People v. Pena CA4/1 ( 2021 )

Filed 4/27/21 P. v. Pena CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077114
Plaintiff and Respondent,
(Super. Ct. No. SCD278023)
v.
ADAN PEÑA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Margie G. Woods, Judge. Affirmed as modified.
Heather L. Beugen, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A.
Sevidal and Robin Urbanski, Deputy Attorneys General, for Plaintiff and
Respondent.
In April 2019, defendant Adan Peña was convicted of car theft. As is
sometimes the case, the superior court elected to impose an eight-year prison
sentence but stay execution of that sentence and place Peña on probation.
Peña later violated the terms of supervision and his probation was revoked.
In the meantime—that is, during the pendency of the revocation
proceedings—the Legislature amended the Penal Code in a way that reduced
to four years the maximum prison sentence that could be imposed on Peña.
Because Peña did not appeal the original imposition of the eight-year prison
term, the court in the revocation proceeding concluded it was without power
to change the original sentence. But consistent with the principles recently
enunciated by the Supreme Court in People v. McKenzie (2020) 9 Cal.5th 40(McKenzie), we conclude Peña is entitled to the benefit of ameliorative
changes to the criminal law that were enacted after his probation was
originally imposed but before the finality of the revocation proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Peña had been on probation for less than a month following his
conviction for stealing a car (Veh. Code, § 10851, subd. (a)) when he was
arrested in May 2019 by Border Patrol agents near the town of Jacumba for
driving two men, Juan Almaraz-Garcia and Rigoberto Garcia-Garcia, who
admitted entering the United States without permission. According to their
accounts, the two men (both of whom are Mexican citizens) climbed the
border fence that same day and were directed by phone to Peña’s car for
transport.
Because Peña’s probation terms included a general provision that he
would remain law abiding, his probation officer became concerned after his
arrest and alerted the court of his potential violation. In the subsequent
probation revocation hearing, which took place in July 2019, the court
2
admitted some hearsay statements from Almarez-Garcia and Garcia-Garcia
as relayed by Border Patrol agents. Neither of the men were available to
testify since they were both deported within weeks of their arrival—well
before the revocation hearing, which took place more than two months after
Peña’s arrest. Taking the hearsay statements and other factors into
consideration, the court found that Peña violated the terms of his probation
and revoked it.
When Peña was originally granted probation, the court elected to
impose an eight-year prison term but suspend execution of that sentence—
what is known as an “ESS” procedure.1 Four of those years were due to one-
year enhancements for prison priors added under former Penal Code section
1 “When the trial court in a criminal case decides at time of sentencing to
grant the defendant probation, the court may either suspend imposition of
sentence or actually impose sentence but suspend its execution.” (People v.
Howard (1997) 16 Cal.4th 1081, 1084.) Of these two sentencing options, the
former is known as “ISS” while the latter is termed “ESS.” Conceptually, the
difference between the two is merely one of timing—whether the court
exercises its sentencing discretion when it grants probation (ESS) or reserves
that decision for a later time if the probationer violates the terms of his or her
release (ISS). The practical effect is that probationers with ISS have not yet
been sentenced and are subject only to their probation terms. If they violate
those terms, the court can then determine an appropriate sentence.
Conversely, probationers with ESS have already been sentenced upon release
and are subject to both the terms of their probation and the sentence that
awaits them if they fail to comply. In such a case, the court is not permitted
to exercise its discretion twice by reconsidering the sentence should the
probationer fail to uphold his or her probation responsibilities. Rather, at
that point, “[t]he revocation of the suspension of execution of the judgment
brings the former judgment into full force and effect.” (Stephens v. Toomey
(1959) 51 Cal.2d 864, 874; accord Howard, at pp. 1086‒1095 and People v.
Chavez (2018) 4 Cal.5th 771, 781‒782 (Chavez).)
3
667.5, subdivision (b).2 In October 2019, the Legislature enacted and the
Governor signed Senate Bill No. 136 (2019‒2020 Reg. Sess.) (Senate Bill 136),
which limited the prison priors that qualify as enhancements under section
667.5, subdivision (b) to sexually violent offenses. (Stats. 2019, ch. 590, § 1;
People v. Lopez (2019) 42 Cal.App.5th 337, 340‒341.) None of Peña’s prison
priors would have permitted an enhancement under the new law, which
became effective on January 1, 2020.
At his sentencing following revocation in December 2019, Peña asked
the judge to strike the prison priors due to the impending change in the Penal
Code. But the court was ultimately convinced it did not have the power to do
so, reasoning it was obligated to execute the already-imposed sentence
without any changes. In the court’s view, Peña could not benefit from the
new law because he did not appeal from his April grant of probation,
rendering his case final well before the December hearing.
