People v. Hernandez CA2/8 ( 2022 )

Filed 9/7/22 P. v. Hernandez CA2/8
See dissenting opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B310557
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA144413)
v.
CASEY GILBERT HERNANDEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lee W. Tsao, Judge. Reversed and remanded.
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, Assistant
Attorney General, Michael R. Johnsen and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
Assembly Bill No. 1950 (Assembly Bill 1950) (2019-2020
Reg. Sess.), effective January 1, 2021, shortened the maximum
term of a sentence of probation for most felonies from five years
to two years. This appeal requires us to determine whether a
trial court may summarily revoke probation for a violation that
occurred during the original term of probation, but would be
deemed outside the original term if Assembly Bill 1950 were
applied. We hold that the trial court should have applied
Assembly Bill 1950 in this context to set aside the revocation of
probation.
Facts
On February 9, 2018, appellant Casey Hernandez was
sentenced to three years probation. His probation was originally
set to expire on February 9, 2021. On September 24, 2020
(more than 2 years and 7 months after probation began) the trial
court summarily revoked his probation and issued a bench
warrant. The court had been informed that appellant had failed
to report to the probation officer after being released from
custody that was a term of his probation, and had failed to
provide proof that he attended residential drug treatment.
On January 21, 2021, appellant admitted he had violated the
terms of his probation. The court formally revoked probation,
sentenced appellant to 180 days in the county jail, and ordered
probation to terminate upon completion of the 180-day sentence.
Appellant was released after serving one day of the 180 days and
his probation terminated.1
1 The People argue this appeal is moot because appellant’s
probation has terminated. We disagree. (People v. Nolan (2002)
95 Cal.App.4th 1210, 1213; People v. Buell (2017) 16 Cal.App.5th
2Appellant obtained a certificate of probable cause to pursue
an appeal of the revocation of his probation. He argues here,
as he did in the trial court, that the court lacked jurisdiction to
revoke his probation because new legislation, effective January 1,
2021, shortened his probationary term from three years to two
years. He argues that the reduction meant that his probation
expired February 9, 2020, long before the court summarily
revoked his probation in September 2020, and long before he
allegedly violated probation. We agree that Assembly Bill 1950
applies retroactively, and barred the trial court from revoking
appellant’s probation.
Assembly Bill 1950
Assembly Bill 1950 reduced the maximum probation term
for most felony offenses, with exceptions not relevant here, to two
years. (Pen. Code, § 1203.1, subds. (a) & (m).)2 Because the
reduction in the length of the probation term has an
ameliorative effective, we presume that our Legislature intended
to make its effect retroactive to nonfinal convictions in the
absence of an express savings clause specifying a contrary intent.
(In re Estrada (1965) 63 Cal.2d 740, 746–747 (Estrada).)
Assembly Bill 1950 includes no such savings clause and we join
the many other courts which have considered the issue in holding
it to be retroactive. (See, e.g., People v. Flores (2022)
77 Cal.App.5th 420, 431–432, review granted June 22, 2022,
S274561; People v. Butler (2022) 75 Cal.App.5th 216,
682, 688 [appeal is not moot because it affords the defendant the
opportunity to clear the record and erase the “ ‘ “stigma of
criminality.” ’ ”].)
2 Undesignated statutory references herein are to the Penal
Code.
3
review granted June 1, 2022, S273773; People v. Sims (2021)
59 Cal.App.5th 943, 955–956; People v. Quinn (2021)
59 Cal.App.5th 874, 883.)
As amended by Assembly Bill 1950, subdivision (a) of
section 1203.1 now provides, “The court, or judge thereof, in the
order granting probation, may suspend the 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).)
Summary Revocation of Probation
Section 1203.3, subdivision (a), empowers the trial court
“at any time during the term of probation to revoke, modify, or
change its order of suspension of imposition or execution of
sentence.” Under section 1203.2, the court is authorized to
summarily revoke a defendant’s probation. Such summary
revocation gives the court jurisdiction over (and physical custody
of) the defendant, and is proper if the defendant is accorded a
subsequent formal hearing in conformance with due process.
