Noyan

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.S 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…