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Filed 2/23/21 P. v. Ochoa CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. MANUEL MATIAS OCHOA , Defendant and Appellant. A 159789
( Napa County Super. Ct. No. CR182855 )

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 ) T he 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 enhancement s under sectio n 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 m andatory 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.2

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

. F ACTUAL AND P ROCEDURAL B ACKGROUND 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, t he People further alleged a prior prison
term enhancement (§ 667.5, subd. (b) ( “ 667.5(b ) ” ) based on a prior conviction
under section 496, subd ivision (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 th ree 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 t he court summarily revoked it and
issued a bench warrant

. Meanwhile , e ffective 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

. )3

Later in January 2020 , defendant was taken into custody , and he
admit ted 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 t o 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 suspende d portion of the sentence. Defendant appealed.
D ISCUSSION 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

– 87 3.) 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 ), d efendant 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 of4

ameliorative statutory amendments that take effect during a later appeal from a judgment revoking prob ation 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. I n both situations, the People contend, the court has rendered a judgment that is final for purposes of Es trada 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 suspend ing 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. Cona ts er (2020) 53 Cal.App.5th 1223 ( Conat s er ) , review granted November 10, 2020, S264721 , compel s agreement with defendant’s position

. The People request that if we follow Conat s er , we remand the matter with directions that the trial court strike the
enhancement.
We review the issue of the retroac tive 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 T he 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.5

McKenzie held the defendant was entitled to the benefit of ameliorative legislation that too k 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” ( i d. at p p

. 43, 45 )

. In reaching this conclusion, the Supreme C ourt 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 th e 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 . ( McKenzi e , 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.) C havez was a case where the trial court suspended imposition of the defendant’s sentence and placed him on pro bation . Four years after successfully completing probation, the defendant p etitioned for dismissal of6

his case under section 1385 . ( Chavez , supra , 4 Cal.5th at p. 777.) The re 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 p robation statutes and
the cases interpreting them. As Chavez explained, “[s] ection 1203, subdivision (a) defines ‘p robation ’ a s ‘ 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 al l

. . . . [Citation.] In the case where the court suspends execution of sentence, the sentence constitutes ‘ a judgment

prov isional 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 judgm ent, 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.5 th 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.5 th at p. 782.) “Once probati on ends, however, a court’s power is significantly attenuated , ” and “the court at that point may no longer revoke7

or modify its order granting probation.” ( I bi d .) Thus, once the ability to pronounce judgment runs out

— as it does at the expiration of a pro bation 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 a n 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 court s to “revoke, modify, or change the conditions of the court’s order ” imposing a p eriod of mandatory supervision. (§ 1203.3, subd. (a); see § 1203.2, subds. (a)

– (b); People v. Camp (2015) 233 Cal.App.4th 461, 4 68

– 469 .) Thus, c ourts 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) . T he logic of McKenzie and Chavez provides strong analogous support for the conclusion that , here, defendant’s
criminal action wa s 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.8

In terms of remedy , def endant 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 Cona ts er , which we do

. Accordingly , we will order the enhancement stricken

. D ISPOSITION The order of the trial court denying defendant ’ s motion to strike the
section 667.5(b) enhancement is reversed

. T he matter is remanded to the
trial court with directions to enter a new order granting defendant ’ s motion
to strike the enhanceme nt

.9 _________________________ 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.