California Court of Appeals, Third District, Sutter
[As Modification on January 12, 2015]
APPEAL from a judgment of the Superior Court of Sutter County, Nos. CRF121135, CRF121518, CRF122071, CRF130029 H. Ted Hansen, Judge.
[Copyrighted Material Omitted]
Rachel P. Varnell, 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, Daniel B. Bernstein, and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.
RAYE, P. J.
Defendant Drake Nicholas Noyan was sentenced to state prison for various drug-related charges pursuant to a negotiated plea. In his appeal, we consider two claims, one personal to Noyan, that the court abused its discretion in declining to reinstate him on probation, and another with
wider implications, that the differing applications of Penal Code section 1170, subdivision (h) (hereafter section 1170(h)) to Penal Code sections 4573 and 4573.5 violate equal protection by requiring him to serve his sentence in state prison instead of county jail. We reject his probation claim but agree that section 4573.5 treats similarly situated classes of offenders differently, and there is no rational basis for the disparate treatment. We reform the statute to eliminate the constitutionally infirm disparity and modify the judgment accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
In case No. CRF121135, defendant was charged with felony possession of heroin (count 1) and misdemeanor possession of an opium pipe or other device or paraphernalia used for injecting or smoking a controlled substance (count 2). Defendant pleaded no contest to count 1 and was granted a deferred entry of judgment for an enumerated period, released on his own recognizance, and ordered to report to probation. During the diversion period, defendant violated probation; the court ordered the judgment entered and placed him back on probation. Defendant violated probation again, and the court revoked his probation.
While on bail in that case, defendant was charged in case No. CRF121518 with felony failure to appear at a court hearing. Defendant pleaded no contest; the trial court suspended imposition of sentence and placed him on three years’ probation. Defendant violated probation, after which probation was revoked and reinstated. Defendant again violated probation and the court again revoked his probation.
In case No. CRF122071, defendant was charged with first degree felony burglary (count 1); possession of heroin (counts 2 & 3); knowingly bringing alcohol, a noncontrolled substance, or paraphernalia intended to be used in the consumption of a noncontrolled substance into county jail (count 4); misdemeanor possession of an opium pipe or other device or paraphernalia used for injecting or smoking a controlled substance (count 5); and misdemeanor graffiti (count 6). Defendant pleaded no contest to counts 2 and 4, and all other counts were dismissed. He did not wish the trial court to consider drug court. The trial court suspended imposition of sentence and
placed him on probation for three years. The court revoked probation after defendant violated its terms.
Finally, defendant was charged in case No. CRF130029 with knowingly bringing a controlled substance or paraphernalia intended for consuming a controlled substance into a county jail (count 1) and misdemeanor possession of an opium pipe or device for injecting or smoking a controlled substance (count 2). Defendant pleaded no contest to count 1 and admitted various probation violations.
Pursuant to his plea bargain, the court sentenced defendant to an aggregate term of five years four months in state prison: the upper term of three years for possession of heroin (Health & Saf. Code, § 11350, subd. (a); count 2, case No. CRF122071); a concurrent upper term of three years for bringing paraphernalia for consumption of drugs other than controlled substances into jail (§ 4573.5; count 4, case No. CRF122071); one year (one-third the middle term) for bringing a controlled substance into county jail (§4573; count 1, case No. CRF130029); eight months (one-third the middle term) for failure to appear on bail (§ 1320.5; count 1, case No. CRF121518); and eight months (one-third the middle term) for possession of heroin (Health & Saf. Code, § 11350, subd. (a); count 1, case No. CRF121135). The sentence was imposed but execution was suspended, and defendant was placed on three years’ probation in each case and ordered to attend the drug court program. Defendant was advised and understood that if he failed drug court or violated any other condition of his suspended sentence, he would be sentenced to state prison.
Defendant violated probation. The court revoked defendant’s probation on all matters. Defendant was again advised, and he acknowledged, that if the court determined he should not be reinstated on probation he would be sentenced to five years four months in state prison. Defendant admitted violating his probation by possessing a controlled substance and drug paraphernalia, and by failing to participate in and complete the drug court program.
At a hearing to determine whether to reinstate defendant on probation, defendant testified on his own behalf and also presented the testimony of Joseph Wayne Cassady, D.O., and Donald R. Siggins, Ph.D. Cassady was a treating physician who prescribed defendant Suboxone, which is a medication approved for the treatment of opiate dependency. Cassady explained that if taken as prescribed, Suboxone would reduce an addict’s craving, allowing him to feel normal and to avoid symptoms of withdrawal; however, Suboxone is not useful in preventing someone from using opiates if he so chooses. Siggins’s evaluation of defendant led him to opine that defendant was a drug
addict, that defendant was motivated to change his lifestyle, and that defendant needed long-term residential treatment. Siggins did not believe prison would offer the type of program defendant needed to “turn his life around.” Siggins further opined defendant had “hit bottom” and was ready to begin recovery. He also testified that his clients who have entered treatment are “by and large successful” but that he could not “predict the future with any absolute certainty.” Finally, defendant testified that he had a drug problem he “[d]esperately” wanted to correct, that his “heart [was] set on [rehabilitation], ” and that he was willing to and had made efforts to enter a program.
Defendant’s counsel argued defendant should be reinstated on probation so he could get the help he “wants” and “needs.” The prosecutor argued the stay of execution should be lifted and the previous state prison sentence imposed because defendant had failed to comply with probation, and that he had been given “one last chance with a suspended sentence, and he failed to take advantage of that last chance.” The court found defendant had a 19-year criminal track record, was fortunate to have been given an opportunity earlier in the year to avoid a prison commitment, and essentially “blew off” the suspended sentence. The court found nothing to justify reinstating probation, and further found that instead of doing what he was supposed to have done while on probation, defendant immediately had gone back to using drugs. Therefore, the court lifted the suspension of defendant’s prison sentence and ordered the sentence be executed in each matter. The court clarified, and counsel agreed, that defendant’s ...