People v. McKenzie

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DOUGLAS EDWARD MCKENZIE,

Defendant and Appellant.

S251333

Fifth Appellate District

F073942

Madera County Superior Court

MCR047554, MCR047692 and MCR047982

February 27, 2020

Justice Chin authored the opinion of the Court, in which Chief

Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar,

Kruger, and Groban concurred.

PEOPLE v. MCKENZIE

S251333

Opinion of the Court by Chin, J.

We granted review in this case to decide whether 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. The Court of Appeal answered this question in the

affirmative and, in light of a newly effective amendment to a

sentence enhancement statute, ordered four of defendant

Douglas McKenzie’s sentence enhancements stricken. We

affirm the Court of Appeal’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 4, 2014, in three separate cases, defendant

pleaded guilty to a number of drug-related offenses and, as here

relevant, admitted having sustained four prior felony drug-

related convictions for purposes of sentence enhancement under

Health and Safety Code, former section 11370.2.1 Under

subdivision (c) of that statute, as it read at the time of

defendant’s plea, each prior conviction rendered defendant

subject to a consecutive three-year prison term enhancement.

As to all three cases, the trial court suspended imposition of

1

All further unlabeled statutory references are to the

Health and Safety Code.

1

PEOPLE v. MCKENZIE

Opinion of the Court by Chin, J.

sentence, granted defendant five years’ probation, and ordered

him to attend drug court.

In March 2016, the Madera County Probation Department

sought revocation of defendant’s probation based on alleged

probation violations. Defendant admitted the violations and, on

June 1, 2016, the trial court revoked probation, declined to

reinstate it, and imposed a prison sentence that included four

three-year prior drug conviction enhancements under former

section 11370.2, subdivision (c).

About two weeks later, defendant filed a notice of appeal.

On September 13, 2017, the Court of Appeal filed an opinion

modifying the judgment in certain respects and otherwise

affirming.

On October 11, 2017, the governor signed Senate Bill No.

180 (2017-2018 Reg. Sess.), which was to take effect January 1,

2018. Under section 11370.2, as revised by that bill, defendant’s

prior drug-related convictions no longer qualified defendant for

sentence enhancement.

On October 20, 2017, defendant petitioned this court for

review based on the enactment of Senate Bill No. 180 (2017-

2018 Reg. Sess.). On December 20, 2017, we granted review and

remanded the case to the Court of Appeal with directions to

vacate its decision and to reconsider the matter in light of the

revised statute. On January 1, 2018, Senate Bill No. 180 took

effect. On remand, the Court of Appeal held that defendant

could take advantage of the revisions to section 11370.2 that

rendered the statute’s sentence enhancements inapplicable to

his prior drug-related convictions, and the court ordered those

four enhancements stricken.

We then granted the People’s petition for review.

2

PEOPLE v. MCKENZIE

Opinion of the Court by Chin, J.

II. DISCUSSION

We begin with In re Estrada (1965) 63 Cal.2d 740

(Estrada), which first set forth the current rule regarding

retroactive application of ameliorative statutory amendments

and which is the foundation of the People’s argument. In that

case, between the defendant’s escape from a drug rehabilitation

center and his guilty plea to the crime of escape, statutory

amendments took effect that reduced “both the term of

imprisonment [for his crime] and the time necessary to spend in

prison to be eligible for parole.” (Id. at p. 744.) We held that the

ameliorative changes applied to the defendant, explaining: “The

key date is the date of final judgment. If the amendatory statute

lessening punishment becomes effective prior to the date the

judgment of conviction becomes final then . . . . it, and not the

old statute in effect when the prohibited act was committed,

applies.” (Ibid.)

This conclusion, we reasoned in Estrada, was warranted

by factors indicating that, consistent with the common law rule,

the Legislature must have intended the amendatory statute to

apply in “all prosecutions not reduced to final judgment” at the

time of its passage. (Estrada, supra, 63 Cal.2d at p. 747.) “[O]f

paramount importance,” we explained, was the following

consideration: “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

3

PEOPLE v. MCKENZIE

Opinion of the Court by Chin, J.

