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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Baltazar DIAZ MARTINEZ, Defendant and Appellant.

2d Crim. No. B303086

Decided: August 31, 2020

Todd W. Howeth, Public Defender, William Quest, Deputy Public Defender, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

This case involves the intersection of the Criminal Justice Realignment Act (Realignment Act) and the retroactive application of ameliorative statutes pursuant to In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (Estrada). Under the Realignment Act, a trial court has discretion to impose a “split sentence” consisting of a term in county jail followed by a period of mandatory supervision. The court fashions a split sentence by suspending execution of the latter portion of the defendant's sentence and releasing them subject to the probation department's supervision. If the defendant violates the terms of supervision, the court may revoke it and order execution of the suspended portion of the sentence.

The issue presented in this case is whether a defendant is entitled to seek the retroactive benefit of an ameliorative statute on appeal from an order revoking supervision.1 We hold that a split sentence consisting of a county jail term followed by a period of mandatory supervision does not automatically become a final judgment of conviction for purposes of Estrada retroactivity when the time to appeal from the imposition of that sentence expires. Where, as here, the trial court subsequently revokes supervision and the Legislature enacts an ameliorative statute prior to or during the pendency of an appeal from the revocation order, the defendant is entitled to seek relief under the new law.

Baltazar Diaz Martinez pled guilty to unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), identity theft (Pen. Code,2 § 530.5, subd. (a)), grand theft (§ 487, subd. (a)), and providing a police officer with false information (§ 148.9, subd. (a)), and admitted allegations that he had served three prior prison terms (§ 667.5, subd. (b)). The trial court struck one of the prison priors and imposed a split sentence of four years eight months, two years of which was based on the two remaining prison priors. Martinez was to serve the first two years of his sentence in county jail, and the remaining two years eight months on mandatory supervision.

Martinez violated the terms of supervision. After his second violation, the trial court revoked supervision and ordered him to serve the remainder of his sentence in county jail. On appeal from the order revoking supervision, he contends he is entitled to have the two 1-year prison priors stricken from his sentence due to a change in the law that occurred after sentencing. We agree, and remand.


In February 2018, Martinez pled guilty to unlawfully driving or taking a vehicle, identity theft, grand theft, and giving a police officer false information, and admitted allegations that he had served three prior prison terms. In exchange for his guilty plea, the trial court agreed to impose a split sentence of four years eight months: two years in county jail, followed by two years eight months of mandatory supervision. The plea agreement did not state which convictions and enhancements would make up the total sentence.

At the March sentencing hearing, the trial court struck one of the prison priors and sentenced Martinez to the agreed-upon term of four years eight months: two years for unlawfully driving or taking a vehicle, eight months on the identity theft, and two years on the two remaining prison priors. Sentences on Martinez's additional convictions were run concurrently. He did not appeal from the judgment.

In January 2019, the trial court revoked and reinstated mandatory supervision after Martinez admitted that he had violated its terms by getting arrested and failing to report for drug testing. The court ordered him to serve 120 days in county jail for his violations.

Seven months later, Martinez admitted that he again violated the terms of supervision. This violation was tied, in part, to a new case in which Martinez pled guilty to another count of unlawfully driving or taking a vehicle and two more counts of identity theft. The trial court revoked supervision and ordered Martinez to serve the remaining 514 days of his original sentence in county jail. It sentenced him to a consecutive two years four months in jail on his new convictions.


When the trial court sentenced Martinez in 2018, section 667.5, subdivision (b), required it to add two years to his sentence because of his two prior prison terms. (People v. Jennings (2019) 42 Cal.App.5th 664, 681, 255 Cal.Rptr.3d 713 (Jennings) [enhancement mandatory unless stricken].) The Legislature subsequently enacted Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136), which, effective January 1, 2020, limits the applicability of prior prison term sentence enhancements to terms served for sexually violent offenses. (Jennings,, at p. 681.) The provisions of Senate Bill 136 apply retroactively to cases that are not yet final on appeal. (Jennings, at pp. 681-682, 255 Cal.Rptr.3d 713.)

Martinez argues he is entitled to have the enhancements stricken from the sentence imposed in his 2018 case because neither of his prior terms in prison involved a sexually violent offense. The Attorney General argues Martinez is not entitled to relief because the judgment in his case was final prior to Senate Bill 136's effective date. Martinez has the better argument.

