Opinion
A154123
08-30-2018
THE PEOPLE, Plaintiff and Respondent, v. RANDOLPH ALAN DUBOIS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR226183)
Following his plea of no contest to transportation of a controlled substance for sale and evading a peace officer, defendant appeals from the sentence and other matters occurring after the plea. In the trial court, he argued his prior drug-related convictions no longer constituted qualifying convictions under Health and Safety Code section 11370.2, subdivision (c), due to a change in the law effective January 1, 2018, and this change in the law applied retroactively to him. Counsel for defendant has filed a brief setting forth the facts of the case, but advising the court under the authority of People v. Wende (1979) 25 Cal.3d 436, no issues were found to argue on defendant's behalf. Defendant was notified by his counsel he had 30 days to file a supplemental brief with the court. No supplemental brief has been received. Having reviewed the record and finding no arguable issues, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of April 13, 2016, police officers saw defendant run a stop sign and fail to yield the right-of-way. When the officers attempted to stop defendant, a pursuit ensued. Defendant collided with a minivan resulting in injuries to the occupants. During the pursuit, the officers saw defendant throw some drugs from the vehicle. Once the officers were able to stop defendant's vehicle, they located methamphetamine nearby and a syringe and methamphetamine in defendant's vehicle.
Because the underlying facts are not relevant to this appeal, we briefly summarize them based on the prosecutor's factual basis recital at the time of the change of plea.
A complaint was filed by the Solano County District Attorney on April 15, 2016 charging defendant with five felonies and one misdemeanor. In February 2017, defendant pled no contest to one count of felony transportation of a controlled substance for purposes of sale (Health & Saf. Code, § 11379, subd. (a)) and one count of evading a peace officer (Veh. Code, § 2800.2, subd. (a)). Pursuant to Health and Safety Code section 11370.2, defendant admitted he suffered two prior felony convictions for violating sections 11378 and 11379. In accordance with the negotiated disposition, the court dismissed the remaining counts and sentenced defendant to 10 years in state prison—four years for transportation of a controlled substance for the purpose of sale, two years for evading a peace officer to run concurrently, and three years for each of the section 11370.2 enhancements to run consecutively. There is no documentation in the record indicating defendant appealed his conviction.
All further statutory references are to the Health and Safety Code. --------
A little less than a year later, on January 18, 2018, defendant filed a motion to modify his sentence by dismissing the two section 11370.2 enhancements. He asserted the dismissals were mandated by changes in the law brought about by the passage of Senate Bill No. 180 (2017-2018 Reg. Sess.), effective January 1, 2018 (Senate Bill 180). On February 22, 2018, defendant filed a second motion to dismiss the prior convictions and requested resentencing. He argued Senate Bill 180, removed "a number of prior convictions from the list of prior convictions that qualify a defendant for imposition of an enhancement" under section 11370.2, subdivision (c), including his convictions for sections 11378 and 11379. Importantly, even though Senate Bill 180 became effective on January 1, 2018, after defendant admitted the enhancements in 2017, he argued the change in the law applied to him retroactively under In re Estrada (1965) 63 Cal.2d 740 (Estrada), and thus his enhancements should be dismissed.
Following a hearing, the trial court denied defendant's motion, finding "the amendment here only applies if the conviction or judgment is not final." Because the court found the judgment here was final, it declined to apply Estrada. Defendant filed a timely notice of appeal.
DISCUSSION
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have examined the entire record ourselves to see if any arguable issue is present.
We first conclude that the trial court properly denied defendant's motion to dismiss the enhancements. Former section 11370.2, subdivision (c) provided in part that a person convicted of a violation of section 11379 "with respect to any substance containing a controlled substance specified in paragraph (1) or (2) of Section 11055 shall receive in addition to any other punishment . . . a full, separate, and consecutive three-year term" for various drug-related prior convictions, including sections 11378 and 11379.
Though Senate Bill 180 amended section 11370.2 to eliminate sections 11378 and 11379 as qualifying prior convictions, the amended statute does not apply retroactively to defendant. "In Estrada, supra, 63 Cal.2d 740, the California Supreme Court created a limited exception to the ordinary rule that statutes apply prospectively, as follows: '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.' " (People v. Millan (2018) 20 Cal.App.5th 450, 455.) The court in Estrada, however, held: "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." (Estrada, supra, 63 Cal.2d at p. 745, italics added.)
"In a criminal case, the sentence is the judgment. [Citation.] 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. [Citation.] 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." (People v. McKenzie (Aug. 10, 2018, F073942) ___ Cal.App.5th ___ [2018 Cal.App.Lexis 707, at p. *7].) "[W]hen 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 probation.' " (Ibid.) On the other hand, "when the trial court initially imposes sentence, but suspends execution of that sentence and grants probation, a judgment has been rendered." (Id. at p. *8.)
In this case, the judgment is final because the trial court sentenced defendant to 10 years in state prison, and there is no appeal pending. Because the judgment is final, under the reasoning of Estrada, the amendment to section 11370.2 is not retroactive, and as a result, defendant's drug-related enhancements cannot be stricken.
We further conclude defendant was ably represented by counsel throughout the proceedings. The court sentenced defendant to the agreed upon term of 10 years in state prison.
In sum, we agree with defendant's counsel that no issues are present that could undermine defendant's no contest plea or sentencing in this matter.
DISPOSITION
The judgment is affirmed.
/s/_________
Margulies, Acting P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.