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. . . . [¶] . . . ‘A legislative mitigation of the

penalty for a particular crime represents a legislative judgment

that the lesser penalty or the different treatment is sufficient to

meet the legitimate ends of the criminal law. Nothing is to be

gained by imposing the more severe penalty after such a

pronouncement; the excess in punishment can, by hypothesis,

serve no purpose other than to satisfy a desire for vengeance.’ ”

(Id. at pp. 744-745.)

Estrada involved statutory amendments that “merely

reduced . . . penal sanctions” for a given act, but we

subsequently applied it to amendments that “entirely

eliminated” such sanctions. (People v. Rossi (1976) 18 Cal.3d

295, 301 (Rossi).) “[T]he common law principles” underlying the

Estrada rule, we reasoned, “apply a fortiorari when criminal

sanctions have been completely repealed before a criminal

conviction becomes final.” (Ibid.) As we explained, “it would be

untenable to give defendants the benefit of a reduction in

punishment while denying them the benefit of a complete

remission of punishment.” (People v. Collins (1978) 21 Cal.3d

208, 213 (Collins).) Such a rule “would clearly lead to absurd

results.” (Rossi, at p. 302, fn. 8.) It would enable a defendant to

benefit from a statutory change if the amendment “simply . . .

reduce[s] the maximum punishment” for a given act — even “to

one day in jail” — but would “subject[]” a defendant “to the full

punishment [formerly] prescribed” if the amendment instead

“completely repeal[s] all criminal penalties for” the act. (Ibid.)

4

PEOPLE v. MCKENZIE

Opinion of the Court by Chin, J.

“[S]uch a reading of legislative intent belies reality.” (Ibid.)

Thus, “ ‘when the [L]egislature repeals a criminal statute or

otherwise removes the State’s condemnation from conduct that

was formerly deemed criminal, this action requires the

dismissal of a pending criminal proceeding charging such

conduct. The rule applies to any such proceeding which, at the

time of the supervening legislation, has not yet reached final

disposition in the highest court authorized to review it.’ ” (Id. at

p. 304.)

The record here shows that when the revisions to section

11370.2 took effect, defendant’s “ ‘criminal proceeding . . . ha[d]

not yet reached final disposition in the highest court authorized

to review it.’ ” (Rossi, supra, 18 Cal.3d at p. 304, quoting Bell v.

Maryland (1964) 378 U.S. 226, 230.) On that date, “the time for

petitioning for a writ of certiorari in the United States Supreme

Court [had not] passed” (People v. Nasalga (1996) 12 Cal.4th

784, 789, fn. 5); as earlier set forth, the governor signed the bill

containing the revisions before defendant even petitioned this

court for review of the judgment imposing a prison sentence, and

when the bill took effect on January 1, 2018, defendant’s appeal

of his sentence was pending in the Court of Appeal pursuant to

our December 2017 order granting review and remanding the

case for reconsideration in light of the revisions. Thus, the

prosecution had not been “reduced to final judgment at the time”

the revisions took effect. (Estrada, supra, 63 Cal.2d at p. 746.)

In asserting that defendant is nevertheless precluded from

obtaining relief, the People argue as follows: The relevant cut-

off point under Estrada for applying ameliorative amendments

is the date the “judgment of conviction becomes final.” (Estrada,

supra, 63 Cal.2d at p. 744.) Penal Code section 1237,

subdivision (a), provides in relevant part that a defendant may

5

PEOPLE v. MCKENZIE

Opinion of the Court by Chin, J.

appeal “from a final judgment of conviction” and that “an order

granting probation . . . shall be deemed to be a final judgment

within the meaning of this section.” Under this section, the

People assert, the original 2014 order granting defendant

probation was “a final judgment for purposes of filing an

appeal,” and that judgment — which included defendant’s

“underlying conviction” and “the admissions to prior convictions

that qualified [him] for enhanced sentencing” — became “final

for Estrada purposes . . . when the time to appeal from the . . .

order passed, well before the Legislature amended the

enhancement statute.” Defendant therefore is not entitled to

“retroactive application” of the statutory revisions.

