P. v. Case

Filed 3/12/19 P. v. Case CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
SHAUN MICHAEL CASE,
Defendant and Appellant.
H045876
(Monterey County
Super. Ct. No. SS150065)
I. INTRODUCTION
In May 2015, defendant Shaun Michael Case pleaded no contest to possession for
sale of a controlled substance (Health & Saf. Code, § 11351)1 and admitted that he had
suffered a prior felony drug conviction (§ 11370.2, subd. (a)). In November 2015, the
trial court imposed a split sentence of six years with the first four years to be served in the
county jail and the remaining two years to be served under mandatory supervision (Pen.
Code, § 1170, subd. (h)). Defendant appealed from the judgment, and in April 2017, we
modified a condition of defendant’s mandatory supervision and affirmed the judgment as
modified. (People v. Case (Apr. 18, 2017, H043020) [nonpub. opn.] (Case).)2
1 All further statutory references are to the Health and Safety Code unless
otherwise indicated.
2 We take judicial notice of our opinion in Case, supra, H043020. (Evid. Code,
§ 452, subd. (d)(1).)

-- 1 of 10 --

2
In October 2017, the Legislature enacted Senate Bill No. 180 (2017-2018 Reg.
Sess.), which became effective on January 1, 2018. (See People v. Grzymski (2018)
28 Cal.App.5th 799, 802 (Grzymski).) The bill amended section 11370.2 “by authorizing
sentencing enhancements only for prior convictions that, unlike [defendant’s], involved
using a minor to commit drug-related crimes” in violation of section 11380. (Ibid.)
In February 2018, defendant moved to modify and terminate his mandatory
supervision based on the enactment of Senate Bill No. 180, arguing that the legislation
applied to him retroactively and mandated that the trial court strike the section 11370.2
sentencing enhancement. The trial court denied the motion. Two months later, in
April 2018, the trial court revoked and terminated defendant’s mandatory supervision,
ordering defendant to serve the balance of his term in the county jail, based on
defendant’s admission that he violated the conditions of his mandatory supervision.
Defendant now appeals from that order, contending that the trial court “exceeded its
authority when it modified [his] supervision to include prison time in county jail” for the
section 11370.2 sentencing enhancement despite the amendment under Senate Bill
No. 180, which he asserts applies retroactively to him.
For reasons that we will explain, we conclude that defendant is not entitled to
relief under Senate Bill No. 180 because his judgment was final when the legislation took
effect.
II. FACTUAL AND PROCEDURAL BACKGROUND
In September 2014, police officers searched defendant and located 22.5 gross
grams of black tar heroin in one pocket and two hypodermic needles in another pocket.
(Case, supra, H043020, at p. 2.) Defendant admitted that he had been selling heroin for
about two months and that he was also a heroin user. (Id. at p. 3.)

-- 2 of 10 --

3
In April 2015, defendant was charged by information with possession for sale of
heroin (§ 11351). The information further alleged that defendant had suffered two prior
felony drug convictions (§ 11370.2, subd. (a)).
In May 2015, defendant pleaded no contest to possession for sale and admitted
that he had suffered one prior felony drug conviction.3 Defendant entered his plea and
admission with the understanding that he would receive a maximum sentence of
seven years.
In November 2015, the trial court sentenced defendant to six years, with the first
four years to be served in the county jail and the remaining two years to be served under
mandatory supervision. (See Pen. Code, § 1170, subd. (h)(5)(B).) The sentence
consisted of a three-year term for the substantive offense and a consecutive three-year
term for the section 11370.2 sentencing enhancement. The court dismissed the remaining
section 11370.2 sentencing enhancement pursuant to Penal Code section 1385.
Defendant timely appealed, and on April 18, 2017, we modified a condition of
defendant’s mandatory supervision and affirmed the judgment as modified. (Case, supra,
H043020, at p. 6.) Defendant did not petition for review in the California Supreme
Court, and this court issued the remittitur on June 20, 2017.
While that appeal was pending, defendant appealed from the trial court’s denial of
his post-judgment motion to correct presentence credits.4 Pursuant to People v. Serrano
(2012) 211 Cal.App.4th 496, this court dismissed the appeal as abandoned on
January 6, 2017. Defendant did not petition for review of the dismissal order in the
California Supreme Court, and this court issued the remittitur on March 8, 2017.
3 The district attorney alleged two sentencing enhancements pursuant to
section 11370.2, subdivision (a) based on defendant’s 2010 conviction of possession for
sale of a controlled substance (§ 11351) and defendant’s 2014 conviction of
transportation of a controlled substance (§ 11352). It is unclear from the record which of
the two prior convictions defendant admitted.
4 We take judicial notice of the docket in People v. Case, H043747. (Evid. Code,
§ 452, subd. (d)(1).)

