Filed 10/5/20 P. v. Gezzer CA5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT STEVEN GEZZER,

Defendant and Appellant.

F076566

(Super. Ct. Nos. VCF340478, 

VCF294305)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Brett R. 

Alldredge, Judge.

John L. Staley, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief 

Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Tia M. 

Coronado, Daniel B. Bernstein and Keith P. Sager, Deputy Attorneys General, for

Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

On November 21, 2019, we filed our original opinion in this matter. We ruled that 

appellant Robert Steven Gezzer could not benefit from changes in the law that had 

occurred after he had received a split sentence in 2014. He had started to serve that 

sentence, and he did not appeal within 60 days. (People v. Gezzer (Nov. 21, 2019, 

F076566) [nonpub. opn.].)

On May 27, 2020, our Supreme Court transferred this matter back to this court 

with directions for us to vacate our decision and reconsider the cause in light of People v. 

McKenzie (2020) 9 Cal.5th 40 (McKenzie I).1 The parties filed supplemental briefing 

with us regarding McKenzie I and its impact on our prior opinion. 

On July 6, 2020, we vacated our prior opinion. After considering McKenzie I, we 

again determine that appellant does not benefit from the changes in law. We affirm.

BACKGROUND

In March 2014, appellant was sentenced to prison for an aggregate term of six 

years following a plea of no contest to possession for sale of a controlled substance 

(Health & Saf. Code, § 11378). This sentence included a three-year enhancement for a 

prior narcotics conviction under Health and Safety Code section 11370.2, subdivision (c), 

and a one-year enhancement for a prior narcotics-related prison term under Penal Code 

section 667.5, subdivision (b).2 The court ordered appellant to serve two years in county 

1

In our prior opinion in this matter, we had cited and relied upon this court’s 

decision in People v. McKenzie (2018) 25 Cal.App.5th 1207 (McKenzie II), which our 

high court affirmed in McKenzie I. (McKenzie I, supra, 9 Cal.5th at p. 52.) In the present 

opinion, we again cite McKenzie II, supra, 25 Cal.App.5th 1207. Throughout this 

opinion, McKenzie I will refer to the Supreme Court’s decision and McKenzie II will 

refer to our decision from that same matter.

2 All future statutory references are to the Penal Code unless otherwise noted.
3.

jail, and it suspended the remaining four years, during which time appellant was to serve 

mandatory supervision.3 Appellant began to serve his sentence. He did not appeal.

In September 2017, appellant entered a plea of no contest to buying or receiving 

stolen vehicle equipment (§ 496d, subd. (a)). He admitted that he was in violation of the 

terms and conditions of his mandatory supervision from his 2014 conviction.4

In November 2017, appellant was again sentenced. The trial court revoked 

appellant’s mandatory supervision from his 2014 conviction. He was ordered to serve the 

remainder of his 2014 six-year term in county jail, which was deemed the base term. For 

the 2017 conviction, the court imposed a one-third consecutive term of eight months. 

In November 2017, appellant filed the present appeal. While this appeal was 

pending, two bills were enacted. The issue is whether appellant may benefit from these 

bills.

First, Senate Bill No. 180 (2017–2018 Reg. Sess.) (Senate Bill 180) became 

effective on January 1, 2018. (Stats. 2017, ch. 677, § 1.) This reduced the number of 

sentencing enhancements under Health and Safety Code section 11370.2, subdivision 

(c).5 Under Senate Bill 180, a three-year enhancement may now be imposed only for a 

prior conviction for sales of narcotics involving a minor in violation of Health and Safety 

3 The 2014 conviction occurred in Tulare County Superior Court case 

No. VCF294305. 

4 The 2017 conviction occurred in Tulare County Superior Court case 

No. VCF340478. 

5 Health and Safety Code section 11370.2, subdivision (c) now provides: “Any 

person convicted of a violation of, or of a conspiracy to violate, [Health and Safety Code] 

Section 11378 or 11379 with respect to any substance containing a controlled substance 

specified in paragraph (1) or (2) of subdivision (d) of [Health and Safety Code] Section 

11055 shall receive, in addition to any other punishment authorized by law, including 

Section 667.5 ... , a full, separate, and consecutive three-year term for each prior felony 

conviction of, or for each prior felony conviction of conspiracy to violate, [Health and 

Safety Code] Section 11380, whether or not the prior conviction resulted in a term of 

imprisonment.” (Italics added.)
4.

