P. v. Shelton

Filed 5/28/20 P. v. Shelton CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
RANDALL ALEXANDER
SHELTON,
Defendant and Appellant.
B299376
(Los Angeles County
Super. Ct. No. GA093524)
APPEAL from an order of the Superior Court of
Los Angeles County, Sean D. Coen, Judge. Affirmed.
____________________________
Linda L. Gordon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.

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In 2014, the trial court sentenced defendant and appellant
Randall Alexander Shelton to 10 years in prison, but suspended
the execution of the sentence and placed Shelton on probation.
The suspended sentence included five 1-year enhancements
under Penal Code1 section 667.5, subdivision (b) for so-called
“prison-prior” felonies. Almost five years later, the trial
court found Shelton in violation of the terms of his probation.
The court reinstated the suspended sentence, but reduced
it by three years because three of the enhancements under
section 667.5, subdivision (b) had been imposed in error.
While Shelton’s probation revocation was pending on
appeal, the Legislature enacted Senate Bill No. 136 (Stats. 2019,
ch. 590, § 1, eff. Jan. 1, 2020), which eliminated section 667.5,
subdivision (b) enhancements for defendants who, like Shelton,
have not committed sexually violent offenses. Shelton contends
that under the new law, the remaining two enhancements must
be struck from his sentence. We disagree and affirm. Senate Bill
No. 136 does not apply to Shelton’s case because the judgment
against him was final before the law became effective.
FACTS AND PROCEEDINGS BELOW
On September 11, 2014, Shelton pleaded no contest
to (counts 1 and 2) possession of a firearm by a felon (§ 29800,
subd. (a)(1)), (count 3) possession of ammunition by a person
prohibited from owning or possessing a firearm (§ 30305,
subd. (a)(1)), and (count 4) unlawful driving or taking of a
vehicle. (Veh. Code, § 10851, subd. (a).) Shelton also admitted
that he had suffered five prior convictions for felonies to which
1 Unless otherwise specified, subsequent statutory
references are to the Penal Code.

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one-year enhancements under section 667.5, subdivision (b)
applied.
The trial court imposed an aggregate sentence of 10 years
in prison, but suspended the execution of the sentence pending
the completion of probation. The sentence consisted of the high
term of three years for count 1, plus consecutive terms of eight
months, or one-third the middle term, for each of counts 2, 3,
and 4. In addition, the court imposed five 1-year enhancements
under section 667.5, subdivision (b) to be served consecutively.
The court placed Shelton on five years of formal felony probation
and ordered him to serve 180 days in county jail.
On February 15, 2019, Los Angeles County Sheriff ’s
deputies searched a car Shelton was traveling in and discovered a
handgun. After a contested hearing, the trial court found Shelton
in violation of the terms of his probation for possessing the gun.
Shelton argued that the trial court could not impose the
prior suspended sentence in full because it included components
unauthorized by law. In particular, Shelton argued that three of
the five enhancements under section 667.5, subdivision (b) were
invalid. In one instance, Shelton had received two enhancements
based on a single prison commitment, and in two other instances,
the convictions were not for felonies for which Shelton served
prison sentences. The trial court agreed and removed three
enhancements from Shelton’s sentence. The trial court then
imposed the remainder of the previously suspended sentence, for
a total term of seven years.

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DISCUSSION
Shelton contends we must strike the remaining two
section 667.5, subdivision (b) enhancements from his sentence.
According to Shelton, the judgment against him was not final
at the time the Legislature enacted Senate Bill No. 136, which
eliminated enhancements under section 667.5, subdivision (b) for
offenses like his. He argues that the new law therefore applies
retroactively to him. We disagree. The judgment against Shelton
became final before the new law came into effect, and the trial
court’s finding that part of his sentence was unauthorized does
not change the status of the remainder of his sentence.
Senate Bill No. 136, which the Governor signed into law
on October 8, 2019, and which became effective January 1, 2020,
limits the application of enhancements under section 667.5,
subdivision (b). Prior to the new law’s enactment, a defendant
who was convicted of a felony was subject to a one-year
enhancement under section 667.5, subdivision (b) for each
separate prison term he had previously served for committing
a felony.2 Under the new law, the enhancement applies only if
the defendant served a prior prison term “for a sexually violent
offense as defined in subdivision (b) of [s]ection 6600 of the
Welfare and Institutions Code.” (§ 667.5, subd. (b).)
Senate Bill No. 136 applies retroactively to defendants
whose convictions were not final at the time the law became
effective. (People v. Lopez (2019) 42 Cal.App.5th 337, 341–342;
2 The enhancement does not apply if the defendant has
been free from prison custody for at least five consecutive years
following the term of imprisonment without committing another
felony. (People v. Baldwin (2018) 30 Cal.App.5th 648, 654.) This
exception is not applicable to Shelton.