Retroactivity under Estrada

In Estrada, the Supreme Court held that an ameliorative statute will generally apply to all cases that are not final as of its effective date. (Estrada, supra, 63 Cal.2d at pp. 744-745, 48 Cal.Rptr. 172, 408 P.2d 948.) Estrada’s retroactivity principles apply in a variety of contexts, including to statutory amendments that restrict the applicability of sentence enhancements. (Jennings, supra, 42 Cal.App.5th at pp. 681-682, 255 Cal.Rptr.3d 713.) “The key date is the date of final judgment.” (Estrada, at p. 744, 48 Cal.Rptr. 172, 408 P.2d 948.) “If the amend[ed] statute ․ becomes effective prior to the date the judgment of conviction becomes final[,] then ․ it, and not the old statute in effect when the prohibited act was committed, applies.” (Ibid.)

“In criminal actions, the terms ‘judgment’ and “ ‘sentence’ ” are generally considered ‘synonymous’ [citation].” (People v. McKenzie (2020) 9 Cal.5th 40, 46, 259 Cal.Rptr.3d 224, 459 P.3d 25 (McKenzie).) There can be “no ‘judgment of conviction’ without a sentence.” (Ibid.) Thus, for purposes of Estrada retroactivity, the focus is not on when a conviction becomes final but rather when the sentence imposed on that conviction becomes final. (Ibid.) A sentence becomes final “when all available means to avoid its effect have been exhausted.” (Stephens v. Toomey (1959) 51 Cal.2d 864, 869, 338 P.2d 182 (Stephens).) It has not become final “if there still remains some legal means of setting it aside” on direct appeal. (Ibid.) Determining whether such means remain here presents an issue of law for our independent review. (In re Marriage of Fellows (2006) 39 Cal.4th 179, 183, 46 Cal.Rptr.3d 49, 138 P.3d 200.)

Split sentences

In 2011, the Legislature enacted the Realignment Act, which grants a trial court the discretion to either sentence a low-level felony offender to county jail or impose a “ ‘split sentence consisting of county jail followed by a period of mandatory supervision.’ [Citation.]” (People v. Camp (2015) 233 Cal.App.4th 461, 467, 182 Cal.Rptr.3d 628; see also People v. Scott (2014) 58 Cal.4th 1415, 1418-1419, 171 Cal.Rptr.3d 638, 324 P.3d 827 (Scott).) In the latter scenario, the court suspends execution of the concluding portion of the offender's sentence and releases them into the community under the supervision of the probation department. (People v. Avignone (2017) 16 Cal.App.5th 1233, 1240, 225 Cal.Rptr.3d 61.) The period of supervision “is mandatory … and may not be ․ terminated [early] except by court order.” (§ 1170, subd. (h)(5)(B).) If the offender is rearrested during that period, any proceeding to revoke or modify the terms of supervision must be conducted pursuant to section 1203.2. (§ 1170, subd. (h)(5)(B); see Camp, at p. 469, fn. 9, 182 Cal.Rptr.3d 628.) That section permits the court to either release the offender under the same or modified terms, or revoke and terminate supervision. (§ 1203.2, subd. (a).) If the court opts for the latter, it must lift the suspension on the execution of the previously pronounced sentence and order it into “full force and effect.” (§ 1203.2, subd. (c).)

Chavez and McKenzie

Given the discretion granted to a trial court by section 1203.2 and related statutes, the Supreme Court has explained that, in the context of probation, a judgment is not “final” when the trial court imposes a sentence but suspends its execution. (People v. Chavez (2018) 4 Cal.5th 771, 781, 231 Cal.Rptr.3d 634, 415 P.3d 707 (Chavez).) Criminal proceedings remain outstanding against the defendant, and the judgment “may or may not become final” depending on what happens during the probationary period. (Stephens, supra, 51 Cal.2d at p. 875, 338 P.2d 182.) If the defendant complies with the terms of probation throughout that period, the case may be dismissed and expunged from the record, resulting in no final judgment. (Ibid.; see § 1203.4.) In contrast, if the defendant violates the terms of probation, probation may “be revoked [and] the judgment may be ordered in full force and effect.” (Stephens, at p. 875, 338 P.2d 182.) This range of outcomes exemplifies that a sentence that is imposed and suspended “constitutes ‘a judgment provisional or conditional in nature.’ [Citation.]” (Chavez, at p. 781, 231 Cal.Rptr.3d 634, 415 P.3d 707.)

