53 Cal.App.5th 965
Cal. Ct. App.2020Background
- In Sept. 2017 Contreraz pleaded guilty to second‑degree robbery and assault, and admitted a personal‑use firearm enhancement; the court imposed a 10‑year term but suspended execution and placed him on three years’ probation.
- The plea deleted a 12022.53 allegation; the judgment was therefore provisional while probation continued.
- Senate Bill 620 (effective Jan. 1, 2018) amended Penal Code §12022.5(c) to give trial courts discretion to strike firearm enhancements at sentencing.
- Contreraz’s probation was revoked after a contested hearing in May 2018 and the trial court executed the previously imposed 10‑year sentence.
- On remand from the California Supreme Court (for reconsideration in light of People v. McKenzie), the Court of Appeal concluded SB 620’s ameliorative amendment applies retroactively here and reversed and remanded for the trial court to decide whether to strike the firearm enhancement under the amended statutes.
- The gang‑enhancement issue is moot because the trial court later amended the abstract of judgment nunc pro tunc to strike that enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SB 620’s amendment granting courts discretion to strike §12022.5 enhancements applies retroactively to a defendant whose execution of sentence was suspended and who later had probation revoked | SB 620 is not retroactive because the judgment was final before the amendment took effect | Under Estrada, ameliorative statutes apply where judgment is not final; suspension of execution and placement on probation made the judgment provisional, so SB 620 applies | The court held the judgment was provisional (not final); applying McKenzie and Chavez, SB 620 applies retroactively; reversed and remanded for trial court to decide whether to strike the enhancement |
| Whether the trial court exceeded its jurisdiction by staying rather than striking the gang enhancement (§186.22(b)(1)) | Trial court should have struck the enhancement | Contreraz argued the stay was improper and should be stricken | Moot — trial court later amended the abstract nunc pro tunc to strike the gang enhancement |
Key Cases Cited
- In re Estrada, 63 Cal.2d 740 (presumption that ameliorative criminal statutes apply retroactively unless Legislature indicates otherwise)
- People v. McKenzie, 9 Cal.5th 40 (ameliorative statutory amendments apply where criminal proceeding has not reached final disposition while defendant remains on probation)
- People v. Chavez, 4 Cal.5th 771 (probation—whether imposition or execution suspended—does not create a final judgment while court retains power to revoke and impose sentence)
- People v. Buycks, 5 Cal.5th 857 (application of Estrada to penalty‑enhancement statutes)
- Stephens v. Toomey, 51 Cal.2d 864 (historical discussion that suspension of imposition or execution of sentence does not result in a final judgment)