Filed 10/30/20 P. v. Cardin CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073640
v. (Super.Ct.No. SWF017487)
MARTIN SHANNON CARDIN SR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed.
Christopher Love, 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, Eric A. Swenson and Charles C.
Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
1 In 2007, Martin Shannon Cardin Sr. pleaded guilty to multiple felonies and to
having a prior serious felony conviction and three prior prison offenses. The court
sentenced him to 19 years four months, which included three years for the prior prison
term offenses.
On May 8, 2019, Cardin petitioned to reduce one of his felony convictions to a
misdemeanor under Proposition 47, and the trial court denied his petition. Though Cardin
filed a notice of appeal challenging the trial court’s denial of his Proposition 47 petition,
his briefing does not address that order. Instead, he argues that recently enacted Senate
Bill No. 136 (Senate Bill 136) applies to his final judgment retroactively, and we should
therefore strike his three prior prison offense enhancements and reduce his aggregate
sentence by three years. As we explain, Cardin has identified no error in the order he
appealed and is instead attempting to use this appeal as a way to challenge a long final
judgment. We therefore affirm.
I
FACTS
On January 14, 2006, Cardin orchestrated a home invasion robbery with three
other men. They each carried a baseball bat and threatened to kill the residents before
making off with several thousand dollars in cash and some marijuana.
In May 2007, Cardin pleaded guilty to two counts of first degree residential
robbery in concert with others (Pen. Code, §§ 211, 213, subd. (a)(1)(A), unlabeled
statutory citations refer to this code), and one count of receiving stolen property (§ 496,
2 subd. (a)). He also admitted a prior strike, a prior serious felony conviction, and three
prior prison offenses. In exchange for his plea, the parties agreed to an aggregate sentence
of 19 years four months and to dismiss all other charges and allegations. The court
sentenced Cardin according to the parties’ agreement, which included imposing three
one-year terms for the three prior prison offense enhancements.
On December 31, 2014, Cardin petitioned under Proposition 47 to reduce his
receiving stolen property conviction from a felony to a misdemeanor. On October 5,
2015, the People opposed the petition. On July 12, 2016, the trial court denied the
petition on the grounds that he failed to meet his burden to prove the value of stolen
property received and that he posed a danger to the public.
On May 8, 2019, Cardin filed another Proposition 47 petition to reduce his
receiving stolen property conviction to a misdemeanor. The court also denied this
petition, concluding nothing had changed since Cardin filed his first petition and
therefore his remedy was to appeal the denial of his first petition, “not file an amended
petition three years later.” Cardin filed a timely notice of appeal challenging the court’s
denial order.
II
ANALYSIS
In his briefing, Cardin omits any discussion of why the court’s denial order was
erroneous and instead argues the recent passage of Senate Bill 136 should be applied
retroactively to his sentence. He argues that although his judgment is final, and therefore
3 the principle articulated in In re Estrada (1965) 63 Cal.2d 740 (Estrada) doesn’t apply to
him, equal protection principles require us to apply Senate Bill 136 to final judgments as
well as non-final judgments. As we explain, Senate Bill 136 does not apply retroactively
to final judgments and, in any event, this appeal is not the proper vehicle to raise this
argument.
In October 2019 (five months after Cardin filed the Proposition 47 petition at issue
in this appeal), the Legislature enacted Senate Bill 136, which amended former
section 667.5, subdivision (b). (Stats 2019, ch. 590, § 1.) (2019-2020 Reg. Sess.) “Prior
to this amendment, the statute provided for a one-year enhancement for each prior
separate prison term, unless the defendant remained free from both prison custody and
the commission of a new felony for a five-year period after discharge. [Citations.] After
the amendment, ‘a one-year prior prison term enhancement will only apply if a defendant
served a prior prison term for a sexually violent offense as defined in Welfare and
Institutions Code section 6600, subdivision (b).’ ” (People v. Gastelum (2020) 45
Cal.App.5th 757, 772; People v. Lopez (2019) 42 Cal.App.5th 337, 340-341 (Lopez).)
