Filed 5/4/21 P. v. Burgos CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C091602
Plaintiff and Respondent, (Super. Ct. No. 62163025)
v.
TIMOTHY DION BURGOS,
Defendant and Appellant.
Defendant Timothy Dion Burgos appeals an order revoking his probation and
executing a suspended sentence which included two one-year terms for two prison priors
under former Penal Code section 667.5, subdivision (b) (Stats. 2014, ch. 442, § 10). He
contends that the two prior prison term enhancements must be stricken from his sentence
because he is entitled to the benefits of Senate Bill No. 136 (2019-2020 Reg. Sess.)
(Stats. 2019, ch. 590, § 1) (Senate Bill 136), which became effective on January 1, 2020,
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during the pendency of the current appeal. We agree and remand the matter for further
proceedings.
FACTS AND HISTORY OF THE PROCEEDINGS
Defendant pleaded no contest to possessing drugs while incarcerated (Pen. Code,
§ 4573.6, subd. (a) - statutory section references that follow are to the Penal Code) and
admitted two prior prison terms (§ 667.5) for a stipulated sentence of five years,
including two one-year enhancements for the prior prison terms. The court imposed
sentence, suspended execution, and placed defendant on five years’ formal probation. A
few months later, after a hearing, the trial court found defendant had violated probation
and revoked probation. At the sentencing hearing, trial counsel made a motion for the
court to strike defendant’s prison priors, based on then newly enacted Senate Bill 136,
restricting prior prison term enhancements under section 667.5, subdivision (b), to
sexually violent prior offenses. (Stats. 2019, ch. 590, § 1.) The trial court denied the
motion. The trial court ordered the previously imposed sentence executed.
DISCUSSION
I
Final Judgment
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, 748.) “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)
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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. (People v.
McKenzie (2020) 9 Cal.5th 40, 45 (McKenzie).)
When the trial court originally sentenced defendant, section 667.5, subdivision (b)
required it to add one-year enhancements to his sentence for each prior prison term.
(People v. Jennings (2019) 42 Cal.App.5th 664, 681.) The Legislature subsequently
enacted Senate Bill 136, which, effective January 1, 2020, limits the applicability of prior
prison term sentence enhancements to terms served for sexually violent offenses.
(Jennings, at p. 681.) The provisions of Senate Bill 136 apply retroactively to cases that
are not yet final on appeal. (Jennings, at pp. 681-682.) So, the question for us is whether
defendant’s judgment was final for purposes of retroactivity.
“In criminal actions, the terms ‘judgment’ and ‘ “ sentence” ’ are generally
considered ‘synonymous’ [citation] and there is no ‘judgment of conviction’ without a
sentence [citation.].” (McKenzie, supra, 9 Cal.5th at p. 46.) Generally, a judgment is
rendered when a trial court orally pronounces the sentence. (People v. Karaman (1992)
4 Cal.4th 335, 344, fn. 9.) Once a criminal sentence is imposed, it becomes a final
judgment if the defendant does not appeal within 60 days. (People v. Barboza (2018)
21 Cal.App.5th 1315, 1318–1319; see also Cal. Rules of Court, rule 8.308(a).)
The timing of a criminal judgment, however, differs if a trial court grants
defendant probation, either by suspending imposition of sentence, or by imposing
sentence and suspending its execution. “[N]either forms of probation—suspension of the
imposition of sentence or suspension of the execution of sentence—results in a final
judgment.” (People v. Chavez (2018) 4 Cal.5th 771, 781 (Chavez).) When a trial court
suspends imposition of sentence, it does not pronounce a judgment at all, and a defendant
is placed on probation without a judgment pending against him or her. (Ibid.) When a
court suspends execution of sentence, a provisional or conditional judgment is imposed,
and the finality of the sentence depends on the outcome of the probationary proceeding.
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(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 sections 1203.2 and 1203.3. (Id. at p. 782.) “[T]he
court’s power to punish the defendant, including by imposing imprisonment, continues
during the period of probation.” (Ibid.)
