P. v. Martinez

Filed 9/23/20 (unmodified opn. attached) ; THE SUPREME COURT OF
CALIFORNIA HAS GRANTED REVIEW
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
BALTAZAR DIAZ MARTINEZ,
Defendant and Appellant.
2d Crim. No. B303086
(Super. Ct. No. 2017032341)
(Ventura County)
ORDER MODIFYING
OPINION AND DENYING
REHEARING
[CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on August 31,
2020, and certified for publication, be modified as follows:
1. On page 3, last sentence of first partial paragraph (“We
conclude that Martinez is entitled to request such relief from the
trial court, and remand.”) is deleted and replaced with:
We agree, and remand.
2. On page 10, last sentence of first full paragraph
(“Martinez must thus be afforded the opportunity to request that

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the two one-year prison priors be stricken from his sentence
pursuant to S.B. 136.”) is deleted and replaced with:
The two one-year prison priors must be stricken from
his sentence. (People v. Conatser (2020) 53
Cal.App.5th 1223, 1230.)
3. On pages 10-11, the section entitled “Remedy” is deleted
in its entirety.
4. On page 12, the first sentence of the disposition (“The
matter is remanded to the trial court for the limited purpose of
permitting Martinez the opportunity to request relief pursuant to
S.B. 136.”) is deleted and replaced with:
The matter is remanded to the trial court with
directions to strike the two one-year sentence
enhancements imposed pursuant to section 667.5,
subdivision (b), and to resentence Martinez.
This modification changes the judgment.
Appellant’s petition for rehearing is denied.
____________________________________________________________
TANGEMAN, J. GILBERT, P. J. YEGAN, J.

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Filed 8/31/20 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
BALTAZAR DIAZ MARTINEZ,
Defendant and Appellant.
2d Crim. No. B303086
(Super. Ct. No. 2017032341)
(Ventura County)
This case involves the intersection of the Criminal
Justice Realignment Act and the retroactive application of
ameliorative statutes pursuant to In re Estrada (1965) 63 Cal.2d
740 (Estrada). Under the Realignment Act, a trial court has
discretion to impose a “split sentence” consisting of a term in
county jail followed by a period of mandatory supervision. The
court fashions a split sentence by suspending execution of the
latter portion of the defendant’s sentence and releasing them
subject to the probation department’s supervision. If the
defendant violates the terms of supervision, the court may revoke
it and order execution of the suspended portion of the sentence.
The issue presented in this case is whether a
defendant is entitled to seek the retroactive benefit of an

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ameliorative statute on appeal from an order revoking
supervision.1 We hold that a split sentence consisting of a county
jail term followed by a period of mandatory supervision does not
automatically become a final judgment of conviction for purposes
of Estrada retroactivity when the time to appeal from the
imposition of that sentence expires. Where, as here, the trial
court subsequently revokes supervision and the Legislature
enacts an ameliorative statute prior to or during the pendency of
an appeal from the revocation order, the defendant is entitled to
seek relief under the new law.
Baltazar Diaz Martinez pled guilty to unlawfully
driving or taking a vehicle (Veh. Code, § 10851, subd. (a)),
identity theft (Pen. Code,2 § 530.5, subd. (a)), grand theft (§ 487,
subd. (a)), and providing a police officer with false information
(§ 148.9, subd. (a)), and admitted allegations that he had served
three prior prison terms (§ 667.5, subd. (b)). The trial court
struck one of the prison priors and imposed a split sentence of
four years eight months, two years of which was based on the two
remaining prison priors. Martinez was to serve the first two
years of his sentence in county jail, and the remaining two years
eight months on mandatory supervision.
Martinez violated the terms of supervision. After his
second violation, the trial court revoked supervision and ordered
1 The Supreme Court recently granted review in a case
presenting a related issue: when a judgment becomes final for
purposes of Estrada retroactivity where probation is granted and
execution of the sentence is suspended. (See People v. Esquivel
(Mar. 26, 2020, B294024) [nonpub. opn.], review granted Aug. 12,
2020, S262551.)
2 Undesignated statutory references are to the Penal Code.

