People v. Prudholme CA4/2 ( 2021 )

Filed 8/26/21 P. v. Prudholme 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E076007
v. (Super.Ct.No. FWV18004340)
RICKY PRUDHOLME, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,
Judge. Reversed and remanded for resentencing.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth
M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent
1
PROCEDURAL HISTORY
On December 10, 2018, an information charged defendant and appellant Ricky
Prudholme with one count of second degree robbery under Penal Code section 211.1,2
On April 5, 2019, defense counsel declared a doubt as to defendant’s mental competence
under section 1368. On May 24, 2019, the trial court found defendant to be incompetent
and suspended the criminal proceedings.
On September 2, 2019, the trial court found defendant to be competent and
reinstated the criminal proceedings. That same day, defendant pled no contest to an
added count of felony second degree burglary under section 459, subdivision (b). The
parties stipulated that the preliminary hearing transcript would serve as the factual basis
for the plea.
On October 14, 2019, the trial court dismissed the robbery count and placed
defendant on formal probation pursuant to the terms of the plea agreement.
On November 16, 2019, defendant filed an amended notice of appeal.
STATEMENT OF FACTS3
On November 22, 2018, employees of a trucking company observed defendant in
a Chevrolet truck and two codefendants in a Ford truck loading boxes of merchandise
1 Two codefendants were charge in the information; they are not parties to this
appeal.
2 All further statutory references are to the Penal Code unless otherwise specified.
3 The statement of facts is taken from the probation report.
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from the company’s loading dock into the beds of their trucks. After obtaining over
$4,000 worth of merchandise, defendant and the codefendants got in their respective
trucks and started driving toward the exit of the business.
At this point, two employees got into their vehicles and blocked the exit,
preventing defendant and the codefendants from leaving. Defendant tried backing up and
hit a metal object that was protruding from one of the employee’s vehicles. Defendant
then exited his truck. He began yelling and threatened to sue the employees for
damaging his truck.
Shortly thereafter, police officers arrived. The officers detained defendant and the
codefendants.
DISCUSSION
Defendant contends that his probation term should be reduced because section
1203.1, subdivision (a), under which he was sentenced to three years of formal probation,
has been amended by Assembly Bill Number 1950 (Assem. Bill No. 1950), effective
January 1, 2021. He contends that because his case is not yet final, under the principles
of retroactivity applicable to ameliorative changes to the criminal law as set forth in In re
Estrada (1965) 63 Cal.2d 740 (Estrada), he is entitled under Assem. Bill No. 1950 to
have his probation term reduced from three years to two years. The People concede that
“in light of recent appellate decisions agreeing with appellant, this case should be
remanded to the trial court for modification of his probation.” We agree.
3
In this case, when defendant was sentenced, section 1203.1 provided that a trial
court may grant felony probation “for a period of time not exceeding the maximum
possible term of the sentence.” If the “maximum possible term of the sentence is five
years or less, then the period of suspension of imposition or execution of sentence may,
in the discretion of the court, continue for not over five years.” (Former § 1203.1, subd.
(a).) The trial court here granted probation for three years.
Effective January 1, 2021, Assem. Bill No. 1950 amended section 1203.1,
subdivision (a), to limit the probation term for felony offenses to two years, except in
cases of certain violent felonies. (Stats. 2020, ch. 328, § 2; § 1293.1, subds. (a), (m).)4
“Assembly Bill No. 19050 is silent on retroactivity; it does not create a mechanism by
which probationers may petition for early termination.” (People v. Quinn (2021) 59
Cal.App.5th 874, 884 (Quinn).) In Estrada, supra, 63 Cal.2d 740, the court held, “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.” (Id. at p. 745.)
4 Section 1203.1, subdivision (m), identifies the exceptions to the two-year
probation limit. These exceptions are not applicable in this case.