Code section 11380.6 It is undisputed that, following Senate Bill 180, appellant would 

not qualify for the three-year enhancement he received in 2014 under Health and Safety 

Code section 11370.2, subdivision (c). The parties, however, disagree regarding whether 

appellant can receive the benefit of this change in law.

In addition to Senate Bill 180, another dispute exists regarding Senate Bill 

No. 136, which the Governor signed into law on October 8, 2019. This amends 

section 667.5, subdivision (b), regarding prior prison term enhancements. (Senate Bill 

No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136).)

7

 Senate Bill 136 went into effect on 

January 1, 2020. (Stats. 2019, ch. 590, § 1.) 

Under Senate Bill 136, a one-year prior prison term enhancement now only 

applies if a defendant has a prior conviction for a sexually violent offense as defined in 

Welfare and Institutions Code section 6600, subdivision (b). It is undisputed that, under 

Senate Bill 136, appellant would not qualify for the one-year enhancement he received in 

2014 under section 667.5, subdivision (b). The parties, however, disagree on whether he 

may benefit from Senate Bill 136.

On November 21, 2019, we filed our original opinion in this matter. We 

concluded that, before Senate Bill 180 went into effect and before the Governor signed 

Senate Bill 136, appellant’s 2014 judgment had already become final. As such, and 

regardless of his 2017 sentencing, we held that he did not benefit from these changes in 

law. (People v. Gezzer, supra, F076566.)

6 Health and Safety Code section 11380, subdivision (a), generally makes it a crime 

for a person 18 years of age or over to solicit, induce, encourage or intimidate a minor to 

violate certain drug-related statutes.

7 At times throughout this opinion we will refer to these bills collectively as Senate 

Bills 180 and 136.
5.

On May 27, 2020, our Supreme Court transferred this matter back to this court

with directions for us to vacate our decision and reconsider the cause in light of 

McKenzie I, supra, 9 Cal.5th 40. We now reconsider this matter.

DISCUSSION

Prior to addressing the parties’ specific arguments, we provide an overview of the 

applicable legal concepts, and we summarize McKenzie I. We use a de novo standard of 

review to analyze the retroactive application of a statute. (In re Marriage of Fellows

(2006) 39 Cal.4th 179, 183.)

I. The Retroactive Application Of A New Law Impacting Criminal Punishment.

Absent some indication to the contrary, courts presume that the Legislature 

intended amendments to apply retroactively when they reduce the punishment for a 

crime, at least in cases that are not yet final. (See People v. Brown (2012) 54 Cal.4th 

314, 323–324; see In re Estrada (1965) 63 Cal.2d 740 (Estrada).) Generally, when the 

amendment mitigates punishment and there is no saving clause, the rule from Estrada is 

that the amendment will operate retroactively so that the lighter punishment is imposed. 

(Estrada, supra, 63 Cal.2d at p. 748.) However, the amended statute must take effect 

before the judgment of conviction becomes final. (Id. at p. 744.)

Estrada involved statutory amendments that merely reduced penal sanctions for a 

given act. However, the Estrada rule also applies to amendments that entirely eliminate a 

penal sanction. (People v. Rossi (1976) 18 Cal.3d 295, 301 (Rossi); see also McKenzie I, 

supra, 9 Cal.5th at p. 45 [explaining Rossi’s extension of Estrada].) The rule from 

Estrada rests on an inference that, when the Legislature reduces the punishment for an 

offense, it has determined that the former penalty was too severe. (Estrada, supra, 63 

Cal.2d at p. 745.) It is presumed that the Legislature must have intended for the new

lighter penalty to apply to every case to which it constitutionally could apply. (People v. 

DeHoyos (2018) 4 Cal.5th 594, 600.)
6.

II. A Criminal Sentence Becomes Final If The Sentence Is Imposed And The 

Defendant Does Not Appeal Within 60 Days.