The People’s arguments fail under our precedents.

Initially, the People err by assuming that when we used the

phrase “judgment of conviction” in Estrada, supra, 63 Cal.2d at

page 744, we were referring only to “underlying” convictions and

enhancement findings, exclusive of sentence. In criminal

actions, the terms “judgment” and “ ‘sentence’ ” are generally

considered “synonymous” (People v. Spencer (1969) 71 Cal.2d

933, 935, fn. 1), and there is no “judgment of conviction” without

a sentence (In re Phillips (1941) 17 Cal.2d 55, 58). Moreover, in

Estrada, we also referred to the cut-off point for application of

ameliorative amendments as the date when the “case[]” (id. at

p. 746) or “prosecution[]” is “reduced to final judgment” (id. at p.

747). And in Rossi, supra, 18 Cal.3d at page 304, we stated that

an amendatory statute applies in “ ‘any [criminal] proceeding

[that], at the time of the supervening legislation, has not yet

reached final disposition in the highest court authorized to

review it.’ ” (Italics added.) It cannot be said that this criminal

prosecution or proceeding concluded before the ameliorative

legislation took effect.

6

PEOPLE v. MCKENZIE

Opinion of the Court by Chin, J.

This conclusion is also consistent with our recent decision

in People v. Chavez (2018) 4 Cal.5th 771 (Chavez). In that case,

four years after successfully completing probation, the

defendant asked the trial court to dismiss his action and

expunge his record in furtherance of justice under Penal Code

section 1385. (Chavez, at p. 776.) We concluded that the trial

court could not dismiss the action under that statute because

there was no longer an action to dismiss: the criminal action

had ended when the defendant’s probation had expired. (Id. at

p. 777.)

In the course of so holding, we noted that “[u]nder well-

established case law, a court may exercise its dismissal power

under [Penal Code] section 1385 at any time before judgment is

pronounced — but not after judgment is final.” (Chavez, supra,

4 Cal.5th at p. 777.) At the same time, however, we expressly

rejected the argument that in such cases, the “criminal action

terminates” when “the court orders a grant of probation.” (Id.

at p. 785.) We therefore concluded that Penal Code section

1385’s dismissal “power may be exercised until judgment is

pronounced or when the power to pronounce judgment runs

out.” (Chavez, at p. 777.) As particularly relevant here, we

explained that 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.” (Id. at p. 784.) Chavez thus confirms

that a criminal proceeding ends only once probation ends if no

judgment has issued in the case.

Notably, in reaching this conclusion, we also found it

irrelevant that “under [Penal Code] section 1237, an order

granting probation is deemed a ‘final judgment’ for the purpose

of taking an appeal.” (Chavez, supra, 4 Cal.5th at p. 786.) Under

7

PEOPLE v. MCKENZIE

Opinion of the Court by Chin, J.

our precedents, we explained, “such an order” has only “limited

finality” and “ ‘does not have the effect of a judgment for other

purposes.’ ” (Ibid.) Based on these precedents, we declined to

find that, by virtue of Penal Code section 1237, an order

granting probation is a final judgment for purposes of

construing a trial courts’ dismissal power under Penal Code

section 1385. (Chavez, at p. 786.)

In this regard, Chavez is consistent with prior decisions in

which we stated that under Penal Code section 1237, an order

granting probation “is ‘deemed to be a final judgment’ for the

limited purpose of taking an appeal therefrom” and “does not

have the effect of a judgment for other purposes.” (People v.

Superior Court (Giron) (1974) 11 Cal.3d 793, 796; see People v.