DISCUSSION
Peña now raises the same issue on appeal, asserting he was entitled to
benefit from the ameliorative changes to section 667.5 under the Estrada rule
of retroactivity, and that his case is not yet final for those purposes. (In re
Estrada (1965) 63 Cal.2d 740, 745 (Estrada).) To that end, he points out he
had no reason to appeal his April probation order since he pleaded guilty and
submitted to its terms. It was not until the court revoked his probation in
December that he had any cause to ask for review, and at that point Senate
Bill 136 was poised to go into effect the next month. The Attorney General
opposes Peña’s position, arguing that because he did not appeal from the
April order, his case was final for Estrada purposes sixty days later—well
2 Further statutory references are to the Penal Code unless otherwise
designated.
4
before his probation revocation and subsequent imposition of sentence in
December.
In McKenzie, supra, 9 Cal.5th 40, the Supreme Court recently clarified
the principles that govern when a judgment becomes final for Estrada
purposes in terms that cast serious doubt on the People’s argument.
McKenzie concluded that a former probationer who did not appeal from his
initial probation order was nonetheless eligible under the Estrada rule to
benefit from changes in the law that became effective during his appeal from
the later revocation decision because his case was not yet final before his
probation terminated. We reach a similar conclusion here notwithstanding
that McKenzie involved an ISS procedure whereas Peña’s case involves an
ESS situation.3 Pending further guidance from the Supreme Court, we
conclude the enhancements must be stricken from Peña’s sentence.
Peña also claims the trial court erred in admitting the hearsay
statements of Almaraz-Garcia and Garcia-Garcia at his probation revocation
hearing. On this matter we disagree with Peña, finding enough in the
balance of case-specific factors to justify the trial court’s decision.
A. Peña’s Case did not Become Final for Estrada Purposes After the Time
to Appeal from his Probation Order Lapsed; for Those Purposes, his
Case was Ongoing Throughout his Probation Period and its Revocation
Estrada, supra, 63 Cal.2d 740 established that when the Legislature
amends the Penal Code to reduce its punitive sting, it generally intends the
change to reach all criminal defendants to whom it can constitutionally apply
(absent some contrary expression). (Id. at p. 745.) That includes all
3 The propriety of relying on McKenzie in an ESS case is currently
pending review. (See People v. Martinez (2020) 54 Cal.App.5th 885, review
granted Nov. 10, 2020, S264848 (Martinez); People v. Esquivel (Mar. 26, 2020,
B294024) [nonpub. opn.], review granted Aug. 12, 2020, S262551.)
5
defendants for whom a judgment of conviction is not yet final when the
change comes into effect. (Id. at pp. 744‒745.) As such, the “key date is the
date of final judgment” for assessing whether a defendant’s case is subject to
the old statute or its gentler successor. (Id. at p. 744.) In accordance with
this well-established principle, this court has concluded that “Senate Bill No.
136’s amendment to section 667.5, subdivision (b) applies retroactively to all
cases not yet final as of its January 1, 2020[] effective date.” (People v.
Jennings (2019) 42 Cal.App.5th 664, 682.)
But the term “final” creates some confusion, not least because it
appears both definitive and singular when in fact it is not. Different dates of
repose in a case can constitute distinct “final judgments” depending on the
nature of the decision issued by the court and the purpose of subsequent
litigation. For example, under section 1237, an order granting probation
serves as a final judgment of conviction from which a defendant can appeal.
It is the final judgment of conviction for appellate purposes. But that does not
mean an order granting probation is a final judgment of conviction for all
purposes in a criminal case.
The Attorney General assumes as much in this case, pointing to Peña’s
failure to appeal from the April order granting his probation and arguing
that after the 60-day window in which he could have appealed closed, his
judgment of conviction became final. (Cal. Rules of Court, rule 8.104(a).) But
the question prompted by this case is not when Peña’s judgment of conviction
became final regarding his window to appeal his probation order, but rather
when his case becomes final for purposes of applying Estrada’s rule of
retroactivity.
Our resolution of that question is heavily guided by the Supreme
Court’s recent opinion in McKenzie, supra, 9 Cal.5th 40, which bears
6
significant similarities to our case. McKenzie involved a defendant who
pleaded guilty to drug offenses and admitted prior drug convictions that
added enhancements to his sentence under Health and Safety Code, former
section 11370.2. (McKenzie, at p. 43.) He was granted probation and did not
appeal from that order. He only appealed when his probation was later
revoked, beginning that process about a month before the effective date of
Senate Bill No. 180 (2017‒2018 Reg. Sess.)—a bill that changed Health and
Safety Code section 11370.2 such that McKenzie’s prior drug convictions
would no longer have constituted enhancements. (McKenzie, at p. 43.)
