P. v. Lopez

Filed 11/13/20; THE SUPREME COURT OF CALIFORNIA HAS GRANTED REVIEW
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
GUSTAVO LOPEZ,
Defendant and Appellant.
H046618
(Monterey County
Super. Ct. No. SS111812A)
Does suspending execution of sentence to place a defendant on mandatory
supervision constitute a final judgment for purposes of retroactively applying an
ameliorative statutory amendment? We conclude there is no final judgment in that
situation because sentencing is not actually complete. In other words, a defendant who
remains on mandatory supervision is not yet subject to a final judgment. As a result,
defendant Gustavo Lopez is entitled to retroactive application of a statutory amendment
that made transporting a controlled substance for personal use a misdemeanor. We will
reverse the trial court’s decision to the contrary.
I. BACKGROUND
Defendant pleaded guilty in 2011 to transporting a controlled substance (Health &
Saf. Code, § 11352, subd. (a)), a felony. According to the police report, he was driving
with a bindle of approximately 0.2 grams of cocaine in his pocket. Defendant was
granted probation, which he violated in 2014. Because of the violation, the trial court
terminated probation and imposed an eight-month sentence (consecutive to the sentence
in another case). Under Penal Code section 1170, subdivision (h)(5)(B), the court
suspended execution of that sentence and placed defendant on mandatory supervision.

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Defendant violated the terms of mandatory supervision in February 2016. The
trial court increased the sentence to two years but again suspended execution to reinstate
mandatory supervision for the entire term. Defendant then violated mandatory
supervision (by testing positive for marijuana and not reporting to probation as directed)
in October 2016. He failed to appear at the violation hearing, and a bench warrant issued.
Defendant was brought before the court on the bench warrant in 2018, at which
time he moved to vacate his conviction. The basis for his request was that in 2013—two
years after his 2011 guilty plea—the Legislature amended Health and Safety Code
section 11352 to make transportation of a controlled substance a felony only where the
transportation was for the purpose of sale (not for personal use, which defendant asserts
are the circumstances of his offense). (Health & Saf. Code, § 11352, subd. (c), as
amended by Stats. 2013, ch. 504, sec. 1, eff. Jan. 1, 2014.) The trial court denied
defendant’s request, finding the statutory amendment inapplicable because defendant’s
judgment was final.
The court then set a return date for sentencing. At that hearing in January 2019,
the court stated, “You know, I’m changing my mind, Mr. Lopez. When I looked at this
yesterday, I thought it was time to simply have you serve the remainder of your local
prison time in custody. I’m going to give you one last chance.” The court proceeded to
modify defendant’s sentence to 360 days in county jail (with 312 days custody credit),
and ordered defendant placed on mandatory supervision for the remainder of the term.
Defendant obtained a certificate of probable cause and timely appealed.
II. DISCUSSION
As amended in 2013, Health and Safety Code section 11352 now requires proof of
an additional element for a conviction of transporting a controlled substance: that the
substance was transported for purposes of sale. The amended statute would benefit
defendant because he can be convicted only of a misdemeanor (under Health and Saf.

