Filed 2/23/21 P. v. Ochoa CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A159789
v.
MANUEL MATIAS OCHOA, (Napa County
Super. Ct. No. CR182855)
Defendant and Appellant.
Defendant Manuel Matias Ochoa pled no contest to a felony and
admitted a one-year prior prison term enhancement (Pen. Code, § 667.5,
subd. (b).1) The trial court sentenced him to a three-year split-sentence
pursuant to section 1170, subdivision (h)(5)(B), suspending execution of part
of his sentence for a period of mandatory supervision. Months later, Senate
Bill No. 136 went into effect, restricting prior prison term enhancements
under section 667.5, subdivision (b), to sexually violent prior offenses.
(Stats. 2019, ch. 590, § 1.) After that change in the law, defendant admitted
violating the terms of his mandatory supervision, and the court terminated
his mandatory supervision and ordered execution of the suspended portion of
his sentence. At the sentencing hearing, the court denied defendant’s motion
1 All further statutory references are to the Penal Code.
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to strike the prior prison term enhancement, believing he was ineligible for
relief under Senate Bill No. 136. Defendant presently claims the court erred
in denying his motion to strike because his sentence was not yet final when
Senate Bill No. 136 went into effect. We agree with defendant and remand
the matter to the trial court with directions to grant the motion to strike the
enhancement.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2017, the People charged defendant with a felony count for
carrying a dirk or dagger (§ 21310), and misdemeanor counts for receiving
stolen property (§ 496, subd. (a)) and attempted petty theft (§§ 664/484
subd. (a)). As to the felony count, the People further alleged a prior prison
term enhancement (§ 667.5, subd. (b) (“667.5(b)”) based on a prior conviction
under section 496, subdivision (a). Defendant pled no contest to the
section 21310 count and admitted the enhancement allegation. In May 2017,
the trial court suspended imposition of a sentence and placed defendant on
probation for three years.
In May 2019, the trial court revoked probation and imposed a three-
year split sentence pursuant to section 1170, subdivision (h)(5)(B),
suspending execution of a portion of the sentence for a period of mandatory
supervision. In December 2019, the probation officer filed a petition to
revoke mandatory supervision, and the court summarily revoked it and
issued a bench warrant.
Meanwhile, effective January 1, 2020, Senate Bill No. 136 (SB 136)
amended section 667.5(b) to provide that prior prison term enhancements
were no longer authorized unless the prior was for a sexually violent offense.
(Stats. 2019, ch. 590, § 1.)
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Later in January 2020, defendant was taken into custody, and he
admitted violating the terms of his mandatory supervision at a revocation
hearing. Prior to his sentencing, he filed a memorandum arguing that his
section 667.5(b) enhancement should be stricken because his prior prison
term was not for a sexually violent offense and, after SB 136’s amendment,
section 667.5(b) no longer authorized the enhancement in his case. The
People filed opposition. On February 27, 2020, the trial court denied
defendant’s motion to strike the enhancement, reasoning that the judgment
in defendant’s case became final when the court initially imposed the split
sentence and the time to appeal lapsed. The court then terminated
mandatory supervision and ordered execution of the suspended portion of the
sentence. Defendant appealed.
DISCUSSION
Penal statutes generally operate prospectively (§ 3), but ameliorative
statutory amendments apply in cases where the judgment of conviction is not
yet “final.” (In re Estrada (1965) 63 Cal.2d 740, 744 (Estrada).) Under
Estrada, SB 136’s amendments apply retroactively to cases that are not yet
final. (People v. Winn (2020) 44 Cal.App.5th 859, 872–873.) Here we decide
whether there was a final judgment for purposes of Estrada retroactivity
when the court initially imposed the split sentence in defendant’s case and
defendant did not appeal.
Relying principally on People v. McKenzie (2020) 9 Cal.5th 40
(McKenzie), defendant contends his unappealed split sentence did not
constitute a final judgment on January 1, 2020, when SB 136 took effect. In
McKenzie, the California Supreme Court concluded that a 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
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ameliorative statutory amendments that take effect during a later appeal
from a judgment revoking probation and imposing sentence.” (McKenzie, at
pp. 43, 45–47.)
The People disagree, analogizing the imposition of a split sentence to
the situation where a court imposes but suspends execution of a sentence and
places a defendant on probation. In both situations, the People contend, the
court has rendered a judgment that is final for purposes of Estrada when no
appeal is taken after the imposition of the sentence.2 In the People’s view,
McKenzie is distinguishable because it concerned a situation where the court
granted probation by suspending imposition of the sentence, rather than by
imposing a sentence and suspending its execution. (McKenzie, supra, 9
Cal.5th at p. 43.)
To their credit, the People acknowledge that the reasoning in this
division’s decision in People v. Conatser (2020) 53 Cal.App.5th 1223
(Conatser), review granted November 10, 2020, S264721, compels agreement
with defendant’s position. The People request that if we follow Conatser, we
remand the matter with directions that the trial court strike the
enhancement.
We review the issue of the retroactive application of the statute de
novo. (In re Marriage of Fellows (2006) 39 Cal.4th 179, 183.)
As mentioned, the defendant in McKenzie did not appeal from the order
suspending imposition of his sentence and granting him probation. While
observing that “[i]n criminal actions, the terms ‘judgment’ and ‘ “sentence” ’
are generally considered ‘synonymous’ ” (McKenzie, supra, 9 Cal.5th at p. 46),
2 The People acknowledge the Supreme Court recently granted review to
address when a judgment becomes final for purposes of Estrada where
probation is granted and execution of the sentence is suspended.