In a criminal case, the sentence is a declaration of punishment once a defendant’s 

guilt has been determined. (People v. Wilcox (2013) 217 Cal.App.4th 618, 625.) 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 will 

become a final judgment if the defendant does not appeal within 60 days. (McKenzie II, 

supra, 25 Cal.App.5th at p. 1214; People v. Barboza (2018) 21 Cal.App.5th 1315, 1318–

1319; People v. Ramirez (2008) 159 Cal.App.4th 1412, 1420–1421; see also California 

Rules of Court, rule 8.308(a).)8

The timing of a criminal judgment, however, differs if probation is granted. A 

trial court may either grant probation by suspending imposition of sentence, or by 

imposing sentence and suspending its execution. (People v. Segura (2008) 44 Cal.4th 

921, 932.) Our Supreme Court has noted that “neither 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.) When a trial court suspends 

imposition of sentence, it does not pronounce a judgment, and a defendant is placed on 

probation without a judgment pending against him or her. (Ibid.) In contrast, 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. 

(Ibid.)

When a trial court suspends imposition of sentence and places a defendant on 

probation, the probation order is considered a final judgment “only for the ‘limited 

purpose of taking an appeal therefrom.’ [Citation.]” (People v. Howard (1997) 16 

Cal.4th 1081, 1087.) If a defendant violates probation, the trial court may revoke and 

8 All future references to rules are to the California Rules of Court unless otherwise 

noted.
7.

terminate probation, and then impose sentence in its discretion, thereby rendering 

judgment. (§ 1203.2, subd. (c); People v. Howard, supra, at p. 1087.)

In contrast, if execution of sentence is suspended and a defendant is placed on 

probation, a subsequent revocation of that suspended execution brings the former 

judgment into full force and effect. (People v. Howard, supra, 16 Cal.4th at p. 1087.) If 

probation is revoked and the court had previously imposed a sentence, the sentencing 

judge must order that exact sentence into effect.

9

 (People v. Howard, supra, 16 Cal.4th 

at p. 1088; see also § 1203.2, subd. (c).)

III. The Imposition Of A Split Sentence.

Appellant received a split sentence in 2014, which is a sentencing option available 

for certain low-level felony offenders. A split sentence involves imposing the sentence 

and then “suspending execution of the concluding portion of [it].” (People v. Borynack

(2015) 238 Cal.App.4th 958, 963; see also § 1170, subd. (h)(5)(A) & (B).) The 

suspended portion of the term is known as “mandatory supervision[.]” (§ 1170, subd. 

(h)(5)(B).) Under the split sentencing scheme, qualifying offenders will not serve their 

sentences in state prison but instead will “serve their sentences either entirely in county 

jail or partly in county jail and partly under the mandatory supervision of the county 

probation officer.” (People v. Scott (2014) 58 Cal.4th 1415, 1418–1419.)

IV. A Summary Of McKenzie I, supra, 9 Cal.5th 40.

We turn to McKenzie I, the opinion which our Supreme Court asked us to 

consider. The McKenzie defendant pleaded guilty in 2014 to drug-related charges in 

three cases. He admitted having sustained four prior felony drug-related convictions

under Health and Safety Code, former section 11370.2, subdivision (c). The trial court 

suspended imposition of sentence, granted the defendant five years’ probation in all three 

9 This is, however, subject to a possible recall under section 1170, subdivision (d), 

after a defendant has been committed to custody. (People v. Howard, supra, 16 Cal.4th 

at p. 1088.)
8.

cases, and ordered him to attend drug court. (McKenzie I, supra, 9 Cal.5th at p. 43.) In 

2016, the defendant admitted violating the terms of his probation. The trial court revoked 

probation, and it imposed a prison sentence that included four three-year prior drug 

conviction enhancements under Health and Safety Code, former section 11370.2, 

subdivision (c). (McKenzie I, supra, at p. 43.)

About two weeks later, the defendant filed a notice of appeal. In September 2017, 

this court modified the judgment in certain respects but otherwise affirmed. (McKenzie I,

supra, 9 Cal.5th at p. 43.) The defendant appealed to the Supreme Court, which 

remanded the case back to this court with directions to reconsider that matter in light of 

Senate Bill 180, which had taken effect on January 1, 2018. (McKenzie I, supra, 9 

Cal.5th at pp. 43–44.) On remand, this court (in McKenzie II) held that the defendant 

could take advantage of the revisions to Health and Safety Code section 11370.2, and we 

ordered those four enhancements stricken. (McKenzie I, supra, at p. 44.)

