P. v. Jackson

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Filed 12/21/18 P. v. Jackson CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
KEIJONA MICHAEL JACKSON,
Defendant and Appellant.
A154670
(Sonoma County
Super. Ct. No. FCR320600)
In 2017, defendant Keijona Michael Jackson pleaded no contest to two counts of
possessing methamphetamine for sale and was sentenced to a split sentence consisting of
two years in county jail and four years of mandatory supervision, which sentence
included a three-year enhancement based on a previous conviction for methamphetamine
possession for sale. In October, the Governor signed legislation eliminating the three-
year enhancement for Jackson’s previous conviction with an effective date of January 1,
2018. Jackson moved to strike the enhancement, arguing that he was entitled to the
retroactive benefit of the new legislation, and the trial court denied the motion and
reinstated Jackson’s mandatory supervision. We affirm.
BACKGROUND
On January 12, 2017, Jackson pleaded no contest to two counts of possession of
methamphetamine for sale in violation of Health and Safety Code section 11378. As part
of his plea, Jackson admitted that he had a previous conviction for violating section
11378, within the meaning of Health and Safety Code section 11370.2, subdivision (c),
and had served one prior prison term within the meaning of Penal Code section 667.5,

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subdivision (b). Pursuant to a negotiated disposition, the parties agreed that Jackson
would serve a six-year split sentence (Pen. Code, § 1170, subd. (h)(5)) consisting of a
two-year county jail term followed by a four-year term of mandatory supervision.
At sentencing on February 9, the trial court imposed the stipulated sentence,
calculated as follows: the middle term of two years on each count, to run concurrently; a
consecutive three-year term for the prior narcotics conviction enhancement (Health &
Saf. Code, § 11370.2, subd. (c)); and a consecutive one-year term for the prior prison
term enhancement (Pen. Code, § 667.5, subd. (b)). Execution of the concluding four
years of the sentence was stayed and deemed a period of mandatory supervision pursuant
to Penal Code, section 1170, subdivision (h)(5). Jackson did not appeal.
On July 25, 2017, the probation department submitted a memo to the court
indicating that Jackson had violated the terms of his mandatory supervision. On
September 29, after a contested revocation hearing, the court found the violation
allegations to be true. On October 27, the trial court reinstated and modified the terms of
Jackson’s mandatory supervision.
On January 1, 2018, Senate Bill No. 180 became effective, which amended Health
and Safety Code section 11370.2, subdivision (c), to remove Health and Safety Code
section 11378 from the list of previous convictions that qualify a defendant for a three-
year enhancement under that section. (See Health & Saf. Code, § 11370.2, subd. (c); see
also Stats. 2017, ch. 677, § 1 (S.B. 180), eff. Jan. 1, 2018.)
On April 2, the probation department again petitioned to revoke Jackson’s
probation, on the grounds that he had failed to comply with the modified terms of his
mandatory supervision. On April 13, after a contested revocation hearing, the court
found the violation allegations to be true.
On May 24, Jackson moved to strike the prior conviction enhancement, arguing
that Senate Bill No. 180 eliminated the basis for the enhancement. On June 7, after a
hearing, the trial court denied the motion and reinstated Jackson’s mandatory supervision.
Jackson appeals.

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DISCUSSION
Jackson’s only argument on appeal is that he is entitled to the retroactive benefit of
Senate Bill No. 180, and thus that the enhancement must be stricken. We review the
retroactive application of a statute de novo. (In re Marriage of Fellows (2006) 39 Cal.4th
179, 183.)
Generally, “where [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.1 (In re Estrada (1965) 63 Cal.2d 740, 744748 (Estrada).)
The Attorney General argues that Jackson’s judgment was already final for retroactivity
purposes on Senate Bill No. 180’s effective date of January 1, 2018.2
Typically, “[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.)” (People v. Smith (2015) 234 Cal.App.4th 1460, 1465.)
As the Fifth District recently explained in People v. McKenzie (2018) 25
Cal.App.5th 1207 (McKenzie), review granted November 20, 2018, S251333:
“In a criminal case, the sentence is the judgment. (People v. Wilcox (2013) 217
Cal.App.4th 618, 625 [‘ “A ‘sentence’ is the judgment in a criminal action [citations]; it
is the declaration to the defendant of his disposition or punishment once his criminal guilt
has been ascertained.” ’].) 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.
(People v. Segura (2008) 44 Cal.4th 921, 932.) These two situations affect when the
1 The Attorney General does not address whether Senate Bill No. 180 has
retroactive effect on judgments not yet final as of January 1, 2018, but appears to have
conceded that it does in at least one other case. (See People v. Millan (2018) 20
Cal.App.5th 450, 454.)
2 Because we agree, we need not reach the Attorney General’s additional argument
that Jackson’s appeal is a challenge to the validity of his plea and should therefore be
dismissed for failure to obtain a certificate of probable cause.

