People v. Ruiz CA5

Filed 12/18/13 P. v. Ruiz 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F064711 Plaintiff and Respondent, (Super. Ct. Nos. F11905339 & v. F11904566)

GERALD RUIZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler Tharpe, Judge. Donna J. Hooper, 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, Kathleen A. McKenna and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Kane, J. and Oakley, J.† † Judge of the Madera Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Defendant Gerald Ruiz contends the trial court erred by not sentencing him to county jail rather than prison pursuant to the Realignment Act (Stats. 2011, ch. 15, § 1). We will affirm. PROCEDURAL SUMMARY Defendant was charged in two different cases on August 8, 2011, and September 16, 2011. On January 6, 2012, he pled no contest to various offenses, including felony possession of a concealed dirk or dagger (former Pen. Code, § 12020, subd. (a)(4), now § 21310).1 On February 7, 2012, the trial court sentenced him pursuant to former section 1170, subdivision (h) of the Realignment Act to a total term of 28 months, half to be served in jail and half on mandatory supervision. On March 16, 2012, however, the trial court issued an order prohibiting defendant’s release because he should not have been sentenced under section 1170, subdivision (h), due to his conviction for possession of a concealed dirk or dagger. The court resentenced defendant to a total term of 28 months in prison.2 DISCUSSION On April 4, 2011, the Governor approved the “2011 Realignment Legislation addressing public safety” (Stats. 2011, ch. 15, § 1), which, together with subsequent related legislation, significantly changed the sentencing and supervision of persons

1 All statutory references are to the Penal Code unless otherwise noted. 2 Even though defendant’s other offenses were eligible for Realignment Act sentencing, every offense must be eligible for a defendant to be sentenced under the Realignment Act. (§ 1170.1, subd. (a).)