The high court affirmed our McKenzie II opinion. (McKenzie I, supra, 9 Cal.5th at 

p. 52.) Our Supreme Court reiterated that, when the Legislature repeals a criminal statute 

or otherwise eliminates conduct that was formerly deemed criminal, the pending criminal 

proceeding charging such conduct must be dismissed. This rule “ ‘ “applies to any such 

proceeding which, at the time of the supervening legislation, has not yet reached final 

disposition in the highest court authorized to review it.” ’ ” (Id. at p. 45, quoting Rossi, 

supra, 18 Cal.3d at p. 304.)

The McKenzie I court held that, when the revisions to Health and Safety Code 

section 11370.2 took effect, the defendant’s criminal proceeding had not yet reached final 

disposition in the highest court authorized to review it.10 As such, the defendant’s 

prosecution had not been reduced to a final judgment. (McKenzie I, supra, 9 Cal.5th at 

10 This was the time for petitioning for a writ of certiorari in the United States 

Supreme Court. (McKenzie I, supra, 9 Cal.5th at p. 45.)
9.

p. 45.) The high court rejected the People’s argument that, because section 1237, 

subdivision (a), deems an order granting probation to be a final judgment, then the 

defendant’s 2014 order granting probation was a final judgment precluding retroactive 

application of the statutory revisions. (McKenzie I, supra, at p. 46.) To the contrary, our 

Supreme Court noted that a judgment and sentence are generally considered synonymous, 

and there is no judgment of conviction without a sentence. (McKenzie I, supra, 9 Cal.5th 

at p. 46.) According to the McKenzie I court, it could not be said that the defendant’s 

criminal prosecution had concluded before the ameliorative legislation took effect. 

(Ibid.) The high court found it irrelevant that the defendant had not filed a notice of 

appeal within 60 days after being placed on probation. Instead, a criminal action, and 

thus the trial court’s jurisdiction to impose a final judgment, continues into and 

throughout a period of probation. That jurisdiction expires only when the probation 

period ends. (Id. at p. 47.) Moreover, “a criminal proceeding ends only once probation 

ends if no judgment has issued in the case.” (Ibid.) The Supreme Court determined that 

the People had offered no basis to conclude that the revisions to Health and Safety Code 

section 11370.2 could not be applied constitutionally to the defendant. (McKenzie I, 

supra, at p. 48.)

The Supreme Court was also not persuaded by the People’s argument that 

probationers who do not file a timely appeal from an order granting probation cannot 

later challenge the order or the underlying determination of guilt. (McKenzie I, supra, 9 

Cal.5th at p. 50.) This argument is based on the principle that, when a court suspends 

imposition of sentence and grants probation, the defendant’s failure to appeal from the 

order granting probation generally “ ‘estops’ the defendant ‘from claiming error with 

respect to matters occurring before that order,’ but not as to ‘proceedings in connection 

with the revocation of probation and sentencing.’ [Citation.] In other words, it ‘merely 

forecloses action based on errors committed at the trial.’ [Citation.]” (McKenzie I,

supra, 9 Cal.5th at p. 50.) The McKenzie I court noted that the defendant was not raising 
10.

an alleged trial error but, instead, raising an issue relating to the subsequent revocation of 

probation and sentencing based on an event (the amendment of Health and Safety Code 

section 11370.2) that occurred long after the court ordered probation and the time for 

direct appeal had lapsed. (McKenzie I, supra, at p. 50.) The high court stated that the 

defendant could not have raised this issue during a direct appeal from the probation order, 

and, under the circumstances, his “failure to file such a direct appeal does not preclude 

him from taking advantage of ameliorative amendments that took effect while he was 

appealing from the subsequent revocation of his probation and imposition of sentence.” 

(Ibid.) For all of these reasons, the Supreme Court affirmed this court’s opinion in 

McKenzie II. (McKenzie I, supra, at p. 52.)

V. McKenzie I Does Not Alter Our Conclusion That Appellant Does Not Benefit 

From Either Senate Bill 180 Or Senate Bill 136 Because His 2014 Conviction 

Became A Final Judgment 60 Days Later.

In our prior opinion we concluded that, before Senate Bill 180 went into effect and 

before the Governor signed Senate Bill 136, appellant’s 2014 judgment had already 

become final. We reached this conclusion because appellant had been sentenced in 2014 

and he did not appeal within 60 days. As such, and regardless of his 2017 sentencing, we 

held that he did not benefit from these changes in law. (People v. Gezzer, supra, 

F076566.)

