California Court of Appeals, Third District, Sutter
January 12, 2015
THE PEOPLE, Plaintiff and Respondent,
DRAKE NICHOLAS NOYAN, Defendant and Appellant.
IT IS ORDERED that the opinion filed herein on December 17, 2014,
232 Cal.App.4th 657;___ Cal.Rptr.3d ___ be modified as follows and the petition for rehearing is DENIED:
1. On pages 17 and 18 [232 Cal.App.4th 672, advance report, 1st full par.], the paragraph under the subheading “C. Equal Protection Remedies” is modified to read as follows:
“When a court concludes that a statutory classification violates the constitutional guarantee of equal protection of the laws, it has a choice of remedies.” (Hofsheier, supra, 37 Cal.4th at p. 1207.) Here, defendant contends we should order that he serve his sentence in county jail; the Attorney General contends the Legislature would likely prefer us to impose state prison sentences for all related statutes (ch. 3 of title 5 of part 3 of the Penal Code). “In choosing the proper remedy for an equal protection violation, our primary concern is to ascertain, as best we can, which alternative the Legislature would prefer.” (Hofsheier, supra, 37 Cal.4th at p. 1207, citing Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 651 [47 Cal.Rptr.2d 108, 905 P.2d 1248] and Hayes v. Superior Court (1971) 6 Cal.3d 216, 224 [98 Cal.Rptr. 449, 490 P.2d 1137].) An express purpose in enacting the Realignment Legislation was to “[realign] low-level felony offenders... to locally run community-based corrections programs” to decrease recidivism and improve public safety. (§ 17.5, subd. (a)(5).) Therefore, we conclude the Legislature would prefer that section 4573.5 be reformed to make reference to the sentencing provisions of section 1170(h) to further that legislative purpose.
2. On page 18, part III is added immediately preceding the Disposition [232 Cal.App.4th 672, advance report, following the 1st full par.], to read as follows:
In a petition for rehearing, defendant argues the provisions of Proposition 47, enacted by the people at the November 4, 2014, general election, apply retroactively to this case and reduce his Health and Safety Code section 11350 convictions from felonies to misdemeanors, given that he does not have a disqualifying prior conviction. Defendant is limited to the statutory remedy of petitioning for recall of sentence in the trial court once his judgment is final, pursuant to Penal Code section 1170.18. (See People v. Yearwood (2013) 213 Cal.App.4th 161, 170, 177 [151 Cal.Rptr.3d 901].)
There is no change in the judgment.
Respondent’s and appellant’s petitions for rehearing are denied.