Opinion
H045876
08-05-2020
THE PEOPLE, Plaintiff and Respondent, v. SHAWN MICHAEL CASE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS150065)
I. INTRODUCTION
In May 2015, defendant Shaun Michael Case pleaded no contest to possession for sale of a controlled substance (Health & Saf. Code, § 11351) and admitted that he had suffered a prior felony drug conviction (§ 11370.2, subd. (a)). In November 2015, the trial court imposed a split sentence of six years with the first four years to be served in the county jail and the remaining two years to be served under mandatory supervision (Pen. Code, § 1170, subd. (h)). Defendant appealed from the judgment, and in April 2017, this court modified a condition of defendant's mandatory supervision and affirmed the judgment as modified. (People v. Case (Apr. 18, 2017, H043020) [nonpub. opn.].)
All further statutory references are to the Health and Safety Code unless otherwise indicated.
On our own motion, we take judicial notice of People v. Case, supra, H043020. (Evid. Code, § 452, subd. (d)(1).) Some portions of the factual and procedural background have been taken from the prior opinion.
In October 2017, the Legislature enacted Senate Bill No. 180, which became effective on January 1, 2018. (Sen. Bill No. 180, (2017-2018 Reg. Sess.) § 1 (hereafter S.B. 180).) The bill amended section 11370.2 by limiting the statute's application to prior convictions that, unlike defendant's, involved the use of a minor to commit drug-related crimes in violation of section 11380. (Ibid.)
In February 2018, defendant moved to modify and terminate his mandatory supervision based on the enactment of S.B. 180, arguing that the legislation applied to him retroactively and mandated that the trial court strike the section 11370.2 sentence enhancement. The trial court denied the motion. Two months later, in April 2018, the trial court revoked and terminated defendant's mandatory supervision, ordering defendant to serve the balance of his term in the county jail, based on defendant's admission that he violated the conditions of his mandatory supervision. Defendant appealed from that order, contending that the trial court "exceeded its authority when it modified [his] supervision to include prison time in county jail" for the section 11370.2 sentence enhancement despite the amendment under S.B. 180, which he asserted applied retroactively to him to render the sentence enhancement invalid.
In an opinion filed March 12, 2019, this court affirmed the order terminating mandatory supervision and requiring defendant to serve the balance of his term. Defendant petitioned the California Supreme Court for review. On May 22, 2019, the California Supreme Court granted review, S255207, and later transferred the matter to this court with directions to vacate the decision and to reconsider the cause in light of People v. McKenzie (2020) 9 Cal.5th 40 (McKenzie). We have vacated the prior decision by separate order.
For reasons that we will explain, we conclude that S.B. 180 applies retroactively to defendant. Accordingly, we reverse the trial court's order revoking defendant's mandatory supervision. We remand the matter for the trial court to strike the section 11370.2 enhancement and resentence defendant.
II. FACTUAL AND PROCEDURAL BACKGROUND
In September 2014, police officers searched defendant and located 22.5 gross grams of black tar heroin in one pocket and two hypodermic needles in another pocket. Defendant admitted that he had been selling heroin for about two months and that he was a heroin user.
In April 2015, defendant was charged by information with possession for sale of heroin (§ 11351). The information further alleged that defendant had suffered two prior felony drug convictions (§ 11370.2, subd. (a)).
In May 2015, defendant pleaded no contest to possession for sale and admitted that he had suffered one prior felony drug conviction. Defendant entered his plea and admission with the understanding that he would receive a maximum sentence of seven years.
The district attorney alleged two sentence enhancements pursuant to section 11370.2, subdivision (a) based on defendant's 2010 conviction of possession for sale of a controlled substance (§ 11351) and defendant's 2014 conviction of transportation of a controlled substance (§ 11352). It is unclear from the record which of the two prior convictions defendant admitted.
In November 2015, the trial court sentenced defendant to six years, with the first four years to be served in the county jail and the remaining two years to be served under mandatory supervision. (See Pen. Code, § 1170, subd. (h)(5)(B).) The sentence consisted of a three-year term for the substantive offense and a consecutive three-year term for the section 11370.2 sentence enhancement. The court dismissed the remaining section 11370.2 sentence enhancement pursuant to Penal Code section 1385.
Defendant timely appealed, and on April 18, 2017, this court modified a condition of defendant's mandatory supervision and affirmed the judgment as modified. Defendant did not petition for review in the California Supreme Court, and this court issued the remittitur on June 20, 2017.
