The prison sentence mandated for bringing alcohol or a noncontrolled substance into a custodial facility violates equal protection because a person convicted of bringing a controlled substance into such a facility receives a jail term. Noyan was charged with a number of offenses in four different cases. Initially probation was granted but it was ultimately revoked. He was sentenced to state prison because one offense, bringing alcohol or noncontrolled substances into the county jail (Pen. Code, § 4573.5) was not eligible for a county jail term. He appealed. Held: Reversed. As amended by the 2011 Realignment Act, section 4573, which prohibits a person from bringing a controlled substance or drug paraphernalia into a jail, is punishable by two, three, or four years in county jail (Pen. Code, § 1170, subd. (h)). In contrast, section 4573.5, which was not amended by Realignment, makes it a state prison felony to bring alcohol or a noncontrolled drug into a county jail. Violators may be sentenced to 16 months, or two or three years. (Pen. Code, § 18.) Persons convicted of violating section 4573.5 are similarly situated to those convicted of violating section 4573, because both crimes involve bringing contraband into a custodial facility. The different treatment of the two groups bears no rational relationship to a legitimate state purpose and denies equal protection. This conclusion is supported by the fact that, prior to the Realignment revision, a violation of section 4573 was punished more severely than a violation of section 4573.5. The failure to amend section 4573.5 to provide for punishment under section 1170, subdivision (h) was legislative oversight. Therefore, section 4573.5 is construed as providing for a county jail term. [Editor’s Note: The court identified sections 4571 (entry into custodial facility by felon) and 4573.8 (prohibiting possession of alcohol or drugs in a custodial facility) as two statutes also needing amendment.]

Appellant seeking sentence reduction under Proposition 47 must first file petition for recall of sentence (Pen. Code, § 1170.18) in the trial court. In a petition for rehearing, Noyan argued that the provisions of recently enacted Proposition 47 apply retroactively to his 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. Citing People v. Yearwood (2013) 213 Cal.App.4th 161, 170, 177, the Court of Appeal concluded that Noyan is limited to the statutory remedy of petitioning for recall of sentence in the trial court once his judgment is final, pursuant to section 1170.18.