Opinion
C087344
02-07-2020
THE PEOPLE, Plaintiff and Respondent, v. SUZETTE EMILY GORDESKY, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. NCR95334)
Pursuant to a written plea agreement, defendant Suzette Emily Gordesky pleaded guilty to transportation of a controlled substance (methamphetamine) (Health & Saf. Code, § 11379, subd. (a)), admitted she had two prior drug-related convictions within the meaning of former section 11370.2, subdivision (c), and waived her appeal rights. In exchange, the People dismissed additional counts and enhancement allegations and stipulated to a 10-year sentence, which the parties agreed would be suspended if defendant was eligible for probation. In December 2015, the trial court placed defendant on formal probation for a term of three years with various terms and conditions. After defendant admitted to violating a condition of her probation, the trial court imposed a 10-year split sentence in May 2018, which included two three-year sentencing enhancements for the prior drug-related convictions, and consisted of five years in county jail followed by five years on mandatory supervision. Before imposing sentence, the trial court denied defendant's petition to strike the enhancements in light of Senate Bill No. 180 (2017-2018 Reg. Sess.) (Senate Bill 180), which went into effect on January 1, 2018, and amended section 11370.2, subdivision (c) by eliminating its three-year enhancements for most drug-related prior convictions, including defendant's prior convictions. (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018; see § 11370.2.)
Undesignated statutory references are to the Health and Safety Code.
On appeal, defendant contends the trial court erred in imposing the stipulated 10-year sentence. According to defendant, Senate Bill 180 retroactively applies to her and requires that the enhancements imposed pursuant to former section 11370.2, subdivision (c) be stricken. Defendant further contends that Penal Code section 1001.36, effective June 27, 2018, retroactively applies to her and requires that the judgment be conditionally reversed and the matter remanded for the trial court to determine whether she should be granted mental health "pretrial diversion."
We conclude that defendant is not entitled to relief under Senate Bill 180 or Penal Code section 1001.36. Her judgment of conviction was final long before the changes in law took effect. Therefore, we affirm.
FACTUAL BACKGROUND
The facts giving rise to the charges in this case are not pertinent to the claims raised on appeal. We discuss only the background information necessary to the resolution of this appeal.
In September 2015, an information was filed charging defendant with transportation of a controlled substance (methamphetamine) (§ 11379, subd. (a)—count I), possession for sale of a controlled substance (methamphetamine) (§ 11378—count II), driving a motor vehicle with a suspended and revoked license (Veh. Code, § 14601.1, subd. (a)—count III), and possession of paraphernalia used for smoking a controlled substance (§ 11364.1, subd. (a)(1) —count IV). As to counts I and II, the information alleged that defendant had previously been convicted of three drug-related offenses within the meaning of former section 11370.2, subdivision (c), and had served four prior prison terms (Pen. Code, § 667.5, former subd. (b)).
Although the information alleged a violation of section 11364.1, subdivision (a)(1), which had been repealed effective January 1, 2015 (Stats. 2014, ch. 331, § 9), the applicable statute as of September 2015 would have been section 11364, subdivision (a).
In November 2015, the parties entered into a written plea agreement. As part of the negotiated plea bargain, defendant agreed to plead guilty to count I, admit two prior drug-related convictions, and waive her appeal rights. In exchange, the prosecutor agreed to dismiss the remaining counts and enhancement allegations and stipulated to a 10-year sentence, which the parties agreed would be suspended if defendant was eligible for "straight" probation or probation with an Adult Felony Drug Court (AFDC) program condition. In the provision titled, "Other Terms," the plea agreement stated: "Stipulate to 10 year term of incarceration. Referral to [AFDC] for evaluation of eligibility and suitability. May not withdraw plea if denied drug court. Waive appellate rights."
