People v. Butler ( 2022 )

Filed 2/15/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B313121
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA071773)
v.
AUSTIN ROBERT BUTLER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Shannon Knight, Judge. Reversed and
remanded with directions.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr. and Allison
H. Chung, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Austin Robert Butler pleaded no contest to unlawful
possession of ammunition and admitted to prior prison terms in
exchange for five years’ probation. After Butler violated his
probation terms, the trial court revoked probation in February
2020.
Butler’s sole claim on appeal is that the trial court lacked
jurisdiction to revoke his probation under Assembly Bill No. 1950
(2019–2020 Reg. Sess.) because it applies retroactively. (Stats.
2020, ch. 328, § 2.) He argues that we should reverse, remand,
and instruct the trial court to reinstate and then terminate his
probation because he already served the maximum probation
term allowed under Assembly Bill No. 1950.
The People concede that the trial court lacked jurisdiction
to revoke Butler’s probation and agree that we should remand.
But they argue that on remand we should permit the People and
trial court the opportunity to withdraw approval of the negotiated
plea agreement.
We reject this contention. We agree with the reasoning in
People v. Stewart (2021) 62 Cal.App.5th 1065, review granted
June 30, 2021, S268787 (Stewart). Stewart examined the issue
presented here, followed the reasoning of our Supreme Court in
Doe v. Harris (2013) 57 Cal.4th 64, and held that in the context of
Assembly Bill No. 1950, entering into a negotiated plea
agreement does not insulate the parties from mandatory changes
in the law that the legislature intended to apply to them.
We reverse and remand for the trial court to modify the
term of probation to conform with Assembly Bill No. 1950 and
terminate its revocation of probation and Butler’s related prison
sentence.
2
BACKGROUND
While Butler was on probation, deputies in the Los Angeles
County Sheriff’s Department went to his residence to arrest him
pursuant to a no bail arrest warrant for absconding. There, they
found 88 rounds of .22-caliber ammunition and 50 rounds of .38-
caliber ammunition. Subsequently, Butler was charged in a
felony complaint with unlawful possession of ammunition and
having two prior prison terms. The information charged the
same.
On November 6, 2017, Butler pleaded no contest to the
charge of unlawfully possessing the ammunition (Pen. Code,
§ 30305, subd. (a)(1)),1 and admitted to having two prior prison
terms within the meaning of section 667.5, subdivision (b).
Butler agreed to a five-year state prison sentence, consisting of
the “upper term” of three years as to the ammunition charge,
plus two consecutive one-year prison priors, with the prison
sentence suspended and Butler placed on five years of felony
probation.
The trial court sentenced Butler in accordance with the
plea agreement. Butler violated the terms and conditions of his
probation on several occasions. Consequently, the trial court
summarily revoked Butler’s probation on February 6, 2020.
On January 1, 2021, Assembly Bill No. 1950 took effect and
reduced the maximum probationary term for most felony offenses
to two years. (Stats. 2020, ch. 328, § 2; § 1203.1, subds. (a), (m).)
1 Undesignated statutory references are to the Penal Code.
3
On April 30, 2021, Butler admitted to violating probation.
But he claimed that under Assembly Bill No. 1950 the trial court
had lost jurisdiction to revoke his probation because he had
already served the maximum felony probation term of two years.
He was placed on probation on November 6, 2017. The trial court
disagreed with Butler on the jurisdictional issue and held that
because it revoked Butler’s probation before the January 1, 2021
effective date of Assembly Bill No. 1950, it still had jurisdiction.
After finding it had jurisdiction, the trial court sentenced
Butler to a three-year prison term. It recognized that the law
had changed since the original five-year prison sentence,
rendering two of the five years’ sentence invalid because they
were one-year prison enhancements under section 667.5
subdivision (b). The trial court therefore subtracted the two
invalid years. The court awarded Butler custody and conduct
credits, sentencing him to 320 days after application of credits.
Butler timely filed a notice of appeal and the trial court
granted him a certificate of probable cause allowing him to
appeal the jurisdictional ruling.
DISCUSSION
I. The Trial Court Lost Jurisdiction to Revoke Butler’s
Probation Pursuant to Assembly Bill No. 1950
At the time of Butler’s sentencing in 2017, felony probation
could be imposed for a maximum of five years or the length of the
underlying prison term, whichever was shorter. (Former
§ 1203.1, subd. (a).) The trial court thus had the authority at
sentencing to impose the initial five-year probation term.
Assembly Bill No. 1950 amended section 1203.1,
subdivision (a), which now states in relevant part: “The court, or
judge thereof, in the order granting probation, may suspend the
4
imposing or the execution of the sentence and may direct that the
suspension may continue for a period of time not exceeding two
years, and upon those terms and conditions as it shall
determine.” (§ 1203.1, subd. (a).) There is an exception to the
new two-year limitation for certain felonies, but the parties agree
it does not apply here. (See § 1203.1, subd. (m).)
