The People v. Depicciotto CA3

Filed 9/23/13 P. v. Depicciotto CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C071236

Plaintiff and Respondent, (Super. Ct. No. 08F1784)

v.

ELIZABETH FRANCES DEPICCIOTTO,

Defendant and Appellant.

On July 14, 2008, defendant Elizabeth Frances Depicciotto pleaded no contest to second degree burglary (Pen. Code, § 459).1 On September 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.

1 Undesignated statutory references are to the Penal Code.

1

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