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People v. Winn (2020) 44 Cal.App.5th 859, 872–873 (Winn).)
As the court explained in Winn, “[g]enerally, a statute applies
prospectively unless otherwise stated in the language of the
statute, or when retroactive application is clearly indicated
by legislative intent. (People v. Brown (2012) 54 Cal.4th 314,
319–320 . . . .) However, ‘[w]hen the Legislature has amended
a statute to reduce the punishment for a particular criminal
offense, we will assume, absent evidence to the contrary, that
the Legislature intended the amended statute to apply to all
defendants whose judgments are not yet final on the statute’s
operative date.’ (Id. at p. 323, . . . , citing In re Estrada (1965)
63 Cal.2d 740 . . . .) By eliminating the one-year enhancement
for prior prison terms that were not imposed for sexually violent
offenses, the newly amended section reduces the punishment
for such offenses.” (Winn, supra, 44 Cal.App.5th at p. 872.) The
Legislature did not indicate otherwise, so we infer that Senate
Bill No. 136 applies retroactively. (See Winn, supra, at p. 872.)
One of Shelton’s enhancements was based on a conviction
for pimping (§ 266h), and the other was for obstructing or
resisting an executive officer from performing his or her duties
(§ 69). Neither of these is a sexually violent offense. (See Welf. &
Inst. Code, § 6600.) The sole remaining question, then, is
whether the judgment against Shelton was final as of January 1,
2020, when Senate Bill No. 136 became effective.
We conclude that the judgment in this case was final,
and Shelton is not entitled to the benefit of Senate Bill No. 136,
because of the manner in which the trial court originally ordered
probation. When a trial court places a defendant on probation,
it may either “suspend[ ] the imposition of a sentence or impos[e]
a sentence and suspend[ ] its execution.” (People v. Segura

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(2008) 44 Cal.4th 921, 932.) This apparently small distinction
is significant because the “ ‘ “sentence” is the judgment in a
criminal action [citations]; it is the declaration to the defendant
of his disposition or punishment once his criminal guilt has been
ascertained.’ ” (People v. Wilcox (2013) 217 Cal.App.4th 618,
625.) If the trial court suspends proceedings and grants the
defendant probation without imposing a sentence, “there is no
‘judgment of conviction.’ ” (People v. McKenzie (2020) 9 Cal.5th
40, 46.) If there is no final judgment against the defendant
and the Legislature enacts an ameliorative statute during a
defendant’s probationary period, a defendant is entitled to the
benefit of the new law if his probation is later revoked. (Id. at
pp. 45–46.)
On the other hand, if the trial court imposes a sentence
but suspends its execution pending the successful completion
of probation, the sentence, albeit unexecuted, still constitutes a
judgment. (People v. Mora (2013) 214 Cal.App.4th 1477, 1482
(Mora).) If the defendant does not file an appeal within the
allotted time, “the sentence becomes final and unappealable.”
(People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421; accord,
People v. Martinez (2015) 240 Cal.App.4th 1006, 1011–1012
(Martinez).) If the defendant’s probation is later revoked,
“ ‘[t]he revocation of the suspension of execution of the judgment
brings the former judgment into full force and effect.’ ” (People v.
Howard (1997) 16 Cal.4th 1081, 1087.) Because the imposition
of a sentence constitutes a final judgment, “[o]n revocation of
probation, if the court previously had imposed sentence, the
sentencing judge must order that exact sentence into effect.”
(Id. at p. 1088; accord, Mora, supra, 214 Cal.App.4th at p. 1482
[“the trial court does not have jurisdiction to modify or change

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the final judgment and is required to order that judgment into
execution”]; § 1203.2, subd. (c).)
This case belongs to the second category. The trial court
imposed a sentence but stayed its execution pending probation.
When the time for filing an appeal passed, the judgment became
final, and Shelton could no longer benefit from changes in the law
such as Senate Bill No. 136.
Shelton argues that he is nevertheless entitled to relief
under an exception to the rule: If the original sentence that
the court imposed and stayed pending probation “was an
unauthorized sentence, the trial court can order execution of
the correct sentence.” (In re Renfrow (2008) 164 Cal.App.4th
1251, 1253.) This is an aspect of the court’s authority to correct
an unauthorized sentence at any time. (See id. at p. 1256.)
We agree with Shelton that the trial court acted under
this authority when it struck the three erroneous enhancements
and ordered the execution of the sentence. It does not follow,
however, that when the court did so, the judgment against
Shelton was no longer final. When a trial court imposes a
sentence that is unauthorized in part, only the unauthorized
portion is void. (See In re Sandel (1966) 64 Cal.2d 412, 417–418.)
The remainder of the judgment remains in effect. (Ibid.; In re
Tinsley (1960) 178 Cal.App.2d 15, 17.)
In this case, the two remaining enhancements under
section 667.5, subdivision (b) were valid at the time of the
original sentencing. The court lacks jurisdiction to remove
those enhancements “even if, during the probationary
period, circumstances change so that the sentence would be
unauthorized if it were being imposed in the first instance.”
(Martinez, supra, 240 Cal.App.4th at p. 1017.) The fact that

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the court removed three unauthorized enhancements from
Shelton’s sentence does not change the status of the remaining
two enhancements.
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
WEINGART, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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