Filed 8/21/20
                             CERTIFIED FOR PUBLICATION

                 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SIXTH APPELLATE DISTRICT

 THE PEOPLE,                                       H045787
                                                  (Santa Cruz County
            Plaintiff and Respondent,              Super. Ct. No. 16CR01219)

            v.

 ALBERTO SALVADOR CONTRERAZ,

            Defendant and Appellant.


        In September 2017, defendant Alberto Salvador Contreraz1 was sentenced to
10 years in state prison, execution suspended, and granted three years’ probation. In
May 2018, following a contested hearing, the trial court found that Contreraz violated his
probation. The trial court terminated probation and ordered execution of the
previously-imposed prison sentence.
        In our prior opinion in this matter, People v. Contreraz (Dec. 5, 2019, H045787
[nonpub. opn.]), we rejected Contreraz’s argument that he is entitled to the retroactive
benefit of Senate Bill No. 620 (Reg. Sess. 2017-2018) (Sen. Bill 620) which amended
Penal Code2 sections 12022.5, subdivision (c) and 12022.53, subdivision (h), effective
January 1, 2018, and affirmed the judgment. This case is before us again after the
California Supreme Court granted review, deferred briefing, and transferred the matter
back to this court with directions to vacate our prior decision and reconsider the cause in
light of People v. McKenzie (2020) 9 Cal.5th 40 (McKenzie). Neither Contreraz nor the

        1
         The record and the briefing contain several versions of defendant’s first and last
name, e.g., “Albert” and “Contreras.” We have elected to use the version which appears
most frequently and is also used on the abstract of judgment.
       2
         Unspecified statutory references are to the Penal Code.
Attorney General submitted supplemental briefs following transfer from the Supreme
Court. (Cal. Rules of Court, rules 8.200(b) & 8.528(f).)
       As directed by the California Supreme Court, we hereby vacate our prior decision
and, upon reconsideration, we conclude that Contreraz is entitled to the benefit of Sen.
Bill 620. Accordingly, we reverse the judgment and remand for the trial court to exercise
its discretion in deciding whether to strike the firearm enhancement pursuant to
sections 12022.5, subdivision (c) and 12022.53, subdivision (h), as amended. Further, as
discussed in our prior (now vacated) opinion, the trial court has stricken the criminal
street gang sentencing enhancement, thus rendering that argument moot.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       On June 2, 2016, Contreraz was charged by information with second degree
robbery (§ 211; count 1), participation in a criminal street gang (§ 186.22. subd. (a);
count 2), carrying a concealed firearm (§ 25400, subd. (a)(2); count 3), and resisting a
peace officer (§ 148, subd. (a); count 4). The information further alleged that, in
connection with the robbery, Contreraz was personally armed with a firearm (§§ 12022.5,
subd. (a), 12022.53, subd. (b)) and committed the offense for the benefit of, at the
direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)).
       On September 13, 2017, as part of a negotiated disposition, Contreraz pleaded
guilty to one count of felony second degree robbery (§ 211; count 1) and one count of
felony assault by means likely to produce great bodily injury (§ 245, subd. (a)(4);
count 5).3 Contreraz also admitted the firearm and gang enhancement allegations
(§§ 12022.5, subd. (a), 186.22, subd. (b)(1)) in connection with the robbery offense. In
accordance with the plea agreement, the trial court dismissed counts 2, 3, and 4, and
deleted the reference to section 12022.53, subdivision (b) from the firearm enhancement.
The trial court then sentenced Contreraz to a total term of 10 years, consisting of the


       3
           This count was added to the information as part of the negotiated disposition.
                                               2
upper term of five years on count 1, with a consecutive four-year enhancement for
personal use of a firearm (§ 12022.5, subd. (a)) plus a consecutive one-year middle term
sentence on count 5 (§ 245, subd. (a)(4)). The trial court also imposed and stayed a
10-year sentence on the criminal street gang allegation (§ 186.22, subd. (b)(1)).4 The trial
court ordered execution of sentence suspended, and placed Contreraz on three years’
formal probation. Contreraz did not appeal.
       On February 20, 2018, the Santa Cruz County Probation Department filed a
petition alleging that Contreraz had violated his probation by failing to report, failing to
participate in an educational/vocational/therapeutic program, failing to pay fines and fees,
and failing to pay restitution. The trial court held a contested hearing on the petition on
May 3, 2018 and found that Contreraz violated his probation. Accordingly, the trial court
terminated probation and executed the previously imposed prison sentence of 10 years.
II.    DISCUSSION
       A.     Briefing
       Following transfer from the California Supreme Court, the parties did not submit
any supplemental briefing (Cal. Rules of Court, rules 8.200(b) & 8.528(f)), so we briefly
reiterate the arguments raised in the original briefing.
       Contreraz argued Sen. Bill 620, which amended section 12022.5, subdivision (c)
to give trial court’s discretion to strike firearm sentence enhancements, retroactively
applies to his case, relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada), and we
should remand the matter to the trial court to exercise that discretion. The Attorney
General argued that Contreraz is not entitled to the retroactive application of the
amendment made by Sen. Bill 620 because the judgment against him was final before
that amendment came into effect.