-- 3 of 10 --

4
In November 2017, the probation department filed a petition and notice of a
violation of mandatory supervision. The petition alleged that defendant failed to report to
probation after his release from custody.
In December 2017, the district attorney filed a declaration and notice of violation
of probation, alleging that defendant violated the terms and conditions of his probation
because defendant drove on a suspended or revoked license (Veh. Code, § 14601.1,
subd. (a)). The district attorney filed a second declaration and notice of violation of
probation in January 2018, alleging that defendant violated the terms and conditions of
his probation because he possessed a controlled substance (§ 11350, subd. (a)).5
In February 2018, defendant moved to modify and terminate his mandatory
supervision, contending that Senate Bill No. 180 applied retroactively to him and
required the trial court to strike the section 11370.2 sentencing enhancement. The trial
court denied the motion, determining that defendant was not entitled to the benefit of the
amendment because defendant’s “appellate rights have ended.” In March 2018, the trial
court found defendant in violation of the conditions of his mandatory supervision. The
following month, on April 25, 2018, the trial court revoked and terminated defendant’s
mandatory supervision and ordered defendant to serve the remainder of his sentence in
the county jail.
III. DISCUSSION
Defendant contends that Senate Bill No. 180, which became effective on
January 1, 2018, applies retroactively to him. Defendant asserts that the trial court had
“broad discretion to . . . revoke, modify, or terminate mandatory supervision” pursuant to
Penal Code sections 1170, subdivision (h), 1203.2, and 1203.3, and that because the trial
court could have lawfully provided him with relief under Senate Bill No. 180, it
5 Although both the December 2017 and January 2018 notices alleged that
defendant violated the terms of his probation, the notices apparently pertained to
defendant’s alleged violations of his mandatory supervision conditions.

-- 4 of 10 --

5
“exceeded its authority in modifying [his] supervision to punish him as though the
enhancement were still punishable.” The Attorney General counters that although Senate
Bill No. 180 applies retroactively to non-final judgments, defendant was not entitled to
relief because the judgment against him was final before the new legislation took effect.
We review the retroactive application of a statute de novo. (In re Marriage of
Fellows (2006) 39 Cal.4th 179, 183.)
Generally, “where [an] amendatory statute mitigates punishment and there is no
saving clause, the rule is that the amendment will operate retroactively so that the lighter
punishment is imposed” if the amended statute takes effect before the judgment of
conviction becomes final. (In re Estrada (1965) 63 Cal.2d 740, 744-748 (Estrada).)
“This rule rests on an inference that when the Legislature has reduced the punishment for
an offense, it has determined the ‘former penalty was too severe’ [citation] and therefore
‘must have intended that the new statute imposing the new lighter penalty . . . should
apply to every case to which it constitutionally could apply’ [citation].” (People v.
DeHoyos (2018) 4 Cal.5th 594, 600.) Thus, “[a]bsent some indication to the contrary in
the bill, courts presume the Legislature intended amendments that reduce the punishment
for a crime to apply retroactively, at least in cases that are not yet final. [Citations.]”
(People v. McKenzie (2018) 25 Cal.App.5th 1207, 1213 (McKenzie), review granted
Nov. 20, 2018, S251333.)
“Nothing in Senate Bill No. 180 indicates the Legislature intended prospective
application only. (Stats. 2017, ch. 677, § 1.)” (McKenzie, supra, 25 Cal.App.5th at
p. 1213.) “Accordingly, Senate Bill No. 180 applies retroactively to cases in which the
judgment was not yet final on January 1, 2018 . . . .” (Ibid.)
A judgment is final “ ‘where the judgment of conviction was rendered, the
availability of appeal exhausted, and the time for petition for certiorari had elapsed . . . .’
[Citations.]” (People v. Kemp (1974) 10 Cal.3d 611, 614; see also People v. Vieira
(2005) 35 Cal.4th 264, 306 [“ ‘[F]or the purposes of determining retroactive application

