Filed 3 /14/18 ; Certified for Publication 4/9/18 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO ARTURO BARBOZA,

Defendant and Appellant. A150888

(San Francisco County

Super. Ct. No. SCN216914)

INTRODUCTION

Defendant Barboza argues his robbery conviction should be reversed and

remanded to juvenile court pursuant to Proposition 57, which abolished the direct filing

of criminal charges against juveniles in adult criminal court. Our S upreme C ourt’s recent

decision in People v. Superior Court (Lara) (2018) 4 Cal.5th 299 ( Lara ) vindicates

defendant’s position that Proposition 57 is retroactive. However, defendant does not

benefit from Lar a because the judgment in his case is final.

STATEMENT OF THE CASE

On November 29, 2011, the San Francisco District Attorney filed a multi

- count

information in superior court charging Barboza with various felonies and enhancement

allegations. On July 1, 2016, p ursuant to a negotiated disposition, Barboza pleaded guilty

to one count of robbery (Pen. Code

, § 211) and admitted an armed

- with

- a

- firearm

allegation (Pen. Code, § 12022, subd. (a)(1)) . The remaining counts and enhancement

allegations were dismis sed by the court on the prosecution’s motion. The information

,filed directly in adult court, alleged that at the time of the commission of the offense,

defendant was a minor 16 years of age or older within the meaning of Welf are and

Institutions Code sec tion 707, former subd ivision (d)(1).)

On July 25, 2016, the trial court imposed a six

- year prison sentence, suspended

execution of that sentence, and placed defendant on formal probation for five years on

various terms and conditions. Defendant did not appeal.

On November 8, 2016, the voters approved Proposition 57, which repealed section

707, former subdivision (d) (Prop. 57, § 4.2, as approved by voters, Gen. Elec. (Nov. 8,

2016), eff. Nov. 9, 2016) and now requires “a judge, not a prosec u tor, to dec ide whether

juveniles should be tried in adult court.” (Voter Information Guid e, Gen. Elec. (Nov. 8,

2016) tex t of Prop. 57, Public Safety and Rehabilitation Act of 2016, § 2, p.141 ; § 707,

subd. (a)(1).) On December 8, 2016, defendant filed a motion req uesting his case be

remanded to the juvenile court on the ground that Proposition 57’s repeal of section 707,

subdivision (d) applies retroactively to minors whose nonfinal convictions rest on charges

directly filed in adult court. The motion was denied. Defendant timely appeals. 1

DISCUSSION

In Lara

, supra

, 4 Cal.5th 299, our Supreme Court held the rationale of In re

Estrada (1965) 63 Cal.2d 740 ( Estrada ) and People v. Francis (1969) 71 Cal.2d 66

applies to a statutory change that make s reduced punishment possible. ( Lara , at p. 303.)

“The possibility of being treated as a juvenile in juvenile court

— where rehabilitation is

the goal

— rather than being tried and sentenced as an adult can result in dramatically

different and more lenient tr eatment. Therefore, Proposition 57 reduces the possible

punishment for a class of persons, namely juveniles. For this reason, Estrada’ s inference

of retroactivity applies. As nothing in Proposition 57’s text or ballot materials rebuts this

inference, we conclude this part of Proposition 57 applies to all juveniles charged directly

1 As the facts underlying defendant’s conviction are not relevant to the issue raised

on appeal, we do not summarize them.

2in adult court whose judgment was not final at the time it was enacted.” ( Id

. at pp. 303

–

304.)

Lara does not help defendant because the judgment in his case is final. When a

trial court imposes a state prison sentence and suspends execution of that sentence during

a probationary period, the judgment rendered is a final judgment for the purposes of

appeal

. ( People v. Amons (2005) 125 Cal.App.4 th 855, 869

– 870; People v. Chagolla

(1984) 151 Cal.App.3d 1045, 1050

– 1051 , cited with approval in People v. Howard

(1997) 16 Cal.4th 1081, 1088 ( Howard ) .) “ For purposes of the Estrada rule, a judgment

is ‘not final so long as the courts may provide a remedy on direct review [including] the

time within which to petition to the United States Supreme Court for writ of certiorari.’ ”

( People v. Diaz (2015) 238 Cal.App.4th 1323, 1336; see People v. Smith (2015)

234 Cal.App.4th 1460, 1465.) In this case, the time for filing an appeal expired 60 days

after July 25, 2016, the date the court imposed sentence, i.e., September 26, 2016

.

Defendant did not appeal. Therefore, his conviction became final before Proposition 57

went into effect on November 9, 2016.

D efendant argues in h is reply brief that because People v. Karaman (1992)

4 Cal.4th 335 permits the trial court to retain the jurisdiction to vacate or modify a

sentence that has not yet been executed, his sentence was not final for Estrada purposes.

We disagree. In Howard

, supra , 16 Cal.4th 1081, our S upreme C ourt “ acknowledged a

narrow exception to the general rule depriving the court of authority to modify a sentence

once it has been i mposed and entered in the clerk’ s minutes” when there is a brief stay to

permit the defe ndant to get his affairs in order. ( Howard , at p. 1088 .) However,

Karaman did not change the sentencing rules pertaining to “ the court’ s power to modify

an imposed sentence, long ago final in terms of appealability, execution of which the

court had suspended during a probationary period.” ( Id. at p. 1090, see p. 1092.)

Karaman has no application to this case.

3DISPOSITION

The judgment is affirmed.

4_________________________ Dondero, J.

We concur:

_________________________ Humes, P. J.

_________________________ Banke, J.

A150888 People v. Barboza

5Filed 4/9/1 8

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO ARTURO BARBOZA,

Defendant and Appellant. A150888

(San Francisco County

Super. Ct. No. SCN216914)

ORDER CERTIFYING OPINION

FOR PUBLICATION

[NO CHANGE IN JUDGMENT]

THE COURT:

The opinion in the above

- entitled matter, filed on March 14, 2018, was not

certified for publication in the Official Reports. After the court’s review of a request

under California Rules of Court, rule 8.1120, and good cause established under

rule 8.1105, it is hereby ordered that the opinion should be published in the Official

Reports.

Dated:

_______________________________ D ondero , J.

6Trial Court: San Francisco County Superior Court

Trial Judge: Hon. Rene Navarro

Counsel:

First District Appellate Project, Jonathan Soglin, Executive Director, L. Richard

Braucher, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, Assistant

Attorneys General, Laurence K. Sullivan and Donna M. Provenzano, Deputy Attorneys

General, for Plaintiff and Respondent.

A150888 People v. Barboza

7