Filed 9/23/13 P. v. Depicciotto 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----



THE PEOPLE,                                                                                  C071236

                   Plaintiff and Respondent,                                      (Super. Ct. No. 08F1784)

         v.

ELIZABETH FRANCES DEPICCIOTTO,

                   Defendant and Appellant.




         On July 14, 2008, defendant Elizabeth Frances Depicciotto pleaded no contest to
second degree burglary (Pen. Code, § 459).1 On September 10, 2008, the trial court
suspended imposition of sentence and placed defendant on three years’ formal probation.
         Defendant admitted violating her probation on January 21, 2009. The trial court
revoked and reinstated probation on February 19, 2009.




1        Undesignated statutory references are to the Penal Code.

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          On October 8, 2009, defendant admitted violating her probation and admitted
additional violations on July 12, 2010. On December 6, 2010, the trial court revoked
probation, sentenced defendant to three years in state prison, suspended execution of
sentence, and reinstated probation.
          Following a contested hearing held on April 4, 2012, the trial court found
defendant had violated her probation. On May 18, 2012, the trial court executed the
previously suspended sentence and imposed a three-year state prison term over
defendant’s objection.
          On appeal, defendant contends the trial court should have sentenced her to county
jail pursuant to section 1170, subdivision (h), and the county jail provisions of section
1170, subdivision (h) should be applied retroactively as a matter of equal protection. We
affirm.
                                         DISCUSSION
                                                I
          Defendant contends the trial court could not sentence her to state prison because
she should have been sentenced pursuant to section 1170, subdivision (h). We disagree.
          Pursuant to the Criminal Justice Realignment Act of 2011 (Realignment Act)
(Stats. 2011, 1st Ex. Sess. 2011–2012, ch. 15, § 1), many felonies are no longer punished
by confinement in state prison, but are instead subject to confinement in county jail. (§
1170, subdivision (h)(1), (2).) Felons sentenced under this provision may have a
concluding portion of the county jail term suspended and placed under the mandatory
supervision of the county probation department. (§ 1170, subd. (h)(5)(B)(i).)
Defendant’s crimes are subject to sentencing under the Realignment Act.
          The Realignment Act’s sentencing scheme applies only to defendants “sentenced
on or after October 1, 2011.” (§ 1170, subd. (h)(6).) The trial court imposed and stayed
execution of the three-year state prison sentence on December 6, 2010, and executed the
sentence on May 18, 2012. The question presented here is whether the Realignment Act

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applies where the trial court, as here, imposes a state prison sentence and stays execution
before October 1, 2011, and executes the sentence after that date.
       Citing the decision of Division Eight of the Second District Court of Appeal in
People v. Clytus (2012) 209 Cal.App.4th 1001, defendant contends she was sentenced
when the trial court executed the previously imposed term and therefore should have
been sentenced to county jail pursuant to section 1170, subdivision (h). We recently
rejected Clytus and held that the Realignment Act does not apply to suspended state
prison sentences imposed before October 1, 2011. (People v. Wilcox (2013) 217
Cal.App.4th 618, 622-626.)
       Agreeing with the reasoning of Wilcox, we hold that section 1170, subdivision (h)
was inapplicable as defendant was sentenced when the trial court imposed and suspended
execution of the state prison term before the Realignment Act’s effective date.
                                             II
       Defendant contends that section 1170, subdivision (h) should apply retroactively
to her sentence as a matter of equal protection of the law.
       A criminal defendant does not have a fundamental liberty interest in the
retroactive application of a statute reducing the punishment for a crime. (Baker v.
Superior Court (1984) 35 Cal.3d 663, 668-669.) A defendant’s right to equal protection
of the law does not prevent the Legislature from determining that a change in the law
reducing the punishment for a crime shall be applied on or after a specified date. (People
v. Floyd (2003) 31 Cal.4th 179, 188; In re Kapperman (1974) 11 Cal.3d 542, 546.)
       We held that prospective application of the Realignment Act did not violate a
defendant’s equal protection rights 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.




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                                     DISPOSITION
      The trial court’s orders revoking defendant’s probation and the suspension of
execution of sentence, and committing defendant to state prison are affirmed.



                                            NICHOLSON            , Acting P. J.



We concur:



         BUTZ            , J.



         MAURO            , J.




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