Opinion
C085317
08-01-2018
THE PEOPLE, Plaintiff and Respondent, v. JOHNATHAN ANDREW COOPER, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CRF15-0000125)
In 2015, defendant Johnathan Andrew Cooper pleaded no contest to transporting methamphetamine and admitted two prior conviction enhancement allegations for transporting methamphetamine. The trial court sentenced defendant to a split sentence of 10 years. In 2017, defendant admitted a violation of his mandatory supervision, and the trial court ordered the remainder of defendant's sentence to be served in custody. On appeal, defendant contends his 2017 sentence was not final on the effective date of the amendment to Health and Safety Code section 11370.2, and therefore he is entitled to have his enhancements reversed. We shall affirm.
Undesignated statutory references are to the Health and Safety Code.
PROCEDURAL BACKGROUND
The facts underlying defendant's convictions and violations of mandatory supervision are not relevant to any issue raised on appeal and are therefore not recounted.
In October 2014, in case Nos. CRF14-0000384 and CRF14-0000500, defendant was sentenced to an aggregate term of six years eight months served as a split sentence for two drug convictions. He was released from county jail in December 2014 to serve the remainder of his sentence on mandatory supervision.
In October 2015, defendant pleaded no contest to transportation of methamphetamine (§ 11379, subd. (a)) and admitted he had two prior convictions for transportation of methamphetamine (§§ 11370.2, subd. (c), 11379, subd. (a)). Under the plea agreement, defendant was sentenced to an aggregate term of 10 years, consisting of four years plus two three-year terms for each of the prior conviction enhancement allegations. The sentence was a split sentence with two years served in custody, and the remaining eight-year sentence suspended and served on mandatory supervision. As to the 2014 cases, he was reinstated on mandatory supervision with an adjusted discharge date of February 1, 2020. At the sentencing hearing, the trial court advised defendant "if he comes back on a violation of mandatory supervision, he gets the eight years" and that he would not be reinstated on mandatory supervision. Defendant indicated he understood and agreed.
In 2017, defendant again violated the terms of his mandatory supervision. The probation department filed a revocation petition. The People filed a complaint in case No. CRF17-00677 charging defendant with transportation of a controlled substance. Defendant admitted the mandatory supervision violation, stipulated he would not be reinstated on mandatory supervision, and agreed he would serve the remainder of the sentence in case No. CRF15-0000125, in exchange for which case No. CRF17-00677 was dismissed. Defendant agreed he would be sentenced to "straight time in the jail, no more mandatory supervision." Before defendant admitted the mandatory supervision violation, the trial court advised him, pursuant to the parties' agreement, "So your term is going to be the ten-year term in case [No.] CRF15-[0000]125. [¶] I will be running your other matters concurrent, and you will be serving out the remainder of 2,870 days less any credits that you might have."
In case No. CRF15-0000125, the trial court awarded defendant 469 days of custody credit and ordered him to serve the remaining 2,401 days of his sentence in custody. In case Nos. CRF14-0000384 and CRF14-0000500, the trial court awarded defendant 798 days of custody credit and ordered him to serve the remaining 781 days of his sentence in custody concurrent with the sentence in CRF15-0000125.
DISCUSSION
Defendant contends he is entitled to retroactive application of the amended section 11370.2. He claims he was resentenced in August 2017 to serve the balance of his split sentence and thus, his sentence was not final on the January 1, 2018 effective date of the amendment. Accordingly, he argues under In re Estrada (1965) 63 Cal.2d 740 (Estrada), he is entitled to have his prior drug conviction sentence enhancements under section 11370.2 reversed. Defendant's argument necessarily rests on the characterization of the August 2017 proceedings as a "resentencing." We disagree with that characterization.
Defendant was sentenced under Penal Code section 1170, subdivision (h)(5)(A), which provides, in relevant part: "[T]he court, when imposing a sentence pursuant to paragraph (1) or (2), shall suspend execution of a concluding portion of the term for a period selected at the court's discretion." (Italics added.) This suspended concluding portion of defendant's sentence constitutes the portion of the sentence known as mandatory supervision. (Pen. Code, § 1170, subd. (h)(5)(B).) "[M]andatory supervision is achieved by suspending execution of the concluding portion of the realigned sentence." (People v. Borynack (2015) 238 Cal.App.4th 958, 963.) That is, in a mandatory supervision context, sentence is imposed and part of the execution is suspended.
In criminal cases, "judgment is synonymous with the imposition of sentence." (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2; see People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9 ["In a criminal case, judgment is rendered when the trial court orally pronounces sentence"].) Here, the court orally pronounced and imposed sentence on defendant on October 5, 2015. In doing so, it rendered judgment. And, that judgment was appealable.
This conclusion is not altered by the fact that the court suspended execution of the mandatory supervision portion of the sentence. (Pen. Code, § 1170, subd. (h)(5).) Courts also impose sentences but suspend their execution in the probation context. (In re Phillips (1941) 17 Cal.2d 55, 58.) In that circumstance, "a judgment of conviction has been rendered from which an appeal can be taken, and upon affirmance, it becomes a final judgment." (Ibid.; People v. Howard (1997) 16 Cal.4th 1081, 1087 ["where a sentence has actually been imposed but its execution suspended, 'The revocation of the suspension of execution of the judgment brings the former judgment into full force and effect' "].) Logic dictates that the same is true in the context of mandatory supervision.
Here, defendant was sentenced to a 10-year term in October 2015, to be served as a split sentence, two years served in custody and the remaining eight years suspended and on mandatory supervision. At the time of his plea in 2015, defendant was advised that if he violated his mandatory supervision, he would get no more mandatory supervision and would serve the remaining eight years of his sentence in custody. Defendant agreed. In 2017, in accordance with the parties' agreement and defendant's stipulation, the court made clear it was ordering the original full 10-year term imposed in October 2015 to be served in custody. That is, it was lifting the suspension and ordering the concluding portion of the sentence executed. This is not a resentencing—it is execution of a judgment previously imposed.
"In general, an appealable order that is not appealed from becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment. [Citation.]" (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421; see People v. Dagostino (2004) 117 Cal.App.4th 974, 997 [failure to file a timely notice of appeal from the court's order granting conditions of probation bars challenge to conditions from being raised on appeal from a later order revoking probation]; accord, People v. Kelly (2013) 215 Cal.App.4th 297, 307 [involving failure to appeal from an order imposing and suspending execution of a sentence and granting probation].)
Defendant relies on the rule of retroactivity set forth in Estrada, under which a legislative amendment that lessens criminal punishment is presumed to apply to all cases not yet final (the Legislature deeming its former penalty too severe) unless there is a "saving clause" providing for prospective application. (Estrada, supra, 63 Cal.2d at pp. 742, 744 ["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, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies"], 748.) A judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari have expired. (People v. Kemp (1974) 10 Cal.3d 611, 614.) Defendant's October 2015 judgment was final well before the January 2018 effective date of the amendment to section 11370.2. Accordingly, the Estrada rule does not apply to defendant's conviction.
DISPOSITION
The judgment is affirmed.
BUTZ, Acting P. J. We concur: MAURO, J. RENNER, J.