F1784)
On July 14, 2008, defendant Elizabeth
Frances Depicciotto pleaded no contest to second
degree burglary (Pen. Code, § 459).
10, 2008, the trial court suspended imposition of sentence and
placed defendant on three years’ formal probation.
Defendant
admitted violating her probation on January
21, 2009. The trial court
revoked and reinstated probation on February
19, 2009.
On October 8, 2009, defendant admitted
violating her probation and admitted additional violations on July 12, 2010. On December
6, 2010, the trial court revoked probation, sentenced defendant to
three years in state prison, suspended execution of sentence, and reinstated
probation.
Following a
contested hearing held on April 4, 2012, the trial court found
defendant had violated her probation. On
May 18, 2012, the trial
court executed the previously suspended sentence and imposed a three-year state
prison term over defendant’s objection.
On appeal,
defendant contends the trial court should have sentenced her to county jail
pursuant to section 1170, subdivision (h), and the county jail provisions of
section 1170, subdivision (h) should be applied retroactively as a matter of
equal protection. We affirm.
DISCUSSION
I
Defendant
contends the trial court could not sentence her to state prison because she
should have been sentenced pursuant to section 1170, subdivision (h). We disagree.
Pursuant to
the Criminal Justice Realignment Act of 2011 (Realignment Act) (Stats. 2011,
1st Ex. Sess. 2011–2012, ch. 15, § 1), many felonies are no longer punished by
confinement in state prison, but are instead subject to confinement in county
jail. (§ 1170, subdivision (h)(1),
(2).) Felons sentenced under this
provision may have a concluding portion of the county jail term suspended and
placed under the mandatory supervision of the county probation department. (§ 1170, subd. (h)(5)(B)(i).) Defendant’s crimes are subject to sentencing
under the Realignment Act.
The
Realignment Act’s sentencing scheme applies only to defendants “sentenced on or
after October 1, 2011.†(§ 1170, subd. (h)(6).) The trial court imposed and stayed execution
of the three-year state prison sentence on December 6, 2010, and executed the sentence on May 18, 2012. The question presented here is whether the
Realignment Act applies where the trial court, as here, imposes a state prison
sentence and stays execution before October
1, 2011, and executes the sentence after that date.
Citing the
decision of Division Eight of the Second District Court of Appeal in
defendant contends she was sentenced when the trial court executed the
previously imposed term and therefore should have been sentenced to county jail
pursuant to section 1170, subdivision (h).
We recently rejected Clytus
and held that the Realignment Act does not apply to suspended state prison
sentences imposed before October 1,
2011. (People v. Wilcox (2013) 217 Cal.App.4th 618, 622-626.)
Agreeing
with the reasoning of Wilcox, we hold
that section 1170, subdivision (h) was inapplicable as defendant was sentenced
when the trial court imposed and suspended execution of the
Act’s effective date.
II
Defendant
contends that section 1170, subdivision (h) should apply retroactively to her
sentence as a matter of equal protection of the law.
A criminal
defendant does not have a fundamental liberty interest in the retroactive
application of a statute reducing the punishment for a crime. (Baker
v. Superior Court (1984) 35 Cal.3d 663, 668-669.) A defendant’s right to equal protection of
the law does not prevent the Legislature from determining that a change in the
law reducing the punishment for a crime shall be applied on or after a
specified date. (People v. Floyd (2003) 31 Cal.4th 179, 188; In re Kapperman (1974) 11 Cal.3d 542, 546.)
We held
that prospective application of the Realignment Act did not violate a
defendant’s equal protection rights in People
v. Lynch (2012) 209 Cal.App.4th 353, 362.
We reject defendant’s contention for the reasons stated in our opinion
in Lynch.
DISPOSITION
The trial
court’s orders revoking defendant’s probation and the suspension of execution
of sentence, and committing defendant to state prison are affirmed.
NICHOLSON , Acting P. J.
We concur:
BUTZ , J.
MAURO , J.
name="_ftn1" title="">[1] Undesignated statutory references are
to the Penal Code.