-- 5 of 10 --

6
of an amendment to a criminal statute, a judgment is not final until the time for
petitioning for a writ of certiorari in the United States Supreme Court has passed.’ ”].)
The time to file a petition for a writ of certiorari in the United States Supreme Court is
90 days after judgment is entered by a state court of last resort or discretionary review is
denied by a state court of last resort. (U.S. S.Ct. rule 13.1.)
When a trial court “initially suspends imposition of sentence and grants probation,
‘no judgment is then pending against the probationer, who is subject only to the terms
and conditions of the probation.’ [Citation.] No judgment has been rendered against
him, or ever will be if he successfully completes probation. But if he fails to successfully
complete probation and instead violates probation, the trial court may revoke and
terminate probation, and then impose sentence in its discretion, thereby rendering
judgment. [Citations.] That judgment will become final if the defendant does not appeal
within 60 days. (See California Rules of Court, rule 8.308(a).)” (McKenzie, supra,
25 Cal.App.5th at p. 1214, fn. omitted.)
In contrast, “when the trial court initially imposes sentence, but suspends
execution of that sentence and grants probation, a judgment has been rendered.
[Citation.] That judgment will become final if the defendant does not appeal within
60 days. ([Citation]; see [California Rules of Court,] rule 8.308(a).) If the defendant
violates probation, the trial court may revoke and terminate probation, but it must then
order execution of the originally imposed sentence; the trial court has no jurisdiction to
do anything other than order the exact sentence into execution. [Citations.]” (McKenzie,
supra, 25 Cal.App.5th at p. 1214.)
The procedural posture here is akin to the second situation. Defendant was
sentenced to a two-year term of mandatory supervision pursuant to Penal Code
section 1170, subdivision (h)(5), which provides that a court “shall suspend execution of
a concluding portion of the term for a period selected at the court’s discretion.” (Pen.
Code, § 1170, subd. (h)(5)(A).) The minute order from the November 4, 2015 sentencing

-- 6 of 10 --

7
hearing states that “[t]he Court hereby suspends the execution of [two] years of the total
term” and places defendant on mandatory supervision. The abstract of judgment
indicates that no part of defendant’s sentence was stayed. Instead, the abstract states that
“[e]xecution of a portion of the total jail time imposed [six years] [was] suspended and
deemed a period of mandatory supervision under PC 1170(h)(5)(B) as follows:
Suspended portion: 2 years Served forthwith: 4 years.” Accordingly, a judgment was
rendered when defendant was sentenced on November 4, 2015. (See Grzymski, supra, 28
Cal.App.5th at pp. 805-806 [“the trial court rendered judgments in 2013 and 2015 when it
imposed split sentences” because “[a] split sentence involves imposing the sentence and
then ‘suspending execution of the concluding portion of [it].’ [Citation.]”].)
Defendant appealed from the judgment, and we affirmed the judgment as modified
on April 18, 2017. (Case, supra, H043020, at p. 6.) Defendant did not petition for
review in the California Supreme Court, and this court issued the remittitur on June 20,
2017. Thus, the judgment against defendant was final before Senate Bill No. 180 became
effective on January 1, 2018. “As a result, the amendments to section 11370.2 do not
apply” to defendant. (Grzymski, supra, 28 Cal.App.5th at p. 806.)
Defendant argues that while “non-finality was a sufficient condition for retroactive
relief,” Estrada did not make this “a necessary condition.” Defendant relies on
McKenzie, supra, 25 Cal.App.5th 1207, People v. Eagle (2016) 246 Cal.App.4th 275
(Eagle), and In re May (1976) 62 Cal.App.3d 165 (May) to assert that “a case is not final
for Estrada purposes unless there is a legal or constitutional impediment that would have
prevented the legislature from providing for the lesser punishment.” However, each of
those cases involved the imposition of a suspended sentence and a grant of probation,
such that the judgment was final “only for the ‘limited purpose of taking an appeal
therefrom.’ ” (People v. Howard (1997) 16 Cal.4th 1081, 1087.) In Eagle, the trial court
suspended imposition of sentence and placed defendant on probation, and the People
conceded that the suspended imposition of sentence meant that the defendant’s judgment

