Opinion
A151800
04-27-2018
THE PEOPLE, Plaintiff and Respondent, v. JESSE LIN ANTOLIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC073522A)
Jesse Lin Antolin (appellant) appeals from an order revoking his mandatory supervision and requiring him to return to county jail to serve out the remainder of his term for his conviction of possessing methamphetamine for sale under Health and Safety Code section 11378, which included enhancements for prior narcotics sales convictions under former section 11370.2, subdivision (c). Appellate counsel originally filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, asking this court to independently review the record for arguable issues on appeal. We requested supplemental briefing on the issue discussed in this opinion, namely, whether recent amendments to section 11370.2 apply retroactively and require a modification of appellant's sentence. Having considered the supplemental briefing submitted by the parties, we affirm.
Statutory references are to the Health and Safety Code unless otherwise indicated.
I. BACKGROUND
A jury convicted appellant of possession of methamphetamine for sale (§ 11378) and the trial court found he had three prior convictions of the same offense, which qualified for enhancements under section 11370.2, subdivision (c). In 2013, he was sentenced to 11 years in county jail pursuant to Penal Code section 1170, subdivision (h)(5)(A), consisting of the two-year middle term for the violation of section 11378 plus consecutive three-year enhancements for each of the three prior convictions found true under section 11370.2, subdivision (c). The judgment was affirmed on direct appeal in an unpublished decision by this court filed January 12, 2015. (People v. Antolin (Jan. 12, 2015, A138465) [nonpub. opn.] (Antolin I).) Certiorari was denied by the United States Supreme Court on October 5, 2015. (Antolin v. California (2015) ___ U.S. ___ .)
Appellant's motion to augment the record, filed concurrently with his supplemental brief on appeal, is granted. --------
In August 2015, appellant filed a motion to recall his sentence and modify it to provide that he would serve the remaining term on mandatory supervision, in order to allow him to participate in a residential drug program. The trial court granted the motion over the People's opposition and modified the term to an 11-year split sentence, with the period of mandatory supervision to begin that day. The People appealed. In a published decision filed March 20, 2017, this court reversed the order recalling appellant's sentence, concluding the trial court had lacked the jurisdiction to resentence appellant once his sentence was executed in 2013. (People v. Antolin (2017) 9 Cal.App.5th 1176, 1179 (Antolin II).)
Meanwhile, on January 17, 2017, while the appeal in Antolin II was pending, the probation department filed a petition to revoke appellant's mandatory supervision based on his failure to complete a residential treatment program, his failure to keep probation apprised of his address and changes of residence, and his failure to obey all laws. On March 3, 2017, the court found appellant to be in violation of the terms of his mandatory supervision and ordered him returned to county jail to serve out the remainder of his 11-year commitment. This appeal follows.
II. DISCUSSION
Appellant argues he must be released from the county jail because recent statutory amendments require that a substantial portion of his sentence be set aside. We disagree.
Nine years of appellant's 11-year term are attributable to prior drug conviction enhancements under section 11370.2, subdivision (c). Under the former version of that statute, which was in effect at the time of appellant's original sentencing, an enhancement under section 11370.2, subdivision (c), could be based on a prior conviction of section 11378. (People v. Millan (2018) 20 Cal.App.5th 450, 454; Stats. 1998, ch. 936, § 1, eff. Sept. 28, 1998.) Senate Bill 180, effective January 1, 2018, amended section 11370.2, subdivision (c), to remove a number of prior convictions, including section 11378, from the list of prior convictions that qualify a defendant for the imposition of the three-year enhancement. (Millan at p. 454; Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018.) Thus, if appellant were sentenced under the current version of section 11370.2, subdivision (c), he would be ineligible for the three-year enhancements imposed under that provision, based as they are on prior convictions of section 11378.
The question, then, is whether the 2018 amendment to section 11370.2, subdivision (c), must be retroactively applied to appellant's case. Appellant argues the answer is yes, relying on the rule of In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada), and People v. Francis (1969) 71 Cal.2d 66, 75-76 (Francis). Under these authorities, 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." (People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, 1321 (Rodas) [defendant was not entitled to benefit of new law redefining transportation offense because conviction was final].)
The problem with this argument is that appellant's 11-year sentence, imposed in 2013, was final for purposes of retroactivity analysis when the United States Supreme Court denied certiorari in Antolin I on October 5, 2015. (Beard v. Banks (2004) 542 U.S. 406, 411; People v. Smith (2015) 234 Cal.App.4th 1460, 1465.) The 2015 order recalling appellant's sentence and imposing a split sentence was an act beyond the trial court's jurisdiction, and it did not serve to reopen the original sentence to a challenge on direct appeal or a modification by the trial court. (Antolin II, supra, 9 Cal.App.5th at pp. 1181-1182; see People v. Howard (1997) 16 Cal.4th 1081, 1086 [if a court has actually a imposed sentence upon granting probation, it has no authority to impose a lesser sentence when probation revoked].) The 11-year sentence imposed in 2013 is final and the rule of Estrada and Francis does not apply. (See Rodas, supra, 10 Cal.App.5th at p. 1321.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
BRUINIERS, J.