Butler contends that Assembly Bill No. 1950 applies
retroactively to his probationary term. The People do not contest
that Assembly Bill No. 1950 applies retroactively to cases not yet
final on appeal, and they agree that the trial court had lost
jurisdiction to revoke probation when it sentenced Butler to 320
days in prison.
We agree with the parties. Every court of appeal to address
this issue is in accord as to the retroactive application of
Assembly Bill No. 1950 to cases not yet final, and we agree with
their conclusions and reasoning and need not recite them here.
(E.g., People v. Greeley (2021) 70 Cal.App.5th 609, 627; People v.
Czirban (2021) 67 Cal.App.5th 1073, 1095; People v. Schulz
(2021) 66 Cal.App.5th 887, 895; People v. Gonsalves (2021) 66
Cal.App.5th 1, 12; People v. Lord (2021) 64 Cal.App.5th 241, 245–
246; People v. Sims (2021) 59 Cal.App.5th 943, 955–964 (Sims);
People v. Quinn (2021) 59 Cal.App.5th 874, 879–885 (Quinn).)
Accordingly, Assembly Bill No. 1950 applies retroactively to
Butler, and the trial court lacked jurisdiction to revoke his
probationary term.
5
II. The People May Not Renegotiate the Plea on
Remand
Butler and the People agree that we should remand, but
disagree as to what should be permitted on remand. Butler asks
this court to reverse the revocation of his probation in accord with
Assembly Bill No. 1950, and then to order the trial court to
reinstate and then terminate his probation because he already
served more than the maximum probation term allowed. The
People argue that the trial court and the People should be
afforded the opportunity to accede to the modified term of
probation or to withdraw approval for the negotiated plea
agreement. We agree with Butler.
The People rely on our Supreme Court’s decision in People
v. Stamps (2020) 9 Cal.5th 685 (Stamps). In Stamps, the court
held that Senate Bill No. 1393, amending section 667, subdivision
(a) to give trial courts the discretion to strike a five-year prior
serious felony conviction enhancement, applied to the defendant’s
case retroactively. (Stamps, supra, at p. 698.) As to the remedy,
the court rejected the defendant’s argument that it should
remand to the trial court to consider whether to exercise its new
discretion to strike the serious felony conviction, while leaving
the remainder of the plea agreement intact. (Id. at p. 700.)
Stamps held that the because of Senate Bill No. 1393, the trial
court could now exercise its discretion to dismiss a prior serious
felony enhancement, but the prosecution could also withdraw
from the plea agreement. (Stamps, supra, at pp. 707–708.)
6
The Stamps’s decision was based upon several factors tied
to the law at issue there: section 1385 and its retroactive
application to section 667, subdivision (a). The court reasoned
that in the context of discretionary enhancements under new
section 1385, the law did not authorize a trial court to exercise its
discretion to strike in contravention of a plea bargain for a
specified term while leaving the remainder of the plea intact.
(Stamps, supra, 9 Cal.5th at p. 700.) It noted that “long-standing
law limits the court’s unilateral authority to strike an
enhancement yet maintain other provisions of the plea bargain.”
(Id. at p. 701.) It examined the legislative history of section 1385
and found that “the Legislature gave a court the same discretion
to strike a serious felony enhancement that it retains to strike
any other sentence enhancing provision. Its action did not
operate to change well-settled law that a court lacks discretion to
modify a plea agreement unless the parties agree to the
modification.” (Stamps, supra, at p. 702.)
The court in Stamps distinguished its prior decision in
Harris v. Superior Court (2016) 1 Cal.5th 984. Harris v. Superior
Court held that a change in the law (Proposition 47), which
applied retroactively, did not permit the People to withdraw from
the plea agreement on remand. (Harris v. Superior Court, supra,
at pp. 990–993.) As described by the court in Stamps, Harris v.
Superior Court relied upon the principle that entering into a plea
agreement does not insulate the parties from a law that the
legislature has intended to apply to them. (Stamps, supra, 9
Cal.5th at pp. 702–708.) The court in Stamps distinguished its
differing result from Harris v. Superior Court on two grounds.
First, that Proposition 47, at issue in Harris v. Superior Court,
explicitly applied to those serving sentences by plea, whereas
7
Senate Bill No. 1393 did not. (Stamps, supra, 9 Cal.5th at
p. 704.) Second, that because Proposition 47 reduced the crimes
at issue to misdemeanors, to allow the prosecution to “withdraw
from a plea agreement and reinstate dismissed charges would
frustrate electoral intent.” (Stamps, supra, at p. 704.)
