P. v. Zubko CA3

Filed 7/10/13 P. v. Zubko CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE,

Plaintiff and Appellant, C070833

v. (Super. Ct. No. CRF111504)

SERGEI ZUBKO,

Defendant and Appellant.

Defendant Sergei Zubko pleaded no contest to driving under the influence of drugs (Veh. Code, § 23152, subd. (a)) within 10 years of three or more prior convictions for driving under the influence (Veh. Code, § 23550, subd. (a)), and admitted serving a prior prison term (Pen. Code, § 667.5, subd. (b)).1 The trial court sentenced defendant to four

1 Undesignated statutory references are to the Penal Code.

1

years in state prison, but suspended execution of sentence and placed defendant on probation for four years. Less than four months later, the Criminal Justice Realignment Act of 2011 (the Realignment Act)2 took effect on October 1, 2011. With certain exceptions, felons sentenced under the Realignment Act are committed to jail rather than prison, may have a concluding portion of their sentence suspended in lieu of probation, and are not subject to parole. (§§ 3000 et. seq., 1170, subds (h)(1)-(3), (5).) Prison sentences are imposed, however, for felons who have current or prior serious or violent felony convictions, who are required to register as sex offenders, or who have sustained a section 186.11 aggravated white collar crime enhancement. (§ 1170, subd. (h)(3).) Defendant’s offenses in this case are not among the crimes exempted from a jail commitment under the Realignment Act. Nonetheless, the Realignment Act sentencing scheme applies prospectively to defendants “sentenced on or after October 1, 2011.” (§ 1170, subd. (h)(6).) After the effective date of the Realignment Act, defendant admitted violating probation. The trial court revoked probation and executed the previously imposed four- year sentence. But because the Realignment Act was in effect, the trial court ordered defendant, over the People’s objection, to serve the four years in county jail rather than state prison. The People appeal, arguing the Realignment Act’s requirement of county jail time does not apply to defendant because he was sentenced to state prison before the Realignment Act took effect. The People contend that because the trial court imposed sentence and merely suspended execution of sentence prior to the effective date of the