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him to serve the remainder of his sentence in county jail. On
appeal from the order revoking supervision, he contends he is
entitled to have the two one-year prison priors stricken from his
sentence due to a change in the law that occurred after
sentencing. We conclude that Martinez is entitled to request
such relief from the trial court, and remand.
FACTUAL AND PROCEDURAL HISTORY
In February 2018, Martinez pled guilty to unlawfully
driving or taking a vehicle, identity theft, grand theft, and giving
a police officer false information, and admitted allegations that
he had served three prior prison terms. In exchange for his
guilty plea, the trial court agreed to impose a split sentence of
four years eight months: two years in county jail, followed by two
years eight months of mandatory supervision. The plea
agreement did not state which convictions and enhancements
would make up the total sentence.
At the March sentencing hearing, the trial court
struck one of the prison priors and sentenced Martinez to the
agreed-upon term of four years eight months: two years for
unlawfully driving or taking a vehicle, eight months on the
identity theft, and two years on the two remaining prison priors.
Sentences on Martinez’s additional convictions were run
concurrently. He did not appeal from the judgment.
In January 2019, the trial court revoked and
reinstated mandatory supervision after Martinez admitted that
he had violated its terms by getting arrested and failing to report
for drug testing. The court ordered him to serve 120 days in
county jail for his violations.
Seven months later, Martinez admitted that he again
violated the terms of supervision. This violation was tied, in

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part, to a new case in which Martinez pled guilty to another
count of unlawfully driving or taking a vehicle and two more
counts of identity theft. The trial court revoked supervision and
ordered Martinez to serve the remaining 514 days of his original
sentence in county jail. It sentenced him to a consecutive two
years four months in jail on his new convictions.
DISCUSSION
When the trial court sentenced Martinez in 2018,
section 667.5, subdivision (b), required it to add two years to his
sentence because of his two prior prison terms. (People v.
Jennings (2019) 42 Cal.App.5th 664, 681 (Jennings)
[enhancement mandatory unless stricken].) The Legislature
subsequently enacted Senate Bill No. 136 (S.B. 136), which,
effective January 1, 2020, limits the applicability of prior prison
term sentence enhancements to terms served for sexually violent
offenses. (Ibid.) The provisions of S.B. 136 apply retroactively to
cases that are not yet final on appeal. (Id. at pp. 681-682.)
Martinez argues he is entitled to have the
enhancements stricken from the sentence imposed in his 2018
case because neither of his prior terms in prison involved a
sexually violent offense. The Attorney General argues Martinez
is not entitled to relief because the judgment in his case was final
prior to S.B. 136’s effective date. Martinez has the better
argument.
Retroactivity under Estrada
In Estrada, the Supreme Court held that an
ameliorative statute will generally apply to all cases that are not
final as of its effective date. (Estrada, supra, 63 Cal.2d at pp.
744-745.) Estrada’s retroactivity principles apply in a variety of
contexts, including to statutory amendments that restrict the

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applicability of sentence enhancements. (Jennings, supra, 42
Cal.App.5th at pp. 681-682.) “The key date is the date of final
judgment.” (Estrada, at p. 744.) “If the amend[ed] statute . . .
becomes effective prior to the date the judgment of conviction
becomes final[,] then . . . it, and not the old statute in effect when
the prohibited act was committed, applies.” (Ibid.)
“In criminal actions, the terms ‘judgment’ and
‘“sentence”’ are generally considered ‘synonymous’ [citation].”
(People v. McKenzie (2020) 9 Cal.5th 40, 46 (McKenzie).) There
can be “no ‘judgment of conviction’ without a sentence.” (Ibid.)
Thus, for purposes of Estrada retroactivity, the focus is not on
when a conviction becomes final but rather when the sentence
imposed on that conviction becomes final. (Ibid.) A sentence
becomes final “when all available means to avoid its effect have
been exhausted.” (Stephens v. Toomey (1959) 51 Cal.2d 864, 869
(Stephens).) It has not become final “if there still remains some
legal means of setting it aside” on direct appeal. (Ibid.)
Determining whether such means remain here presents an issue
of law for our independent review. (In re Marriage of Fellows
(2006) 39 Cal.4th 179, 183.)
Split sentences
In 2011, the Legislature enacted the Realignment
Act, which grants a trial court the discretion to either sentence a
low-level felony offender to county jail or impose a “‘split sentence
consisting of county jail followed by a period of mandatory
supervision.’ [Citation.]” (People v. Camp (2015) 233 Cal.App.4th
461, 467; see also People v. Scott (2014) 58 Cal.4th 1415, 1418-
1419 (Scott).) In the latter scenario, the court suspends execution
of the concluding portion of the offender’s sentence and releases
them into the community under the supervision of the probation