McKenzie illustrates these principles. In 2014, the McKenzie defendant pled guilty to a number of charges, and admitted allegations that he had sustained four prior convictions for drug-related offenses. (McKenzie, supra, 9 Cal.5th at p. 43, 259 Cal.Rptr.3d 224, 459 P.3d 25.) Each of the prior conviction admissions subjected the defendant to a three-year sentence enhancement. (Ibid.) The trial court suspended imposition of sentence, and placed him on five years of formal probation. (Ibid.) He did not appeal. (Id. at p. 48, 259 Cal.Rptr.3d 224, 459 P.3d 25.)

Two years later, the trial court revoked probation and imposed a state prison sentence that included the four enhancements for the defendant's prior drug-related convictions. (McKenzie, supra, 9 Cal.5th at p. 43, 259 Cal.Rptr.3d 224, 459 P.3d 25.) While the case was pending on appeal from the revocation order, the Legislature enacted Senate Bill No. 180 (2017–2018 Reg. Sess.) (Senate Bill 180), which rendered the defendant ineligible for the enhancements. (McKenzie, at p. 44, 259 Cal.Rptr.3d 224, 459 P.3d 25.) The Supreme Court concluded that he was entitled to take advantage of Senate Bill 180's provisions because his “ ‘ “criminal proceeding … ha[d] not yet reached final disposition in the highest court authorized to review it.” ’ [Citation.]” (McKenzie, at p. 45, 259 Cal.Rptr.3d 224, 459 P.3d 25,.)

In reaching that conclusion, the Supreme Court rejected the Attorney General's argument that the 2014 order granting probation “was ‘a final judgment for purposes of filing an appeal.’ ” (McKenzie, supra, 9 Cal.5th at p. 46, 259 Cal.Rptr.3d 224, 459 P.3d 25.) There is a “ ‘substantial and pertinent difference between an order granting probation and a final judgment.’ ” (Id. at pp. 47-48, 259 Cal.Rptr.3d 224, 459 P.3d 25.) A criminal action does not terminate “when ‘the court orders a grant of probation.’ ” (Ibid. at p. 47, 259 Cal.Rptr.3d 224, 459 P.3d 25.) Rather, a “ ‘criminal action’—and thus the trial court's jurisdiction to impose a final judgment—‘continues into and throughout the period of probation’ and expires only ‘when th[e] [probation] period ends.’ [Citation.]” (Ibid.) It is “irrelevant that ‘… an order granting probation is deemed a “final judgment” for the purpose of taking an appeal.’ [Citation.]” (Ibid.) “ ‘[S]uch an order’ has only ‘limited finality’ and ‘ “does not have the effect of a judgment for other purposes,” ’ ” such as determining whether a new ameliorative statute is retroactive under Estrada. (Ibid.)

Though McKenzie involved probation, we see no reason to depart from its principles in a case involving mandatory supervision. Mandatory supervision is “akin to probation.” (People v. Griffis (2013) 212 Cal.App.4th 956, 963, fn. 2, 151 Cal.Rptr.3d 508.) During the supervision period, the defendant is “supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation,” including those used to revoke or modify the terms of supervision. (§ 1170, subd. (h)(5)(B); see §§ 1203.2, 1203.3.) The applicability of these procedures and the myriad outcomes they permit demonstrate that mandatory supervision, like probation, is conditional or provisional in nature.

That McKenzie considered a case where imposition of sentence was suspended, while mandatory supervision involves suspension of the execution of sentence, does not change our conclusion. McKenzie relied heavily on Chavez, which explained the differences between the two forms of probation. The Chavez court stated that “[i]n the case where the court suspends execution of sentence, the ․ finality of the sentence ‘depends on the outcome of the probationary proceeding’ and ‘is not a final judgment.’ ” (Chavez, supra, 4 Cal.5th at p. 781, 231 Cal.Rptr.3d 634, 415 P.3d 707.) Instead, “the grant of probation opens the door to two separate phases for the probationer: the period of probation and the time thereafter.” (Ibid.) During the former, “the court retains the power to revoke probation and sentence the defendant to imprisonment.” (Id. at p. 782, 231 Cal.Rptr.3d 634, 415 P.3d 707.) If the court exercises that power—as it did in the proceedings below—the judgment then has “full force and effect.” (§ 1203.2, subd. (c).) It will become final once the means for setting it aside on direct appeal have been exhausted. (Stephens, supra, 51 Cal.2d at pp. 869, 875, 338 P.2d 182.)