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McKenzie held the defendant was entitled to the benefit of ameliorative
legislation that took effect during the pendency of his appeal after the
revocation of probation because “the prosecution had not been ‘reduced to
final judgment at the time’ the revisions took effect” (id. at pp. 43, 45). In
reaching this conclusion, the Supreme Court explained: “there is no
‘judgment of conviction’ without a sentence [citation]. Moreover, in Estrada,
we also referred to the cutoff point for application of ameliorative
amendments as the date when the ‘case[]’ [citation] or ‘prosecution[]’ is
‘reduced to final judgment’ [citation]. And in [People v. Rossi (1976) 18 Cal.3d
295, 304] we stated 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.) Thus, McKenzie held, the defendant’s criminal
prosecution or proceeding had not concluded before the ameliorative
legislation took effect. (Ibid.)
As pertinent here, McKenzie rejected the People’s argument that the
defendant was not entitled to relief because he failed to appeal from the order
initially granting him probation, which is deemed a “final judgment” for
purposes of section 1237. (McKenzie, supra, 9 Cal.5th at pp. 46–48.) In so
doing, McKenzie clearly indicated that finality for purposes of conferring
appellate jurisdiction under section 1237 does not necessarily correspond
with finality for purposes of Estrada. (McKenzie, at pp. 47–48.) As part of its
reasoning, McKenzie cited People v. Chavez (2018) 4 Cal.5th 771 (Chavez)
with approval. (McKenzie, at pp. 46–48.)
Chavez was a case where the trial court suspended imposition of the
defendant’s sentence and placed him on probation. Four years after
successfully completing probation, the defendant petitioned for dismissal of
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his case under section 1385. (Chavez, supra, 4 Cal.5th at p. 777.) There the
Supreme Court addressed the question: “Given that a grant of probation is
not a final judgment, when—if ever, for purposes of section 1385—does a
judgment become final for a defendant who is granted and completes
probation?” (Chavez, at p. 781.)
To answer that question, Chavez reviewed the probation statutes and
the cases interpreting them. As Chavez explained, “[s]ection 1203,
subdivision (a) defines ‘probation’ as ‘the suspension of the imposition or
execution of a sentence and the order of conditional and revocable release in
the community under the supervision of a probation officer.’ Going as far back
as Stephens v. Toomey (1959) 51 Cal.2d 864 [338 P.2d 182], we have
explained that neither forms of probation—suspension of the imposition of
sentence or suspension of the execution of sentence—results in a final
judgment. In a case where a court suspends imposition of sentence, it
pronounces no judgment at all . . . . [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.” (Chavez, supra, 4 Cal.5th at p. 781, italics added.)
During the probation period, the court possesses the power “to revoke
probation and sentence the defendant to imprisonment,” or alternatively, to
“dismiss a criminal action in the interests of justice.” (Chavez, supra, 4
Cal.5th at p. 782.) “Once probation ends, however, a court’s power is
significantly attenuated,” and “the court at that point may no longer revoke
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or modify its order granting probation.” (Ibid.) Thus, once the ability to
pronounce judgment runs out—as it does at the expiration of a probation
period—the court’s ability to grant relief under section 1385 is lost. (Id. at
pp. 783–784.)
Given the reasoning in McKenzie and Chavez, we cannot agree with the
People that an unappealed split sentence becomes “final” for purposes of
Estrada during a period of ongoing mandatory supervision. Indeed, the same
statutes that govern probation also authorize courts to “revoke, modify, or
change the conditions of the court’s order” imposing a period of mandatory
supervision. (§ 1203.3, subd. (a); see § 1203.2, subds. (a)–(b); People v. Camp
(2015) 233 Cal.App.4th 461, 468–469.) Thus, courts are empowered to revoke
mandatory supervision and order a defendant imprisoned for the remainder
of his or her sentence (§ 15; see Chavez, supra, 4 Cal.5th at p. 782 [“court’s
power to punish the defendant, including by imposing imprisonment,
continues during the period of probation”]), or alternatively, courts may
simply terminate mandatory supervision without placing the defendant back
in custody (Camp, at pp. 464, 470–476). The logic of McKenzie and Chavez
provides strong analogous support for the conclusion that, here, defendant’s
criminal action was not final but still ongoing when SB 136 became effective
during his period of mandatory supervision.
The People’s reliance on People v. Scott (2014) 58 Cal.4th 1415 and
People v. Ramirez (2008) 159 Cal.App.4th 1412 is misplaced. Neither Scott
nor Ramirez mentioned Estrada, much less considered the issue of what
constitutes a final judgment for purposes of Estrada.
In sum, defendant is entitled to relief because his case was ongoing and
no final judgment had been reached when SB 136 went into effect.
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In terms of remedy, defendant asks that we remand this case to the
trial court to strike his section 667.5(b) enhancement. The People are
agreeable to this disposition in the event we follow Conatser, which we do.
Accordingly, we will order the enhancement stricken.
DISPOSITION
The order of the trial court denying defendant’s motion to strike the
section 667.5(b) enhancement is reversed. The matter is remanded to the
trial court with directions to enter a new order granting defendant’s motion
to strike the enhancement.
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_________________________
Fujisaki, Acting P.J.
WE CONCUR:
_________________________
Petrou, J.
_________________________
Wiseman, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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