People v. Delgado CA1/1

Filed 11/6/20 P. v. Delgado CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A159953 v. JOHNY DELGADO, (Mendocino County Super. Ct. No. SCTM-CRCR-18-95683-1) Defendant and Appellant.

Defendant Johny Delgado appeals from a February 2020 judgment revoking his probation and executing a four-year prison sentence imposed in 2018, when he was first placed on probation. The sentence includes a prior- prison-term enhancement of one year under Penal Code1 section 667.5, subdivision (b) (section 667.5(b)). Effective January 1, 2020, Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill No. 136) amended section 667.5(b) to limit qualifying prior prison terms to those served for sexually violent offenses, which Delgado’s prior offenses were not. The parties do not contest that Senate Bill No. 136 is retroactive under In re Estrada (1965) 63 Cal.2d 740 (Estrada).

All further statutory references are to the Penal Code unless 1

otherwise noted.

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On appeal, Delgado claims that he is entitled to the benefit of Senate Bill No. 136 under the Supreme Court’s decision in People v. McKenzie (2020) 9 Cal.5th 40 (McKenzie). McKenzie held that in accordance with Estrada, “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, at p. 43.) The Attorney General responds that McKenzie does not govern because the 2018 order at issue here suspended the sentence’s execution, not its imposition, and was therefore a final judgment for retroactivity purposes. We conclude that Delgado has the better argument. Therefore, we strike the section 667.5(b) enhancement but otherwise affirm. I. FACTUAL AND PROCEDURAL BACKGROUND In October 2018, Delgado was charged with a felony count of being a felon in possession of a firearm. He was also alleged to have served a prior prison term for felony convictions of driving the wrong way on a highway while evading a peace officer and driving under the influence with bodily injury.2 Delgado pleaded guilty to the charges, and in November 2018 the trial court imposed a four-year prison sentence, composed of a term of three years for the offense and a consecutive term of one year for the enhancement. The court suspended execution of the sentence and granted Delgado