P. v. Ibarra CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F064494 Plaintiff and Respondent, (Super. Ct. No. BF130654A) v.

HERIBERTO GABRIEL IBARRA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Louis P. Etcheverry and Michael G. Bush, 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-

* Before Wiseman, Acting P.J., Kane, J. and Poochigian, J. † Judge Etcheverry accepted appellant’s plea; Judge Bush sentenced appellant.

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