P. v. Dubarr

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Filed 7/14/20 P. v. Dubarr CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTEN R. DUBARR,
Defendant and Appellant.
E073611
(Super.Ct.No. BAF1800962)
OPINION
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Kristin Traicoff, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Arlene A.
Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.

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In this appeal, we address the issue of finality of a criminal judgment for the
purpose of seeking the benefit of an ameliorative statutory amendment.
In November 2018, defendant and appellant Christen R. Dubarr pled guilty to
assault with a deadly weapon in violation of subdivision (a)(1) of section 245 of the Penal
Code.1 He also admitted a great bodily injury enhancement (§§ 1192.7 & 12022.7,
subd. (a)) and four prior prison enhancements (former § 667.5, subd. (b)). He was
sentenced to five years in state prison consisting of a low term of two years for the assault
with a consecutive three-year sentence for the bodily injury enhancement. The court also
imposed, but then struck, a one-year sentence for each of the four prison priors. The
court suspended execution of the five-year sentence on condition that defendant
successfully complete a three-year probation period.
Eight months later, defendant admitted to violating his probation by failing to
check in with his probation officer. The court ordered the five-year sentence previously
imposed and suspended to be placed in full force and effect. Defendant appealed.
Discussion
On appeal, defendant argues the four prison priors should be stricken and the
judgment modified to eliminate reference to them because the January 2020 amendment
to subdivision (b) of section 667.5 limiting prior prison term enhancements to sexually
violent offenses is retroactive as to cases not final on the amendment’s effective date.
1 All statutory references hereafter are to the Penal Code and all references to
rules are to the California Rules of Court.

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After requesting supplemental briefing on the issue of finality, we find that, because the
order imposing defendant’s sentence in November 2018 was final long before the
amendment became effective, defendant is foreclosed from benefitting from the
amendment’s ameliorative effect.
When defendant was sentenced in November 2018, the trial court was required to
impose a one-year sentence enhancement for each true finding on allegations the
defendant had served a separate prior prison term and had not remained free from custody
for at least five years. (Pen. Code, former § 667.5, subd. (b).) In 2019, Senate Bill No.
136 limited the enhancement provision to prior prison terms resulting from convictions
for sexually violent offenses as defined by section 6600 of the Welfare and Institutions
Code. The amendment became effective on January 1, 2020. (Stats 2019, ch. 590, § 1,
eff. Jan. 1, 2020.)
A new or amended statute that reduces the punishment for an offense will, absent
evidence to the contrary, apply retroactively to any case in which the judgment is not yet
final on the statute’s operative date. (In re Estrada (1965) 63 Cal.2d 740, 742, 744-745
(Estrada); People v. Winn (2020) 44 Cal.App.5th 859, 872-873.) For the purposes of the
Estrada rule, a judgment is not final so long as courts may provide a remedy on direct
review, including the time within which to petition the United States Supreme Court for
writ of certiorari. (People v. Diaz (2015) 238 Cal.App.4th 1323, 1336.)
In a criminal matter, the declaration to the defendant of the disposition or
punishment following ascertainment of criminal guilt is the judgment. (People v. Wilcox

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(2013) 217 Cal.App.4th 618, 625.) If the trial court orders probation, the timing of the
judgment will vary depending on whether the court suspends imposition of sentencing or
instead imposes the sentence but suspends its execution. (People v. Segura (2008) 44
Cal.4th 921, 932.) Because that timing affects when the judgment becomes final, it
necessarily affects whether a defendant is eligible to benefit from a change in law that is
applied retroactively.
If the court suspends imposition of a sentence and grants probation, no judgment is
entered at that time. (People v. Howard (1997) 16 Cal.4th 1081, 1087 (Howard).)
Therefore, if, at a later proceeding, probation is revoked and a sentence is imposed,
defendant may take advantage of an ameliorative statutory amendment that became
effective before the judgment entered at that later proceeding becomes final. (People v.
McKenzie (2020) 9 Cal.5th 40, 43-44 (McKenzie).)
On the other hand, if the trial court imposes a sentence but suspends its execution
and grants probation, a judgment has been made that will become final if no appeal is
taken within 60 days. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1420-1421; rule
8.308(a).) If the judgment is final and the defendant violates probation, the court has no
jurisdiction to do anything other than revoke and terminate probation and order the
execution of the exact sentence that had been imposed and suspended. (§ 1203.2,
subd. (c); Howard, supra, 16 Cal.4th at pp. 1087-1088.)
Here, the order imposing defendant’s sentence was made on November 1, 2018.
No appeal was taken from that judgment and it became final on December 31, 2018, well

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before January 1, 2020, the effective date of the amendment to section 667.5. (Rule
8.308(a).) Accordingly, defendant is not entitled to any retroactive relief with respect to
the prison priors.
In his supplemental brief, defendant claims McKenzie does not foreclose the
ability of a defendant to take advantage of an ameliorative change in a sentencing statute
in an appeal from revocation of probation because the order of probation was not an error
that occurred “at the trial.” He posits that it is of no moment that he did not appeal the
order imposing the custodial sentence because McKenzie stands for the proposition that
an order granting probation is not a “final judgment” for the purposes of the Estrada rule.
Defendant misapprehends the rule of finality in criminal cases articulated in
McKenzie. There, the Supreme Court reiterated the point made in Estrada that the cut-off
point for application of ameliorative amendments is when the case or prosecution is
reduced to final judgment, that is, when the sentence is imposed. (McKenzie, supra, 9
Cal.5th at pp. 44, 46.) In McKenzie, after defendant pled guilty to drug-related offenses
and admitted four prior felony drug-related convictions for the purpose of sentence
enhancement, the trial court suspended imposition of the sentence and instead imposed
five years’ probation. (Id. at p. 43.) It was when McKenzie later violated probation that
the court imposed his prison sentence. (Ibid.) That sentence included the enhancements
subject to being stricken as result of an ameliorative change in the law that occurred
while McKenzie’s appeal from order revoking probation and imposing the prison
sentence was pending. (Id. at pp. 43-44.)

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The decisive difference between McKenzie and this case is the finality of the
imposition of the sentence. McKenzie’s sentence was imposed after his probation was
revoked and that judgment was not final before the enactment of the ameliorative change
in law that would benefit him. (McKenzie, supra, 9 Cal.5th at pp. 43-44.) Defendant’s
sentence, however, was imposed at the time his criminal guilt was ascertained in
November 2018, and the judgment became final before the Senate Bill No. 136
amendment to subdivision (b) of section 667.5 became effective on January 1, 2020.
Defendant is not entitled to benefit from that amendment.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MENETREZ
J.

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