Opinion
H046851
05-20-2021
THE PEOPLE, Plaintiff and Respondent, v. JOSE ANTONIO MACEDO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 18CR00605)
After a contested hearing, the trial court terminated defendant's probation and executed a previously suspended 10-year prison sentence. Defendant argues he is entitled to the retroactive application of ameliorative sentencing legislation enacted both while he was on probation (Senate Bill No. 1393 (2017-2018 Reg. Sess.)) and after he filed his appeal (Senate Bill No. 136 (2019-2020 Reg. Sess.)). As we will explain, we agree that the judgment was not final for retroactivity purposes at the time defendant's probation was revoked, and the trial court should have exercised its discretion under Senate Bill No. 1393 at that time. Defendant is also entitled to the benefit of Senate Bill No. 136 because the criminal prosecution has not yet been reduced to a final judgment after appellate review. We will therefore remand the matter for resentencing.
I. BACKGROUND
A jury convicted defendant of second degree robbery (Pen. Code, § 211) and misdemeanor assault (Pen. Code, § 240) in 2018. The trial court imposed and suspended execution of a 10-year prison term, and placed defendant on probation for five years. As a condition of probation, defendant was ordered to serve 364 days in county jail for the robbery and 180 days for the assault. The 10-year suspended prison term was composed of the upper term of five years for the robbery and a then-mandatory consecutive five years for a prior serious felony enhancement under Penal Code section 667, subdivision (a). The trial court struck the punishment for a prior strike (Pen Code, § 667, subds. (b)-(i)) and for three prior prison terms (Pen. Code, former § 667.5, subd. (b)). Defendant did not appeal from that judgment. Later that year, the governor signed Senate Bill No. 1393, which amended Penal Code section 1385 and gave the trial court discretion to strike or dismiss a prior serious felony enhancement or the additional punishment for the enhancement. (Stats. 2018, ch. 1013, § 2, eff. Jan. 1, 2019.) Senate Bill No. 136 was enacted a year later, amending Penal Code section 667.5, subdivision (b) to limit prior prison term enhancements to prison terms served for sexually violent offenses. (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.)
Defendant was found to have violated probation, and in 2019 the trial court executed the previously suspended 10-year prison sentence. Defendant did not seek relief under Senate Bill No. 1393 at or before the probation violation hearing. Defendant timely appeals from that judgment, arguing that the matter should be remanded for the trial court to consider whether to strike the now discretionary five-year enhancement, and to dismiss the three (stricken) one-year enhancements which no longer apply under Penal Code section 667.5, subdivision (b), as amended.
II. DISCUSSION
A. RETROACTIVITY
Defendant argues he is entitled to retroactive application of the statutory amendments under In re Estrada (1965) 63 Cal.2d 740, California's seminal case holding that ameliorative legislation applies retroactively to any judgment of conviction that is not yet final as of the legislation's effective date. (Id. at p. 744.) Defendant relies principally on People v. McKenzie (2020) 9 Cal.5th 40 (McKenzie) to argue that his criminal judgment was not final when the new laws became effective in January 2019 and January 2020. The Supreme Court in McKenzie held that a defendant who is placed on probation after imposition of sentence is suspended may take advantage of ameliorative statutory amendments that take effect during a later appeal from a judgment revoking probation and imposing sentence. (Id. at p. 43.)
The defendant in McKenzie pleaded guilty to several drug-related offenses and admitted prior convictions which triggered sentencing enhancements under Health and Safety Code, former section 11370.2. (McKenzie, supra, 9 Cal.5th at p. 43.) Imposition of sentence was suspended and he was placed on five years' probation. (Ibid.) Probation was later revoked and a prison sentence imposed, including enhancements for the prior convictions. (Ibid.) The defendant appealed, and one month after the Court of Appeal filed an opinion modifying and affirming the judgment, the governor signed legislation limiting the class of prior convictions that qualify for a sentencing enhancement under Health and Safety Code section 11370.2. (McKenzie, at p. 43.) The defendant petitioned the Supreme Court for review based on the new legislation, and the Supreme Court remanded the matter to the Court of Appeal with directions to reconsider the defendant's sentence in light of the revised statute. (Id. at p. 44.) On remand, the appellate court held that the defendant could take advantage of the ameliorative legislation that rendered the sentencing enhancements inapplicable in his case.
The Supreme Court affirmed, rejecting the Attorney General's argument that finality for Estrada purposes is the date the judgment of conviction becomes final for purposes of appeal under Penal Code section 1237. The Supreme Court explained that the phrase " 'judgment of conviction' " as used in Estrada does not refer to underlying convictions and enhancement findings exclusive of sentence. (McKenzie, supra, 9 Cal.5th at p. 46.) The Supreme Court in Estrada had referred to the cutoff point to receive the benefit of ameliorative legislation as "the date when the 'case[]' [citation] or 'prosecution[]' is 'reduced to final judgment' [citation]." (McKenzie, at p. 46, quoting Estrada at pp. 746, 747.) Building on Estrada, the Supreme Court stated in a later opinion addressing the retroactivity of ameliorative legislation to a non-final judgment that "an amendatory statute applies in ' "any [criminal] proceeding [that], at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it." ' " (McKenzie, at p. 46, quoting People v. Rossi (1976) 18 Cal.3d 295, 304.)
