People v. ContrerazPeople v. Contreraz
In our prior opinion in this matter, People v. Contreraz (Dec. 5, 2019, H045787 [nonpub. opn.]), we rejected Contreraz’s argument that he is entitled to the retroactive benefit of Senate Bill No. 620 (Reg. Sess. 2017-2018) (Sen. Bill 620) which amended
As directed by the California Supreme Court, we hereby vacate our prior decision and, upon reconsideration, we conclude that Contreraz is entitled to the benefit of Sen. Bill 620. Accordingly, we reverse the judgment and remand for the trial court to exercise its discretion in deciding whether to strike the firearm enhancement pursuant to
I. FACTUAL AND PROCEDURAL BACKGROUND
On June 2, 2016, Contreraz was charged by information with second degree robbery (
On September 13, 2017, as part of a negotiated disposition, Contreraz pleaded guilty to one count of felony second degree robbery (
On February 20, 2018, the Santa Cruz County Probation Department filed a petition alleging that Contreraz had violated his probation by failing to report, failing to participate in an educational/vocational/therapeutic program, failing to pay fines and fees, and failing to pay restitution. The trial court held a contested hearing on the petition on May 3, 2018 and found that Contreraz violated his probation. Accordingly, the trial court terminated probation and executed the previously imposed prison sentence of 10 years.
II. DISCUSSION
A. Briefing
Following transfer from the California Supreme Court, the parties did not submit any supplemental briefing (
Contreraz argued Sen. Bill 620, which amended
In 2017, the Legislature amended
Under the Estrada rule, “we presume that newly enacted legislation mitigating criminal punishment reflects a determination that the ‘former penalty was too severe’ and that the ameliorative changes are intended to ‘apply to every case to which it constitutionally could apply,’ which would include those ‘acts committed before its passage[,] provided the judgment convicting the defendant of the act is not final.’ (Estrada, supra, 63 Cal.2d at p. 745 [italics added].) The Estrada rule rests on the presumption that, in the absence of a savings clause providing only prospective relief or other clear intention concerning any retroactive effect, ‘a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.’ [Citations.] ‘The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 881-882.)
In McKenzie, the California Supreme Court considered “whether a convicted 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 ameliorative statutory amendments that take effect during a later appeal from a judgment revoking probation and imposing sentence.” (McKenzie, supra, 9 Cal.5th at p. 43.) Even though the time to appeal the order granting probation had lapsed, the court held that the
The California Supreme Court reaffirmed in McKenzie that ” ’ “when the [L]egislature repeals a criminal statute or otherwise removes the State‘s condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct. The 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.” ’ ” (McKenzie, supra, 9 Cal.5th at p. 45.) The court determined that in the situation before it, where the statutory amendments became effective during the defendant’s appeal of the trial court’s revocation of probation and imposition of sentence, “[i]t [could not] be said that this criminal prosecution or proceeding concluded before the ameliorative legislation took effect.” (Id. at p. 46.) Because the amendments “occurred long after the court ordered probation and the time for direct appeal lapsed[,] . . . defendant could not have raised this issue during a direct appeal from the probation order.” (Id. at p. 50.)
The same logic applies here. Contreraz was ordered to probation in September 2017, and Sen. Bill 620 took effect on January 1, 2018, “after the court ordered probation and the time for direct appeal lapsed.” (McKenzie, supra, 9 Cal.5th at p. 50.) Contreraz could not have argued on direct appeal that the trial court would, in the future, have the discretion to strike or dismiss the firearm enhancement imposed under
Our conclusion is also consistent with People v. Chavez (2018) 4 Cal.5th 771 (Chavez), which was cited by the California Supreme Court to support its analysis in McKenzie. (McKenzie, supra, 9 Cal.5th at pp. 46-47.) In Chavez, the court considered
In reaching its decision, the California Supreme Court considered when a final judgment is pronounced in cases where a trial court grants probation. (Chavez, supra, 4 Cal.5th at p. 777.) The court explained that, “[g]oing as far back as Stephens v. Toomey (1959) 51 Cal.2d 864, 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.” (Id. at p. 781.) “In a case where a court suspends imposition of sentence, it pronounces no judgment at all, and a defendant is placed on probation with ‘no judgment pending against [him or her].’ [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.” (Ibid.) There is no final judgment in either of these situations because “[d]uring the probation period, the court retains the power to revoke probation and sentence the defendant to imprisonment” under
The trial court in this case also retained the power to revoke Contreraz’s probation and order the remainder of his sentence executed. (
In reaching this conclusion, we are guided by the ” ‘consideration of paramount importance’ ” articulated in Estrada: “the ‘inevitable inference’ that the Legislature, having ‘determined that its former penalty was too severe,’ ‘must have intended’ that the ameliorative statutory change ‘should apply to every case to which it constitutionally could apply.’ [Citation.] A contrary conclusion . . . would ’ ” ‘serve no purpose other than to satisfy a desire for vengeance,’ ” ’ and would have to rest on the impermissible view ‘that the Legislature was motivated by [such] a desire.’ ” (McKenzie, supra, 9 Cal.5th at p. 48.)
C. The criminal street gang enhancement
In his original briefing, Contreraz argued that the trial court exceeded its jurisdiction by staying, rather than striking, the 10-year prison term on the criminal street gang enhancement (
III. DISPOSITION
The judgment is reversed, and the matter is remanded for the purpose of allowing the trial court to consider whether to strike the
Premo, J.
WE CONCUR:
Greenwood, P.J.
Elia, J.
| Trial Court: | Santa Cruz County Superior Court Superior Court No. 16CR01219 |
| Trial Judge: | Hon. John Steven Salazar |
| Counsel for Plaintiff/Respondent: The People | Xavier Becerra Attorney General Gerald A. Engler Chief Assistant Attorney General Jeffrey M. Laurence Senior Assistant Attorney General René A. Chacon Supervising Deputy Attorney General Julia Y. Je Supervising Deputy Attorney General |
| Counsel for Defendant/Appellant: Alberto Salvador Contreraz | Under appointment by the Court of Appeal Lori A. Quick |