58 Cal.App.5th 714
Cal. Ct. App.2020Background
- In 2018 France pled guilty to being a felon in possession of a firearm and admitted one prior prison-term enhancement; two strikes and other enhancements were dismissed per the plea.
- The plea specified a 4-year term (3 years for the gun count + 1-year prior-prison enhancement), but execution was suspended and France was placed on 3 years probation.
- In 2019 the trial court found France violated probation and ordered execution of the previously imposed 4-year sentence; France appealed.
- Senate Bill No. 136 (effective Jan. 1, 2020) narrowed Penal Code §667.5(b) so the one-year prior-prison enhancement applies only to prior sexually violent offenses—France’s admitted prior was not such an offense.
- The appeal was pending when SB 136 took effect; France argued SB 136 applies retroactively and the 1-year enhancement must be stricken; the People argued his case was final and, alternatively, that remand should allow the People to accept the reduced sentence or withdraw from the plea.
- The Court of Appeal held SB 136 applies retroactively to France’s nonfinal case, struck the one-year enhancement, ordered the abstract of judgment amended, and affirmed the judgment as modified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SB 136 applies retroactively | SB 136 applies only to nonfinal cases; France’s judgment was final before the amendment | SB 136 is ameliorative and, under Estrada, applies retroactively because France’s case was not final when the law took effect | SB 136 is retroactive and applies to France’s case |
| Whether a sentence with execution suspended is "final" for Estrada retroactivity | Execution-suspended probation produces a sufficiently final judgment so defendant cannot seek retroactive relief | Probationary grants (both imposition- and execution-suspended) are provisional under Chavez/McKenzie so the case was not final | Not final; Chavez, McKenzie, and Contreraz control—probationary proceedings keep the judgment provisional |
| Proper remedy after retroactive invalidation of an enhancement | If enhancement invalidated, remand is required so the People can accept the reduced sentence or withdraw from the plea (per Stamps/Hernandez) | No remand needed; SB 136 makes the enhancement illegal and the court should simply strike the enhancement without altering the negotiated plea otherwise | The court distinguished Stamps and concluded SB 136 mandates striking the now-illegal enhancement; judgment modified to strike the 1-year enhancement and affirmed as modified (no remand required) |
Key Cases Cited
- In re Estrada, 63 Cal.2d 740 (Cal. 1965) (ameliorative criminal statutes are presumed retroactive)
- People v. McKenzie, 9 Cal.5th 40 (Cal. 2020) (Estrada retroactivity applies when case has not reached final disposition in the highest court authorized to review it)
- People v. Chavez, 4 Cal.5th 771 (Cal. 2018) (a grant of probation leaves the judgment provisional; probationary period preserves court power to revoke)
- People v. Stamps, 9 Cal.5th 685 (Cal. 2020) (when an ameliorative statute gives courts new discretionary power to strike enhancements, remand is appropriate and the People may be allowed to accept or withdraw from the plea)
- People v. Collins, 21 Cal.3d 208 (Cal. 1978) (when conduct becomes nonpunishable, reversal/dismissal may be required but the prosecution may reinstate dismissed counts; defendant cannot unilaterally keep a bargain while obtaining greater relief)
- Doe v. Harris, 57 Cal.4th 64 (Cal. 2013) (plea agreements generally incorporate the Legislature’s power to change the law; retroactive changes to law can apply to plea cases)
- Harris v. Superior Court, 1 Cal.5th 984 (Cal. 2016) (Proposition 47 applied retroactively to pleas; prosecution could not withdraw plea to defeat resentencing intended by voters)
- People v. Contreraz, 53 Cal.App.5th 965 (Cal. Ct. App. 2020) (applied McKenzie to cases where execution of sentence was suspended and held retroactivity appropriate)
- People v. Jennings, 42 Cal.App.5th 664 (Cal. Ct. App. 2019) (describes SB 136’s narrowing of §667.5(b) to sexually violent offenses)