In his supplemental briefing following remand, appellant takes the position that 

our Supreme Court has rejected our prior reasoning. He notes that McKenzie I did not 

distinguish between the imposition of a probationary sentence versus the suspension of 

such a sentence. Further, appellant argues that he could not have filed a notice of appeal 

in 2014 regarding Senate Bills 180 and 136 because they were not enacted until years 

later. Finally, he asserts that his failure to file an appeal in 2014 does not preclude the 

rule from Estrada. Applying the reasoning of McKenzie I, he maintains that he was on 
11.

probation (i.e., mandatory supervision) when he was resentenced in 2017, and his 

criminal proceeding is still under appellate review. 

We reject appellant’s renewed arguments, and we agree with respondent that 

McKenzie I does not alter the disposition from our prior opinion. 

A. McKenzie I does not alter our prior disposition.

As an initial matter, McKenzie I did not consider a split sentence, and it is well 

established that cases are not authority for propositions not considered. (Loeffler v. 

Target Corp. (2014) 58 Cal.4th 1081, 1134.) Further, although it did not focus on the 

distinctions between suspending imposition of a criminal sentence versus suspending 

execution of it, McKenzie I nevertheless confirms that a judgment and sentence are 

generally considered synonymous, and there is no judgment without a sentence. 

(McKenzie I, supra, 9 Cal.5th at p. 46.) According to McKenzie I, the cutoff point for 

application of ameliorative amendments is the date when the case or prosecution is 

reduced to a final judgment. (Ibid.) A criminal action, and thus the trial court’s 

jurisdiction to impose a final judgment, continues into and throughout a period of 

probation. That jurisdiction expires when the probation period ends. (Id. at p. 47.) 

However, that rule applies “if no judgment has issued in the case.” (Ibid.) 

Appellant’s circumstances are in stark contrast with those of the McKenzie 

defendant. Appellant had a criminal sentence imposed against him in 2014. It cannot be 

said that he received a conditional or provisional judgment, such as when a trial court 

suspends execution of sentence and places a defendant on probation. In that situation, the 

finality of the sentence depends on the outcome of the probationary proceeding. (People 

v. Chavez, supra, 4 Cal.5th at p. 781.) To the contrary, the court did not suspend 

execution of appellant’s 2014 sentence. He began to serve his sentence in custody and he 

did not appeal within 60 days. Thus, and unlike the McKenzie defendant who was placed 

on probation without the imposition of sentence, appellant’s judgment became final in 
12.

2014 after his time to appeal expired. (See McKenzie II, supra, 25 Cal.App.5th at 

p. 1214; People v. Barboza, supra, 21 Cal.App.5th at p. 1319; People v. Ramirez, supra,

159 Cal.App.4th at p. 1421; see also rule 8.308(a).) His 2014 judgment was final long 

before Senate Bill 180 went into effect and long before the Governor signed Senate Bill 

136. McKenzie I is distinguishable, and it cannot be read as extending Estrada’s rule of 

retroactivity to appellant under these circumstances.11

B. Appellant’s additional arguments are without merit.

Prior to the remand in this matter, appellant had asserted that a split sentence 

“more closely resembles” a defendant being placed on probation with imposition of 

sentence suspended. He had noted that section 1170, subdivision (h)(5)(A), directs a 

court to “suspend” the period of mandatory supervision when a split sentence is imposed. 

He had further noted that section 1170, subdivision (h)(5)(B), provides a trial court with 

authority to terminate early a period of mandatory supervision. 

In his supplemental briefing after remand in this matter, appellant renews these 

arguments. He asserts that he should be entitled to the benefit of the retroactive

application of Senate Bills 180 and 136 whether he was placed on probation or given a 

split sentence. He argues it is sufficient that he was still serving the 2014 split sentence 

when he was resentenced in 2017 following his new conviction. However, he contends 

that, should this court continue to distinguish between suspension and execution of 

11 In our original opinion, we had relied, in part, on People v. Grzymski (2018) 28 

Cal.App.5th 799, review granted February 13, 2019, S252911 (Grzymski), in affirming 

appellant’s judgment. Grzymski had held that the failure to appeal a split sentence results 

in a final judgment, which precludes retroactive application of Senate Bill 180. 

