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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 

ordered 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.

 A159789

 (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) 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 threeyear 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.