People v. Andahl, C090707

• Court: California Court of Appeals
• Writing for the Court: RENNER, J.
• Citation: 276 Cal.Rptr.3d 526,62 Cal.App.5th 203
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jason Wesley ANDAHL, Defendant and Appellant.
• Docket Number: C090707
• Decision Date: 19 March 2021

62 Cal.App.5th 203
276 Cal.Rptr.3d 526

The PEOPLE, Plaintiff and Respondent,
v.
Jason Wesley ANDAHL, Defendant and Appellant.

C090707

Court of Appeal, Third District, California.

Filed March 19, 2021

Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Jeffrey A. White, Deputy Attorney Generals, for Plaintiff and Respondent.

RENNER, J.

62 Cal.App.5th 206

Defendant Jason Wesley Andahl appeals from a July 2019 judgment revoking his probation and executing a prison sentence of seven years eight months imposed in 2018 when he was first placed on probation. The sentence includes two prior prison term enhancements of one year under Penal Code section 667.5, subdivision (b).¹ Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) amended section 667.5, subdivision (b) to limit qualifying prior prison terms to those served for sexually violent offenses,

276 Cal.Rptr.3d 528

which defendant's prior offenses were not. The parties do not contest that Senate Bill 136 is retroactive under In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ).

On appeal, defendant claims that he is entitled to the benefit of Senate Bill 136 under the Supreme Court's decision in People v. McKenzie (2020) 9 Cal.5th 40, 259 Cal.Rptr.3d 224, 459 P.3d 25 ( McKenzie ). McKenzie held that in accordance with Estrada , "a convicted defendant who is placed on probation after imposition of sentence is suspended, and who does not timely

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appeal from the order granting probation, may take advantage of ameliorative statutory amendments that take effect during a later appeal from a judgment revoking probation and imposing sentence." ( Id. at p. 43, 259 Cal.Rptr.3d 224, 459 P.3d 25.) The Attorney General responds that McKenzie does not govern because the 2018 order at issue here suspended the sentence's execution, as opposed to its imposition, and was therefore a final judgment for retroactivity purposes. We conclude that defendant has the better argument. We agree that, by virtue of the retroactive change in the law, defendant's one-year enhancements are unauthorized and must be stricken.

I. BACKGROUND

In October 2017, defendant was charged in case No. 17F7159 with willfully and unlawfully inflicting corporal injury upon S.M., with whom he was in a dating relationship ( § 273.5, subd. (a) —count I), criminal threats ( § 422 —count II), and false imprisonment ( § 236 —count III). The complaint further alleged that defendant had two prison priors ( § 667.5, subd. (b) ).

In February 2018, the district attorney filed a second criminal complaint, in case No. 18F7255, charging defendant with criminal threats ( § 422 —count I), taking or driving a vehicle without consent ( Veh. Code, § 10851, subd. (a) —count II), buying or receiving a stolen vehicle ( § 496d, subd. (a) —count III), domestic battery ( § 243, subd. (e)(1) —count IV), willfully and knowingly violating a protective order ( § 166, subd. (c)(1) —counts V and VI), and possessing drug paraphernalia ( Health & Saf. Code, § 11364, subd. (a) —count VII). The complaint further alleged, as to counts I through III, that defendant was on bail at the time of the new offenses ( § 12022.1 ) and that he had two prison priors ( § 667.5, subd. (b) ).

On August 3, 2018, pursuant to a negotiated agreement, defendant entered a plea of guilty to the infliction of corporal injury as charged in count I of case No. 17F7159. In exchange for his plea, the remaining counts and the special allegations in that case were dismissed on the People's motion. As part of the plea agreement, defendant also entered a plea of no contest to the criminal threats charge in count I of case No. 18F7255 and admitted the two prison priors and the on-bail enhancement. In exchange for his plea, the remaining six counts were dismissed on the People's motion. That same day, pursuant to the parties’ agreement, the trial court imposed a sentence of three years in prison for case No. 17F7159 and a sentence of four years eight months in state prison for case No. 18F7255. Execution of both sentences were suspended, however, and defendant was placed on formal probation. Defendant does not appear to have filed a notice of appeal challenging these sentences.