(Grzymski, supra, 28 Cal.App.5th at p. 802, review granted.) On May 27, 2020, 

however, our Supreme Court remanded Grzymski to the First District Court of Appeal, 

Division One, with directions to vacate its decision and to reconsider the cause in light of 

McKenzie I. Because the Supreme Court ordered Grzymski to be vacated and 

reconsidered, we no longer rely on that opinion.
13.

probationary sentences, then we should hold that his split sentence more closely 

resembles a grant of probation with imposition of sentence suspended.12

We continue to reject appellant’s position. Section 1170, subdivision (h)(5), 

provides in relevant part that, unless a sentencing court finds it inappropriate, the court 

“shall suspend execution of a concluding portion of the term for a period selected at the 

court’s discretion.” (§ 1170, subd. (h)(5)(A), italics added.) The suspended portion of a 

defendant’s term “shall be known as mandatory supervision, and, unless otherwise 

ordered by the court, shall commence upon release from physical custody or an 

alternative custody program, whichever is later.” (Id. at subd. (h)(5)(B), italics added.) 

The statute states that “[t]he period of supervision shall be mandatory, and may not be 

earlier terminated except by court order.” (Ibid.) 

Here, appellant’s 2014 sentence was never suspended. After sentence was 

imposed, he began to serve his time in jail. Only after being released from physical 

custody did appellant start mandatory supervision. If anything, mandatory supervision 

appears more like parole and less like probation.

13

 Indeed, section 1170, subdivision (h), 

is an option only if probation has been denied. (People v. Fandinola, supra, 221 

Cal.App.4th at p. 1422; see also People v. Cruz (2012) 207 Cal.App.4th 664, 671 [once 

probation has been denied, eligible felons will serve imprisonment in local custody rather 

than state prison].) As such, and contrary to appellant’s assertions, a split sentence is not 

analogous to suspending imposition of sentence and placing a defendant on probation.

12 In his supplemental brief following remand, appellant acknowledges that this court 

rejected his argument in its prior opinion. He makes it again to preserve it for review 

with our Supreme Court. 

13 See People v. Fandinola (2013) 221 Cal.App.4th 1415, 1423 [noting that “the 

Legislature appears to indicate its view that mandatory supervision is more similar to 

parole than probation”]; accord People v. Martinez (2014) 226 Cal.App.4th 759, 763; but 

see People v. Griffis (2013) 212 Cal.App.4th 956, 963, fn. 2 [commenting in a footnote 

that mandatory supervision is “akin to probation”].
14.

Likewise, we continue to reject appellant’s assertion that his 2014 judgment was 

revived in 2017 when he was resentenced following his new conviction.14 He previously 

cited People v. Phoenix (2014) 231 Cal.App.4th 1119 (Phoenix) and People v. Saibu

(2011) 191 Cal.App.4th 1005 (Saibu). These opinions do not establish that appellant 

should receive retroactive benefit from Senate Bill 180 or Senate Bill 136. In addition, 

nothing from McKenzie I alters our prior conclusion in this regard.

In Phoenix, the defendant was convicted of crimes in two counties. (Phoenix,

supra, 231 Cal.App.4th at p. 1121.) A trial court in the second county refused to 

calculate custody credits from the other county’s case. (Id. at p. 1122.) On appeal, the 

Phoenix court concluded that the second trial court became the “sentencing court” for 

both cases. (Id. at p. 1126.) The sentence from the other county was “replaced by the 

consecutive sentence imposed” by the second trial court. (Ibid.) Thus, it was the second 

court’s duty to calculate and award the defendant with all of his custody credits, 

including those pertaining to the case in the other county. (Ibid.)

In Saibu, a defendant’s abstract of judgment had to be corrected because he had 

served a portion of his sentence in one case before the trial court sentenced him to a 

single aggregate term in two other cases. The defendant should have been credited for all 

of his custody time. (Saibu, supra, 191 Cal.App.4th at pp. 1012–1013.) Saibu held that, 

when a trial court resentences a defendant to a single aggregate term pursuant to rule 

4.452, the court has “modified” the original sentence so that custody credits must be 

credited pursuant to section 2900.1.15 (Saibu, supra, 191 Cal.App.4th at p. 1012.)

14 In his supplemental brief following remand, appellant renews this argument, but 

he acknowledges that we previously rejected his contentions. He states that he is 

preserving this issue for “future appellate proceedings.” 