Flores (1974) 12 Cal.3d 85, 94, fn. omitted [order granting

probation “is not to be deemed a judgment except for purposes

of appeal as provided in [Penal Code] section 1237”].) By

providing that an order granting probation is “deemed to be a

final judgment within the meaning of this section,” Penal Code

section 1237, subdivision (a), merely “mak[es]” the order

“appealable” and “mak[es] the scope of review the same as

though the appeal were taken from a final judgment of

conviction.” (In re Osslo (1958) 51 Cal.2d 371, 380, italics

added.) This clause was added to Penal Code section 1237 in

1951 for the “limited” purpose of “exten[ding] . . . a defendant’s

right to appeal from a theretofore nonappealable order.” (People

v. Robinson (1954) 43 Cal.2d 143, 145.) We long ago observed

that the clause may “not preclude [a] court from recognizing that

for purposes other than those of Penal Code section 1237 there

is a substantial and . . . pertinent difference between an order

granting probation and a final judgment as such.” (In re Osslo,

at p. 380.) “To hold otherwise would give the 1951 amendment

8

PEOPLE v. MCKENZIE

Opinion of the Court by Chin, J.

greater scope than its language would reasonably support.”

(Robinson, at p. 145.)

Based on the preceding analysis, we reject the People’s

argument that, by virtue of Penal Code section 1237, because

defendant failed to appeal from the order granting probation he

may not benefit from ameliorative amendments that took effect

long after the time for taking an appeal from that order lapsed.

This reading of Estrada is consistent with the

“consideration of paramount importance” we identified in that

decision: the “inevitable inference” that the Legislature, having

“determined that its former penalty was too severe,” “must have

intended” that the ameliorative statutory change “should apply

to every case to which it constitutionally could apply.” (Estrada,

supra, 63 Cal.2d at pp. 744-745.) A contrary conclusion, we

explained, would “ ‘serve no purpose other than to satisfy a

desire for vengeance,’ ” and would have to rest on the

impermissible view “that the Legislature was motivated by

[such] a desire.” (Id. at p. 745.) Here, the People offer no basis

for concluding that the revisions to section 11370.2 may not “be

applied constitutionally” to defendant. (Estrada, at p. 745)

Thus, applying those revisions in this case is fully consistent

with Estrada.

The People instead offer several policy bases for their

view. They assert that precluding probationers like defendant

from taking advantage of ameliorative statutory revisions that

become effective after expiration of the time for direct appeal

from an order granting probation would be “consistent with the

public’s interest in finality, an interest that the Legislature

would not intend to implicitly undercut by reducing a penalty.”

Finality is important, the People argue, because it (1) “prevents

9

PEOPLE v. MCKENZIE

Opinion of the Court by Chin, J.

criminals from escaping prosecution” due to destruction of

evidence and loss of witnesses over the years, (2) “conserves

public resources” by eliminating potential retrials and the need

“to preserve evidence during the period of probation,” and (3)

“encourage[s]” probationers “to accept responsibility” for their

actions and to “focus on rehabilitation.” By contrast, the People

contend, applying such revisions under these circumstances

would produce “absurd results.” It would “mean” that

probationers “who do[] not initially challenge [their] underlying

conviction” and “successfully complete[]” probation are worse off

than probationers who violate their probation terms, have

probation revoked, and appeal from that revocation, because

only the latter may “benefit from a subsequent amendment to

the pertinent statute.” It would thus “ ‘encourag[e] defendants

to violate the terms of their probation in the hopes of extending

the probation term to take advantage of any beneficial changes

in the law during the probationary period.’ ” This, in turn, might

make trial courts “reluctant to extend probation and give

defendants additional opportunities to achieve rehabilitation.”

We rejected similar arguments in Estrada when we

adopted the existing rule and disapproved a previous decision

holding that “the punishment in effect when the act was

committed” applies notwithstanding a subsequently enacted

ameliorative revision. (Estrada, supra, 63 Cal.2d at p. 742.) The

previous decision was based in part on the view that failing to

apply a law “with certainty as it read on the date of the offense”

would diminish the law’s “intended deterrent effect.” (People v.

