Filed 3/14/18; Certified for Publication 4/9/18 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIRST APPELLATE DISTRICT

                                                DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                   A150888
v.
MARIO ARTURO BARBOZA,                                              (San Francisco County
                                                                   Super. Ct. No. SCN216914)
         Defendant and Appellant.

                                              INTRODUCTION
         Defendant Barboza argues his robbery conviction should be reversed and
remanded to juvenile court pursuant to Proposition 57, which abolished the direct filing
of criminal charges against juveniles in adult criminal court. Our Supreme Court’s recent
decision in People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara) vindicates
defendant’s position that Proposition 57 is retroactive. However, defendant does not
benefit from Lara because the judgment in his case is final.
                                     STATEMENT OF THE CASE
         On November 29, 2011, the San Francisco District Attorney filed a multi-count
information in superior court charging Barboza with various felonies and enhancement
allegations. On July 1, 2016, pursuant to a negotiated disposition, Barboza pleaded guilty
to one count of robbery (Pen. Code, § 211) and admitted an armed-with-a-firearm
allegation (Pen. Code, § 12022, subd. (a)(1)). The remaining counts and enhancement
allegations were dismissed by the court on the prosecution’s motion. The information,
filed directly in adult court, alleged that at the time of the commission of the offense,
defendant was a minor 16 years of age or older within the meaning of Welfare and
Institutions Code section 707, former subdivision (d)(1).)
       On July 25, 2016, the trial court imposed a six-year prison sentence, suspended
execution of that sentence, and placed defendant on formal probation for five years on
various terms and conditions. Defendant did not appeal.
       On November 8, 2016, the voters approved Proposition 57, which repealed section
707, former subdivision (d) (Prop. 57, § 4.2, as approved by voters, Gen. Elec. (Nov. 8,
2016), eff. Nov. 9, 2016) and now requires “a judge, not a prosecutor, to decide whether
juveniles should be tried in adult court.” (Voter Information Guide, Gen. Elec. (Nov. 8,
2016) text of Prop. 57, Public Safety and Rehabilitation Act of 2016, § 2, p.141; § 707,
subd. (a)(1).) On December 8, 2016, defendant filed a motion requesting his case be
remanded to the juvenile court on the ground that Proposition 57’s repeal of section 707,
subdivision (d) applies retroactively to minors whose nonfinal convictions rest on charges
directly filed in adult court. The motion was denied. Defendant timely appeals. 1
                                       DISCUSSION
       In Lara, supra, 4 Cal.5th 299, our Supreme Court held the rationale of In re
Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Francis (1969) 71 Cal.2d 66
applies to a statutory change that makes reduced punishment possible. (Lara, at p. 303.)
“The possibility of being treated as a juvenile in juvenile court—where rehabilitation is
the goal—rather than being tried and sentenced as an adult can result in dramatically
different and more lenient treatment. Therefore, Proposition 57 reduces the possible
punishment for a class of persons, namely juveniles. For this reason, Estrada’s inference
of retroactivity applies. As nothing in Proposition 57’s text or ballot materials rebuts this
inference, we conclude this part of Proposition 57 applies to all juveniles charged directly

       1
        As the facts underlying defendant’s conviction are not relevant to the issue raised
on appeal, we do not summarize them.

                                              2
in adult court whose judgment was not final at the time it was enacted.” (Id. at pp. 303–
304.)
        Lara does not help defendant because the judgment in his case is final. When a
trial court imposes a state prison sentence and suspends execution of that sentence during
a probationary period, the judgment rendered is a final judgment for the purposes of
appeal. (People v. Amons (2005) 125 Cal.App.4th 855, 869–870; People v. Chagolla
(1984) 151 Cal.App.3d 1045, 1050–1051, cited with approval in People v. Howard
(1997)16 Cal.4th 1081, 1088 (Howard).) “For purposes of the Estrada rule, a judgment
is ‘not final so long as the courts may provide a remedy on direct review [including] the
time within which to petition to the United States Supreme Court for writ of certiorari.’ ”
(People v. Diaz (2015) 238 Cal.App.4th 1323, 1336; see People v. Smith (2015)
234 Cal.App.4th 1460, 1465.) In this case, the time for filing an appeal expired 60 days
after July 25, 2016, the date the court imposed sentence, i.e., September 26, 2016.
Defendant did not appeal. Therefore, his conviction became final before Proposition 57
went into effect on November 9, 2016.
        Defendant argues in his reply brief that because People v. Karaman (1992)
4 Cal.4th 335 permits the trial court to retain the jurisdiction to vacate or modify a
sentence that has not yet been executed, his sentence was not final for Estrada purposes.
We disagree. In Howard, supra, 16 Cal.4th 1081, our Supreme Court “acknowledged a
narrow exception to the general rule depriving the court of authority to modify a sentence
once it has been imposed and entered in the clerk’s minutes” when there is a brief stay to
permit the defendant to get his affairs in order. (Howard, at p. 1088.) However,
Karaman did not change the sentencing rules pertaining to “the court’s power to modify
an imposed sentence, long ago final in terms of appealability, execution of which the
court had suspended during a probationary period.” (Id. at p. 1090, see p. 1092.)
Karaman has no application to this case.



                                              3
                            DISPOSITION
The judgment is affirmed.




                                 4
                                _________________________
                                Dondero, J.


We concur:


_________________________
Humes, P. J.


_________________________
Banke, J.




A150888 People v. Barboza



                            5
Filed 4/9/18
                           CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                      DIVISION ONE



THE PEOPLE,                                       A150888
         Plaintiff and Respondent,
                                                  (San Francisco County
v.                                                Super. Ct. No. SCN216914)
MARIO ARTURO BARBOZA,
                                                  ORDER CERTIFYING OPINION
         Defendant and Appellant.                 FOR PUBLICATION

                                                  [NO CHANGE IN JUDGMENT]

THE COURT:
         The opinion in the above-entitled matter, filed on March 14, 2018, was not
certified for publication in the Official Reports. After the court’s review of a request
under California Rules of Court, rule 8.1120, and good cause established under
rule 8.1105, it is hereby ordered that the opinion should be published in the Official
Reports.




Dated:                                            _______________________________
                                                  Dondero, J.




                                              6
Trial Court: San Francisco County Superior Court

Trial Judge: Hon. Rene Navarro

Counsel:

First District Appellate Project, Jonathan Soglin, Executive Director, L. Richard
Braucher, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, Assistant
Attorneys General, Laurence K. Sullivan and Donna M. Provenzano, Deputy Attorneys
General, for Plaintiff and Respondent.




A150888 People v. Barboza



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