At the change of plea hearing, the trial court accepted defendant's guilty plea, admission, and waiver of appeal rights. It also dismissed the remaining counts and enhancement allegations. During the hearing, defendant acknowledged that she would be sentenced to the stipulated 10-year term if she was ineligible for probation or if she subsequently violated a term or condition of her probation. Defendant also indicated that she understood all the terms of the plea agreement, including that she was waiving her right to an appeal. The minute order issued following the hearing stated: "Stipulate to a term of 10 yrs state prison (local) or 10 yrs suspended with probation, referral to AFDC." The order also stated: "Deft. waived appellate rights."
In December 2015, the trial court determined that defendant was eligible for probation and the AFDC program and placed her on probation for a term of three years with various terms and conditions, including the condition that she complete the AFDC program. The court advised defendant that she was "looking at ten years" if she failed to satisfy this condition. The trial court did not orally impose the stipulated 10-year sentence and suspend execution of that sentence. Nor did the court state that it was suspending imposition of sentence. The sentencing minute order indicated that defendant was placed on formal probation but did not mention that imposition of sentence was suspended or that the sentence was imposed but its execution was suspended. The order granting probation stated: "IMPOSITION OF SENTENCE is suspended," and then goes on to list the terms and conditions of defendant's probation. In accordance with the terms of the plea agreement, defendant did not appeal the order granting probation.
In April 2018, defendant admitted to violating a condition of her probation. When asked by the trial court whether the stipulated sentence had been suspended, defense counsel stated, "My understanding, your Honor, is ten years suspended."
Prior to sentencing, defendant filed a petition requesting the court strike the three-year sentencing enhancements "imposed" at the original sentencing hearing for her prior drug-related convictions. Defendant argued that such relief was warranted in light of Senate Bill 180, which took effect on January 1, 2018, and amended section 11370.2, subdivision (c) by eliminating its three-year enhancements for most drug-related prior convictions, including the enhancements for defendant's prior convictions. (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018; see § 11370.2.) Defendant asserted that the change in law applied to her under the retroactivity rule announced in In re Estrada (1965) 63 Cal.2d 740 (Estrada). The People filed a written opposition, arguing that Senate Bill 180 did not apply because the judgment was final prior to the effective date of the amended statute, as the trial court had imposed sentence but suspended its execution in December 2015.
At the outset of the May 2018 sentencing hearing, the trial court stated that it was concerned about the state of the record with respect to the December 2015 sentencing hearing. The court noted that there were references in the record indicating that a 10-year sentence had been imposed with execution of sentence suspended but the record did not clearly reflect this. Thereafter, counsel for the parties agreed that the plea bargain contemplated that the trial court would impose a 10-year sentence but stay execution of that sentence if defendant was placed on probation. Counsel then stipulated that the original sentencing order should not have stated that "imposition of sentence is suspended." Instead, the order should have stated that "defendant had been sentenced to ten years and it was the execution of sentence that was suspended." After hearing argument from counsel, the court denied defendant's petition to strike the enhancements for the drug-related prior convictions, finding that her judgment of conviction was final prior to the effective date of Senate Bill 180 and the amendments to section 11370.2, subdivision (c). Consistent with the plea agreement, the court imposed a 10-year split sentence, consisting of five years in county jail followed by five years on mandatory supervision.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court erred in imposing the stipulated 10-year sentence. According to defendant, Senate Bill 180 requires that the enhancements imposed under former section 11370.2, subdivision (c) be stricken. She further contends that the judgment must be conditionally reversed and the matter remanded for the trial court to determine whether she should be granted mental health "pretrial diversion" under the recently enacted Penal Code section 1001.36. In support of her contentions, defendant relies on the retroactivity rule announced in Estrada. She argues that her conviction was not final when the changes in law took effect because the trial court suspended imposition of sentence in December 2015 and did not impose sentence until May 2018, from which she timely appealed. The People argue, among other things, that defendant is not entitled to the benefit of the changes in the law because her judgment was final for purposes of review prior to the effective date of Senate Bill 180 and Penal Code section 1001.36. We agree with the People.