15 Section 2900.1 states: “Where a defendant has served any portion of his sentence 

under a commitment based upon a judgment which judgment is subsequently declared 

invalid or which is modified during the term of imprisonment, such time shall be credited 
15.

Neither Phoenix nor Saibu assist appellant. When a defendant violates probation, 

a trial court may revoke and terminate probation, but it must order execution of the 

originally imposed sentence if imposition of sentence was not suspended. (§ 1203.2, 

subd. (c); People v. Howard, supra, 16 Cal.4th at pp. 1087–1088.) When appellant 

violated the terms of his mandatory supervision, the 2017 sentencing court simply 

consolidated the 2014 sentence with his new additional sentence. The 2017 court 

revoked and terminated mandatory supervision, and it ordered execution of the originally 

imposed 2014 sentence (which was six years in custody). Although the 2017 court may 

have become the “sentencing court” for both cases, it merely followed the required 

procedure under sections 66916 and 1170.1,17 and rule 4.452. Nothing reasonably 

suggests that this procedure was intended to impact the retroactive application of new 

criminal laws. Indeed, under rule 4.452, a sentencing court must impose “a single 

aggregate term” as defined in section 1170.1, subdivision (a), when a determinate 

sentence is imposed consecutive to one or more determinate sentences previously 

imposed in the same court or in other courts. The sentences on all such counts are 

combined “as though they were all counts in the current case.” (Rule 4.452(a)(1).) In the 

combined case, the judge must make a new determination regarding which count 

represents the principal term. (Rule 4.452(a)(2).) The current sentencing court, however, 

upon any subsequent sentence he may receive upon a new commitment for the same 

criminal act or acts.”

16 Section 669, subdivision (a), directs a sentencing court to declare whether a 

second judgment shall run concurrently or consecutively when a person is convicted of 

multiple crimes, whether in the same proceeding or in different proceedings or courts.

17 Under section 1170.1, subdivision (a), when a defendant is convicted of two or 

more felonies (whether in the same proceeding or from a different proceeding or court) 

and a consecutive term of imprisonment is imposed, the aggregate term of imprisonment 

is the sum of the principal term, the subordinate term, and any additional terms imposed 

for applicable enhancements.
16.

may not change any discretionary decisions imposed by the previous judge. (Rule 

4.452(a)(3).)

Neither McKenzie I, Phoenix nor Saibu analyzed whether resentencing a defendant 

and imposing an aggregate sentence pursuant to rule 4.452 impacts a prior final 

judgment. Cases are not authority for propositions not considered or decided. (Loeffler 

v. Target Corp., supra, 58 Cal.4th at p. 1134.) None of these decisions stands for the 

proposition that retroactive application should be extended when a defendant is 

resentenced to an aggregate prison term involving convictions from more than one 

matter. These opinions do not establish that appellant should receive benefit of Senate 

Bill 180 or Senate Bill 136.

Finally, we previously rejected appellant’s assertion that we should strike these 

enhancements even if his 2014 judgment became final. In his prior briefing, appellant 

had quoted the following statement from In re Chavez (2004) 114 Cal.App.4th 989: 

“There is nothing in Estrada that prohibits the application of revised sentencing 

provisions to persons whose sentences have become final if that is what the Legislature 

intended or what the Constitution requires.” (Id. at p. 1000.) In re Chavez does not assist 

appellant.

In In re Chavez, the Legislature amended the sentencing scheme for tax fraud. 

These legislative amendments were described as a “cleanup bill” needed “ ‘to correct 

technical and grammatical errors in penal provisions in various codes.’ ” (In re Chavez,

supra, 114 Cal.App.4th at p. 995.) The Legislature intended these amendments to correct 

statutory language to ensure conformity to the determinate sentencing scheme. (Id. at 

p. 998.) The In re Chavez court determined that, under these circumstances, the 

Legislature’s amendments should apply retroactively even to final judgments. (Id. at 

pp. 999–1000.) According to the appellate court, the Legislature had the power to adjust 

prison sentences, and even a final judgment could be adjusted “for a legitimate public 

purpose.” (Id. at p. 1000.)
17.

The unique circumstances found in In re Chavez are lacking in this matter. 