In Stewart, supra, 62 Cal.App.5th 1065, the First District,
Division Two distinguished Stamps and rejected the People’s
argument that they and the trial court should be given the
opportunity on remand to either agree to the new probation term
under Assembly Bill No. 1950 or to withdraw from the plea
agreement. (Stewart, supra, at pp. 1077–1078.) We agree with
the reasoning in Stewart and follow it here.
Stewart held that where a defendant pleaded no contest as
part of a negotiated plea and was sentenced to three years’
probation, the trial court could unilaterally modify the plea
bargain and reduce the term to two years probation, and the
prosecution was not entitled to renegotiate the plea. (Stewart,
supra, 62 Cal.App.5th at pp. 1077–1078.) To arrive at this
conclusion, the First District, Division Two followed the
reasoning in People v. France (2020) 58 Cal.App.5th 714, review
granted February 24, 2021, S266771 (France), which
distinguished Stamps as it applied to a different retroactive law
(Senate Bill No. 136, concerning one-year prison term
enhancements under section 667.5, subdivision (b)). Notably,
these are the same enhancements that the trial court struck
here—unilaterally and without the People modifying the plea
8
bargain—when it revoked probation and sentenced Butler to
2
three years in state prison.
As the Stewart court aptly reasoned regarding the
difference between a discretionary modification allowed by
section 1385 in Stamps and the modification mandated by Senate
Bill No. 136 as it applied to the enhancements in 667.5,
subdivision (b):
“As the majority [in France] explained, Stamps addressed a
situation in which the new law gave the trial court discretion to
strike an enhancement but did not require it to do so, thus
placing directly in the trial court’s hands the decision whether to
alter a term of the plea bargain. Stamps therefore had no
occasion to consider the effect on a plea bargain of retroactive
application of a law through which the Legislature directly
affected a plea bargain by rendering one of its terms invalid.
Where the ameliorative change in law is mandatory, the question
is not whether the Legislature intended to allow the trial court to
alter the terms of a plea bargain but whether the Legislature
intended to, in effect, do so directly. As stated in Doe v.
Harris [supra, 57 Cal.4th at page 70], ‘the Legislature, for the
public good and in furtherance of public policy, and subject to the
limitations imposed by the federal and state Constitutions, has
the authority to modify or invalidate the terms of an agreement.’
‘[T]he general rule in California is that the plea agreement will
be “ ‘deemed to incorporate and contemplate not only the existing
2 Notably, here the trial court struck the two, one-year prison
term enhancements under section 667.5, subdivision (b) after the
plea but kept the sentence for the ammunition charge intact.
There is no indication in the record that the People tried to
modify the plea agreement at that time.
9
law but the reserve power of the state to amend the law or enact
additional laws for the public good and in pursuance of public
policy . . . .’ ” [Citation.].) That the parties enter into a plea
agreement thus does not have the effect of insulating them from
changes in the law that the Legislature has intended to apply to
them.’ [Citation.]” (Stewart, supra, 62 Cal.App.5th at p. 1077.)
In sum, Stewart and France both recognized that Stamps
was only concerned with a discretionary law and thus had no
reason to consider the difference between discretionary laws and
laws that directly invalidate the term of a plea bargain, like our
Supreme Court was concerned with in Harris v. Superior Court.
(Harris v. Superior Court, supra, 57 Cal.4th at p. 1077.) And
because our Supreme Court has held that plea bargains generally
incorporate the Legislature’s authority to change the law, the
distinction between remanding for considering a discretionary
change in the law and a mandatory one is critical. (Stewart,
supra, 62 Cal.App.5th at p. 1078, citing France, supra, 58
Cal.App.5th at p. 729, fn. 6.)
France and Stewart also appropriately distinguished People
v. Hernandez, (Oct. 14, 2020, BF177632A) [nonpub. opn], review
granted January 27, 2021, S265739 (Hernandez), and transferred
back to the Court of Appeal on December 22, 2021,3 to the extent
3 After the parties completed briefing in this appeal, the
California Supreme Court transferred Hernandez back to the
Court of Appeal, Fifth Appellate District, “with directions to
vacate its decision and reconsider the cause in light of Senate Bill
No. 483 (Stats. 2021, ch. 728).” (People v. Hernandez (Dec. 22,
2021, S265739) [nonpub. opn].) In doing so, it stated that the
“Court of Appeal’s opinion has no binding or precedential effect,
and may be cited for potentially persuasive value only.” (Ibid.)