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judgment becomes final, which in turn affects whether a defendant is eligible to seek the
retroactive benefit of a change in law.
“In the first situation, when 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 the probation.’ (People v. Howard (1997) 16
Cal.4th 1081, 1087 (Howard).) No judgment has been rendered against him, or ever will
be if he successfully completes probation. But if he fails to successfully complete
probation and instead violates probation, the trial court may revoke and terminate
probation, and then impose sentence in its discretion, thereby rendering judgment. (Pen.
Code, § 1203.2, subd. (c); Howard, supra, at p. 1087.)” (McKenzie, supra, 25
Cal.App.5th at p. 1214.) “The probation order is considered to be a final judgment only
for the ‘limited purpose of taking an appeal therefrom.’ ” (Howard, at p. 1087, quoting
People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796; Pen. Code, § 1237, subd.
(a) [an “order granting probation” shall be deemed to be a final judgment for purposes of
appeal].)
“In the second situation, when the trial court initially imposes sentence, but
suspends execution of that sentence and grants probation, a judgment has been rendered.
(People v. Mora (2013) 214 Cal.App.4th 1477, 1482 [imposition of a sentence is equated
with entry of a final judgment, even if its execution is suspended and the defendant is
placed on probation].) That judgment will become final if the defendant does not appeal
within 60 days. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1420-1421; see [Cal.
Rules of Court,] rule 8.308(a).) If the defendant violates probation, the trial court may
revoke and terminate probation, but it must then order execution of the originally
imposed sentence; the trial court has no jurisdiction to do anything other than order the
exact sentence into execution. (Pen. Code, § 1203.2, subd. (c); Howard, supra, 16
Cal.4th at pp. 1087-1088; People v. Martinez (2015) 240 Cal.App.4th 1006, 1017.)”
(McKenzie, supra, 25 Cal.App.5th at p. 1214.)
This case is closer to the second situation. Jackson was sentenced to a four-year
term of mandatory supervision pursuant to Penal Code section 1170, subdivision (h)(5),

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which provides that a court “shall suspend execution of a concluding portion of the term
for a period selected at the court’s discretion.” (Pen. Code, § 1170, subd. (h)(5)(A).)
And the abstract of judgment indicates that no part of Jackson’s sentence was stayed,
instead, “[e]xecution of a portion [4 years] of the defendant’s sentence is suspended and
deemed a period of mandatory supervision under Penal Code section 1170(h)(5)(B).”
Accordingly, a judgment was rendered when Jackson was sentenced on February 9, 2017,
and that judgment became final 60 days later, before Senate Bill No. 180 became
effective on January 1, 2018. (See People v. Barboza (2018) 21 Cal.App.5th 1315,
13181319 [judgment final for retroactivity purposes where defendant sentenced to split
sentence including mandatory supervision].)
Jackson concedes that the judgment was final for purposes of appeal 60 days after
February 9, but argues that finality for purposes of appeal is “not always the
determinative factor in assessing finality when it comes to Estrada retroactivity,” relying
on McKenzie, People v. Eagle (2016) 246 Cal.App.4th 275, and In re May (1976) 62
Cal.App.3d 165. These cases do not assist Jackson, because each involved a situation in
which imposition of sentence was suspended and probation granted, such that the
judgment was final “only for the ‘limited purpose of taking an appeal therefrom.’ ”
(Howard, supra, 16 Cal.4th at p. 1087.) In Eagle, the trial court suspended imposition of
sentence and placed defendant on probation, the People conceded that therefore the
judgment was not final for retroactivity purposes, and the court agreed. (Eagle, at
pp. 278279.) In In re May, the proceedings were “suspended,” probation was granted,
and “no final judgment was entered for the purposes of this case.” (In re May, at
pp. 168169; see also People v. Superior Court (Rodas) (2017) 10 Cal.App.5th 1316,
13241326 [questioning In re May’s conclusion that the judgment in that case was not
yet final for retroactivity purposes].) And likewise in McKenzie, the court concluded that
the judgment was not final for retroactivity purposes where the trial court had suspended
imposition of sentence and granted probation. (McKenzie, supra, 25 Cal.App.5th at
pp. 1217-1218.) The McKenzie court went on to observe that “[h]ad the trial court