The Supreme Court in McKenzie observed that its interpretation is consistent with the pronouncement in Estrada that an ameliorative statutory change " 'should apply to every case to which it constitutionally could apply.' " (McKenzie, supra, 9 Cal.5th at p. 48.) That is also consistent with its recent decision in People v. Chavez (2018) 4 Cal.5th 771 (McKenzie, at p. 46), which held that the trial court's authority to render judgment (and thus dismiss a case under Penal Code section 1385) ends with the expiration of probation. (Chavez, at p. 777.) The Supreme Court in Chavez explained that a judgment never becomes final for a successful probationer, regardless of whether the grant of probation flows from " 'the suspension of the imposition or execution of a sentence.' " (Id. at p. 781, citing Pen. Code, § 1203, subd. (a) [defining "probation"].) Harkening to its discussion in Stephens v. Toomey (1959) 51 Cal.2d 864 regarding how probation laws affect the finality of a criminal judgment, the court impressed "that neither forms of probation—suspension of the imposition of sentence or suspension of the execution of sentence—results in a final judgment." (Chavez, 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].' [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.] Instead of a final judgment, the grant of probation opens the door to two separate phases for the probationer: the period of probation and the time thereafter." (Ibid., quoting Stephens v. Toomey, at pp. 870-872.)
McKenzie involved ameliorative legislation which took effect during an appeal from an order imposing a prison sentence after probation was revoked. Defendant's case also involves an appeal following the revocation of probation. It differs from McKenzie in that defendant was placed on probation after a prison term was imposed but suspended, and the ameliorative legislation took effect before defendant's probation was terminated. In our view, those distinctions do not demand a different outcome here. As the Supreme Court has made clear, a grant of probation creates only a provisional judgment whether probation is associated with suspending imposition or execution of sentence. (Chavez, supra, 4 Cal.5th at p. 781.) A judgment was ultimately rendered here when the trial court terminated defendant's probation and executed the previously imposed sentence, which occurred after Senate Bill No. 1393 went into effect. And because defendant has taken a timely appeal, the judgment is not yet final for purposes of Estrada. Defendant may therefore take advantage of both ameliorative amendments.
Our conclusion today—that defendant is entitled to the retroactive benefit of both Senate Bill No. 1393 and Senate Bill No. 136 even after a prison sentence was previously imposed but suspended—accords with People v. Contreraz (2020) 53 Cal.App.5th 965, review granted November 10, 2020, S264638, decided by a different panel of this court on remand from the Supreme Court for reconsideration in light of McKenzie, and the First District Court of Appeal's decision in People v. France (2020) 58 Cal.App.5th 714, review granted February 24, 2021, S266771. It also accords with this court's recent opinion in People v. Lopez (2020) 57 Cal.App.5th 409, review granted January 27, 2021, S266016. In Lopez, the trial court suspended execution of sentence and placed the defendant on mandatory supervision. (Id. at p. 412.) That panel concluded that ameliorative legislation enacted while the defendant was on mandatory supervision applied retroactively. Because the statutory scheme (Pen. Code, § 1203.3, subd. (a)) preserved the trial court's discretion to "at any time during the term of mandatory supervision ... revoke, modify, or change" its previously imposed sentence, the trial court retained the authority to retroactively apply the ameliorative statute. (Lopez, at p. 414.)
Citing People v. Howard (1997) 16 Cal.4th 1081 and People v. Scott (2014) 58 Cal.4th 1415, the Attorney General argues that the imposition of sentence created a final judgment, its suspended execution notwithstanding. But neither of those cases considered Estrada retroactivity. Howard held that upon revocation of probation in cases where the trial court had imposed and suspended execution of sentence, the trial court may not sentence the defendant anew but is constrained by Penal Code section 1203.2, subdivision (c) to "revoke the suspension and order that the judgment shall be in full force and effect." (Howard, at p. 1088; italics omitted.) Scott addressed the Criminal Justice Realignment Act of 2011, which "applied prospectively to any person sentenced on or after October 1, 2011." (Pen. Code, § 1170, subd. (h)(7).) Although the Scott court interpreted "sentenced" to mean "when a judgment imposing punishment is pronounced even if execution of the sentence is then suspended" (Scott, at p. 1423), the issue before the court was not retroactivity under Estrada. In light of the Supreme Court's reasoning in McKenzie and Chavez, we are also not persuaded by the Attorney General's other authorities. (See People v. Barboza (2018) 21 Cal.App.5th 1315; People v. McKenzie (2018) 25 Cal.App.5th 1207; People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1326; and People v. Amons (2005) 125 Cal.App.4th 855.)
B. REMEDY
The Attorney General agrees that if, as we have decided, the sentence imposed but suspended when defendant was granted probation does not constitute a final judgment for purposes of retroactivity, then reconsideration of the sentence is required. We therefore do not address defendant's prophylactic arguments regarding waiver, forfeiture, and trial counsel's effectiveness. The Attorney General observes that resentencing would occur as to "every aspect of the sentence," which we understand to mean the trial court would have authority on remand to reconsider not only whether to strike the prior serious felony enhancement, but also whether to strike the prior strike conviction. We agree full resentencing is appropriate here. (See People v. Buycks (2018) 5 Cal.5th 857, 893-895 [discussing full resentencing rule].) We will remand the matter for the trial court to strike the prior prison term enhancements which no longer apply to defendant under Penal Code section 667.5, subdivision (b), as amended, and to exercise its discretion under Penal Code section 1385 to determine whether to strike defendant's prior strike conviction, or the prior serious felony enhancement, or both.
III. DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court for resentencing. The trial court shall strike the prior prison term enhancements which no longer apply to defendant under Penal Code section 667.5, subdivision (b), as amended, and exercise its discretion under Penal Code section 1385 as to the prior strike conviction and the prior serious felony enhancement. The trial court shall enter a new order revoking and terminating probation and executing sentence, and forward a copy of that order and an amended abstract of judgment to the Department of Corrections and Rehabilitation.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Greenwood, P. J. /s/_________
Danner, J.