Effective January 1, 2018, Senate Bill 180 eliminated the three-year enhancements for drug-related prior convictions, with one exception not applicable to defendant's case. (Stats. 2017, ch. 677, § 1, eff. Jan. 1, 2018; see § 11370.2.) Other courts have applied the legislation retrospectively to nonfinal judgments because the change reduces punishment. (See People v. Millan (2018) 20 Cal.App.5th 450, 455-456; People v. Zabala (2018) 19 Cal.App.5th 335, 338, 344.) This is in accord with Estrada. Under Estrada, "where the 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. (Estrada, supra, 63 Cal.2d at pp. 744, 748.) "The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses." (People v. Nasalga (1996) 12 Cal.4th 784, 792.) Here, the People concede, and we agree, that Senate Bill 180's amendments to section 11370.2 are retroactive under Estrada.
Effective June 27, 2018, Penal Code section 1001.36 provides that a trial court, "[o]n an accusatory pleading alleging the commission of a misdemeanor or felony offense" (with exclusions not relevant here), may grant "pretrial diversion" to a defendant who meets all of the requirements specified in the statute. (Pen. Code, § 1001.36, subd. (a).) " '[P]retrial diversion' " as used in the statute means "the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication." (Pen. Code, § 1001.36, subd. (c).) Courts are divided as to whether Penal Code section 1001.36 applies retroactively to cases not yet final on appeal under the retroactivity rules of Estrada and People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara). (Compare People v. Frahs (2018) 27 Cal.App.5th 784, review granted Dec. 27, 2018, S252220, People v. Weir (2019) 33 Cal.App.5th 868, review granted June 26, 2019, S255212, People v. Weaver (2019) 36 Cal.App.5th 1103, review granted Oct. 9, 2019, S257049, People v. Burns (2019) 38 Cal.App.5th 776, review granted Oct. 30, 2019, S257738, and People v. Hughes (2019) 39 Cal.App.5th 886, review granted Nov. 26, 2019, S258541, with People v. Craine (2019) 35 Cal.App.5th 744, 749, review granted Sept. 11, 2019, S256671, People v. Torres (2019) 39 Cal.App.5th 849, review denied, Dec. 11, 2019, S258491, and People v. Khan (2019) 41 Cal.App.5th 460, review granted Jan. 29, 2020, S259498.) Here, the People disagree with defendant's contention that Penal Code section 1001.36 is retroactive under Estrada and Lara. For the reasons stated below, we need not resolve this dispute in this case.
The People ask us to take judicial notice of the Assembly Floor Analysis of Assembly Bill No. 1810 (2017-2018 Reg. Sess.), as amended June 12, 2018, because it demonstrates the reasons that motivated the Legislature to enact the pretrial diversion program in Penal Code section 1001.36. Because the legislative history is not relevant to our disposition of this appeal, we deny the People's request. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)
Even assuming for the sake of argument that Penal Code section 1001.36 is retroactive under Estrada and Lara, defendant is not entitled to relief under that provision or Senate Bill 180. This is because her judgment of conviction was final long before the changes in law took effect. An order granting probation is appealable, regardless of whether the trial court suspended imposition of sentence or imposed sentence but suspended execution of that sentence. (See Pen. Code, § 1237, subd. (a); 6 Witkin, Cal. Crim. Law (4th ed. 2012) Criminal Appeal, § 58, pp. 334-335.) Here, defendant's judgment of conviction containing the challenged enhancements was final for retroactivity purposes in 2016. It became final when she failed to appeal within the allotted time after the December 2015 order granting formal probation. Therefore, she is not entitled to the benefits of the amendments to section 11370.2, subdivision (c) or the enactment of Penal Code section 1001.36, which went into effect in 2018. (See People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316, 1325-1326 [concluding that even though the defendant's sentence was suspended and she was on probation when the amendment took effect, she could not benefit from the amendment because her conviction was final as the process to appeal her conviction based on her no contest plea had ended].)
In view of our conclusion, we need not and do not address the remaining issues raised by the parties.
DISPOSITION
The judgment is affirmed.
/s/_________
Butz, J. We concur: /s/_________
Robie, Acting P. J. /s/_________
Murray, J.