The amended statute became effective January 1, 2020. (Lopez, at p. 341; see Cal. Const.,
art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) It is undisputed Cardin had no prior
convictions for a sexually violent offense. Therefore, if Cardin were convicted today, the
trial court could not have imposed a one-year enhancement for each of his three prior
prison terms.
4 “When an amendatory statute either lessens the punishment for a crime
or . . . ‘ “vests in the trial court discretion to impose either the same penalty as under the
former law or a lesser penalty,” ’ it is reasonable for courts to infer, absent evidence to
the contrary and as a matter of statutory construction, that the Legislature intended the
amendatory statute to retroactively apply to the fullest extent constitutionally
permissible—that is, to all cases not final when the statute becomes effective.”
(People v. Garcia (2018) 28 Cal.App.5th 961, 972, italics omitted.) “Retrospective
application of a new penal statute is an exception to the general rule . . . which bars
retroactive application of new Penal Code statutes unless the Legislature has expressly
provided for such application.” (People v. Arredondo (2018) 21 Cal.App.5th 493, 506.)
Moreover, “ ‘in the absence of an express retroactivity provision . . . [or] unless it is very
clear from extrinsic sources that the Legislature or the voters must have intended a
retroactive application,’ ameliorative legislation does not affect convictions that have
become final.” (People v. Martinez (2018) 4 Cal.5th 647, 655.)
The presumption that ameliorative laws should apply retroactively to non-final
judgments was cemented in Estrada, supra, 63 Cal.2d 740. However, Estrada did not
otherwise undermine the rule against retroactive application. “Estrada is today properly
understood, not as weakening or modifying the default rule of prospective operation
codified . . .
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Filed 10/30/20 P. v. Cardin CA4/2 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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073640
v. (Super.Ct.No. SWF017487)
MARTIN SHANNON CARDIN SR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed.
Christopher Love, 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, Eric A. Swenson and Charles C.
Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
1 In 2007, Martin Shannon Cardin Sr. pleaded guilty to multiple felonies and to
having a prior serious felony conviction and three prior prison offenses. The court
sentenced him to 19 years four months, which included three years for the prior prison
term offenses.
On May 8, 2019, Cardin petitioned to reduce one of his felony convictions to a
misdemeanor under Proposition 47, and the trial court denied his petition. Though Cardin
filed a notice of appeal challenging the trial court’s denial of his Proposition 47 petition,
his briefing does not address that order. Instead, he argues that recently enacted Senate
Bill No. 136 (Senate Bill 136) applies to his final judgment retroactively, and we should
therefore strike his three prior prison offense enhancements and reduce his aggregate
sentence by three years. As we explain, Cardin has identified no error in the order he
appealed and is instead attempting to use this appeal as a way to challenge a long final
judgment. We therefore affirm.
I
FACTS
On January 14, 2006, Cardin orchestrated a home invasion robbery with three
other men. They each carried a baseball bat and threatened to kill the residents before
making off with several thousand dollars in cash and some marijuana.
In May 2007, Cardin pleaded guilty to two counts of first degree residential
robbery in concert with others (Pen. Code, §§ 211, 213, subd. (a)(1)(A), unlabeled
statutory citations refer to this code), and one count of receiving stolen property (§ 496,
2 subd. (a)). He also admitted a prior strike, a prior serious felony conviction, and three
prior prison offenses. In exchange for his plea, the parties agreed to an aggregate sentence
of 19 years four months and to dismiss all other charges and allegations. The court
sentenced Cardin according to the parties’ agreement, which included imposing three
one-year terms for the three prior prison offense enhancements.
On December 31, 2014, Cardin petitioned under Proposition 47 to reduce his
receiving stolen property conviction from a felony to a misdemeanor. On October 5,
2015, the People opposed the petition. On July 12, 2016, the trial court denied the
petition on the grounds that he failed to meet his burden to prove the value of stolen
property received and that he posed a danger to the public.