-- 7 of 10 --

8
was not final when the statutory amendment took effect and that the defendant was
therefore entitled to retroactive relief. (Eagle, supra, at pp. 278-279.) The Court of
Appeal agreed. (Id. at p. 279.) In May, the proceedings were “suspended,” probation
was granted, and “no final judgment was entered for the purposes of this case.” (May,
supra, at pp. 168-169.) Similarly, in McKenzie, the Court of Appeal concluded that the
judgment was not final for retroactivity purposes where the trial court had suspended
imposition of sentence and granted probation. (McKenzie, supra, at pp. 1217-1218.)
Importantly, the McKenzie court observed that “[h]ad the trial court initially imposed
sentence . . . and suspended its execution, we would agree that defendant’s judgment
would have become final 60 days later and he could not now obtain the retroactive
benefit of a change in law under Estrada.” (Ibid.)
Defendant attempts to distinguish his split sentence from an execution-suspended
sentence by raising the trial court’s ability to revoke, modify, or terminate mandatory
supervision under Penal Code sections 1170, subdivision (h), 1203.2, subdivisions (a)
and (b), and 1203.3. Defendant relies on People v. Camp (2015) 233 Cal.App.4th 461,
464 (Camp), where the Court of Appeal held that the trial court had the authority to
terminate the mandatory supervision portion of the defendant’s split sentence upon
learning that the defendant was ineligible for mandatory supervision because he was
subject to an immigration hold and would be deported when released from custody.
However, the court did not address or discuss the finality of the judgment for purposes of
appeal or for retroactivity under Estrada. “ ‘It is axiomatic that cases are not authority
for propositions not considered.’ ” (People v. Avila (2006) 38 Cal.4th 491, 566.)
Moreover, as the Court of Appeal determined in Grzymski, “[e]ven if a trial court
has authority to terminate mandatory supervision without ordering that the suspended
portion of the sentence be served, as Camp held, it does not follow that the sentence is
therefore not a final judgment under Estrada. It is settled that an unappealed order of
probation suspending execution of the sentence is final for retroactivity purposes after

-- 8 of 10 --

9
60 days, yet such orders are still subject to modification under Penal Code
sections 1203.2 and 1203.3, the same statutes that govern the modification of orders
imposing split sentences. (Pen. Code, § 1170(h)(5)(B).) And when a trial court
sentences a defendant under Penal Code section 1170, which applies not only to split
sentences but also to determinate sentences more broadly, under certain circumstances
the court may recall the sentence within 120 days of a commitment and resentence the
defendant. (Pen. Code, § 1170, subd. (d)(1).) But again, the possibility that a sentence
may be recalled does not affect its finality.” (Grzymski, supra, 28 Cal.App.5th at p. 807.)
Defendant contends that Grzymski was wrongly decided because it “focused on
imposition of sentence as the test for finality of a judgment,” and that approach was
rejected by the California Supreme Court in People v. Chavez (2018) 4 Cal.5th 771
(Chavez). In Chavez, the court considered whether a trial court retains jurisdiction to
dismiss a criminal action under Penal Code section 1385 after a sentence of probation has
been completed, and the court held that it does not. (Chavez, supra, at pp. 779-781, 783-
784.) Defendant points to the court’s statement “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.) But the court did not consider the finality of
the judgment for purposes of retroactivity, nor did it raise Estrada. Furthermore, the
court expressly acknowledged that finality can have different meanings in different
factual contexts. (Id. at pp. 785-786.)
For these reasons, we conclude that defendant was not eligible for relief under
Senate Bill No. 180 because the judgment against him was final when the legislation took
effect.
IV. DISPOSITION
The April 25, 2018 order is affirmed.

-- 9 of 10 --

10
___________________________________________
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
__________________________
ELIA, ACTING P.J.
__________________________
MIHARA, J.
People v. Case
H045876

-- 10 of 10 --