Hinojosa

Statement of the Case

Appellant stands convicted, following a jury trial, of selling more than one-half ounce of a substance containing heroin (Health & Saf. Code, § 11352). The trial judge denied probation and sentenced appellant to state prison for the term prescribed by law. On appeal, the sole issue is the propriety of the indeterminate sentence imposed by the trial court. At sentencing on December 21, 1977, defense counsel urged the judge to impose the lower term under the determinate sentencing law, but the court refused and instead imposed an indeterminate sentence, under the law as applicable to appellant’s case. Appellant thus became subject to the jurisdiction of the Community Release Board (CRB), which would set his term pursuant to Penal Code section 1170.2, subdivision (a), at the middle term of four years. Appellant contends the trial court’s refusal to give him a determinate sentence was prejudicial because it deprived him of the chance to present evidence of mitigating circumstances which might have reduced his term by one year. He further contends that his sentence was an ex post facto application of the law. For the reasons discussed below, we reject…