On May 8, 2019, Cardin filed another Proposition 47 petition to reduce his
receiving stolen property conviction to a misdemeanor. The court also denied this
petition, concluding nothing had changed since Cardin filed his first petition and
therefore his remedy was to appeal the denial of his first petition, “not file an amended
petition three years later.” Cardin filed a timely notice of appeal challenging the court’s
denial order.
II
ANALYSIS
In his briefing, Cardin omits any discussion of why the court’s denial order was
erroneous and instead argues the recent passage of Senate Bill 136 should be applied
retroactively to his sentence. He argues that although his judgment is final, and therefore
3 the principle articulated in In re Estrada (1965) 63 Cal.2d 740 (Estrada) doesn’t apply to
him, equal protection principles require us to apply Senate Bill 136 to final judgments as
well as non-final judgments. As we explain, Senate Bill 136 does not apply retroactively
to final judgments and, in any event, this appeal is not the proper vehicle to raise this
argument.
In October 2019 (five months after Cardin filed the Proposition 47 petition at issue
in this appeal), the Legislature enacted Senate Bill 136, which amended former
section 667.5, subdivision (b). (Stats 2019, ch. 590, § 1.) (2019-2020 Reg. Sess.) “Prior
to this amendment, the statute provided for a one-year enhancement for each prior
separate prison term, unless the defendant remained free from both prison custody and
the commission of a new felony for a five-year period after discharge. [Citations.] After
the amendment, ‘a one-year prior prison term enhancement will only apply if a defendant
served a prior prison term for a sexually violent offense as defined in Welfare and
Institutions Code section 6600, subdivision (b).’ ” (People v. Gastelum (2020) 45
Cal.App.5th 757, 772; People v. Lopez (2019) 42 Cal.App.5th 337, 340-341 (Lopez).)
The amended statute became effective January 1, 2020. (Lopez, at p. 341; see Cal. Const.,
art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) It is undisputed Cardin had no prior
convictions for a sexually violent offense. Therefore, if Cardin were convicted today, the
trial court could not have imposed a one-year enhancement for each of his three prior
prison terms.
4 “When an amendatory statute either lessens the punishment for a crime
or . . . ‘ “vests in the trial court discretion to impose either the same penalty as under the
former law or a lesser penalty,” ’ it is reasonable for courts to infer, absent evidence to
the contrary and as a matter of statutory construction, that the Legislature intended the
amendatory statute to retroactively apply to the fullest extent constitutionally
permissible—that is, to all cases not final when the statute becomes effective.”
(People v. Garcia (2018) 28 Cal.App.5th 961, 972, italics omitted.) “Retrospective
application of a new penal statute is an exception to the general rule . . . which bars
retroactive application of new Penal Code statutes unless the Legislature has expressly
provided for such application.” (People v. Arredondo (2018) 21 Cal.App.5th 493, 506.)
Moreover, “ ‘in the absence of an express retroactivity provision . . . [or] unless it is very
clear from extrinsic sources that the Legislature or the voters must have intended a
retroactive application,’ ameliorative legislation does not affect convictions that have
become final.” (People v. Martinez (2018) 4 Cal.5th 647, 655.)
The presumption that ameliorative laws should apply retroactively to non-final
judgments was cemented in Estrada, supra, 63 Cal.2d 740. However, Estrada did not
otherwise undermine the rule against retroactive application. “Estrada is today properly
understood, not as weakening or modifying the default rule of prospective operation
codified . . . but rather as informing the rule’s application in a specific context by
articulating the reasonable presumption that a legislative act mitigating the punishment
5 for a particular criminal offense is intended to apply to all nonfinal judgments.” (People
v. Brown (2012) 54 Cal.4th 314, 324.)
It is undisputed that Cardin’s judgment was final at the time he filed his petition
under Proposition 47.
“ ‘It is settled that the right of appeal is statutory and that a judgment or order is
not appealable unless expressly made so by statute.’ ” (People v. Mazurette (2001) 24
Cal.4th 789, 792.) Cardin claims his right to appeal stems from section 1237,
subdivision (b), which permits a defendant to appeal “from an order made after judgment,
affecting the substantial rights of the [party].” However, “[a]n order denying a motion the
court lacks jurisdiction to grant does not affect a defendant’s substantial rights.” (People
v. Alexander (2020) 45 Cal.App.5th 341, 344 (Alexander).) “Any appeal from such an
order must be dismissed.” (Id. at p. 344.)