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department. (People v. Avignone (2017) 16 Cal.App.5th 1233,
1240.) The period of supervision “is mandatory [and] may not be
. . . terminated [early] except by court order.” (§ 1170, subd.
(h)(5)(B).) If the offender is rearrested during that period, any
proceeding to revoke or modify the terms of supervision must be
conducted pursuant to section 1203.2. (Ibid.; see Camp, at p. 469,
fn. 9.) That section permits the court to either release the
offender under the same or modified terms, or revoke and
terminate supervision. (§ 1203.2, subd. (a).) If the court opts for
the latter, it must lift the suspension on the execution of the
previously pronounced sentence and order it into “full force and
effect.” (§ 1203.2, subd. (c).)
Chavez and McKenzie
Given the discretion granted to a trial court by
section 1203.2 and related statutes, the Supreme Court has
explained that, in the context of probation, a judgment is not
“final” when the trial court imposes a sentence but suspends its
execution. (People v. Chavez (2018) 4 Cal.5th 771, 781 (Chavez).)
Criminal proceedings remain outstanding against the defendant,
and the judgment “may or may not become final” depending on
what happens during the probationary period. (Stephens, supra,
51 Cal.2d at p. 875.) If the defendant complies with the terms of
probation throughout that period, the case may be dismissed and
expunged from the record, resulting in no final judgment. (Ibid.;
see § 1203.4.) In contrast, if the defendant violates the terms of
probation, probation may “be revoked [and] the judgment may be
ordered in full force and effect.” (Stephens, at p. 875.) This range
of outcomes exemplifies that a sentence that is imposed and
suspended “constitutes ‘a judgment provisional or conditional in
nature.’ [Citation.]” (Chavez, at p. 781.)

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McKenzie illustrates these principles. In 2014, the
McKenzie defendant pled guilty to a number of charges, and
admitted allegations that he had sustained four prior convictions
for drug-related offenses. (McKenzie, supra, 9 Cal.5th at p. 43.)
Each of the prior conviction admissions subjected the defendant
to a three-year sentence enhancement. (Ibid.) The trial court
suspended imposition of sentence, and placed him on five years of
formal probation. (Ibid.) He did not appeal. (Id. at p. 48.)
Two years later, the trial court revoked probation and
imposed a state prison sentence that included the four
enhancements for the defendant’s prior drug-related convictions.
(McKenzie, supra, 9 Cal.5th at p. 43.) While the case was
pending on appeal from the revocation order, the Legislature
enacted Senate Bill No. 180 (S.B. 180), which rendered the
defendant ineligible for the enhancements. (Id. at p. 44.) The
Supreme Court concluded that he was entitled to take advantage
of S.B. 180’s provisions because his “‘“criminal proceeding had not
yet reached final disposition in the highest court authorized to
review it.”’ [Citation.]” (Id. at p. 45, alterations omitted.)
In reaching that conclusion, the Supreme Court
rejected the Attorney General’s argument that the 2014 order
granting probation “was ‘a final judgment for purposes of filing
an appeal.’” (McKenzie, supra, 9 Cal.5th at p. 46.) There is a
“‘substantial and pertinent difference between an order granting
probation and a final judgment.’” (Id. at pp. 47-48.) A criminal
action does not terminate “when ‘the court orders a grant of
probation.’” (Id. at p. 47.) Rather, a “‘criminal action’—and thus
the trial court’s jurisdiction to impose a final judgment—
‘continues into and throughout the period of probation’ and
expires only ‘when the probation period ends.’ [Citation.]” (Ibid.,

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alterations omitted.) It is “irrelevant that . . . ‘an order granting
probation is deemed a “final judgment” for the purpose of taking
an appeal.’ [Citation.]” (Ibid.) “‘[S]uch an order’ has only
‘limited finality’ and ‘“does not have the effect of a judgment for
other purposes,”’” such as determining whether a new
ameliorative statute is retroactive under Estrada. (Ibid.)
Though McKenzie involved probation, we see no
reason to depart from its principles in a case involving mandatory
supervision. Mandatory supervision is “akin to probation.”
(People v. Griffis (2013) 212 Cal.App.4th 956, 963, fn. 2.) During
the supervision period, the defendant is “supervised by the
county probation officer in accordance with the terms, conditions,
and procedures generally applicable to persons placed on
probation,” including those used to revoke or modify the terms of
supervision. (§ 1170, subd. (h)(5)(B); see §§ 1203.2, 1203.3.) The
applicability of these procedures and the myriad outcomes they
permit demonstrate that mandatory supervision, like probation,
is conditional or provisional in nature.
That McKenzie considered a case where imposition of
sentence was suspended, while mandatory supervision involves
suspension of the execution of sentence, does not change our
conclusion. McKenzie relied heavily on Chavez, which explained
the differences between the two forms of probation. The Chavez
court stated that “[i]n the case where the court suspends
execution of sentence, the . . . finality of the sentence ‘depends on
the outcome of the probationary proceeding’ and ‘is not a final
judgment.’” (Chavez, supra, 4 Cal.5th at p. 781.) Instead, “the
grant of probation opens the door to two separate phases for the
probationer: the period of probation and the time thereafter.”
(Ibid.) During the former, “the court retains the power to revoke