4
Recently, in People v. Sims (2021) 59 Cal.App.5th 943 (Sims), another appellate
court found that despite probation not technically being punishment, the retroactive rule
of Estrada applied to Assem. Bill No. 1950. It found, “The People are correct that ‘[a]
grant of probation is “qualitatively different from such traditional forms of punishment as
fines or imprisonment.” ’ [Citation.] Probation is primarily rehabilitative and a grant of
probation is considered an act of grace or clemency in lieu of traditional forms of
punishment.” (Id. at p. 958.) It further found, “However, we do not believe the label
affixed to probation—i.e., whether it is labeled punishment, rehabilitation, or some
combination—is necessarily determinative of whether the Estrada presumption of
retroactivity applies. When a court places a defendant on probation, it may, of course,
fine the defendant or order the defendant confined in jail, or both. [Citation.] But it has
discretion to impose a variety of other probation conditions as well. It may, for example,
require that the probationer submit to searches of electronic devices and social media
accounts [citation], submit to periodic drug testing [citation], refrain from associating
with persons or groups of persons [citation], and obtain permission from a probation
officer before changing addresses or leaving the state or county. (Id. at p. 959.)
The Sims court recognized that by “limiting the maximum duration a probationer
can be subject to such restraint, Assembly Bill No. 1950 has a direct and significant
ameliorative benefit for at least some probationers who otherwise would be subject to
additional months or years of potentially onerous and intrusive probation conditions.”
(Sims, supra, 59 Cal.App.5th at p. 959.) As such, “by limiting the duration of felony
probation terms, Assembly Bill No. 1950 ensures that at least some probationers who
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otherwise would have been imprisoned for probation violations will remain violation-free
and avoid incarceration.” (Id. at p. 950.)
The Sims court also found that, “Assembly Bill No. 1950 does not contain a
savings clause evincing a clear intent to overcome the Estrada presumption of
retroactivity. ‘Nor do we perceive in the legislative history a clear indication that the
Legislature did not intend for the statute to apply retroactively.’ [Citation.] On the
contrary, the legislative history for Assembly Bill No. 1950 suggests the Legislature
harbored strong concerns that probationers—including probationers whose cases are
pending on appeal—face unwarranted risks of incarceration due to the lengths of their
probation terms.” (Sims, supra, 59 Cal.App.5th at p. 961.)
The Sims court concluded, “For all these reasons, we conclude the two-year
limitation on felony probation set forth in Assembly Bill No. 1950 is an ameliorative
change to the criminal law that is subject to the Estrada presumption of retroactivity.
The Legislature did not include a savings clause or other clear indication that the two-
year limitation applies on a prospective-only basis. Therefore, we conclude the two-year
limitation applies retroactively to all cases not reduced to final judgment as of the new
law’s effective date. Here, the defendant’s case was pending on direct appeal and thus
was not final as of Assembly Bill No. 1950’s effective date. Accordingly, the defendant
is entitled to seek a reduced probation term on remand under Assembly Bill No. 1950.”
(Sims, supra, 59 Cal.App.5th at p. 964.)
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The court in Quinn came to the same conclusion finding that since “the
Legislature has determined that the rehabilitative function of probation does not extend
beyond two years, any additional period of probation can only be regarded as punitive,
and therefore within the scope of Estrada.” (Quinn, supra, 59 Cal.App.5th at p. 833.)
Following the reasoning in Sims and Quinn, we conclude that defendant is entitled
to the benefit of the change to section 1203.1, subdivision (a). However, there remains
the question of remedy. Defendant contends that this court should simply order his
probation term to be modified to two years, and that there is no need to remand to the
trial court for resentencing. The People, however, argue that “[m]erely striking any
portion of the probationary term that exceeds two years deprives the trial court and the
parties of a necessary determination of the status of the probation at the time it was
terminated.”
In essence, the People contend that in negotiated plea cases where ameliorative
amendments apply, whereby the agreed-upon term becomes unenforceable, the matter
should be remanded to allow them to withdraw from the plea or the trial court to rescind
its approval of the agreement and return the parties to the status quo. (See People v.
