Filed 8/26/20
                  CERTIFIED FOR PUBLICATION

     IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    FIRST APPELLATE DISTRICT

                           DIVISION THREE


THE PEOPLE,
  Plaintiff and Respondent,                 A154326

v.                                          (Napa County
                                            Super. Ct. No.
CHRISTOPHER HAYES CONATSER,                 CR167593)
  Defendant and Appellant.



       Defendant Christopher Hayes Conatser was sentenced to a six-
year period of mandatory supervision on an eight-year split sentence
following his no contest plea to possession of a controlled substance for
sale (Health & Saf. Code, § 11378) and admission to sentence
enhancement allegations for two prior drug-related convictions (Health
& Saf. Code, § 11370.2, subd. (c)).
       Defendant moved to strike the two sentence enhancements,
arguing he was entitled to the retroactive benefit of amendments to
Health and Safety Code section 11370.2 that rendered his prior drug-
related convictions no longer qualifying convictions for sentence
enhancements. The trial court denied the motion, defendant appealed,
and this court affirmed the denial order. (People v. Conatser (A154326,
dec. Nov. 30, 2018 [nonpub. opn.] (Conatser II).) Defendant petitioned
for review in our Supreme Court and, following its decision in People v.



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McKenzie (2020) 9 Cal.5th 40 (McKenzie), the Supreme Court
transferred this case back to us.
        In accordance with the Supreme Court’s remand order, we
vacate our prior decision filed on November 30, 2018. Having
reconsidered the matter in light of McKenzie, we now conclude
defendant is entitled to the benefit of the amendments to Health and
Safety Code section 11370.2 because “this criminal prosecution or
proceeding” had not been “concluded before the ameliorative legislation
took effect.” (McKenzie, supra, 9 Cal.5th at p. 46.) We therefore
reverse the order denying defendant’s motion to strike the sentence
enhancements. We remand the matter to the trial court with directions
to grant the motion to strike the two sentence enhancements imposed
under Health and Safety Code section 11370.2 and to resentence
defendant.
                             BACKGROUND
        In 2015, defendant pled no contest to one felony count of
possession of a controlled substance for sale (Health & Saf. Code, §
11378) and admitted two prior drug-related convictions within the
meaning of Health and Safety Code section 11370.2, subdivision (c).
The trial court sentenced him to two years on the possession offense
and imposed two consecutive three-year terms on the prior convictions.
The court imposed a split sentence with the first two years to be served
in county jail and the remaining six years to be served under
mandatory supervision. (Pen. Code, § 1170, subd. (h)(5)).1 We affirmed
the judgment on September 30, 2016. (People v. Conatser (A146093;
dec. Sept. 30, 2016) [nonpub. opn.] (Conatser I).)

1       All further unspecified statutory references are to the Penal
Code.

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      Senate Bill No. 180, effective January 1, 2018, made amendments
to Health and Safety Code section 11370.2. Of import here, the
offenses of which defendant had previously been convicted no longer
qualified for the imposition of a sentence enhancement under section
Health and Safety Code 11370.2, subdivision (c). (Stats. 2017, ch. 677,
§ 1 (S.B. 180), eff. Jan. 1, 2018.) On February 5, 2018, defendant filed a
motion to strike the two Health and Safety Code section 11370.2
sentence enhancements in light of the passage of Senate Bill No. 180.
The trial court denied defendant’s motion on the ground the new law
did not apply because his judgment was final before the amendments
became effective.2
                             DISCUSSION
      The parties do not dispute that the amendments to Health and
Safety Code section 11370.2 enacted by Senate Bill No. 180 apply
retroactively to cases in which a defendant’s judgment is not final. (In
re Estrada (1965) 63 Cal.2d 740, 745, 748 (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” so long as the amended statute
takes effect before the judgment of conviction becomes final]; see People
v. Nasalga (1996) 12 Cal.4th 784, 792 [“[t]he rule in Estrada has been
applied to statutes governing penalty enhancements, as well as to
statutes governing substantive offenses”].)

2     Defendant also sought early termination of his mandatory
supervision under People v. Camp (2015) 233 Cal.App.4th 461 (Camp).
The trial court denied this request on the ground that he was sentenced
in conformity with his plea agreement. On appeal, defendant does not
challenge the court’s denial of this request and the Supreme Court’s
remand order does not implicate this decision.