McKenzie petitioned for his enhancements to be stricken from his
sentence given the ameliorative change to the Health and Safety Code. And
when the Supreme Court weighed in, it explicitly rejected an argument made
by the Attorney General that parallels the People’s position in our case—
namely, that McKenzie should have appealed from his grant of probation and
was not entitled to the benefits of Senate Bill No. 180 because his judgment
of conviction (conceptualized as the order granting probation) became final
years before Senate Bill No. 180 went into effect. (McKenzie, supra, 9 Cal.5th
at p. 46.) In explaining why the People were mistaken, the Supreme Court
clarified that an order granting probation “has only ‘limited finality’
and ‘ “does not have the effect of a judgment” ’ ” for purposes other than the
appeal right contemplated in section 1237. (McKenzie, at p. 47; quoting
Chavez, supra, 4 Cal.5th 771, 786.) Rather, the “ ‘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.’ ” (McKenzie, at p. 47.)
In attempting to distinguish McKenzie, the Attorney General makes
much of the ISS/ESS distinction. But we are not persuaded that the use of
7
an ISS in McKenzie creates a significant difference for purposes of
determining Estrada retroactivity. Indeed, McKenzie’s critique of the “legal
principle associated with [the People’s] argument” cannot be so easily
sidestepped. (McKenzie, supra, 9 Cal.5th at p. 50.) As the court explained,
the “defendant could not have raised this issue during a direct appeal from
the probation order” because the appeal was “based on an event—the
amendment of [Health and Safety Code] section 11370.2—that occurred long
after the court ordered probation and the time for direct appeal lapsed.”
(McKenzie, at p. 50.) As such, the “defendant’s failure to file [] a direct appeal
[from his probation order] does not preclude him from taking advantage of
ameliorative amendments that took effect while he was appealing from the
subsequent revocation of his probation and imposition of sentence.” (Ibid.)
According to this broad ranging analysis, we see no reason to distinguish this
case from McKenzie simply because the type of sentence Peña received
prevented the trial court from revisiting its terms when his probation was
revoked.
Our colleagues in the Second Appellate District, Division Seven came to
a similar conclusion in Martinez, supra, 54 Cal.App.5th 885 in holding that
McKenzie’s reasoning applied to a similarly situated defendant whose
mandatory supervision was revoked. In Martinez, as in this case, the court
that originally granted probation/mandatory supervision elected to utilize an
ESS procedure. The Court of Appeal nonetheless applied McKenzie’s
reasoning in concluding that the defendant was entitled to take advantage of
the recent statutory change. It specifically found that the choice of an ISS or
ESS approach to granting supervised release (in that case, mandatory
supervision) made no difference in the Estrada analysis. (Martinez, at p. 893,
citing Chavez, supra, 4 Cal.5th 771, 781 [“[N]either forms of probation—
8
suspension of the imposition of sentence or suspension of the execution of
sentence—results in a final judgment.”].)4 Consequently, the four
enhancements for Peña’s prison priors must be stricken from his sentence.
We need not remand for resentencing in this case since Peña already received
the maximum amount of time for which he was eligible. (People v. Gastelum
(2020) 45 Cal.App.5th 757, 772–773 [“But where, as here, an enhancement is
erroneously imposed and the trial court has already imposed the maximum
possible sentence, a remand for resentencing is unnecessary.”].)
B. The Court did not Err in Admitting Hearsay Statements at the
Probation Revocation Hearing
As noted above, Border Patrol agents who arrested Peña testified as to
statements they obtained from Almaraz-Garcia and Garcia-Garcia. In broad
terms, the agents relayed that (1) both men were Mexican citizens without a
legal justification to enter the United States, (2) they paid someone to help
them cross the border, (3) they crossed by climbing the border fence on May 8
(the day of their arrest), and (4) they were guided by phone to a car that
would pick them up, which is how they ended up riding with Peña. Apart
from these hearsay statements, the agents also testified they observed Peña
driving in the relatively remote border town of Jacumba and that he sped by
and flashed his lights, which are driving tactics sometimes employed by
smugglers in that area.
4 The People also rely on People v. Scott (2014) 58 Cal.4th 1415, which
considered when defendants’ sentencing occurred for purposes of determining
whether they came under the Realignment Act, which applied statutorily “to
any person sentenced on or after October 1, 2011.” (Pen. Code, § 1170, subd.