Nor does section 1237 make an order of probation a final judgment for purposes of
retroactivity. “[A]n order granting probation is deemed a ‘final judgment’ for the
purpose of taking an appeal” (Chavez, supra, 4 Cal.5th at p. 786), it “ ‘does not have the
effect of a judgment for other purposes.’ ” (Ibid.) Rather, section 1237 operates simply
to make an otherwise unappealable order appealable with the same scope of review as
though taken from a final judgment of conviction. “ ‘[F]or purposes other than those of
[Penal Code] section 1237 there is a substantial and . . . pertinent difference between an
order granting probation and a final judgment as such.’ [Citation.]” (McKenzie, supra,
9 Cal.5th at pp. 47-48.)
In McKenzie, our Supreme Court recently considered the related but distinct issue
of “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.) McKenzie concluded that the ameliorative statutory amendments
applied retroactively because when the revisions 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.)
Two published cases have applied McKenzie in situations similar to the one here,
where the trial court granted probation, imposed sentence, and suspended execution.
Relying on McKenzie and Chavez, each has concluded the judgment is not final for the
purposes of retroactive application of an ameliorative change in the law under Estrada.
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(People v. France (2020) 58 Cal.App.5th 714, review granted Feb. 24, 2021, S266771;
People v. Contreraz (2020) 53 Cal.App.5th 965, review granted Nov. 10, 2020,
S264638.) Three published cases have also applied McKenzie in the analogous situation
where the trial court has imposed a split sentence, and suspended execution of a portion
to place the defendant on mandatory supervision. These cases have also relied on the
reasoning of McKenzie and Chavez to conclude the judgment is not final for purposes of
applying Estrada. (People v. Lopez (2020) 57 Cal.App.5th 409, review granted Jan. 27,
2021, S266016; People v. Conaster (2020) 53 Cal.App.5th 1223, review granted Nov. 10,
2020, S264721; People v. Martinez (2020) 54 Cal.App.5th 885, review granted Nov. 10,
2020, S264848.)
Given these authorities, we cannot agree with the People that an unappealed grant
of probation, where sentence is imposed and execution suspended, becomes “final” for
purposes of Estrada during a period of ongoing probation. Although they are not directly
on point, given the reasoning in McKenzie and Chavez, we agree with these cases that
just as where probation is granted and imposition of sentence is suspended, when
sentence is imposed and execution suspended, the court’s authority to “revoke, modify,
or change” the conditions of the court’s order continues during probation period. (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”].) Thus, defendant’s
judgment was not final for purposes of retroactivity under Estrada but was ongoing when
Senate Bill 136 became effective during his period of probation. Because defendant’s
conviction is not yet final on appeal, and it is undisputed that he did not serve a prior
prison term for any qualifying offenses, we conclude Senate Bill 136 applies retroactively
to his case.
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II
Remedy
Defendant contends his prior prison term enhancements should be stricken. The
People contend the matter should be remanded to the trial court to permit them to
withdraw from the plea. Based on our Supreme Court’s recent decision in Stamps, we
conclude the enhancements must be stricken upon remand should defendant decide he
wants to continue pursuing relief under Senate Bill 136, but that the prosecution should
be given the opportunity to withdraw from the plea agreement if it chooses.
In Stamps, the defendant pleaded no contest to one count of first degree burglary
and stipulated to a nine-year sentence consisting of two years for the burglary, doubled
under the Three Strikes law (§ 1170.12, subd. (c)(1)), plus five years for a prior serious
felony enhancement (§ 667, subd. (a)(1)). (People v. Stamps (2020) 9 Cal.5th 685, 693
(Stamps).) In exchange for the plea, two other counts of first degree burglary and a
second prior serious felony enhancement allegation were dismissed. (Ibid.)
At the time of sentencing, the trial court did not have discretion to strike the
serious felony enhancement imposed under section 667, subdivision (a)(1). (Stamps,
supra, 9 Cal.5th at p. 693.) However, while defendant’s appeal was pending, Senate Bill
No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) took effect, giving trial courts the
discretion to dismiss such enhancements. (Stamps, at p. 693.) On appeal, the defendant
argued that Senate Bill 1393 applied retroactively to his case and required a remand so
the trial court could decide whether to strike the serious felony enhancement, while
otherwise preserving the plea agreement. (Stamps, at p. 693.)
After concluding that the defendant was not required to obtain a certificate of
probable cause, and that Senate Bill 1393 applied retroactively to his case on appeal, the
Supreme Court turned to the question of remedy. (Stamps, supra, 9 Cal.5th at pp. 700-
709.) The court rejected the defendant’s argument that the proper remedy was to remand
the matter to the trial court to consider striking the serious felony enhancement, while
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otherwise maintaining the balance of the negotiated plea agreement. (Id. at p. 700.)