While that appeal was pending, defendant appealed from the trial court's denial of his post-judgment motion to correct presentence credits. Pursuant to People v. Serrano (2012) 211 Cal.App.4th 496, this court dismissed the appeal as abandoned on January 6, 2017. Defendant did not petition for review of the dismissal order in the California Supreme Court, and this court issued the remittitur on March 8, 2017.
On our own motion, we take judicial notice of People v. Case (Jan. 6, 2017, H043747). (Evid. Code, § 452, subd. (d)(1).)
In November 2017, the probation department filed a petition and notice of a violation of mandatory supervision. The petition alleged that defendant failed to report to probation after his release from custody.
In December 2017, the district attorney filed a declaration and notice of violation of probation, alleging that defendant violated the terms and conditions of his probation because defendant drove on a suspended or revoked license (Veh. Code, § 14601.1, subd. (a)). The district attorney filed a second declaration and notice of violation of probation in January 2018, alleging that defendant violated the terms and conditions of his probation because he possessed a controlled substance (§ 11350, subd. (a)).
Although both the December 2017 and January 2018 notices alleged that defendant violated the terms of his probation, the notices apparently pertained to defendant's alleged violations of his mandatory supervision conditions.
In February 2018, defendant moved to modify and terminate his mandatory supervision, contending that S.B. 180 applied retroactively to him and required the trial court to strike the section 11370.2 sentence enhancement. The trial court denied the motion, determining that defendant was not entitled to the benefit of the amendment because defendant's "appellate rights have ended." In March 2018, the trial court found defendant in violation of the conditions of his mandatory supervision. The following month, on April 25, 2018, the trial court revoked and terminated defendant's mandatory supervision and ordered defendant to serve the remainder of his sentence in the county jail.
III. DISCUSSION
As we stated above, S.B. 180 amended section 11370.2 to limit the enhancement's application to prior convictions that, unlike defendant's, involved the use of a minor to commit drug-related crimes in violation of section 11380. (Stats. 2017, ch. 677, § 1.) The parties agree that S.B. 180 applies retroactively to all nonfinal judgments, and we concur. (See McKenzie, supra, 9 Cal.5th 40.) The issue here is whether S.B. 180 applies to defendant, who received a split sentence under Penal Code section 1170, subdivision (h) and was before the trial court for his violation of mandatory supervision when the amendment to section 11370.2 became effective.
When a judgment becomes final for retroactivity purposes is a question of law that we review de novo. (See People v. Nasalga (1996) 12 Cal.4th 784, 792, fn. 6.)
Defendant contends that S.B. 180 applies retroactively to him because the trial court had "broad discretion to . . . revoke, modify, or terminate mandatory supervision" pursuant to Penal Code sections 1170, subdivision (h)(5)(B), 1203.2, and 1203.3 and that the trial court "exceeded its authority in modifying [his] supervision to punish him as though the [section 11370.2 sentence] enhancement were still punishable." Defendant argues that the California Supreme Court's recent decision in McKenzie establishes that S.B. 180 applies retroactively to him because the trial court had the "constitutional authority to modify [his] sentence." The Attorney General counters that S.B. 180 does not apply retroactively to defendant because defendant's split sentence under Penal Code section 1170, subdivision (h)(5) constituted a judgment of conviction that became final when defendant did not seek review of this court's decision affirming the judgment as modified. The Attorney General argues that McKenzie is distinguishable because the trial court there initially suspended the imposition of sentence and granted the defendant probation, such that when S.B. 180 took effect, there was no final judgment of conviction against the defendant.
Generally, "where [an] amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed," so long as the amended statute takes effect before the judgment of conviction is final. (In re Estrada (1965) 63 Cal.2d 740, 748 (Estrada); id. at p. 745.) "This rule rests on an inference that when the Legislature has reduced the punishment for an offense, it has determined the 'former penalty was too severe' [citation] and therefore 'must have intended that the new statute imposing the new lighter penalty . . . should apply to every case to which it constitutionally could apply' [citation]." (People v. DeHoyos (2018) 4 Cal.5th 594, 600.) Estrada's retroactivity rule pertains both to statutory amendments that reduce penal sanctions and those that eliminate penal sanctions entirely. (McKenzie, supra, 9 Cal.5th at p. 45.)