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Code, § 11350, subd. (a), prohibiting simple possession of a controlled substance), unless
the prosecution can prove he was transporting the cocaine he possessed in order to sell it.
Since defendant’s conviction is based on conduct that occurred in 2011, well
before the amendment’s January 1, 2014 effective date, the amended statute applies here
only if it can be applied retroactively. When a statute is amended to reduce the
punishment for a criminal act, it is presumed that the Legislature intended the lighter
penalty to apply retroactively “to every case to which it constitutionally could apply.”
(In re Estrada (1965) 63 Cal.2d 740, 745.) A statute can be constitutionally applied to
acts committed before its passage so long as the judgment of conviction is not final.
(Ibid.) A judgment becomes final when it has reached final disposition in the highest
court authorized to review it. (People v. Rossi (1976) 18 Cal.3d 295, 304.)
Of course, before a judgment can be final there must be a judgment. In criminal
actions, the terms “judgment” and “sentence” are synonymous. (People v. McKenzie
(2020) 9 Cal.5th 40, 46.) There can be no judgment without a sentence. (Ibid.) We must
therefore determine whether defendant had been “sentenced” before he was returned to
court in 2018. The last action by the trial court before defendant asked for relief under
the amended statute was to suspend execution of sentence and order defendant to serve a
term on mandatory supervision under Penal Code section 1170, subdivision (h)(5). The
question is whether that action resulted in defendant being sentenced.
A sentence, which consists of a fine, a term of imprisonment, or both, occurs when
the court orally pronounces it on the record. (People v. Karaman (1992) 4 Cal.4th 335,
344, fn. 9.) A grant of probation is not a sentence and final judgment for purposes of
retroactivity: in a case where the court suspends imposition of sentence to place the
defendant on probation, there is no final judgment. And where the court imposes
sentence but suspends its execution, that sentence constitutes only a provisional or
conditional judgment, the finality of which depends on the outcome of the probationary
period. (People v. Chavez (2018) 4 Cal.5th 771, 781.)

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Here, the trial court imposed sentence and suspended its execution to place
defendant on mandatory supervision. Mandatory supervision, a creature of the Criminal
Justice Realignment Act of 2011 (Stats. 2011, 1st Ex. Sess. 2011–2012, ch. 15, § 1), is
governed by Penal Code sections 1170, subdivision (h)(5) and 1203.3, subdivision (a).
(Undesignated statutory references are to the Penal Code.) Section 1170,
subdivision (h)(5)(A) directs that when imposing sentence in eligible cases, the trial court
“shall suspend execution of a concluding portion of the term for a period selected at the
court's discretion,” the mandatory supervision period. At the same time—and
significantly—section 1203.3, subdivision (a) expressly confers on the trial court the
“authority at any time during the term of mandatory supervision ... to revoke, modify, or
change the conditions of the court’s order suspending the execution of the concluding
portion of the supervised person’s term.” Although the statutory scheme uses the
language “suspending execution of sentence,” the court retains complete discretion to
modify the previously imposed sentence. (People v. Camp (2015) 233 Cal.App.4th 461,
470.) The trial court in this case well understood the extent of its discretion, twice
modifying defendant’s sentence after mandatory supervision violations to achieve what
the court viewed as a fair outcome under the circumstances. That flexibility is expressly
contemplated in the statutes that created mandatory supervision. It is also inconsistent
with the proposition that there was a final judgment, which could not be altered.
We see the trial court’s preserved discretion as dispositive. Given the court’s
complete authority to “revoke, modify, or change” its previous sentence (see § 1203.3,
subd. (a)), the sentencing process cannot fairly be described as finished when execution
of a sentence is suspended to place a defendant on mandatory supervision. To the extent
there is a judgment at that point, it is provisional or conditional in nature and therefore
does not prevent retroactive application of an ameliorative statute. (See People v.
Conatser (2020) 53 Cal.App.5th 1223, 1229.)

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The court of appeal addressed a related issue in People v. Martinez (2020)
54 Cal.App.5th 885, 889. There the defendant was entitled to retroactive application of
an ameliorative statute on appeal from an order revoking mandatory supervision and
executing a prison sentence. Focusing on the issue of finality, the Martinez court
reasoned that a judgment exists when mandatory supervision is revoked and a prison
sentence executed, but the judgment becomes final only when appellate review of the
revocation is complete. (Id. at p. 893.) In that case the same result obtained: An
ameliorative statute was applied retroactively when constitutionally permissible.
Legislative history reinforces our conclusion. It reflects that the Legislature
identified an injustice and sought to correct it by amending Health and Safety Code
section 11352 to limit the felony offense to transportation for purposes of sale: “AB 721
will correct the unwarranted interpretation that punishes an individual much more harshly
if he/she is arrested walking down the street in possession of a small amount of illegal
drugs than an individual who is arrested with the exact same quantity of drugs, but who is
just sitting on a bench. [] AB 721 simply corrects the ‘unjust’ and ‘absurd’ result foreseen
long ago by Justice Mosk [in his dissenting opinion in People v. Rogers (1971)
5 Cal.3d 129], and provides that similarly situated individuals should be treated similarly
by the law.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on A.B. No. 721
(2013–2014 Reg. Sess.) June 19, 2013, p. 1.) The legislative history supports our view
that the Legislature “ ‘must have intended’ [the] ameliorative changes to ‘operate in’
cases like this one.” (People v. McKenzie, supra, 9 Cal.5th 40, 51.)
Relying on People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, the
Attorney General argues defendant is precluded from relief because the time limit for
withdrawing his plea expired six months after the initial order granting probation in 2011.
(See § 1018.) We reject that argument because defendant is not seeking to withdraw his
plea. Rather, he asks that his conviction be vacated because his conduct no longer
violates the relevant statute post-amendment. This case is therefore distinguishable from