Stamps (2020) 9 Cal.5th 685, 706-708 (Stamps).) The People assert that since defendant
here pled no contest in this case, we should reduce his three-year probation period and
remand the matter to allow them the opportunity to withdraw from the plea or the trial
court to rescind its approval and restore the parties to the status quo. Because the term of
probation was negotiated as part of a plea agreement, we remand the matter for the trial
court to modify the term of probation consistent with Assem. Bill 1950 and to permit the
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People and the trial court the opportunity to withdraw approval of the plea agreement in
light of the required modification to the term of probation.
In Stamps, the California Supreme Court concluded that a defendant was entitled
to the benefit of an ameliorative change in the law—specifically, pursuant to Senate Bill
No. 1393 (2017-2018 Reg. Sess.) (Sen. No. 1393), he was entitled to have the matter
remanded for the trial court to exercise its discretion to strike a serious felony conviction
enhancement in the interest of justice. (Stamps, supra, 9 Cal.5th at p. 699.) However,
because the serious felony conviction enhancement was imposed as part of a negotiated
stipulated sentence, if the trial court exercised its discretion to strike the enhancement, the
People and the trial court were permitted to withdraw approval for the plea agreement.
(Id. at pp. 707-708.) The defendant was not permitted “ ‘ “to whittle down the sentence
‘but otherwise leave the plea bargain intact.’ ” ’ ” (Id. at p. 706.)
In People v. Hernandez (2020) 55 Cal.App.5th 942 (review granted Jan. 27, 2021,
S265739), the Fifth District Court of Appeal reached the same conclusion as in Stamps.
There, the court directed the trial court to strike prior prison term enhancements pursuant
to Senate Bill No. 136 (2019-2020 Reg. Sess) (Sen. No. 136). Moreover, the court
concluded that the People and trial court must be permitted to withdraw approval for the
negotiated plea. (Hernandez at pp. 958-959.) The court explained that the distinction
between the discretionary nature of Sen. No. 1393 (permitting trial courts to strike serious
felony enhancements) and the mandatory nature of Sen. No. 136 (prohibiting imposition
of prior prison term enhancements for convictions not served for sexually violent
offenses) was not dispositive to the issue of whether the People or a trial court must be
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permitted to withdraw from a plea agreement. (Hernandez at p. 957.) Instead, the court
explained that we should review “the history of the amendment[] to determine whether
there was any intent . . . ‘to change well-settled law that a court lacks discretion to modify
a plea agreement unless the parties agree to the modification’ to determine whether the
district attorney can withdraw from the plea agreement.” (Hernandez, at p. 957; accord,
Stamps, supra, 9 Cal.5th at p. 702 [“In order to justify a remand for the court to consider
striking his serious felony enhancement while maintaining the remainder of his bargain,
defendant must establish not only that Senate Bill 1393 applies retroactively, but that, in
enacting that provision, the Legislature intended to overturn long-standing law that a
court cannot unilaterally modify an agreed-upon term by striking portions of it under
section 1385”].) The court concluded that “there is no evidence the Legislature intended
Senate Bill 136 to permit the trial court to unilaterally modify a plea agreement once the
prior prison term enhancements are stricken.” (Hernandez, at p. 958.)
Like Senate Bill Nos. 1393 and 136, there is no evidence that the Legislature
intended Assem. Bill 1950 to permit unilateral modification of plea agreements by
shortening negotiated terms of probation. We therefore vacate the sentence and remand
the matter to the trial court to impose a term of probation that conforms with Assem. Bill
1950 and to permit the People and the trial court an opportunity to accede to the shorter
term of probation or withdraw from the plea agreement.
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DISPOSITION
The sentence is vacated. The matter is remanded to the trial court to modify the
term of probation to conform with Assem. Bill 1950, and permit the People and trial
court an opportunity to withdraw from the plea agreement.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
FIELDS
J.
RAPHAEL
J.
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