In McKenzie, the California Supreme Court considered "whether a convicted defendant who is placed on probation after imposition of sentence is suspended, and who does not timely appeal from the order granting probation, may take advantage of ameliorative statutory amendments that take effect during a later appeal from a judgment revoking probation and imposing sentence." (McKenzie, supra, 9 Cal.5th at p. 43.) Even though the time to appeal the order granting probation had lapsed, the court held that the ameliorative statutory amendments applied retroactively because "when the revisions to section 11370.2 took effect, defendant's ' "criminal proceeding . . . ha[d] not yet reached final disposition in the highest court authorized to review it." ' [Citations.]" (Id. at p. 45.)
Unlike in McKenzie, the trial court here imposed a six-year split sentence pursuant to Penal Code section 1170, subdivision (h)(5)(B), suspending the execution of two years of the total term to place defendant on mandatory supervision. Nonetheless, the California Supreme Court's reasoning in McKenzie provides guidance concerning whether S.B. 180's revisions to section 11370.2 apply retroactively to defendant.
The California Supreme Court reaffirmed in McKenzie that " ' "when the [L]egislature repeals a criminal statute or otherwise removes the State's condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct. The rule applies to any such proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it." ' [Citation.]" (McKenzie, supra, 9 Cal.5th at p. 45.) The court determined that in the situation before it, where the statutory amendments became effective during the defendant's appeal of the trial court's revocation of probation and imposition of sentence, "[i]t [could not] be said that this criminal prosecution or proceeding concluded before the ameliorative legislation took effect." (Id. at p. 46.)
Here, after S.B. 180 became effective, defendant was before the trial court because he violated the terms of his mandatory supervision. Penal Code section 1170, subdivision (h)(5)(B) provides that "[t]he period of supervision shall be mandatory, and may not be earlier terminated except by court order." The statute also states that "[a]ny proceeding to revoke or modify mandatory supervision under this subparagraph shall be conducted pursuant to either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3." (Ibid.) Subdivisions (a) and (b) of Penal Code section 1203.2 authorize a trial court to revoke, modify, or terminate a defendant's mandatory supervision when the defendant has been rearrested and has violated the conditions of his or her supervision, if the interests of justice so require. Penal Code section 1203.3, subdivision (a) otherwise permits a court "to revoke, modify, or change the conditions of the court's order suspending the execution of the concluding portion of the supervised person's term."
Penal Code section 1203.2, subdivisions (a) and (b) provide: "(a) At any time during the period of supervision of a person . . . (3) placed on mandatory supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170, . . . if any probation officer . . . has probable cause to believe that the supervised person is violating any term or condition the person's supervision, the officer may, without warrant or other process and at any time until the final disposition of the case, rearrest the supervised person and bring them before the court or the court may, in its discretion, issue a warrant for their rearrest. . . . Upon rearrest, or upon the issuance of a warrant for rearrest, the court may revoke and terminate the supervision of the person if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of the conditions of their supervision . . . . [¶] (b)(1) Upon its own motion or upon the petition of the supervised person, the probation or parole officer, or the district attorney, the court may modify, revoke, or terminate supervision of the person pursuant to this subdivision, except that the court shall not terminate parole pursuant to this section. . . . The court shall refer its motion or the petition to the probation or parole officer. After the receipt of a written report from the probation or parole officer, the court shall read and consider the report and either its motion or the petition and may modify, revoke, or terminate the supervision of the supervised person upon the grounds set forth in subdivision (a) if the interests of justice so require."
Penal Code section 1203.3, subdivision (a) provides: "The court has the authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person held. The court also has the authority at any time during the term of mandatory supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170 to revoke, modify, or change the conditions of the court's order suspending the execution of the concluding portion of the supervised person's term."
Thus, under Penal Code section 1170, subdivision (h)(5)(B), the trial court had the express statutory authority to terminate defendant's mandatory supervision when defendant came before the court for violating the conditions of his supervision. (See People v. Camp (2015) 233 Cal.App.4th 461, 470 (Camp) [Pen. Code § 1170, subd. (h)(5)(B) "contain[s] no limitation of any kind on a trial court's exercise of [its] authority" to terminate mandatory supervision].) Moreover, neither Penal Code section 1170, subdivision (h)(5)(B) nor Penal Code sections 1203.2, subdivisions (a) and (b) or 1203.3 required the trial court to order the suspended portion of defendant's sentence executed upon early termination of defendant's mandatory supervision. (See Camp, supra, at p. 470.) Given the trial court's ongoing authority to revoke, modify, or terminate defendant's mandatory supervision, "[i]t cannot be said that this criminal prosecution or proceeding concluded before the ameliorative legislation took effect." (McKenzie, supra, 9 Cal.5th at p. 46.)