Harmon (1960) 54 Cal.2d 9, 26.) The dissent in Estrada echoed

this view, arguing that allowing defendants to take advantage

of ameliorative revisions as long as direct appeal is still

available would “substantially reduce[]” the “deterrent[]” effect

10

PEOPLE v. MCKENZIE

Opinion of the Court by Chin, J.

that comes with “[t]he certainty of punishment.” (Estrada,

supra, 63 Cal.2d at p. 753 (dis. opn. of Burke, J.).) It would also,

the Estrada dissent asserted, give “those contemplating and

subsequently committing crime” incentive to “seek[] every

avenue of delay through appeals and legal maneuvers of all

kinds” in the hope that “the Legislature might in the meantime

reduce the punishment.” (Ibid.) In other words, it would

“encourag[e] appeals and delays not related to guilt or innocence

but employed solely to keep open the possibility of subsequent

windfalls” through application of “an ameliorating legislative

act.” (Ibid.) Finally, it would create “a gross inequity” and

“unequal treatment under the law” as to defendants who

“plead[] guilty to an offense” and whose “conviction[s] promptly

become[] final, thereby effectively shutting the door to [their]

ever receiving any benefit” from the ameliorative revision.

(Ibid.) These policy arguments did not persuade us in Estrada

not to apply ameliorative revisions to defendants who have

already committed criminal acts if the revisions take effect

before their “cases” are “reduced to final judgment.” (Id., at p.

746.) The People’s similar arguments are no more persuasive

today, more than 50 years later, in the context of determining

whether Estrada’s rule includes defendants who are, when

ameliorative statutory revisions take effect, appealing from a

judgment entered upon revocation of probation. Indeed, we find

it highly doubtful that a probationer would, as the People

suggest, violate probation — and face probation revocation and

imprisonment — simply in the hope that (1) the court would

extend probation notwithstanding the violation, and (2) the

11

PEOPLE v. MCKENZIE

Opinion of the Court by Chin, J.

Legislature would enact some ameliorative statute during the

extended probationary term. 2

Nor are we persuaded by the People’s argument that

probationers who do not file a timely appeal from an order

granting probation “cannot challenge the order or the

underlying determination of guilt through a later appeal.” The

legal principle associated with this argument provides that

when a court suspends imposition of sentence and grants

probation, the defendant’s failure to appeal from the order

granting probation generally “estops” the defendant “from

claiming error with respect to matters occurring before that

order,” but not as to “proceedings in connection with the

revocation of probation and sentencing.” (People v. Gonzales

(1968) 68 Cal.2d 467, 470, italics added.) In other words, it

“merely forecloses action based on errors committed at the trial.”

(People v. Wilkins (1959) 169 Cal.App.2d 27, 34.) Here,

defendant does not claim that an “error[]” occurred “at the trial”

(ibid.) “before” the court ordered probation (Gonzales, at p. 470).

Instead, he raises an issue relating to the subsequent

“revocation of probation and sentencing” (ibid.), based on an

event — the amendment of section 11370.2 — that occurred long

after the court ordered probation and the time for direct appeal

lapsed. Thus, defendant could not have raised this issue during

a direct appeal from the probation order. Under these

2

We also note that as a factual matter, applying the

Estrada rule in this case does not implicate the People’s

concerns about the costs and difficulties associated with retrials.

Allowing defendant to take advantage of the revision to section

11370.2 will not result in a new trial. The trial court may simply

strike the affected enhancements and modify defendant’s

sentence accordingly.

12

PEOPLE v. MCKENZIE

Opinion of the Court by Chin, J.

circumstances, defendant’s failure to file such a direct appeal

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. (Cf. In re Black (1967) 66 Cal.2d 881, 887 [“It has been

said that the ‘requirement of exhaustion of the appellate or other

remedy . . . is merely a discretionary policy governing the

exercise of the reviewing court’s jurisdiction to issue the writ’ ”].)

The People’s contrary view rests on an asserted

distinction — between amendments that merely reduce

punishment and those that entirely eliminate punishment —

that, as already explained, we long ago rejected for purposes of

applying the Estrada rule. The People argue that “because” the

statutory amendment here “did not [merely] change the

sentence or the superior court’s sentencing discretion as to the

former enhancements, it did away with them altogether,” this

case necessarily involves a prohibited “challenge to the [now

final] adjudication of defendant’s guilt — specifically, the

adjudication of the allegations of prior narcotics-related

convictions” — rather than a question of “sentencing discretion.”