(h)(7).) Because construing the meaning of “sentenced” in that context is an
entirely different inquiry than when a case becomes final for purposes of
Estrada retroactivity, Scott does not assist in the analysis. (See Scott, at
pp. 1421‒1426.)
9
The defense objected to all the hearsay statements, and the prosecution
offered several justifications, arguing the statements were reliable because
they were made by Almaraz-Garcia and Garcia-Garcia against their own
interests (Evid. Code, § 1230) and also that the men were unavailable to
testify (Evid. Code, § 240). The court ultimately found there was good cause
to admit the statements, noting the two deportations were not the
responsibility of the probation department but were rather controlled by the
federal government. When it decided to revoke Peña’s probation, the court
further highlighted that it was not relying exclusively on the hearsay
statements, but also the plentiful circumstantial evidence; Peña was driving
quickly through a remote area and flashed his lights, conduct that supported
the “reasonable inference[] that he knew what he was doing” by “using a
system that’s used to alert or provide information [for] assisting an individual
entering into the United States . . . in an unlawful way.”
Peña now argues that the admission of Almaraz-Garcia and Garcia-
Garcia’s statements at the hearing violated his due process rights, and that
the court erred in finding good cause to admit the statements. In making
these arguments, Peña puts significant weight on the fact that the probation
department did not try to produce either man or secure a statement from one
of them prior to his deportation. But the relevant analysis is whether good
cause generally existed to excuse the in-person testimony of these witnesses.
This is a case-specific consideration. Due to the untenable nature of bringing
either man to the hearing after deportation and the corroborating evidence
submitted, we conclude the hearsay statements were properly admitted. (See
People v. Arreola (1994) 7 Cal.4th 1144, 1160 (Arreola) [court does not err in
admitting hearsay at a probation revocation hearing so long as good cause
10
and consideration of “other circumstances relevant to the issue” justify the
decision].)
Relaxed evidentiary standards govern at probation revocation hearings.
(1 Witkin, Cal. Evidence (5th ed. 2020) Introduction, § 29.) Although the
confrontation clause does not apply, general due process guarantees remain
in place. (People v. Stanphill (2009) 170 Cal.App.4th 61, 78.) When the
prosecution seeks to admit testimonial hearsay evidence at a probation
revocation hearing, it may be admitted upon a showing of good cause as to
the witness’ absence—a determination that is made on a case by case basis.
(Arreola, supra, 7 Cal.4th at pp. 1159‒1160; People v. Shepherd (2007) 151
Cal.App.4th 1193, 1202 [Arreola’s good cause standard governs testimonial
hearsay].) As relevant here, good cause exists “(1) when the declarant is
‘unavailable’ under the traditional hearsay standard (see Evid. Code, § 240)
[and] (2) when the declarant, although not legally unavailable, can be
brought to the hearing only through great difficulty or expense.” (Arreola, at
p. 1160; Shepherd, at p. 1202.)
In this case, we agree with the People that the declarants could only
have been brought to the hearing through great difficulty and expense. They
were both deported within two weeks of their arrival in the United States,
after which neither the Border Patrol agents nor the probation department
knew of their whereabouts. Insofar as Peña suggests the People were
responsible for or otherwise in control of the deportation process, we agree
with the trial court’s observation that these are “two different governments.”
And while it might well have been preferable, as Peña suggests, for the
People to have requested a conditional examination prior to the deportations
(§§ 1335‒1345; see generally People v. Foy (2016) 245 Cal.App.4th 328, 341‒
342), we must consider the hearsay statements “together with other
11
circumstances” in this case, such as evidence corroborating the statements.
(Arreola, supra, 7 Cal.4th at p. 1160.) Here, in addition to Peña’s driving
behavior and the area where he was arrested, we also have the fact of
Almaraz-Garcia and Garcia-Garcia’s quick deportations—all non-hearsay
facts that tend to support their accounts of how they entered the country and
what they were doing in Peña’s car. Given all of this, we find the trial court
properly balanced the defendant’s confrontation rights against the relevant
state interests in admitting the statements. (Ibid.)
DISPOSITION
The judgment is modified to strike the four one-year prior prison term
enhancements imposed under former section 667.5, subdivision (b). The clerk
is directed to prepare an amended abstract of judgment and forward it to the
Department of Corrections and Rehabilitation. In all other respects, the
judgment is affirmed.
DATO, J.
WE CONCUR:
AARON, Acting P. J.
IRION, J.
12