People v. France

• Decision Date: 15 December 2020
• Docket Number: A158609
• Citation: 58 Cal.App.5th 714,272 Cal.Rptr.3d 689
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael FRANCE, Defendant and Appellant.

58 Cal.App.5th 714

272 Cal.Rptr.3d 689

The PEOPLE, Plaintiff and Respondent,

v.Michael FRANCE, Defendant and Appellant.

A158609

Court of Appeal, First District, Division 4, California.

Filed December 15, 2020

Michah Revner, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano, Jalem Z. Peguero, Deputy Attorneys General for Plaintiff and Respondent

BROWN, J.

Defendant Michael France pled guilty to one count of being a felon in possession of a firearm and admitted one allegation that he had served a prior prison term. In exchange, the prosecution dismissed two strikes and two prior prison term allegations. In accordance with the plea agreement, the trial court sentenced defendant to four years in prison, consisting of three years for the gun charge and one year for the enhancement, but suspended execution of the sentence and placed him on probation for three years. When the trial court later found that France had violated the terms of his probation, it ordered France to serve the previously suspended sentence.

France appeals, contending that Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136), enacted after he filed his notice of appeal, entitles him to have the one-year prior prison term enhancement stricken with no other changes to his negotiated sentence. We agree and will therefore modify the judgment.

I. BACKGROUND

In 2018, France was charged with one count of being a felon in possession of a firearm in violation of Penal Code section 29800, subdivision (a)(1) ; two prior strike allegations under Penal Code sections 1170.12 and 667 ; and three enhancements under Penal Code section 667.5, subdivision (b) for having served prior prison terms.¹ In June 2019, France pled guilty to the charge and one of the prior prison term enhancements and waived his entitlement to 403 days of custody credits, in exchange for dismissal of the rest of the enhancements and strike allegations. France stipulated to a sentence of three years in prison for the charge and one year for the enhancement. However, the plea deal also specified that execution of the sentence would be suspended and France would be placed on three years of probation. The trial court sentenced France in accordance with the plea agreement.

In August 2019, a probation officer filed a petition alleging France had violated the terms of his probation by committing misdemeanor domestic battery under section 243, subdivision (e)(1). After a contested hearing, the trial court found that France had violated his probation. In September 2019, the trial court lifted the stay of the previously-imposed suspended sentence and ordered France committed to state prison for four years.²

II. DISCUSSION

France contends he is entitled to the benefit of Senate Bill 136, which amended section 667.5, subdivision (b) and took effect while his appeal was pending. The People counter that France may not benefit from Senate Bill 136's changes because his case became final before the amendment took effect. The People further argue that even if France is entitled to the benefit of Senate Bill 136, the proper remedy is to strike the one-year enhancement but allow the People on remand to choose whether to accept the lower sentence or abandon the plea bargain. In reply, France argues that remand is not necessary, but that if it is, he may not be resentenced on remand to a longer term than he originally accepted in his plea agreement. We agree with France that he is entitled to the benefit of Senate Bill 136 and that no remand is necessary.

A. Retroactive application of Senate Bill 136

When the trial court originally accepted France's plea and imposed the four-year sentence with execution of the sentence suspended, " section 667.5, subdivision (b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. ( § 667.5, subd. (b).) Courts nevertheless had discretion to strike that enhancement pursuant to section 1385, subdivision (a). [Citation.] Effective as of January 1, 2020, Senate Bill 136 amend[ed] section 667.5, subdivision (b) to limit its prior prison term enhancement to only prior prison terms for sexually violent offenses, as defined in Welfare and Institutions Code section 6600, subdivision (b)." ( People v. Jennings (2019) 42 Cal.App.5th 664, 681, 255 Cal.Rptr.3d 713.) The conviction underlying the prior prison term enhancement that France admitted was for attempting to threaten or dissuade a witness in violation of section 136.1, subd. (a)(2), which is not listed in Welfare and Institutions Code section 6600, subdivision (b). ( Welf. & Inst. Code, § 6600, subd. (b).)

