Opinion
C085100
08-10-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL THOMAS ANDERSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. CRF-13-102, CRF-17-61802)
BACKGROUND
Police officers stopped defendant Michael Thomas Anderson in 2013 for expired vehicle registration tags and found 14.99 grams of methamphetamine, a digital scale, and a syringe in his car. In case No. CRF-13-102 (case No. 13), defendant pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and admitted a prior drug conviction (former § 11370.2, subd. (c)). The trial court suspended imposition of sentence and placed defendant on probation for two years, but defendant subsequently admitted violating probation. The trial court denied reinstatement of probation and sentenced defendant to three years for possession of methamphetamine for sale plus three years for the prior drug conviction, and ordered a split sentence with 365 days in jail and the remainder on mandatory supervision. There is no indication in the appellate record that defendant appealed from the July 2016 sentence in case No. 13.
Undesignated statutory references are to the Health and Safety Code.
In 2017, a deputy sheriff saw defendant driving a car reported stolen. A search found 53.6 grams of methamphetamine, $279 in cash, and a digital scale. In case No. CRF-17-61802 (case No. 17), defendant entered a negotiated plea of no contest to possession of methamphetamine for sale (§ 11378) and admitted two prior drug convictions (former § 11370.2, subd. (c)).
The trial court sentenced defendant to an aggregate of nine years as follows:
In case No. 17, three years for possession of methamphetamine for sale and six years for the two prior drug convictions. The trial court ordered a split sentence with three years in county jail and the remaining six years on mandatory supervision. In case No. 13, the trial court orally imposed "three years concurrent" to the sentence in case No. 17. The parties understand the sentence to be three years concurrent for possession of methamphetamine for sale and three years concurrent for the prior drug conviction, as is reflected in the abstract of judgment.
DISCUSSION
Defendant now contends the prior drug conviction enhancements in case Nos. 13 and 17 must be stricken due to the retroactive effect of recent legislation eliminating three-year enhancements for prior drug convictions except in circumstances not applicable here. (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018; § 11370.2.) The amendment has been applied retroactively to nonfinal judgments because the change in the law reduces punishment. (People v. Millan (2018) 20 Cal.App.5th 450, 455-456; People v. Zabala (2018) 19 Cal.App.5th 335, 338, 344; People v. DeHoyos (2018) 4 Cal.5th 594, 600; In re Estrada (1965) 63 Cal.2d 740 (Estrada).)
The People agree that because judgment is not yet final in case No. 17, the two prior drug conviction enhancements must be stricken in that case. But they argue the same is not true for the single prior drug conviction enhancement in case No. 13 because case No. 13 is final for retroactivity purposes. The People request remand for resentencing so the trial court can strike the enhancements from case No. 17, thereby rendering the six-year sentence in case No. 13 as the longer of the two concurrent sentences.
Under Estrada, when an " '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' if the amended statute takes effect before the judgment of conviction becomes final. [Citation.]" (People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, 1321.)
As amended, section 11370.2, subdivision (c) authorizes a three-year enhancement based on a prior conviction for violating section 11380. In case No. 17, defendant admitted prior convictions for violating sections 11378 and 11383, which no longer qualify defendant for the enhancements. He did not admit a prior conviction for violating section 11380.
Case No. 17 is not yet final. " '[A] judgment is not final so long as the courts may provide a remedy on direct review. That includes the time within which to petition to the United States Supreme Court for writ of certiorari.' [Citation.] 'Cases in which judgment is not yet final include those in which a conviction has been entered and sentence imposed but an appeal is pending when the amendment becomes effective.' [Citation.]" (People v. Yearwood (2013) 213 Cal.App.4th 161, 171-172.) Thus, the two 3-year prior drug conviction enhancements no longer apply and must be stricken in case No. 17.
But case No. 13 is different. As we have explained, on July 21, 2014, the trial court suspended imposition of sentence and placed defendant on probation, but defendant subsequently violated probation. On July 25, 2016, the trial court declined to reinstate probation and sentenced defendant to three years for possession of methamphetamine for sale plus three years for the prior drug conviction. The trial court ordered defendant to serve the sentence as a split sentence with 365 days in jail and the remainder on mandatory supervision. That judgment became final for purposes of retroactivity analysis when defendant failed to appeal within 60 days. (Pen. Code, §§ 1237, subd. (a), 1237.5; People v. Mendez (1999) 19 Cal.4th 1084, 1094; Cal. Rules of Court, rules 8.304(a) & (b), 8.308(a).) Thus, the judgment was final in September 2016, long before the amendment to section 11370.2 took effect on January 1, 2018, and the rule of Estrada does not apply in case No. 13. The prior drug conviction enhancement remains in case No. 13.
For the first time in his reply brief, defendant argued case No. 13 is not final for retroactivity purposes because the trial court placed him on mandatory supervision in that case, he admitted violating the mandatory supervision, the trial court had authority to revoke or modify defendant's mandatory supervision in case No. 13, any proceeding to revoke or modify mandatory supervision is an appealable order, and he is appealing the modified sentence imposed on June 19, 2017. We do not address the arguments made for the first time in appellant's reply brief, as the People have not had an opportunity to respond to the arguments.
DISPOSITION
Case Nos. CRF-13-102 and CRF-17-61802 are remanded to the trial court for resentencing. The two prior drug conviction enhancements (Health & Saf. Code, § 11370.2, subd. (c)) in case No. CRF-17-61802 are ordered to be stricken. In all other respects, the judgments are affirmed.
/S/_________
MAURO, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
RENNER, J.