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      In accordance with the reasoning set forth in Estrada, in
McKenzie, supra, 9 Cal.5th 40, the Supreme Court found McKenzie,
who was placed on probation after imposition of sentence was
suspended, could take advantage of the ameliorative statutory
amendments enacted in Senate Bill No. 180, which took effect during
his later appeal from a judgment revoking probation and imposing
sentence. (Id. at p. 43.) Because a final judgment had not been
rendered at the time Senate Bill No. 180 became effective, the Supreme
Court had no difficulty in concluding McKenzie was entitled to the
benefit of the new law under Estrada. (Id. at p. 45.)
      The case before us concerns the finality of a judgment when a
court imposes a split sentence, i.e., orders execution of a portion of the
sentence in the county jail and then places defendant on mandatory
supervision following suspension of the execution of the remaining
portion of the sentence. While the Supreme Court in McKenzie was
faced with a different factual scenario, we conclude defendant is
similarly situated to the probationer in McKenzie because, like
McKenzie, defendant’s criminal proceeding was ongoing at the time
Senate Bill No. 180 became effective. Therefore, defendant is entitled
to the benefit of the new law.
      Section 1170 governs the imposition of a split sentence. As set
forth therein, the court orders a portion of the sentence to be served in
the county jail, but “suspend[s] execution of a concluding portion of the
term for a period selected at the court’s discretion.” (§ 1170, subd.
(h)(5)(A).) The portion of a defendant’s term that is suspended is
known as mandatory supervision and it may only be terminated early




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by court order. (§ 1170, subd. (h)(5)(B).) 3 “Section 1170, subdivision
[(h)(5)(B)] expressly state[s] that a period of mandatory supervision
may be terminated by court order, and contain[s] no limitation of any
kind on a trial court’s exercise of such authority. Further there [is]
nothing in the text of section 1170, subdivision [(h)(5)(B)] that would
indicate that a trial court does not have the authority to modify the
sentence of a defendant subject to mandatory supervision.” (Camp,
supra, 233 Cal.App.4th at p. 470 [discussing prior version of the
statute]; see People v. Antolin (2017) 9 Cal.App.5th 1176, 1180-1181
[statutory scheme discloses the Legislature’s clear and unequivocally
intent to depart from common law rule that a trial court loses
resentencing jurisdiction once execution of sentence has begun].)
      In our earlier opinion, we found the imposition of a split sentence
was a final judgment within the meaning of Estrada when the time for
direct appellate review of the split sentence had expired, even if the
trial court had the authority to terminate mandatory supervision
without ordering the suspended portion of the sentence to be served.
(Conatser II, supra, at pp. 3-5.) The People contend McKenzie
reinforces our prior conclusion, arguing that defendant was not entitled
to the benefits of Senate Bill No. 180 because the imposition of the split

3     Section 1203.3 allows the trial court “at any time during the term
of probation to revoke, modify, or change its order of suspension of
imposition or execution of sentence. . . . The court also has the
authority at any time during the term of mandatory supervision
pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of
Section 1170 to revoke, modify, or change the conditions of the court’s
order suspending the execution of the concluding portion of the
supervised person’s term.” (§ 1203.3, subd. (a).) Section 1203.3 also
provides the mechanism by which the trial court may modify the
sentence or term or condition of probation or condition of mandatory
supervision. (§ 1203.3, subd. (b).)

                                    5
sentence qualified as a judgment of conviction for purposes of Estrada
retroactivity, and the “judgment of conviction” became final before the
new law became effective in 2018. Mindful of the reasoning in
McKenzie, we see no merit to the People’s argument.
      In McKenzie, supra, 9 Cal.5th 40, the Supreme Court cited with
approval its earlier decision in People v. Chavez (2018) 4 Cal.5th 771
(Chavez), which considered whether a trial court could dismiss a
criminal action under section 1385 after a defendant had completed a
term of probation (Chavez, supra, at p. 777). In holding the trial court
had no jurisdiction to dismiss the action after a defendant had
completed his probation, Chavez discussed when an order of probation
that suspends the imposition or execution of sentence becomes a final
judgment for the purposes of determining when a court loses its
resentencing jurisdiction. (Id. at p. 781.)
      Chavez specifically confirmed that, as to a court’s resentencing
jurisdiction, “neither forms of probation – suspension of the imposition
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].’ [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. [Citation.] Instead of a final judgment, the grant of
probation opens the door to two separate phases for the probationer:




                                     6
the period of probation and the time thereafter.” (Chavez, supra, 4
Cal.5th at p. 781.)
      Chavez further explained: “During the probation period, the court
retains the power to revoke probation and sentence the defendant to
imprisonment. Sections 1203.2 and 1203.3 elaborate upon the
fundamentally revocable nature of probation. Section 1203.3,
subdivision (a), for instance, provides that ‘[t]he court shall have
authority at any time during the term of probation to revoke, modify, or
change its order of suspension of imposition or execution of sentence.’
(Italics added.) . . . . So, the court’s power to punish the defendant,
including by imposing imprisonment, continues during the period of
probation. [Citations.]” (Chavez, supra, 4 Cal.5th at p. 782; italics in
original.)
      Based on Chavez, cited with approval in McKenzie, we conclude
the split sentence “constitutes ‘a judgment provisional or conditional in
nature.’ [Citation.] The finality of the sentence ‘depends on the
outcome of the [mandatory supervision period] . . . ’ and ‘is not a final
judgment’ at the imposition of” the split sentence. (Chavez, supra, 4
Cal.5th at p. 778.) “Instead of a final judgment,” the split sentence
“opens the door to two separate phases” for defendant, the time spent
in the county jail and the period of mandatory supervision. (Ibid.)
During mandatory supervision, “the court retains the power to” revoke
or modify the mandatory supervision and sentence defendant to
imprisonment in the county jail. (Id. at p. 782.) Therefore, “the
‘criminal action’ – and thus the trial court’s jurisdiction to impose a
final judgment – ‘continues into and throughout the period of
[mandatory supervision]’ and expires only ‘when th[e] [mandatory



                                     7
supervision] period ends.’ ” (McKenzie, supra, 9 Cal.5th at p. 47,
quoting Chavez, supra, at p. 784.) Accordingly, defendant is entitled to
retroactive application of the new law as “[i]t cannot be said that this
criminal prosecution or proceeding concluded before the ameliorative
legislation took effect.” (McKenzie, supra, 9 Cal.5th at p. 46.)
      We conclude by noting our decision is consistent with “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.’ (Estrada, supra, 63 Cal.2d at pp. 744-
745.) A contrary conclusion . . . would ‘serve no purpose other than to
satisfy a desire to vengeance,’ and would have to rest on the
impermissible view ‘that the Legislature was motivated by [such] a
desire.’ (Id. at p. 745.) . . . Thus, applying those revisions in this case
is fully consistent with Estrada.” (McKenzie, supra, 9 Cal.5th at p. 48;
see People v. Collins (1978) 21 Cal.3d 208, 213 [“an amendment
eliminating criminal sanctions is [itself] a sufficient declaration of the
Legislature’s intent to bar all punishment for the conduct so
decriminalized”].)
                              DISPOSITION
      Our November 30, 2018 decision filed in this appeal is vacated.
The trial court’s February 5, 2018 order denying defendant's motion to
strike the two sentence enhancements imposed under Health and
Safety Code section 11370.2 is reversed. The matter is remanded to the
trial court with directions to enter a new order granting defendant's
motion to strike the two sentence enhancements imposed under Health
and Safety Code section 11370.2 and to resentence defendant.



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                                 _________________________
                                 Petrou, J.


WE CONCUR:


_________________________
Siggins, P.J.


_________________________
Jackson, J.




People v. Conatser/A154326


                             9
Trial Court:   Napa County Superior Court

Trial Judge:   Hon. Mark S. Boessenecker

Counsel:       Office of Attorney General, Xavier Becerra, Attorney
               General, Gerald E. Engler, Chief Assistant Attorney
               General, Jeffrey M. Laurence, Senior Assistant
               Attorney General, Donna M. Provenzano,
               Supervising Deputy Attorney General, Melissa J.
               Kendra, Deputy Attorney General, for Plaintiff and
               Respondent.

               First District Appellant Project, Jeremy Price, for
               Defendant and Appellant.




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