People v. McKenzie, S251333

• Court: United States State Supreme Court (California)
• Writing for the Court: Opinion of the Court by Chin, J.
• Citation: 459 P.3d 25,9 Cal.5th 40,259 Cal.Rptr.3d 224
• Parties: The PEOPLE, Plaintiff and Respondent, v. Douglas Edward MCKENZIE, Defendant and Appellant.
• Decision Date: 27 February 2020
• Docket Number: S251333

9 Cal.5th 40
459 P.3d 25
259 Cal.Rptr.3d 224

The PEOPLE, Plaintiff and Respondent,
v.
Douglas Edward MCKENZIE, Defendant and Appellant.

S251333

Supreme Court of California.

February 27, 2020

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

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

Opinion of the Court by Chin, J.

9 Cal.5th 43

We granted review in this case to decide whether a convicted defendant who is placed on probation after imposition of sentence is suspended, and who does not timely 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. The Court of Appeal answered this question in the affirmative and, in light of a newly effective amendment to a sentence enhancement statute, ordered four of defendant Douglas McKenzie’s sentence enhancements stricken. We affirm the Court of Appeal’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 4, 2014, in three separate cases, defendant pleaded guilty to a number of drug-related offenses and, as here relevant, admitted having sustained four prior felony drug-related convictions for purposes of sentence enhancement under Health and Safety Code, former section 11370.2.¹ Under subdivision (c) of that statute, as it read at the time of defendant’s plea, each prior conviction rendered defendant subject to a consecutive three-year prison term enhancement. As to all three cases, the trial court suspended imposition of sentence, granted

459 P.3d 27

defendant five years’ probation, and ordered him to attend drug court.

In March 2016, the Madera County Probation Department sought revocation of defendant’s probation based on alleged probation violations. Defendant admitted the violations and, on June 1, 2016, the trial court revoked probation, declined to

259 Cal.Rptr.3d 226

reinstate it, and imposed a prison sentence that included four three-year prior drug conviction enhancements under former section 11370.2, subdivision (c).

About two weeks later, defendant filed a notice of appeal. On September 13, 2017, the Court of Appeal filed an opinion modifying the judgment in certain respects and otherwise affirming.

On October 11, 2017, the governor signed Senate Bill No. 180 (2017-2018 Reg. Sess.), which was to take effect January 1, 2018. Under section 11370.2, as revised by that bill, defendant’s prior drug-related convictions no longer qualified defendant for sentence enhancement.

On October 20, 2017, defendant petitioned this court for review based on the enactment of Senate Bill No. 180 (2017-2018 Reg. Sess.). On December

9 Cal.5th 44

20, 2017, we granted review and remanded the case to the Court of Appeal with directions to vacate its decision and to reconsider the matter in light of the revised statute. On January 1, 2018, Senate Bill No. 180 took effect. On remand, the Court of Appeal held that defendant could take advantage of the revisions to section 11370.2 that rendered the statute’s sentence enhancements inapplicable to his prior drug-related convictions, and the court ordered those four enhancements stricken.

We then granted the People’s petition for review.

II. DISCUSSION

We begin with In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ), which first set forth the current rule regarding retroactive application of ameliorative statutory amendments and which is the foundation of the People’s argument. In that case, between the defendant’s escape from a drug rehabilitation center and his guilty plea to the crime of escape, statutory amendments took effect that reduced "both the term of imprisonment [for his crime] and the time necessary to spend in prison to be eligible for parole." ( Id. at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948.) We held that the ameliorative changes applied to the defendant, explaining: "The key date is the date of final judgment. If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then .... it, and not the old statute in effect when the prohibited act was committed, applies." ( Ibid. )

This conclusion, we reasoned in Estrada , was warranted by factors indicating that, consistent with the common law rule, the Legislature must have intended the amendatory statute to apply in "all prosecutions not reduced to final judgment" at the time of its passage. ( Estrada , supra , 63 Cal.2d at p. 747, 48 Cal.Rptr. 172, 408 P.2d 948.) "[O]f paramount importance," we explained, was the following consideration: "When the Legislature amends a statute so as to lessen the punishment[,] it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It 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. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. 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. ... [¶] ... ‘A legislative mitigation of the penalty for a particular crime represents a

259 Cal.Rptr.3d 227

legislative

9 Cal.5th 45

judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law. Nothing is to be gained by imposing the more severe penalty after such a pronouncement; the excess in punishment can, by hypothesis, serve no purpose other

459 P.3d 28

than to satisfy a desire for vengeance.’ " ( Id. at pp. 744-745, 48 Cal.Rptr. 172, 408 P.2d 948.)

Estrada involved statutory amendments that "merely reduced ... penal sanctions" for a given act, but we subsequently applied it to amendments that "entirely eliminated" such sanctions. ( People v. Rossi (1976) 18 Cal.3d 295, 301, 134 Cal.Rptr. 64, 555 P.2d 1313 ( Rossi ).) "[T]he common law principles" underlying the Estrada rule, we reasoned, "apply a fortiorari when criminal sanctions have been completely repealed before a criminal conviction becomes final." ( Ibid. ) As we explained, "it would be untenable to give defendants the benefit of a reduction in punishment while denying them the benefit of a complete remission of punishment." ( People v. Collins (1978) 21 Cal.3d 208, 213, 145 Cal.Rptr. 686, 577 P.2d 1026 ( Collins ).) Such a rule "would clearly lead to absurd results." ( Rossi , at p. 302, fn. 8, 134 Cal.Rptr. 64, 555 P.2d 1313.) It would enable a defendant to benefit from a statutory change if the amendment "simply ... reduce[s] the maximum punishment" for a given act — even "to one day in jail" — but would "subject[ ]" a defendant "to the full punishment [formerly] prescribed" if the amendment instead "completely repeal[s] all criminal penalties for" the act. ( Ibid. ) "[S]uch a reading of legislative intent belies reality." ( Ibid. ) Thus, " ‘when the [L]egislature repeals a criminal statute or otherwise removes the State’s condemnation from conduct that was formerly deemed criminal, this action requires the dismissal of a pending criminal proceeding charging such conduct. The rule applies to any such proceeding which, at the time of the supervening legislation, has not yet reached final disposition in the highest court authorized to review it.’ " ( Id. at p. 304, 134 Cal.Rptr. 64, 555 P.2d 1313.)

The record here shows that when the revisions to section 11370.2 took effect, defendant’s " ‘criminal proceeding ... ha[d] not yet reached final disposition in the highest court authorized to review it.’ " ( Rossi , supra , 18 Cal.3d at p. 304, 134 Cal.Rptr. 64, 555 P.2d 1313, quoting Bell v. Maryland (1964) 378 U.S. 226, 230, 84 S.Ct. 1814, 12 L.Ed.2d 822.) On that date, "the time for petitioning for a writ of certiorari in the United States Supreme Court [had not] passed" ( People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5, 50 Cal.Rptr.2d 88, 910 P.2d 1380 ); as earlier set forth, the governor signed the bill containing the revisions before defendant even petitioned this court for review of the judgment imposing a prison sentence, and when the bill took effect on January 1, 2018, defendant’s appeal of his...