People v. McKenzie

• Decision Date: 10 August 2018
• Docket Number: F073942
• Citation: 236 Cal.Rptr.3d 533,25 Cal.App.5th 1207
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Douglas Edward MCKENZIE, Defendant and Appellant.

25 Cal.App.5th 1207

236 Cal.Rptr.3d 533

The PEOPLE, Plaintiff and Respondent,

v.Douglas Edward MCKENZIE, Defendant and Appellant.

F073942

Court of Appeal, Fifth District, California.

Filed August 10, 2018

Alex Green, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Sacramento, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, San Francisco, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall, Raymond L. Brosterhous II, Eric L. Christoffersen and Catherine Chatman, Deputy Attorneys General, Sacramento, for Plaintiff and Respondent.

FRANSON, Acting P.J.Defendant Douglas Edward McKenzie was convicted by guilty plea of several drug-related charges in three cases. On appeal, he contended (1) he was entitled to three more days of custody credit, and (2) the trial court erred in staying prior felony drug conviction enhancements and prior prison term enhancements. We modified the judgment on these two issues and affirmed as modified. Our opinion was granted review and remanded to this court with directions to vacate our decision and reconsider in light of the new Senate Bill No. 180 (Stats. 2017, ch. 677, § 1), which amended the sentencing enhancements included in Health and Safety Code section 11370.2.¹ We received supplemental briefing from the parties. In addition to our previous modifications, we now order stricken all of the section 11370.2, subdivision (c) enhancements, vacate the sentence, and remand for resentencing.

BACKGROUND

On November 4, 2014, defendant pled guilty to charges in three cases and admitted the special allegations, as follows.

In case No. MCR047554 (case 1), defendant pled guilty to transportation or sale of methamphetamine (§ 11379, subd. (a) ) and misdemeanor possession of narcotics paraphernalia (§ 11364.1). He admitted having suffered four prior felony drug convictions ( § 11370.2, subd. (c) ) and having served three prior prison terms ( Pen. Code, § 667.5, subd. (b) ).

In case No. MCR047692 (case 2), defendant pled guilty to possession for sale of methamphetamine (§ 11378) and transportation or sale of methamphetamine (§ 11379, subd. (a) ). He admitted committing these offenses while on bail or release ( Pen. Code, § 12022.1 ).

In case No. MCR047982 (case 3), defendant pled guilty to possession for sale of methamphetamine (§ 11378). He admitted having suffered the same four prior felony drug convictions ( § 11370.2, subd. (c) ) and having served the same three prior prison terms ( Pen. Code, § 667.5, subd. (b) ) as he had admitted in case 1.

The same day, the trial court suspended imposition of sentence, granted defendant five years' probation in all three cases, and ordered him to attend drug court.

On March 3, 2016, the Madera County Probation Department filed a first amended petition for revocation of probation in all three cases.

On April 1, 2016, defendant admitted the probation violations.

On June 1, 2016, the trial court revoked probation and declined to reinstate it. The court heard argument and considered the probation officer's report, then sentenced defendant to an aggregate term of five years, plus four three-year prior felony drug conviction enhancements ( § 11370.2, subd. (c) ) and three one-year prior prison term enhancements ( Pen. Code, § 667.5, subd. (b) ). The court imposed these seven enhancements in case 1. In case 3, the court imposed the same seven enhancements, but either stayed or struck them. In sum, the court sentenced defendant to a split term of 22 years—10 years to be served in county jail and 12 years on mandatory supervision ( Pen. Code, § 1170, subd. (h)(5)(B) ).

On June 16, 2016, defendant filed a notice of appeal in all three cases. On September 13, 2017, we filed our opinion.

On October 11, 2017, the governor signed Senate Bill No. 180, which would become effective on January 1, 2018.

On October 20, 2017, defendant petitioned the California Supreme Court for review based on Senate Bill No. 180.

On December 20, 2017, the California Supreme Court granted review and remanded the case back to us with directions to vacate our decision and reconsider in light of Senate Bill No. 180.

On January 1, 2018, Senate Bill No. 180 became effective.

DISCUSSION

I. PRESENTENCE CUSTODY CREDITS

Defendant contends he is entitled to three more days of conduct credit in case 1, and thus his current sentence is unauthorized.² The People counter that defendant was actually granted one extra day. Defendant replies that the People's contention is based on the incorrect presumption that credits are not calculated cumulatively. We agree with defendant.