Because Senate Bill 136 reduced a criminal punishment, "[i]t is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." ( In re Estrada (1965) 63 Cal.2d 740, 745, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ); People v. Buycks (2018) 5 Cal.5th 857, 882, 236 Cal.Rptr.3d 84, 422 P.3d 531 [" ‘The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses’ "].) "This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology." ( Estrada , at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.) Accordingly, as the People here concede, Senate Bill 136 applies retroactively to defendants whose cases were not yet final when the statute took effect on January 1, 2020. ( People v. Cruz (2020) 46 Cal.App.5th 715, 738–739, 259 Cal.Rptr.3d 870.)

While the parties agree that Senate Bill 136 operates retroactively, they differ on whether France's conviction was or was not final. Their disagreement turns on whether the difference between the two types of suspended sentences is significant for Estrada retroactivity. "When it places a defendant on probation, the court has two sentencing options: (1) it can suspend the imposition of any sentence and merely set forth the conditions of probation, or (2) it can impose sentence, but suspend its execution, while at the same time setting forth the conditions of probation." (Levenson et al., Cal. Criminal Procedure (The Rutter Group 2019) § 25:31; § 1203.2, subd. (c).) If the imposition of sentence is suspended, a court has full sentencing discretion when it revokes a defendant's probation. ( People v. Howard (1997) 16 Cal.4th 1081, 1087, 68 Cal.Rptr.2d 870, 946 P.2d 828.) But when execution of sentence is suspended, a trial court revoking probation must order the exact imposed sentence into effect, without change. ( Id. at pp. 1087–1088, 68 Cal.Rptr.2d 870, 946 P.2d 828.) Here, France argues that ameliorative changes in the law apply retroactively to both types of defendants who receive probation, while the People contend that only a defendant for whom the imposition of sentence is suspended can benefit from such changes.

People v. Contreraz (2020) 53 Cal.App.5th 965, 267 Cal.Rptr.3d 914 ( Contreraz ), review granted and briefing deferred, Nov. 10, 2020, decided while the parties were briefing this case, recently addressed this same issue. In that case, the defendant pled guilty in 2017 to several charges and enhancements, received a sentence of 10 years in prison with execution of the sentence suspended, and was placed on probation. ( Id. at 968–969, 267 Cal.Rptr.3d 914.) The trial court later terminated the defendant's probation and executed the previously imposed sentence. ( Id. at p. 969, 267 Cal.Rptr.3d 914.) The Court of Appeal initially affirmed, but the California Supreme Court granted review and transferred the matter back for reconsideration in light of its decision in People v. McKenzie (2020) 9 Cal.5th 40, 259 Cal.Rptr.3d 224, 459 P.3d 25 ( McKenzie ). ( Contreraz, at pp. 967–968, 267 Cal.Rptr.3d 914.) On remand, Contreraz decided the defendant was entitled to the retroactive benefit of Senate Bill No. 620 (Reg. Sess. 2017–2018) (Senate Bill 620), even though the trial court originally imposed a sentence and suspended only the sentence's execution. ( Contreraz, at pp. 969–970, 267 Cal.Rptr.3d 914.)

The court reviewed McKenzie , on which France also relies. ( Contreraz , supra , 53 Cal.App.5th at p. 970, 267 Cal.Rptr.3d 914.) In McKenzie , a trial court suspended imposition of a sentence for a defendant and placed him on probation. ( McKenzie , supra , 9 Cal.5th at p. 43, 259 Cal.Rptr.3d 224, 459 P.3d 25.) When the court later revoked the defendant's probation, the issue was whether he was entitled to the retroactive benefit of an intervening change to one of his sentence enhancements. ( Ibid. ) McKenzie stated that Estrada retroactivity applies whenever a criminal sentence or proceeding has not yet reached final disposition in the highest court authorized to review it. ( Id. at p. 46, 259 Cal.Rptr.3d 224, 459 P.3d 25.) The court held the defendant's case had not reached its final disposition when the amendment took effect because the appeal from the order revoking probation and sentencing the defendant to prison was still pending. ( Ibid. ) McKenzie further noted that the defendant could not have raised the retroactivity issue in a direct appeal from the grant of probation, because the statutory amendments occurred after that time for appeal had lapsed. ( Id. at p. 50, 259 Cal.Rptr.3d 224, 459 P.3d 25.)

Contreraz acknowledged that McKenzie dealt with a grant of probation with imposition of sentence suspended and did not consider the finality of an order imposing sentence with execution of the sentence...