       4
         On February 14, 2019, the trial court amended the abstract of judgment, nunc pro
tunc, to reflect that the punishment for the criminal street gang enhancement was
stricken, rather than stayed.
                                              3
       B.     Retroactivity analysis
       In 2017, the Legislature amended section 12022.5, subdivision (c) to read: “The
court may, in the interest of justice pursuant to Section 1385 and at the time of
sentencing, strike or dismiss an enhancement otherwise required to be imposed by this
section. The authority provided by this subdivision applies to any resentencing that may
occur pursuant to any other law.” The amendment took effect on January 1, 2018.
(Stats. 2017, ch. 682, § 2, p. 5104.) Prior to its enactment, trial courts did not have the
discretion to strike or dismiss firearm enhancements imposed under section 12022.5.
       Under the Estrada rule, “we presume that newly enacted legislation mitigating
criminal punishment reflects a determination that the ‘former penalty was too severe’ and
that the ameliorative changes are intended to ‘apply to every case to which it
constitutionally could apply,’ which would include those ‘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].) The Estrada rule rests on the
presumption that, in the absence of a savings clause providing only prospective relief or
other clear intention concerning any retroactive effect, ‘a legislative body ordinarily
intends for ameliorative changes to the criminal law to extend as broadly as possible,
distinguishing only as necessary between sentences that are final and sentences that are
not.’ [Citations.] ‘The rule in Estrada has been applied to statutes governing penalty
enhancements, as well as to statutes governing substantive offenses.’ ” (People v. Buycks
(2018) 5 Cal.5th 857, 881-882.)
       In McKenzie, the California Supreme Court considered “whether a convicted
defendant who is placed on probation after imposition of sentence is suspended, and who
does not timely appeal from the order granting probation, may take advantage of
ameliorative statutory amendments that take effect during a later appeal from a judgment
revoking probation and imposing sentence.” (McKenzie, supra, 9 Cal.5th at p. 43.) Even
though the time to appeal the order granting probation had lapsed, the court held that the
                                              4
ameliorative statutory amendments applied retroactively because “when the revisions to
section 11370.2 took effect, defendant’s ‘ “criminal proceeding . . . ha[d] not yet reached
final disposition in the highest court authorized to review it.” ’ ” (Id. at p. 45.) Although
the McKenzie court was not confronted with the situation raised by this case—the finality
of a judgment where sentence is imposed but execution of the sentence is suspended
while the defendant is on probation—we find its reasoning to be dispositive here as well.
       The California Supreme Court reaffirmed in McKenzie that “ ‘ “when the
[L]egislature repeals a criminal statute or otherwise removes the State’s condemnation
from conduct that was formerly deemed criminal, this action requires the dismissal of a
pending criminal proceeding charging such conduct. The rule applies to any such
proceeding which, at the time of the supervening legislation, has not yet reached final
disposition in the highest court authorized to review it.” ’ ” (McKenzie, supra, 9 Cal.5th
at p. 45.) The court determined that in the situation before it, where the statutory
amendments became effective during the defendant’s appeal of the trial court’s
revocation of probation and imposition of sentence, “[i]t [could not] be said that this
criminal prosecution or proceeding concluded before the ameliorative legislation took
effect.” (Id. at p. 46.) Because the amendments “occurred long after the court ordered
probation and the time for direct appeal lapsed[,] . . . defendant could not have raised this
issue during a direct appeal from the probation order.” (Id. at p. 50.)
       The same logic applies here. Contreraz was ordered to probation in September
2017, and Sen. Bill 160 took effect on January 1, 2018, “after the court ordered probation
and the time for direct appeal lapsed.” (McKenzie, supra, 9 Cal.5th at p. 50.) Contreraz
could not have argued on direct appeal that the trial court would, in the future, have the
discretion to strike or dismiss the firearm enhancement imposed under section 12022.5.
       Our conclusion is also consistent with People v. Chavez (2018) 4 Cal.5th 771
(Chavez), which was cited by the California Supreme Court to support its analysis in
McKenzie. (McKenzie, supra, 9 Cal.5th at pp. 46-47.) In Chavez, the court considered
                                              5