(People v. Clark (1996) 51 Cal.App.4th 575, 581.)
Summary revocation of probation preserves the trial court’s
authority to adjudicate a claim that the defendant violated a
condition of probation during the probationary period.
The purpose of subsequent formal proceedings “is not to revoke
probation, as the revocation has occurred as a matter of law;
rather, the purpose is to give the defendant an opportunity to
require the prosecution to prove the alleged violation occurred
and justifies revocation.” (People v. Clark, supra, 51 Cal.App.4th
at p. 581.) Probation may be revoked for only those violations
that occur within the probationary period. (People v. Leiva (2013)
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56 Cal.4th 498, 505.) Summary revocation of probation also tolls
the running of the probationary term until a formal probation
hearing occurs. (§ 1203.2, subd. (a).)
Analysis
The retroactive effect, if any, of Assembly Bill 1950 has
been addressed in several recent cases that involved varying
procedural postures. Virtually every case has concluded that
Assembly Bill 1950 is to be applied retroactively to cases not yet
final, in accordance with Estrada, supra, 63 Cal.2d 740. Our
Supreme Court has granted review in a number of these cases
where the retroactivity of Assembly Bill 1950 is at issue.3 It
seems unlikely the long-standing Estrada retroactivity rule will
be jettisoned by the high court as applied to Assembly Bill 1950.
The real issue is not whether the statute should be applied
retroactively, but rather how it is to be applied retroactively.
Assembly Bill 1950 became effective on January 1, 2021.
It specified that, with exceptions not relevant, felony
probationary periods are not to exceed two years. Appellant’s
formal probation violation hearing was held in January of 2021,
after Assembly Bill 1950 had become effective. Thus, Assembly
Bill 1950 was in effect at the time the trial court was asked to
formally revoke probation, and it is in effect now when this
3 (See People v. Arreguin (2022) 79 Cal.App.5th 787, 793,
fns. 7-9.) At our invitation, the parties filed letter briefs
addressing three of the recent cases, which have all subsequently
been granted review by our Supreme Court. (See People v.
Canedos (2022) 77 Cal.App.5th 469 (Canedos), review granted
June 29, 2022, S274244, People v. Faial (2022) 75 Cal.App.5th
738, and Kuhnel v. Superior Court (2022) 75 Cal.App.5th 726,
review granted June 1, 2022, S274000.)
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appellate court is analyzing whether the trial court’s jurisdiction
to revoke had ended.
In our view, the analysis is straight-forward. Estrada
compels us to apply Assembly Bill 1950 retroactively to non-final
cases. The present case was not final when Assembly Bill 1950
went into effect (there was a probation revocation pending), and
the pursuit of this appeal maintained its non-final posture.
The wording and intent of Assembly Bill 1950 is to reduce felony
probation periods to two years for non-final cases. That means
Appellant is entitled to have his case reviewed by us utilizing the
revised two-year probation period mandated by Assembly Bill
1950. Under the revised statute, his probation expired in
February of 2020. At that time, he had no summary revocation of
probation pending (nor is he alleged to have engaged in conduct
that would justify a later summary revocation). Since there was
no summary revocation of probation prior to the two-year
deadline, there was nothing that tolled the expiration of the
court’s probation jurisdiction.4 Appellant’s conduct after the two-
year deadline cannot be the basis for revoking the probation that
we must now view as having expired in February of 2020.
4 Some courts take the position that as long as conduct that
would constitute a probation violation occurs during the
probationary period shortened by Assembly Bill 1950, the court
may still summarily and formally revoke probation after the
shortened probation period. (See Kuhnel v. Superior Court,
supra, 75 Cal.App.5th at p. 736.) We do not face that factual
scenario in the present case, since the conduct occurred months
after the two-year mark, and therefore do not reach that issue.
6
That is the scenario presented in Canedos, supra,
77 Cal.App.5th 469.5 The defendant (Canedos) was placed on
four years of probation in January of 2016. He engaged in
conduct violating his probation almost four years later, in
December of 2019, and his probation was summarily revoked.