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probation and sentence the defendant to imprisonment.” (Id. at
p. 782.) If the court exercises that power—as it did in the
proceedings below—the judgment then has “full force and effect.”
(§ 1203.2, subd. (c).) It will become final once the means for
setting it aside on direct appeal have been exhausted. (Stephens,
supra, 51 Cal.2d at pp. 869, 875.)
Scott and Ramirez
Relying on Scott, supra, 58 Cal.4th 1415, the
Attorney General counters that Martinez’s sentence became final
when he failed to appeal from the trial court’s imposition of a
split sentence in 2018. But the Supreme Court rejected an
analogous argument in McKenzie (McKenzie, supra, 9 Cal.5th at
pp. 46-47), requiring us to do the same here (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; see People v.
Triggs (1973) 8 Cal.3d 884, 890-891 [holdings of the Supreme
Court “must be applied wherever the facts of a case are not fairly
distinguishable from the facts of the case in which [the court has]
declared the applicable principle of law”], disapproved on another
ground by People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 4).
Moreover, the issue in Scott was when the defendant was
sentenced for purposes of the Realignment Act—i.e., when the
sentence was originally imposed and suspended, or when the
court lifted the suspension and ordered the sentence to be
executed—not when that sentence became final. (Scott, at p.
1421.) “It is axiomatic that cases are not authority for
propositions not considered.” (People v. Ault (2004) 33 Cal.4th
1250, 1268, fn. 10.)
Nor are we persuaded by the Attorney General’s
comparison of this case to People v. Ramirez (2008) 159
Cal.App.4th 1412. In Ramirez, the defendant did not appeal from

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the trial court’s 2004 order that modified the terms of probation,
imposed an increased sentence, and suspended its execution
pending a period of formal probation. (Id. at p. 1421.) In 2006,
the court revoked probation, and the defendant appealed,
challenging the terms of the 2004 order. (Ibid.) Because the
defendant could have challenged the 2004 order on direct appeal
but chose not to do so, he was estopped from doing so in his
appeal from the 2006 order revoking probation. (Ibid.)
Here, Martinez has not claimed any error in the trial
court’s order imposing a split sentence in 2018. “Instead, he
raises an issue relating to the [2019] ‘revocation of [supervision]
and sentencing’ [citation], based on an event—the [enactment of
S.B. 136]—that occurred long after the court ordered [mandatory
supervision] and the time for direct appeal lapsed.” (McKenzie,
supra, 9 Cal.5th at p. 50, original italics.) He thus “could not
have raised this issue [on] appeal from the [supervision] order.”
(Ibid., italics omitted.) “Under these circumstances, [Martinez’s]
failure to file such a direct appeal does not preclude him from
taking advantage of ameliorative amendments that took effect
while he was appealing from the subsequent revocation of his
[supervision] and [execution] of sentence.” (Ibid.) Martinez must
thus be afforded the opportunity to request that the two one-year
prison priors be stricken from his sentence pursuant to S.B. 136.
Remedy
Martinez takes a different view, contending he is
entitled to have the two one-year enhancements stricken from his
sentence while leaving the remainder of the sentence unchanged.
We disagree.
S.B. 136 “‘does not entitle defendants . . . “to whittle
down [their] sentence[s] ‘but otherwise leave [their] plea

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bargains[s] intact.’”” (People v. Stamps (2020) 9 Cal.5th 685, 706
(Stamps).) If Martinez elects to pursue S.B. 136 relief, the trial
court will be able to withdraw its approval of the plea agreement
if it cannot fashion a new four year eight month sentence that
does not include the stricken enhancements. (Id. at pp. 706-708.)
The prosecutor, too, will be able to withdraw from the agreement
if such a sentence cannot be imposed. (Id. at p. 707.) Or perhaps
the prosecutor will “agree to modify the bargain to reflect
[Martinez’s preferred] downward departure in [his] sentence,”
and the court will approve the new plea. (Ibid.)
Given these potential outcomes, it is “ultimately
[Martinez’s] choice whether he wishes to seek relief under [S.B.
136].” (Stamps, supra, 9 Cal.5th at p. 708.) While he “has
consistently argued on appeal that [S.B. 136] should retroactively
apply to him, his argument has always been coupled with his
claim that the proper remedy [is] to simply allow the trial court
to reduce his sentence by [two years] while otherwise
maintaining the remainder of the plea agreement.” (Ibid.)
Because we have rejected that claim, Martinez’s “calculus in
seeking relief under [S.B. 136] may have changed.” (Ibid.) He
should now “be allowed to make an informed decision whether to
seek relief on remand.” (Ibid.)

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DISPOSITION
The matter is remanded to the trial court for the
limited purpose of permitting Martinez the opportunity to
request relief pursuant to S.B. 136. In all other respects, the
judgment is affirmed.
CERTIFIED FOR PUBLICATION.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.

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Bruce A. Young, Judge
Superior Court County of Ventura
______________________________
Todd W. Howeth, Public Defender, William Quest,
Deputy Public Defender, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Paul M. Roadarmel, Jr., and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff
and Respondent.

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