62 Cal.App.5th 208

On March 4, 2019, petitions for revocation of probation were filed in both cases, alleging that defendant had committed numerous violations of the terms and conditions of his probation. Both petitions recommended that the court terminate probation and execute the previously suspended sentences. Defendant admitted

276 Cal.Rptr.3d 529

the violations of probation in both cases. On August 5, 2019, the trial court executed the sentences that had been previously suspended, and defendant was sentenced to state prison for a term of seven years eight months.

Defendant filed a timely notice of appeal.

II. DISCUSSION

A. Application of Senate Bill 136

Defendant claims that the section 667.5, subdivision (b) enhancements must be stricken because the judgment was not yet final when Senate Bill 136 became operative. We agree that he is entitled to the legislation's ameliorative effect.

In general, statutes are presumed to operate prospectively. ( People v. Brown (2012) 54 Cal.4th 314, 323, 142 Cal.Rptr.3d 824, 278 P.3d 1182.) Estrada established an exception to this presumption: "When 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"—i.e., all defendants " ‘to which [the statute] constitutionally could apply.’ " ( Id. at p. 323, 142 Cal.Rptr.3d 824, 278 P.3d 1182, fn.omitted, quoting Estrada, supra , 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.) "[F]or 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," a question of law that we review de novo. ( People v. Martinez (2020) 54 Cal.App.5th 885, 891, 268 Cal.Rptr.3d 411, review granted Nov. 10, 2020, S264848 ( Martinez ).)

It is undisputed that Senate Bill 136's amendments to section 667.5, subdivision (b) are retroactive under Estrada , as several Court of Appeal decisions have held. (See e.g., People v. Matthews (2020) 47 Cal.App.5th 857, 865, 261 Cal.Rptr.3d 266 ; People v. Jennings (2019) 42 Cal.App.5th 664, 682, 255 Cal.Rptr.3d 713.) It is also undisputed that defendant's prior prison terms no longer qualify for an enhancement under section 667.5, subdivision (b) because his convictions for assault with a deadly weapon ( § 245, subd. (a)(1) ) and false personation of another ( § 529, subd. (a)(3) ) are not "sexually violent offense[s] as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (§ 667.5, subd. (b).) Instead, the parties

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disagree about whether there is a final judgment such that defendant cannot benefit from Senate Bill 136's amendments to section 667.5, subdivision (b).

The resolution of this question turns on McKenzie , which involved Senate Bill No. 180 (2017-2018 Reg. Sess.) (Senate Bill 180), legislation that amended Health and Safety Code section 11370.2 to restrict the applicability of a prior-conviction enhancement. ( McKenzie, supra , 9 Cal.5th at p. 43, 259 Cal.Rptr.3d 224, 459 P.3d 25.) McKenzie considered whether a defendant who did not appeal from a 2014 order suspending imposition of sentence and placing him on probation, but whose appeal from a 2016 order revoking probation and sentencing him to prison was pending when Senate Bill 180 took effect, was entitled to have the relevant enhancements stricken. ( McKenzie, supra , at p. 43, 259 Cal.Rptr.3d 224, 459 P.3d 25.) The Supreme Court concluded that he was because "the prosecution had not been ‘reduced to final judgment at the time’ the [statutory] revisions took effect." ( Id. at p. 45, 259 Cal.Rptr.3d 224, 459 P.3d 25.) In so holding, McKenzie rejected the People's argument that the enhancements could not be challenged because they became final

276 Cal.Rptr.3d 530

under Estrada after the defendant failed to appeal from the order granting probation. ( Id. at p. 46, 259 Cal.Rptr.3d 224, 459 P.3d 25.)

The Attorney General argues that McKenzie is distinguishable because the original order granting probation in that case suspended imposition of the sentence, whereas the November 2018 order granting probation in this case imposed sentence and suspended its execution. Relying primarily on People v. Howard (1997) 16 Cal.4th 1081, 68 Cal.Rptr.2d 870, 946...