Canedos’s probation was formally revoked in September of 2020,
and during the pendency of his appeal Assembly Bill 1950
became effective, in January of 2021. Consistent with our
analysis, the Canedos court determined that Assembly Bill 1950
caused the probation period to expire in January of 2018,
rendering the later summary revocation of probation beyond the
trial court’s jurisdiction.
The People argue Estrada does not retroactively invalidate
probation revocations that were lawful when imposed. Canedos
addressed and rejected this argument and the cases that assert
it. (Canedos, supra, 77 Cal.App.5th at pp. 477–478.) We find its
reasoning persuasive. As the Canedos court noted, “[i]f the
Legislature means to limit the scope of retroactive application,
it must so specify . . . .” (Id. at p. 477.) We also note that the case
for retroactive application is even stronger here than in Canedos,
in that the Canedos formal revocation occurred before Assembly
Bill 1950’s effective date, whereas in our case Appellant faced
formal revocation when Assembly Bill 1950 was fully in effect.
That the summary revocation of probation was lawful at
the time it occurred does not compel the conclusion that it was
not subject to invalidation as a result of a change in the law
before the case became final. In recent years we have seen many
convictions and sentencing enhancements that were entirely
5 We cite to cases currently on review for their persuasive
value, as permitted by Rules of Court, rule 8.1115(e)(1).
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lawful at the time imposed, which were set aside because Estrada
compels us to view the case through the lens of the law as
modified by the legislature.6 Assembly Bill 1950 compels a
similar result in this case.
6 For example, in People v. Esquivel (2021) 11 Cal.5th 671(Esquivel), the trial court imposed but suspended execution of a
five-year prison sentence, placing defendant on probation for that
term. His time to appeal the original sentence expired.
Approximately three years later defendant violated probation
and the court ordered the prison sentence into effect. During the
appeal of that probation revocation decision, the legislature
amended the sentencing statute so that defendant’s sentence
under the revised statute would have been three years instead of
five. Our Supreme Court held that defendant was entitled, under
Estrada, to retroactive reduction of his sentence to three years,
thereby invalidating the decision to find he was in violation of
probation. (Esquivel, supra, at pp. 677–680.) The Esquivel court
reached this result despite the fact that the trial court decision to
revoke probation was entirely lawful and in accordance with the
sentence imposed at the time the revocation occurred. This
demonstrates that the lawfulness of the sentencing decision
when made does not alter the necessity of retroactive invalidation
of such decisions under Estrada. The Stamps case relied on by
the dissent in the present case was cited in Esquivel, but did not
alter the result. (Esquivel, at p. 676.) (See also People v.
McKenzie (2020) 9 Cal.5th 40, 48–51.)
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DISPOSITION
The order revoking probation is reversed, and the case is
remanded with instructions to reinstate and terminate probation
in accordance with Assembly Bill 1950.
HARUTUNIAN, J.
I concur:
GRIMES, J.

Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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STRATTON, P. J., Dissenting
The trial court summarily revoked appellant’s probation on
September 17, 2020. Assembly Bill No. 1950 (Assembly Bill
1950) was not in effect, but appellant’s probation was. So, when
the trial court revoked appellant’s probation, it acted lawfully
and within the power conferred by Penal Code section 1203.3.
Appellant’s argument gains traction only if we apply
Assembly Bill 1950 to reach back and invalidate valid revocations
that occurred before the law’s effective date. I decline to do so.
Although the holding of In re Estrada operates to shorten
probationary terms as of January 1, 2021, I find this statute’s
particular retroactivity does not extend to invalidating lawful
orders issued before it took effect.