In other words, in the People’s view, although defendant could

have benefitted from the amendment had it merely reduced the

punishment for the enhancement — even to a single day in

jail — because the amendment completely eliminated the

punishment, he cannot. As we explained over 40 years ago, as

a basis for determining the Estrada rule’s applicability, the

distinction the People put forth is “untenable” (Collins, supra,

21 Cal.3d at p. 213) and “would clearly lead to absurd results”

(Rossi, supra, 18 Cal.3d at p. 302, fn. 8). Therefore, we again

decline to adopt it.

13

PEOPLE v. MCKENZIE

Opinion of the Court by Chin, J.

Finally, rejection of the People’s argument is consistent

with our discussion in Estrada and subsequent decisions of

“legislative intent,” i.e., whether “the Legislature intend[ed] the

old or new statute to apply.” (Estrada, supra, 62 Cal.2d at p.

744.) We find no basis to conclude that the Legislature intended

the old statute imposing punishment to apply to those on

probation simply because they may no longer appeal from orders

granting probation as to which there was no ground for appeal.

On the other hand, as we have explained, “an amendment

eliminating criminal sanctions is [itself] a sufficient declaration

of the Legislature’s intent to bar all punishment for the conduct

so decriminalized.” (Collins, supra, 21 Cal.3d at p. 213.)

In addition to these generally applicable statements

regarding legislative intent, the legislative history of section

11370.2’s recent revision reveals additional “factors that

indicate the Legislature must have intended that the

amendatory statute should operate in” cases like this one.

(Estrada, supra, 63 Cal.2d at p. 746.) According to that

legislative history, the “sentence enhancement for prior drug

convictions” was an “extreme punishment” that had “failed to”

achieve its goals — “protect[ing] communities [and] reduc[ing]

the availability of drugs” — while having the following negative

effects: (1) producing “overcrowded jails and prisons”; (2)

“ ‘funneling money away from community-based programs and

services” ’ in order to “ ‘build[] new jails to imprison more people

with long sentences,’ ” thus “crippl[ing] state and local budgets”;

and (3) “ ‘devastat[ing] low-income communities of color’ ” and

“ ‘target[ing] the poorest and most marginalized people in our

communities.’ ” (Assem. Com. on Public Safety, Analysis of Sen.

Bill No. 180 (2017-2018 Reg. Sess.) June 27, 2017, p. 4.) Repeal

of the enhancement was therefore “ ‘urgently needed’ ” in order

14

PEOPLE v. MCKENZIE

Opinion of the Court by Chin, J.

“ ‘to undo the damage’ ” the enhancement had caused, to “free[]”

up funds for “reinvest[ment] in community programs that

actually improve the quality of life and reduce crime,” and to

“ ‘reduce racial disparities in the criminal justice system.’ ”

(Ibid.) In view of these stated concerns and goals, we see no

basis to conclude the Legislature intended to exclude those on

probation simply because they can no longer appeal from the

original order granting probation. The legislative history

reinforces the conclusion that the Legislature “must have

intended” section 11370.2’s ameliorative changes to “operate in”

cases like this one. (Estrada, supra, 63 Cal.2d at p. 746.)

III. DISPOSITION

For the reasons set forth above, we affirm the judgment of

the Court of Appeal.

CHIN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

15

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. McKenzie

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 25 Cal.App.5th 1207

Rehearing Granted

__________________________________________________________________________________

Opinion No. S251333

Date Filed: February 27, 2020

__________________________________________________________________________________

Court: Superior

County: Madera

Judge: Ernest J. LiCalsi

__________________________________________________________________________________

Counsel:

Elizabeth Campbell, under appointment by the Supreme Court, and Alex Green, under appointment by the

the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall, Raymond L.

Brosterhous II, Eric L. Christoffersen, Janet Neeley, Rachelle A. Newcomb and Catherine Chatman,

Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Catherine Chatman

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 210-7699

Elizabeth Campbell

Attorney at Law

3104 O Street

Sacramento, CA 95816

(530) 786-4108