For purposes of calculating presentence conduct credit, time is cumulative. ( People v. Culp (2002) 100 Cal.App.4th 1278, 1284, 122 Cal.Rptr.2d 924.)

Therefore, a defendant's noncontinuous periods of presentence custody must be aggregated to calculate the conduct credit earned. ( Id. at p. 1283, 122 Cal.Rptr.2d 924.) Penal Code section 4019 provides that a person confined prior to sentencing may earn two days of conduct credit for every two days served. ( People v. Chilelli (2014) 225 Cal.App.4th 581, 588, 170 Cal.Rptr.3d 395.) Here, because defendant was confined for an aggregate of 118 actual days for noncontinuous periods prior to sentencing, he earned 118 days of conduct credit, for a total of 236 days of credit.

II. STATUS ENHANCEMENTS

The parties agree that the trial court imposed the same seven status enhancements—four prior felony drug conviction enhancements and three prior prison term enhancements—in both case 1 and case 3. In the latter case, the trial court orally imposed the enhancements and then stayed them pursuant to section 654.³

A. Section 11370.2, Subdivision (c) Enhancements

By way of petition for review, defendant contended that he should receive the benefit of Senate Bill No. 180, which recently amended section 11370.2. The Supreme Court granted review and remanded the case to us with directions to vacate and reconsider in light of this recent amendment. The parties have submitted supplemental briefs.

Senate Bill No. 180 became effective on January 1, 2018. The bill narrows and limits the scope of section 11370.2 enhancements only to prior convictions for sales of narcotics involving a minor in violation of section 11380.⁴ In this case, defendant's prior felony drug convictions were for violations of sections 11379.6, subdivision (a) and 11378; none was for a violation of section 11380, involving a minor, as required by the new amendment.

Absent some indication to the contrary in the bill, courts presume the Legislature intended amendments that reduce the punishment for a crime to apply retroactively, at least in cases that are not yet final. (See People v. Brown (2012) 54 Cal.4th 314, 323-324, 142 Cal.Rptr.3d 824, 278 P.3d 1182 ; see In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ).) Nothing in Senate Bill No. 180 indicates the Legislature intended prospective application only. (Stats. 2017, ch. 677, § 1.)

Generally, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed" ( Estrada, supra, 63 Cal.2d at p. 748, 48 Cal.Rptr. 172, 408 P.2d 948 ) if the amended statute takes effect before the judgment of conviction becomes final. ( Id. at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948 ["If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies."].) "This rule rests on an inference that when the Legislature has reduced the punishment for an offense, it has determined the ‘former penalty was too severe’ ( Estrada , at p. 745 [48 Cal.Rptr. 172, 408 P.2d 948] ) and therefore ‘must have intended that the new statute imposing the new lighter penalty ... should apply to every case to which it constitutionally could apply’ ( ibid. )." ( People v. DeHoyos (2018) 4 Cal.5th 594, 600, 229 Cal.Rptr.3d 687, 412 P.3d 368.)

Accordingly, Senate Bill No. 180 applies retroactively to cases in which the judgment was not yet final on January 1, 2018, as the parties agree. The threshold question, then, is whether defendant's judgment was final on that date. On this question, the parties disagree.

In a criminal case, the sentence is the judgment. ( People v. Wilcox (2013) 217 Cal.App.4th 618, 625, 158 Cal.Rptr.3d 502 [" ‘A "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.’ "].) When probation is granted, however, the timing of the judgment can vary because a trial court may grant probation by either suspending imposition of the sentence, or by imposing the sentence and suspending its execution . ( People v. Segura (2008) 44 Cal.4th 921, 932, 80 Cal.Rptr.3d 715, 188 P.3d 649.) These two situations affect when the judgment becomes final, which in turn affects whether a defendant is eligible to seek the retroactive benefit of a change in law.

In the first situation, when the trial court initially suspends imposition of sentence and grants probation, "no judgment is then pending against the probationer, who is subject only to the terms and conditions of the probation." ( People v. Howard (1997) 16 Cal.4th 1081, 1087, 68 Cal.Rptr.2d 870, 946 P.2d 828 ( Howard ).) No judgment has been rendered against him, or ever will be if he successfully completes probation. But if he fails to successfully complete probation and instead violates probation, the trial court may revoke and terminate probation, and then impose sentence in its discretion, thereby rendering judgment. ( Pen. Code, § 1203.2, subd. (c) ; Howard, supra, at p. 1087, 68 Cal.Rptr.2d 870, 946 P.2d 828.) That judgment will become final if the...