10
it reads Stamps overbroadly as requiring express legislative
intent to apply to a previously bargained plea. (France, supra, 58
Cal.App.5th at pp. 727–728.) As the court in Stewart, relying on
France, reasoned in the context of Assembly Bill No. 1950 and its
interaction with our Supreme Court’s seminal opinion in In re
Estrada (1965) 63 Cal.2d 740:
“[R]equiring an express reference to plea bargaining in a
statute or its legislative history ‘would mean that any retroactive
ameliorative change in a criminal law that does not contain such
an express reference would entitle the prosecution to reopen the
plea bargain to add back previously dismissed charges or
allegations. But . . . the Estrada presumption of retroactivity
arises only when an ameliorative amendment lacks an express
retroactivity provision. [Citation.] In essence, then, [requiring
an express reference to plea bargains] would create a rule that
defendants who plead guilty may benefit from the retroactive
operation of any law whose retroactivity depends on the Estrada
presumption only if the prosecution assents. Such an approach
would drastically undermine the Estrada principle that the
Legislature intends a lighter penalty to apply “to every case to
which it constitutionally could apply” [citation], particularly as
defendants who plead guilty represent the vast majority of
convictions [citation]). We see no indication in Stamps that the
Supreme Court intended such a result.’ [Citation.]” (Stewart,
supra, 62 Cal.App.5th at p. 1079.)
We therefore address Hernandez because it was cited in the
parties’ briefing, but only for its potentially persuasive value.
11
We agree with Stewart that Hernandez misreads Stamps in
requiring an explicit statement of application to plea agreements.
In addition, two Supreme Court cases are particularly
instructive here and support the outcome in Stewart. First, in
Doe v. Harris, the court instructed that “the Legislature, for the
public good and in furtherance of public policy, and subject to the
limitations imposed by the federal and state Constitutions, has
the authority to modify or invalidate the terms of a[] [plea]
agreement.” (Doe v. Harris, supra, 57 Cal.4th at p. 70.) The
court then applied Doe v. Harris in Harris v. Superior Court, and
held that “the People are not entitled to set aside the plea
agreement when defendant seeks to have his sentence recalled
under Proposition 47.” (Harris v. Superior Court, supra,
1 Cal.5th at p. 993.)
Moreover, to allow the prosecution to withdraw from the
plea agreement in this matter would frustrate legislative intent.
(See Stamps, supra, 9 Cal.5th at p. 704.) Stewart, Sims, and
Quinn carefully consider the legislative history of Assembly Bill
No. 1950, so we need not do so here. But it is worth noting
Stewart’s conclusion that “allowing the prosecution to withdraw
from plea deals involving probation terms of more than two years
would undermine the Legislature’s intent to reduce the number
of probationers subject to conditions of probation and risk of
incarceration for periods the Legislature deemed unnecessary
and deleterious.” (Stewart, supra, 62 Cal.App.5th at p. 1078;
see Sims, supra, 59 Cal.App.5th at pp. 961–962 [detailing
legislative intent behind Assembly Bill No. 1950].) As Stewart
explained, the “legislative analyses of Assembly Bill [No.] 1950
reflect concern with . . . probation as ‘ “a pipeline for re-entry into
the carceral system” ’ due to the large number of people
12
incarcerated for violations of probation . . . .” (Stewart, supra,
62 Cal.App.5th at p. 1073, citing Assem. Floor Analysis, 3d
reading of Assem. Bill No. 1950 (2019–2020 Reg. Sess.) as
amended May 21, 2020, p. 1.)
Butler has already served more than the maximum term of
probation allowed because he served two years and three months
of probation. (See § 1203.1, subd. (a).) Accordingly, if the People
were to renegotiate his plea on remand, with the only option
being prison time, this would frustrate the intent of the
Legislature to reduce incarceration for people subject to
probation. (See Stewart, supra, 62 Cal.App.5th at p. 1078;
Sims, supra, 59 Cal.App.5th at pp. 961–962.)
Moreover, more prison time is not even available here.
When the trial court revoked probation, it struck the two, one-
year enhancements for the prior prison terms—without the
People re-negotiating the plea agreement as to the remaining
ammunition charge—and all that remained were the 320 days for
the ammunition conviction, based on the upper term of three
years for a conviction under section 30305, subdivision (a)(1) and
credit for time served and good behavior. Not only has the
maximum prison sentence of three years already been imposed,
but it is about to expire. It is unclear what more the People
would be able to renegotiate on remand.
For these reasons, we reject the People’s argument that on
remand the plea agreement may be renegotiated.
13
DISPOSITION
The matter is remanded to the trial court for resentencing
with directions to modify Butler’s term of probation to two years
in accordance with section 1203.1, subdivision (a) as amended by
Assembly Bill No. 1950, and then to set aside the prison
sentence, reinstate and terminate probation.
CERTIFIED FOR PUBLICATION
HARUTUNIAN, J.*
We concur:
GRIMES, Acting P. J.
WILEY, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
14