Case is not final if defendant is on probation with a suspended sentence

People v. Esquivel (Cal., June 17, 2021, No. S262551) 2021 WL 2461206, at *1–2

Summary: The California Supreme Court held that the judgment is not final in a  case where defendant is placed on probation with imposition of sentence suspended if the defendant may still timely obtain direct review of an order revoking probation and imposing sentence. (People v. McKenzie (2020) 9 Cal.5th 40, 259 Cal.Rptr.3d 224, 459 P.3d 25 (McKenzie).)

Therefore, the  Estrada Presumption, that new legislation reducing the punishment for an offense, is  presumed to apply to all cases not yet final as of the legislation’s effective date. (In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (Estrada) applies to cases when a defendant is placed on probation with a suspended sentence that may be appealed if probation is revoked.


Esquivel pleaded no contest to a felony and admitted two prior prison terms. In 2015 he was  sentenced  to three years’ imprisonment for the felony and one additional year for each of the two priors. The court  suspended execution of the state prison sentence and placed Esquivel on probation. Esquivel did not appeal at that time. In 2018, the court found defendant in violation of a condition of probation and ordered the sentence into effect.

Defendant appealed and while it was pending, the Legislature amended the provision under which the trial court had imposed the two 1-year enhancements. If the amended provision had been in effect at the time of Esquivel’s sentencing, it would not have applied to his prior prison terms. The parties agreed that the amendment applies to all cases that were not final when the legislation took effect. The parties disagreed, however, about whether defendant’s case was already final.

The Court of Appeal held that because Esquivel could have appealed his sentence when it was imposed in 2015, the  sentence became final when he  failed to timely appeal from the order imposing sentence. The Supreme Court  granted review.

The Estrada Presumption-in effect for over 50 years

“When the Legislature amends a statute so as to lessen the punishment[,] it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.” (Id. at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.) Under those theories, punishment is appropriate to deter, confine, and rehabilitate; “ ‘[t]here is no place in the scheme for punishment for its own sake.’ ” (Ibid.)

Estrada stands for the proposition that (i) in the absence of a contrary indication of legislative intent, (ii) legislation that ameliorates punishment (iii) applies to all cases that are not yet final as of the legislation’s effective date.

This case was not final, for purposes of the Estrada presumption, because the “criminal prosecution or proceeding” brought against defendant was not complete when the ameliorative legislation at issue took effect. (McKenzie, supra, 9 Cal.5th at p. 46, 259 Cal.Rptr.3d 224, 459 P.3d 25.) Defendant had not exhausted direct review of the order causing his carceral punishment to take effect. The time for him to seek that review had not expired. And he had not successfully completed probation. (Cf. ibid. [noting our rejection in People v. Chavez (2018) 4 Cal.5th 771, 231 Cal.Rptr.3d 634, 415 P.3d 707 (Chavez) of an argument that “ ‘the criminal action terminates’ when ‘the court orders a grant of probation’ ”].)

The Estrada doctrine is one of presumed legislative intent, not of constitutional law. The focus is on whether the criminal prosecution or proceeding as a whole is complete.

The Court saw no persuasive reason to presume that the Legislature would wish to extend the benefit of ameliorative legislation to suspended-imposition defendants whose probation is revoked (per McKenzie), but not to suspended-execution defendants whose probation is revoked. Accordingly, the Court concluded that legislation ameliorating punishment presumptively applies to suspended execution cases pending on appeal from an order causing a previously imposed sentence to take effect.


The Court reversed the judgment of the Court of Appeal and remand the matter for further proceedings consistent with this opinion.

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