whether a trial court could dismiss a criminal action pursuant to section 1385 after the
defendant’s term of probation had expired. (Chavez, supra, at p. 777.) The court held
that the trial court was without authority to do so because the action had ended when the
defendant’s probation expired. (Ibid.)
       In reaching its decision, the California Supreme Court considered when a final
judgment is pronounced in cases where a trial court grants probation. (Chavez, supra, 4
Cal.5th at p. 777.) The court explained that, “[g]oing as far back as Stephens 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.” (Id. at p. 781.) “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 or her].’ [Citation.] In the case where the court suspends execution
of sentence, the sentence constitutes ‘a judgment provisional or conditional in nature.’
[Citation.] 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.” (Ibid.) There is no final judgment in either of these situations because
“[d]uring the probation period, the court retains the power to revoke probation and
sentence the defendant to imprisonment” under sections 1203.2 and 1203.3. (Chavez,
supra, at p. 782.) “[T]he court’s power to punish the defendant, including by imposing
imprisonment, continues during the period of probation.” (Ibid.)
       The trial court in this case also retained the power to revoke Contreraz’s probation
and order the remainder of his sentence executed. (§§ 1203.2, subd. (b)(1), (b)(2),
1203.3, subds. (a), (b).) It had the authority to terminate his probation or to modify its
terms. (§§ 1203.2, subd. (b)(1), (b)(2), 1203.3, subds. (a), (b).) Thus, based on the
California Supreme Court’s reasoning in McKenzie, as well as Chavez, we conclude that
for retroactivity purposes, suspending execution of Contreraz’s sentence and placing him
on probation “constitute[d] ‘a judgment provisional or conditional in nature,’ ” rather
                                              6
than a final judgment, given the court’s ongoing authority to revoke, modify, or terminate
Contreraz’s probation during the supervision term. (Chavez, supra, 4 Cal.5th at p. 781.)
       In reaching this conclusion, we are guided by the “ ‘consideration of paramount
importance’ ” articulated in Estrada: “the ‘inevitable inference’ that the Legislature,
having ‘determined that its former penalty was too severe,’ ‘must have intended’ that the
ameliorative statutory change ‘should apply to every case to which it constitutionally
could apply.’ [Citation.] A contrary conclusion . . . would ‘ “ ‘serve no purpose other
than to satisfy a desire for vengeance,’ ” ’ and would have to rest on the impermissible
view ‘that the Legislature was motivated by [such] a desire.’ ” (McKenzie, supra, 9
Cal.5th at p. 48.)
       C.       The criminal street gang enhancement
       In his original briefing, Contreraz argued that the trial court exceeded its
jurisdiction by staying, rather than striking, the 10-year prison term on the criminal street
gang enhancement (§ 186.22, subd. (b)(1)). This issue is moot since the trial court
amended the abstract of judgment nunc pro tunc to strike that enhancement.
III.   DISPOSITION
       The judgment is reversed, and the matter is remanded for the purpose of allowing
the trial court to consider whether to strike the Penal Code section 12022.53 enhancement
under Penal Code section 1385. If the trial court strikes the enhancement, it shall
resentence defendant. If the trial court does not strike the enhancement, it shall reinstate
the sentence.




                                              7
                               Premo, J.




WE CONCUR:




             Greenwood, P.J.




             Elia, J.




People v. Contreraz
H045787
 Trial Court:                        Santa Cruz County Superior Court
                                     Superior Court No. 16CR01219

 Trial Judge:                        Hon. John Steven Salazar

 Counsel for Plaintiff/Respondent:   Xavier Becerra
 The People                          Attorney General

                                     Gerald A. Engler
                                     Chief Assistant Attorney General

                                     Jeffrey M. Laurence
                                     Senior Assistant Attorney General

                                     René A. Chacon
                                     Supervising Deputy Attorney General

                                     Julia Y. Je
                                     Supervising Deputy Attorney General

 Counsel for Defendant/Appellant:    Under appointment by the Court of
 Alberto Salvador Contreraz          Appeal
                                     Lori A. Quick




People v. Contreraz
H045787