Scott and Ramirez

Relying on Scott, supra, 58 Cal.4th 1415, 171 Cal.Rptr.3d 638, 324 P.3d 827, the Attorney General counters that Martinez's sentence became final when he failed to appeal from the trial court's imposition of a split sentence in 2018. But the Supreme Court rejected an analogous argument in McKenzie (McKenzie, supra, 9 Cal.5th at pp. 46-47, 259 Cal.Rptr.3d 224, 459 P.3d 25), requiring us to do the same here (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937; see People v. Triggs (1973) 8 Cal.3d 884, 890-891, 106 Cal.Rptr. 408, 506 P.2d 232 [holdings of the Supreme Court “must be applied wherever the facts of a case are not fairly distinguishable from the facts of the case in which [the court has] declared the applicable principle of law”], disapproved on another ground in People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 4, 150 Cal.Rptr. 910, 587 P.2d 706). Moreover, the issue in Scott was when the defendant was sentenced for purposes of the Realignment Act—i.e., when the sentence was originally imposed and suspended, or when the court lifted the suspension and ordered the sentence to be executed—not when that sentence became final. (Scott, at p. 1421, 171 Cal.Rptr.3d 638, 324 P.3d 827.) “It is axiomatic that cases are not authority for propositions not considered.” (People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10, 17 Cal.Rptr.3d 302, 95 P.3d 523.)

Nor are we persuaded by the Attorney General's comparison of this case to People v. Ramirez (2008) 159 Cal.App.4th 1412, 72 Cal.Rptr.3d 340. In Ramirez, the defendant did not appeal from the trial court's 2004 order that modified the terms of probation, imposed an increased sentence, and suspended its execution pending a period of formal probation. (Id. at p. 1421, 72 Cal.Rptr.3d 340.) In 2006, the court revoked probation, and the defendant appealed, challenging the terms of the 2004 order. (Ibid.) Because the defendant could have challenged the 2004 order on direct appeal but chose not to do so, he was estopped from doing so in his appeal from the 2006 order revoking probation. (Ibid.)

Here, Martinez has not claimed any error in the trial court's order imposing a split sentence in 2018. “Instead, he raises an issue relating to the [2019] ‘revocation of [supervision] and sentencing’ [citation], based on an event—the [enactment of Senate Bill 136]—that occurred long after the court ordered [mandatory supervision] and the time for direct appeal lapsed.” (McKenzie, supra, 9 Cal.5th at p. 50, 259 Cal.Rptr.3d 224, 459 P.3d 25,.) He thus “could not have raised this issue [on] appeal from the [supervision] order.” (Ibid., italics omitted.) “Under these circumstances, [Martinez's] failure to file such a direct appeal does not preclude him from taking advantage of ameliorative amendments that took effect while he was appealing from the subsequent revocation of his [supervision] and [execution] of sentence.” (Ibid.) The two 1-year prison priors must be stricken from his sentence. (People v. Conatser (2020) 53 Cal.App.5th 1223, 1230.)


The matter is remanded to the trial court with directions to strike the two 1-year sentence enhancements imposed pursuant to section 667.5, subdivision (b), and to resentence Martinez. In all other respects, the judgment is affirmed.

A petition for a rehearing was denied September 23, 2020, and the opinion was modified to read as printed above. Respondent's petition for review by the Supreme Court was granted November 10, 2020, S264848, and on August 11, 2021, review was dismissed.


1.   The Supreme Court recently granted review in a case presenting a related issue: When a judgment becomes final for purposes of Estrada retroactivity where probation is granted and execution of the sentence is suspended. (See People v. Esquivel (Mar. 26, 2020, B294024) 2020 WL 1465895 [nonpub. opn.], review granted Aug. 12, 2020, S262551.)

2.   Undesignated statutory references are to the Penal Code.


Gilbert, P. J., and Yegan, J., concurred.

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