My approach to examining the scope of Assembly Bill
1950’s retroactivity tracks the analysis in People v. Stamps (2020)
9 Cal.5th 685 (Stamps). There our Supreme Court considered a
recent retroactive amendment to Penal Code section 1385, which
permitted trial courts to strike previously mandatory sentencing
enhancements. Because the amendment there, as here, was
retroactive, defendants with enhanced sentences and nonfinal
judgments were permitted to have their trial courts consider
whether to strike the enhancements from their sentences. In
Stamps, appellant had such a sentence, but it had been
negotiated as part of a plea agreement. Appellant argued that
the Court had to remand the sentence to the trial court so it could
consider striking the now-discretionary enhancement, but he
argued the trial court had to leave intact the rest of the plea
agreement.
The Supreme Court disagreed that the scope of the
retroactive amendment to Penal Code section 1385 was so broad.
It noted the “Estrada rule only answers the question of whether
an amended statute should be applied retroactively. It does not
answer the question of how that statute should be applied.”
(Stamps, supra, 9 Cal.5th at p. 700.) The Court stated “it is not
enough for defendant to establish that the amended section 1385
applies to him retroactively under Estrada in order to receive the
remedy he seeks. 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 [the amendment] 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. We are not persuaded that the Legislature
intended this result.” (Id. at p. 701.) Indeed, the court noted that
“none of the legislative history materials mention plea
agreements at all.” (Id. at p. 702.)1 The Court searched for and
found no evidence that the Legislature intended to permit a court
1 We review de novo questions of statutory construction.
“ ‘When interpreting statutes, we begin with the plain,
commonsense meaning of the language used by the Legislature.
[Citation.] If the language is unambiguous, the plain meaning
controls.’ ” (People v. Leiva, supra, 56 Cal.4th at p. 506.) In doing
so, our fundamental task is to ascertain the intent of the
lawmakers so as to effectuate the purpose of the statute. We
begin with the text, giving the words their usual and ordinary
meaning while construing them in light of the statute as a whole
and the statute’s purpose. (People v. Blackburn (2015) 61 Cal.4th
1113, 1123.)
2
to carve enhancements out of a plea agreement, but to otherwise
uphold the rest of the bargain. It declined to afford appellant the
remedy he sought.
As was true in Stamps, here Assembly Bill 1950 includes
no language whatsoever addressing the issue of whether it was
intended to reach back to invalidate revocations that were lawful
when adjudicated. Had the Legislature wanted to simply
terminate lengthy probationary terms across the board, without
regard to pending probation revocation proceedings, it could have
said so. Instead, the legislative materials specifically note that
“this bill does not take the ‘teeth’ out of probation or the courts.
If a person on probation fails to comply with treatment or other
conditions sets by the court during a probationary period, the
court may revoke the person’s probation until the person is back
in compliance.” (Sen. Com. on Public Safety, Rep. on Assem. Bill
No. 1950 (2019–2020 Reg. Sess.) as amended June 10, 2020, p. 7.)
This sole reference to revocation proceedings suggests to me that
Assembly Bill 1950 was not proposed to vacate past probation
revocations. (See also Couzens, Bigelow & Prickett, Sentencing
Cal. Crimes (The Rutter Group 2021) § 8:15.60, p. ___ [without
evidence of legislative intent, Assembly Bill 1950 does not annul
probation revocations that were valid when ordered].)
Nevertheless, as to intent, appellant argues that in passing
Assembly Bill 1950, the Legislature intended to avoid the
significant costs associated with enforcing and adjudicating
technical and minor probation violations by shortening the
maximum possible terms of probation. (Sen. Com. on Public
Safety, Rep. on Assem. Bill No. 1950 (2019–2020 Reg. Sess.) as
amended June 10, 2020, p. 6–7.) Assuming for the sake of
argument that a failure to report to the probation officer is a
3
technical or minor violation, the Legislature’s purpose is not
advanced by invalidating lawful revocation orders already on the
books by the time the statute takes effect.
With no evidence that when it shortened the maximum
term for felony probation, the Legislature also intended to
invalidate probation revocations that were lawful when ordered,
I decline to give Assembly Bill 1950 a retroactive application not
authorized by the legislation. I conclude that an order revoking
probation, lawful when issued, is not invalidated by the fact that
the underlying term of probation may be later retroactively
reduced by Assembly Bill 1950.
STRATTON, P. J.
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