Courts have held in similar cases that ameliorative amendments to the law do not
grant a trial court jurisdiction to resentence a defendant whose judgment is final without
explicit statutory authority. (E.g., People v. Fuimaono (2019) 32 Cal.App.5th 132, 135
[“Senate Bill No. 620, however, does not contain language authorizing resentencing of
convictions after they became final. And absent any new authority to resentence
defendant under Senate Bill No. 620, the trial court lacked jurisdiction to grant
defendant’s resentencing request.”].) For instance, in People v. Johnson (2019) 32
Cal.App.5th 938, the appellate court considered an appeal regarding then recently
enacted Senate Bill No. 620 (Senate Bill 620). Prior to the passage of Senate Bill 620
6 “the trial court had no discretion to strike or dismiss a firearm use enhancement.
[Citation.] However, Senate Bill [] 620 amended the statute . . . to give the trial court
discretion . . . to strike a firearm enhancement.” (Id. at p. 941.) Johnson, who was serving
a prison term after final judgment which included additional time for a firearm use
enhancement, moved the trial court to stay his gun enhancement. The trial court denied
his motion. (Ibid.) The reviewing court dismissed his appeal, concluding “the trial court’s
order is not appealable because the trial court lacked jurisdiction to consider the merits of
appellant’s motion.” (Ibid.) The reviewing court reasoned that because the new
amendment didn’t apply to final judgments, the trial court had no jurisdiction to grant the
motion. Therefore the order denying the motion was “not an ‘order made after judgment,
affecting the substantial rights of the party,’ ” because the trial court lacked jurisdiction to
rule on the motion in a way that affected Johnson’s rights one way or the other. (Ibid.)
Similarly, in Alexander, supra, 45 Cal.App.5th 341, the reviewing court
considered a defendant’s appeal from the denial of a motion for resentencing under
Senate Bill No. 1393 (Senate Bill 1393). Senate Bill 1393 made imposing five-year
enhancements for prior serious felony convictions discretionary, rather than mandatory.
(Id. at p. 344.) Alexander attempted to move for resentencing under the new law, even
though his conviction was final. (Ibid.) Again, the reviewing court concluded the trial
court lacked jurisdiction to hear Alexander’s motion for resentencing, and therefore he
had no right to appeal the decision. (Id. at pp. 344-345.)
7 As with Senate Bills 620 and 1393, Senate Bill 136 did not provide any statutory
method by which a defendant with a final judgment could seek to be resentenced.
Therefore, the trial court lacked jurisdiction to hear motions for resentencing or other
attempts to obtain the ameliorative benefits of Senate Bill 136 where the defendant’s
judgment was final.
Cardin argues Johnson and Alexander are distinguishable because Senate Bills 620
and 1393 merely made formerly mandatory enhancements discretionary, while Senate
Bill 136 effectively eliminates certain enhancements. But we don’t see how this
distinction makes a difference. All three amendments were ameliorative, all three
affected sentence enhancements, and none of them contained any process for
resentencing, or indication they should be applied retroactively. The differences in the
amendments only affect the trial court’s prospective discretion; they don’t affect the trial
court’s fundamental jurisdiction.
In sum, it appears Cardin is trying to shoehorn an invalid challenge to a final
judgment into an appeal of the denial of his Proposition 47 petition. Because he has failed
to demonstrate any error in the order he actually appealed, we affirm. (See 9 Witkin, Cal.
Procedure (5th ed. 2020) Appeal, § 701 [“every brief should contain a legal argument
with citation of authorities on the points made. If none is furnished on a particular point,
the court may treat it as waived, and pass it without consideration.”].)
8 III
DISPOSITION
We affirm the order denying Cardin’s petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J. We concur:
RAMIREZ P. J.
McKINSTER J.