This conclusion is consistent with the California Supreme Court's decision in People v. Chavez (2018) 4 Cal.5th 771 (Chavez), which the court relied on in McKenzie, supra, 9 Cal.5th at pages 46-47 to determine that S.B. 180 applied retroactively to the probationer defendant because the criminal proceedings against him had not concluded when the ameliorative legislation took effect. In Chavez, the court considered whether a trial court could dismiss the criminal action against the defendant pursuant to Penal Code section 1385 after the defendant's term of probation had expired. (Chavez, supra, at p. 777.) The court held that the trial court was without authority to do so because the action had ended when the defendant's probation expired. (Ibid.)
In reaching its decision, the California Supreme Court considered when a final judgment is pronounced in cases where a trial court grants probation. (Chavez, supra, 4 Cal.5th at p. 777.) The court explained that no final judgment is rendered when a trial court grants probation and suspends the imposition or the execution of sentence. (Id. at p. 781.) "In a case where a court suspends imposition of sentence, it pronounces no judgment at all, and a defendant is placed on probation with 'no judgment pending against [him or her].' [Citation.] In the case where the court suspends execution of sentence, the sentence constitutes 'a judgment provisional or conditional in nature.' [Citation.] The finality of the sentence 'depends on the outcome of the probationary proceeding' and 'is not a final judgment' at the imposition of sentence and order to probation. [Citation.]" (Ibid.) There is no final judgment in either of those situations because "[d]uring the probation period, the court retains the power to revoke probation and sentence the defendant to imprisonment" under Penal Code sections 1203.2 and 1203.3. (Chavez, supra, at p. 782.) "[T]he court's power to punish the defendant, including by imposing imprisonment, continues during the period of probation." (Ibid.)
Here, too, the trial court retained the authority to revoke defendant's mandatory supervision and order the remainder of defendant's sentence executed. (Pen. Code, §§ 1170, subd. (h)(5)(B), 1203.2, subds. (a), (b), 1203.3.) It also had the authority to terminate defendant's mandatory supervision (Pen. Code, § 1170, subd. (h)(5)(B)) or to modify its terms (Pen. Code, §§ 1203.2, subds. (a), (b), 1203.3). Thus, based on the California Supreme Court's reasoning in McKenzie and Chavez, we conclude that for retroactivity purposes, the trial court's suspension of the execution of a portion of defendant's sentence to place defendant on mandatory supervision pursuant to Penal Code section 1170, subdivision (h) "constitute[d] 'a judgment provisional or conditional in nature,' " rather than a final judgment, given the court's ongoing authority to revoke, modify, or terminate defendant's mandatory supervision during the supervision term. (Chavez, supra, 4 Cal.5th at p. 781.)
The Attorney General asserts that "[i]t is settled that an unappealed order of probation suspending execution of the sentence is final for retroactivity purposes after 60 days, yet such orders are still subject to modification under Penal Code sections 1203.2 and 1203.3, the same statutes that govern the modification of orders imposing split sentences." However, as we observed above, the California Supreme Court in Chavez stated that a grant of probation with the execution of sentence suspended "constitute[d] 'a judgment provisional or conditional in nature,' " rather than a final judgment. (Chavez, supra, 4 Cal.5th at p. 781.)
Accordingly, because the criminal proceedings against defendant were ongoing and, for retroactivity purposes, no final judgment had been pronounced against defendant when defendant appeared before the trial court on his violation of mandatory supervision, we determine that S.B. 180 applies retroactively to him. (See McKenzie, supra, 9 Cal.5th at p. 46 ["the cutoff point for application of ameliorative amendments [is] the date when the 'case[ ]' [citation] or 'prosecution[ ]' is 'reduced to final judgment.' [Citation.]"].) Our conclusion is consistent with the " 'consideration of paramount importance' " the California Supreme Court identified in Estrada: "the 'inevitable inference' that the Legislature, having 'determined that its former penalty was too severe,' 'must have intended' that the ameliorative statutory change 'should apply to every case to which it constitutionally could apply.' [Citation.] A contrary conclusion . . . would ' "serve no purpose other than to satisfy a desire for vengeance," ' and would have to rest on the impermissible view 'that the Legislature was motivated by [such] a desire.' [Citation.]" (McKenzie, supra, at p. 48.)
IV. DISPOSITION
The trial court's April 25, 2018 order revoking defendant's mandatory supervision is reversed. The matter is remanded for the trial court to strike the Health and Safety Code section 11370.2 enhancement and resentence defendant.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
ELIA, J.