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The People v. James Reginald Ely

December 5, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JAMES REGINALD ELY, DEFENDANT AND APPELLANT.



(Super. Ct. No. 11F01667)

The opinion of the court was delivered by: Raye , P. J.

P. v. Ely 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Following a jury trial, defendant James Reginald Ely was convicted of sale of cocaine base. (Health & Saf. Code, § 11352, subd. (a).) The trial court sustained a prior prison term allegation (Pen. Code, § 667.5, subd. (b)) and sentenced defendant to five years in state prison.

On appeal, defendant contends that the prospective application of the Criminal Justice Realignment Act of 2011 (Realignment Act; Stats. 2011, ch. 15) violates his right to equal protection of the law, and the trial court imposed fees without determining his ability to pay. We vacate the drug program fee (Health & Saf. Code, § 11372.7), booking fee (Gov. Code, § 29550.2), and jail classification fee (Gov. Code, § 29550.2); remand for a hearing on defendant's ability to pay those fees; and affirm the judgment as modified.

DISCUSSION

We dispense with the facts of defendant's crime, which are unnecessary to resolve this appeal.

I

Defendant was sentenced to state prison on September 16, 2011. Under the Realignment Act, felons are confined to county jail instead of state prison unless they have a current or prior serious or violent felony conviction, or are required to register as a sex offender, or are subject to the aggravated white collar crime enhancement. (Pen. Code, § 1170, subd. (h)(1)-(3).)

The Realignment Act would apply to defendant but for the date of his sentencing. "The sentencing changes made by the act that added this subdivision shall be applied prospectively to any person sentenced on or after October 1, 2011." (Pen. Code, § 1170, subd. (h)(6).) Defendant contends this violates his right to equal protection of the law.

We rejected an identical contention 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.

II

Defendant and the Attorney General agree that the trial court erred in failing to determine defendant's ...


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