Noting that the parties entered into a plea agreement for a specific prison term, the court
held that under long-standing law (see, e.g., § 1192.5), once a court has accepted the
terms of a plea agreement, it cannot modify the terms of that bargain without the
agreement of the parties. (Stamps, at pp. 700-701.) While recognizing that the
Legislature could authorize courts to modify or invalidate the terms of a plea agreement
without affording the People an option to rescind the agreement, the court found nothing
to demonstrate the Legislature intended Senate Bill 1393 to have that effect. (Stamps, at
pp. 702-704.)
In reaching its conclusion, the court distinguished Harris v. Superior Court (2016)
1 Cal.5th 984 (Harris), which held that the People are not entitled to withdraw from a
plea agreement when a defendant petitions to have a felony conviction recalled and
resentenced as a misdemeanor under Proposition 47 (enacted by the electorate Nov. 4,
2014). (Stamps, supra, 9 Cal.5th at pp. 702-704; see Harris, supra, at p. 993.) In Harris,
it was undisputed that the defendant was entitled to have his conviction reduced and
resentenced as a misdemeanor under Proposition 47. (Harris, at p. 989.) The question
before the court was whether the People should be permitted to withdraw from the plea
on the basis that the resentencing would deprive them of the benefit of their bargain. (Id.
at pp. 988-989.) The court held that the answer to this question depended on the “intent
behind Proposition 47.” (Harris, at p. 991.) Based on “unambiguous language” that
Proposition 47 applies to defendants convicted by plea, and the expressed intent of
Proposition 47 to reduce the number of nonviolent offenders in state prisons, the court
concluded that the Legislature intended to modify or invalidate the terms of plea
agreements without affording the People the option to withdraw from the agreement.
(Harris, at pp. 992-993.)
Unlike the legislation in Harris, the Stamps court noted that Senate Bill 1393 was
“silent regarding pleas.” (Stamps, supra, 9 Cal.5th at p. 704.) Further, the court held,
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allowing a defendant to strike an enhancement under Senate Bill 1393 while otherwise
retaining the benefits of the bargain would frustrate the legislative intent to have the law
apply uniformly, by creating “special rules” for plea cases. (Stamps, at p. 704.) Thus, the
court held that Senate Bill 1393 was not intended “to change well-settled law that a court
lacks discretion to modify a plea agreement unless the parties agree to the modification.”
(Stamps, at p. 702.)
Rejecting the defendant’s argument that he should be permitted to “ ‘ “whittle
down the sentence ‘but otherwise leave the plea bargain intact’ ” ’ ” (Stamps, supra,
9 Cal.5th at p. 706), the court concluded in Stamps that the proper remedy is to give
defendant the choice whether to seek relief under Senate Bill 1393, knowing that if the
trial court exercises its discretion to strike the enhancement, the People (and the court)
will be entitled to withdraw their prior approval of the plea agreement. (Stamps, at
pp. 706-709.)
In this case, the changes made by Senate Bill 136 limiting the prior offenses that
qualify for a prior prison term enhancement are similar to the changes made by Senate
Bill 1393 allowing courts to dismiss a serious felony enhancement in furtherance of
justice. Although Senate Bill 136 is mandatory, and the trial court’s authority under
Senate Bill 1393 is discretionary, both Stamps and Harris make clear that the key inquiry
is not whether legislation is mandatory or discretionary, but whether the Legislature
intended the legislation to overturn existing law that a court cannot modify an agreed-
upon term without the parties’ agreement. (Stamps, supra, 9 Cal.5th at pp. 701-705;
Harris, supra, 1 Cal.5th at pp. 991-992.) We conclude that Senate Bill 136 reflects no
such intent, as it is “silent regarding pleas and provides no express mechanism for relief
undercut[ting] any suggestion that the Legislature intended to create special rules for plea
cases.” (Stamps, at p. 704.) Our interpretation does not nullify the legislative purpose
behind the ameliorative provisions of the legislation because the legislation was never
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intended to overturn the “well-settled law” that a court lacks discretion to modify a plea
agreement without the parties’ consent. (Stamps, at p. 702.)