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Rodas, where the defendant did move to withdraw her plea, triggering application of the
mandatory time limit for such a motion. We note our disagreement with Rodas to the
extent it suggests that the statute governing withdrawal of pleas can affect whether an
amendment reducing punishment applies under In re Estrada (supra, 63 Cal.2d 740,
745). Ameliorative amendments must be applied retroactively in every case where doing
so is constitutionally permissible. (Ibid.) And constitutional permissibility depends on
whether the judgment is final, not on statutory rules for withdrawing pleas.
Nor are we persuaded by the Attorney General’s alternative position that a trial
court’s continuing discretion to modify mandatory supervision terms after suspending
execution of sentence does not affect the existence of a judgment. The ongoing ability to
change a sentence is fundamentally inconsistent with the proposition that sentencing is
complete, as it must be to create a final judgment. This situation is analogous to a grant
of probation which, as we have explained, is not a final judgment for retroactivity
purposes.
The Attorney General also claims forfeiture, arguing that application of the
amended statute is precluded because defendant could have, but did not, raise the issue on
direct appeal from the first order placing him on mandatory supervision in 2014. But
application of the forfeiture rule is not automatic. (People v. McCollough (2013)
56 Cal.4th 589, 593.) Although the doctrine promotes judicial economy by prohibiting
challenges not timely raised, competing considerations may prompt a reviewing court to
refrain from concluding that a claim has been forfeited. We find it appropriate to reach
the merits of the issue here regardless of any previous failure to raise it. As defendant
was punished under a statute the Legislature has since deemed unfair, that outcome
should not stand if it can properly be avoided.
What remains is the disposition of this appeal. The appropriate resolution is to
instruct the trial court to vacate defendant’s conviction, but also to allow the District
Attorney the option of trying defendant on the Health and Safety Code section 11352

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charge. We reach this outcome because the amendment to the statute added an element
the prosecution previously had no reason to prove: That the controlled substance was
transported for purposes of sale. Fairness dictates that the prosecution be given the
opportunity to establish the additional element on remand. (People v. Eagle (2016)
246 Cal.App.4th 275, 280.)
III. DISPOSITION
The order denying defendant’s motion to vacate his conviction for violating
Health and Safety Code section 11352 is reversed. The case is remanded with
instructions to enter a new order vacating defendant’s conviction, and for further
proceedings to allow the District Attorney the opportunity to prove the elements of a
violation of the current version of Health and Safety Code section 11352.

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____________________________________
Grover, J.
WE CONCUR:
____________________________
Elia, Acting P. J.
____________________________
Danner, J.
H046618 - The People v. Lopez

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Trial Court: Monterey County Superior Court,
Case No.: SS111812A
Trial Judge: Hon. Carrie McIntyre Panetta
Attorneys for Plaintiff/Respondent
The People:
Xavier Becerra
Attorney General of California
Jeffrey M. Laurence
Senior Assistant Attorney General
Donna M. Provenzano
Supervising Deputy Attorney General
Berit G. Fitzsimmons
Deputy Attorney General
Attorneys for Defendant/Appellant
Gustavo Lopez:
Lori A. Quick
Staff Attorney
Sixth District Appellate Program
H046618 - The People v. Lopez

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