Nothing reasonably suggests that the Legislature intended for Senate Bill 180 or Senate 

Bill 136 to have the far changing ramifications that appellant now advances.18 Nothing 

suggests that these bills were intended to fix numerous prior technical and grammatical 

mistakes. Nothing suggests these bills were intended to impact final judgments. To the 

contrary, if the Legislature had held such an intent, it would have either made such a 

pronouncement or provided a mechanism for qualified convicts to seek relief. In re 

Chavez is distinguishable and does not establish retroactive application of Senate Bill 180 

or Senate Bill 136 to appellant’s final judgment from 2014.

Based on this record, appellant may not benefit from either Senate Bill 180 or 

Senate Bill 136. He was sentenced in 2014, he began to serve that sentence, and he did 

not file an appeal within 60 days. As such, that judgment became final before these 

changes in law occurred. McKenzie I does not alter the disposition from our prior 

opinion. Accordingly, appellant’s arguments are without merit, and this claim fails.

18 The June 28, 2017, Assembly Floor Analysis for Senate Bill 180 made the 

following comments. It noted that sentencing enhancements do not prevent or reduce 

drug sales, but they do destabilize families and communities. “ ‘The current policy of 

sentencing people with nonviolent convictions to long periods of incarceration is an 

expensive failure that does not reduce the availability of drugs in our communities.’ ” 

(Assem. Com. on Public Safety, Off. of Assem. Floor Analyses, 3d reading analysis of 

Sen. Bill No. 180 (2017–2018) as introduced Jan. 24, 2017, p. 2.)

The September 13, 2019, Senate Floor Analysis for Senate Bill 136 noted that the 

one-year enhancement under section 667.5, subdivision (b), “re-punishes people for 

previous jail or prison time served instead of the actual crime when convicted of a nonviolent felony.” This enhancement “exacerbates existing racial and socio-economic 

disparities in our criminal justice system.” It is projected that repealing this enhancement 

“will save California tax payers tens of millions [of] dollars each year.” (Sen. Com. on 

Public Safety, Off. of Sen. Floor Analyses, Sen. Bill No. 136 (2019–2020), pp. 2–3.) 
18.

VI. Appellant’s Equal Protection Challenge Is Without Merit.

Appellant previously raised an equal protection challenge. He renews this claim 

in his supplemental briefing following remand. We continue to disagree that a 

constitutional violation occurred.

A criminal defendant has no vested interest in a specific term of imprisonment. 

(People v. Turnage (2012) 55 Cal.4th 62, 74.) “It is both the prerogative and the duty of 

the Legislature to define degrees of culpability and punishment, and to distinguish 

between crimes in this regard. [Citation.] Courts routinely decline to intrude upon the 

‘broad discretion’ such policy judgments entail. [Citation.] Equal protection analysis 

does not entitle the judiciary to second-guess the wisdom, fairness, or logic of the law. 

[Citation.]” (Id. at p. 74.)

Equal protection of the law is denied only if no rational relationship exists

between the disparity of treatment and some legitimate governmental purpose. (People v. 

Turnage, supra, 55 Cal.4th at p. 74.) The legislation in question will survive scrutiny if 

there is any reasonably conceivable state of facts that could provide a rational basis for 

the classification. (Ibid.) To make a successful rational basis challenge, a party must

negate every conceivable basis that might support the disputed statutory disparity. If a 

plausible basis exists for the disparity, appellate courts may not second-guess its wisdom, 

fairness, or logic. (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.)

Our Supreme Court has recognized that the Legislature has a rational reason for 

refusing to make new laws that reduce criminal sentences fully retroactive—namely, “to 

assure that penal laws will maintain their desired deterrent effect by carrying out the 

original prescribed punishment as written.” (In re Kapperman (1974) 11 Cal.3d 542, 

546.) Consequently, “ ‘[a] reduction of sentences only prospectively from the date a new 

sentencing statute takes effect is not a denial of equal protection.’ ” (People v. Floyd

(2003) 31 Cal.4th 179, 189.) 
19.

Under the Supreme Court authorities above, appellant’s equal protection challenge 

is without merit. He has failed to negate every conceivable basis that might support the 

disputed statutory disparity. (See Johnson v. Department of Justice, supra, 60 Cal.4th at 

p. 881.) Accordingly, he does not establish a constitutional violation, and this claim fails.

DISPOSITION

The judgment is affirmed.

LEVY, J.

WE CONCUR:

HILL, P.J.

DETJEN, J.