“ ‘The process of plea bargaining which has received statutory and judicial
authorization as an appropriate method of disposing of criminal prosecutions
contemplates an agreement negotiated by the People and the defendant and approved by
the court.’ ” (Stamps, supra, 9 Cal.5th at p. 705.) “ ‘Judicial approval is an essential
condition precedent to the effectiveness of the “bargain” worked out by the defense and
prosecution.’ ” (Ibid.) Because the two one-year prior prison term enhancements were a
material part of defendant’s global plea bargain originally negotiated by the parties and
approved by the court, under which the People dismissed the remaining charges and
allegations in several pending matters, the People and the court must be given the
opportunity to withdraw their approval of the agreement if defendant should seek the
benefit of the retroactive change in the law upon remand.
Thus, we shall conditionally reverse to give defendant the opportunity to seek
Senate Bill 136 relief upon remand. If he does, the People and the court must have the
opportunity to withdraw their approval of the plea bargain once the trial court strikes the
unauthorized enhancements.
DISPOSITION
The judgment is conditionally reversed and remanded to the superior court with
directions to allow defendant the opportunity to seek relief under Senate Bill 136. If
defendant chooses to pursue such relief, the trial court shall strike the two one-year prior
prison term enhancements under section 667.5, subdivision (b), and allow the People and
court the opportunity to withdraw their prior approval of the plea agreement. Once the
new judgment is entered, the trial court is directed to prepare a new abstract of judgment,
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reflecting the new judgment, and forward a copy to the Department of Corrections and
Rehabilitation.
HULL, Acting P. J.
I concur:
MAURO, J.
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HOCH, J., Concurring and Dissenting.
I agree with the majority opinion except for the remedy.
I fully concur in the majority opinion concerning retroactive application of Senate
Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) and the application of People v.
Stamps (2020) 9 Cal.5th 685, 705-709 (Stamps). I agree defendant is entitled to have his
Penal Code section 667.5, subdivision (b)1 enhancements stricken based on Senate Bill
136 and In re Estrada (1965) 63 Cal.2d 740. On remand, I also agree that the trial court
and the prosecution are entitled to withdraw their approval from the plea agreement.
However, I do not agree that defendant has a choice whether to continue to seek such
relief under Senate Bill 136.
Once this court has determined that defendant’s section 667.5, subdivision (b)
enhancements are unauthorized, they must be stricken from the sentence.
In Stamps, the Supreme Court addressed the retroactive application of section 667,
subdivision (a) giving the trial courts discretion to strike a prior serious felony
enhancement. The plea agreement in Stamps did not result in an unauthorized sentence
following Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393); that
enactment simply gave the trial court new discretion to strike the serious felony
enhancement in furtherance of justice. However, if the trial court decided to exercise that
discretion, this would alter the plea agreement, something “long-standing law” has
prevented the trial court from doing unilaterally. (Stamps, supra, 9 Cal.5th at pp. 700-
701.) Accordingly, unless Senate Bill 1393 contained some indication that the
Legislature intended to “overturn existing law regarding a court’s lack of authority to
unilaterally modify a plea agreement,” the prosecution would have to agree to any
modifications made to the plea agreement. (Stamps, at p. 702.) Finding no indication the
1 Undesignated statutory references are to the Penal Code.
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Legislature so intended, our Supreme Court concluded that if the trial court decided to
exercise its new discretion to strike the enhancements on remand, the prosecution would
have the ability to either approve the modified plea agreement or withdraw from the
agreement entirely. (Id. at p. 707.) Because of these potential consequences to the plea
agreement, Stamps concluded it was the defendant’s choice whether to seek Senate Bill
1393 relief. (Stamps, at p. 707.)
Unlike the situation in Stamps, where the defendant’s decision not to seek Senate
Bill 1393 relief would not have resulted in him serving an unauthorized sentence, a
defendant raising Senate Bill 136 on appeal has brought to this court’s attention that his
or her sentence is unauthorized as presently configured. I agree with the analysis and
remedy in People v. Hernandez (2020) 55 Cal.App.5th 942, review granted January 27,
2021, S265739. It concludes the unauthorized enhancements must be stricken and allows
the People and the trial court the opportunity to withdraw their prior approval of the plea
agreement.
HOCH, J.
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