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initially imposed sentence . . . and suspended its execution, we would agree that
defendant’s judgment would have become final 60 days later and he could not now obtain
the retroactive benefit of a change in law under Estrada.” (Ibid.) That is exactly the
situation here.
Jackson’s reliance on People v. Camp (2015) 233 Cal.App.4th 461 is also
misplaced. There, the defendant was sentenced under Penal Code section 1170,
subdivision (h) to 14 months in county jail to be followed by 14 months of mandatory
supervision. (Camp, at p. 465.) After the probation officer filed a report indicating that
the defendant was in the country illegally, the trial court terminated his mandatory
supervision and modified his sentence to time served. (Id. at p. 466.) The People
appealed, arguing that the court acted in excess of its jurisdiction by terminating
mandatory probation and modifying the defendant’s sentence. (Id. at pp. 465466.) The
Camp court held that Penal Code section 1170, subdivision (h)(5)(B) expressly authorizes
a trial court to terminate a defendant’s mandatory supervision prior to the conclusion of
the period of supervision initially ordered, and that that statutory language trumps the
common law rule that the court loses resentencing jurisdiction once execution of sentence
has begun. (Camp, at pp. 470474.) Camp did not address or discuss the finality of the
judgment for purposes of appeal or for retroactivity under Estrada. Jackson has cited no
authority for the proposition that Camp, or more broadly whether and to what extent the
trial court had the power to modify or terminate his sentence, has anything to do with the
finality of the judgment for retroactivity purposes.
Our conclusion is supported by a recent decision of Division One of this court,
People v. Grzymski (2018) 28 Cal.App.5th 799 (Grzymski). There, the defendant pleaded
guilty to possession of heroin for sale and the trial court imposed a split sentence of 10
years, a portion of which was to be served in county jail and the balance on mandatory
supervision. (Id. at p. 802.) Grzymski violated the terms of his mandatory supervision
and pled guilty in a second prosecution to transportation of methamphetamine, and was
again sentenced to a 10-year split sentence to run concurrently to his original sentence.
(Ibid.) In a third prosecution in November 2017, the trial court terminated mandatory

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supervision and ordered Grzymski to serve the balance of the 10-year term in prison.
(Ibid.) Meanwhile, as noted above, Senate Bill No. 180 went into effect on January 1,
2018, and Grzymski argued he was entitled to the retroactive benefit of that legislation
because his 2013 and 2015 split sentences were not final within the meaning of Estrada.
(Id. at pp. 802803.) Relying on McKenzie, the Grzymski court rejected this argument,
holding squarely that “an unappealed order of probation suspending execution of the
sentence becomes final for Estrada purposes within 60 days of being imposed.” (Id. at
p. 806.)
In a supplemental brief, Jackson calls our attention to Grzymski, and asserts that it
was wrongly decided. He relies on dictum from the Supreme Court’s recent decision in
People v. Chavez (2018) 4 Cal.5th 771 (Chavez), which considered whether the trial court
retains jurisdiction to dismiss a criminal action under Penal Code section 1385 after a
sentence of probation has been completed.3 (Chavez, at pp. 779781.) After Chavez
pleaded guilty, the trial court suspended imposition of sentence and placed him on
probation for four years. (Id. at p. 777.) Years after successfully completing probation,
Chavez sought to have the action dismissed in order to avoid certain immigration
consequences of his conviction. (Id. at pp. 777778.) The Supreme Court held that the
trial court had no power to dismiss the action under section 1385 once probation was
complete. (Id. at pp. 783784.) Jackson relies on the following discussion from Chavez:
“Given that a grant of probation is not a final judgment, when—if ever, for
purposes of section 1385—does a judgment become final for a defendant who is granted
and completes probation?
“The answer lies in the probation statutes and our cases interpreting them. Section
1203, subdivision (a) defines ‘probation’ as ‘the suspension of the imposition or
execution of a sentence and the order of conditional and revocable release in the
community under the supervision of a probation officer.’ Going as far back as Stephens
3 Penal code section 1385 provides, in pertinent part, that “[t]he judge or
magistrate may, either of his or her own motion or upon the application of the
prosecuting attorney, and in furtherance of justice, order an action to be dismissed.”

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v. Toomey (1959) 51 Cal.2d 864, we have explained that neither forms of probation—
suspension of the imposition of sentence or suspension of the execution of sentence—
results in a final judgment. In a case where a court suspends imposition of sentence, it
pronounces no judgment at all, and a defendant is placed on probation with ‘no judgment
pending against [him].’ (Id. at pp. 871–872.) In the case where the court suspends
execution of sentence, the sentence constitutes ‘a judgment provisional or conditional in
nature.’ (Id. at pp. 870–871.) The finality of the sentence ‘depends on the outcome of
the probationary proceeding’ and ‘is not a final judgment’ at the imposition of sentence
and order to probation. (Id. at p. 871.) Instead of a final judgment, the grant of probation
opens the door to two separate phases for the probationer: the period of probation and the
time thereafter.” (Chavez, supra, 4 Cal.5th at pp. 781782.)
Jackson relies on the Chavez court’s statement that where the trial court suspends
execution of sentence, the judgment is “provisional or conditional” and “not a final
judgment.” But this language is purely dictum. In Chavez, imposition of the defendant’s
sentence was suspended, and a split sentence was not at issue. (Chavez, supra, 4 Cal.5th
at p. 777.) The Chavez court did not consider the finality of the judgment for purposes of
retroactivity, nor did it make any mention of Estrada. Furthermore, the Chavez court
expressly acknowledged that finality can have different meanings in different factual
contexts. (Id. at pp. 785786.) In short, Chavez does not convince us that Grzymski was
wrongly decided. Accordingly, Jackson’s judgment was final for purposes of the
retroactive effect of Senate Bill No. 180, 60 days after February 9, 2017, and he is not
entitled to the retroactive benefit of that legislation.
DISPOSITION
The order is affirmed.

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_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Stewart, J.
People v. Jackson (A154670)

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