People v. Stewart ( 2021 )

Filed 4/7/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A157857
v.
STEVEN MATTHEW STEWART, (Napa County Super. Ct. No.
19CR000855)
Defendant and Appellant.
Steven Matthew Stewart was placed on probation after pleading no
contest to one count of assault by means likely to result in great bodily injury.
He contends the trial court abused its discretion in imposing a probation
condition requiring him to refrain from using marijuana, a condition
appellant sees as unrelated to his offense or future criminality. He further
contends his period of probation must be reduced from three years to two
years in accordance with a statutory amendment enacted while this appeal
was pending. We agree that appellant is entitled to this reduction in the
length of his probation period and otherwise affirm the judgment.
BACKGROUND
Napa County Police Officer Colton Adams testified at the preliminary
hearing that on March 25, 2019, he was dispatched to an unrelated incident
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts I. Discussion,
I.A., and I.B.
1
and flagged down by J.R., who told him she had just been assaulted by her
ex-boyfriend, identified as appellant. J.R.’s hands were “fidgety,” she “wasn’t
able to stop moving” and she “seemed hysterical” and appeared to have been
crying. She said she and appellant had been arguing and appellant
threatened to “bash her face in using his head,” then as the argument
continued, he “headbutted her in the face.” Adams did not notice visible
injuries, but J.R. reported that she felt pain. Adams did not have an opinion
whether J.R. was high on methamphetamine.1
A witness told Adams that as appellant and J.R. were arguing,
appellant threatened to “beat her down,” then attempted to punch her in the
face with his left hand, missed the punch, and immediately headbutted her in
the face. Another witness saw appellant suddenly headbutt J.R. as appellant
and J.R. were arguing.
Appellant told Adams that he and J.R. were currently dating and had a
five-year-old daughter together. He denied any physical altercation, saying
the argument was all verbal. Appellant told Adams he and J.R. had been
arguing for the past few days and, on the day of the incident, J.R. threatened
to “put him in jail, because he needed to go to a program.” He said he wanted
her to go to a program with him. Adams testified that appellant was
cooperative and calm.
Appellant was initially charged on March 27, 2019, with one count of
felony making criminal threats (Pen. Code, § 422)2 and one count of
misdemeanor battery (domestic violence) (§ 243, subd. (e)(1)), with an
1As described in the probation report, the police report related
appellant having said J.R. was “high on methamphetamine.”
2Further statutory references are to the Penal Code unless otherwise
indicated.
2
allegation that appellant had a prior conviction for which he served a prison
term (§ 667.5, subd. (b).) Following a preliminary hearing, appellant was
held to answer, an information was filed stating the same charges, and
appellant pled not guilty and denied the special allegations. Subsequently,
an amended information added a third count of felony assault by means
likely to cause great bodily injury (§ 245, subd. (a)). Pursuant to a negotiated
agreement, appellant pled no contest to the third count and the others were
dismissed with a Harvey3 waiver. On July 15, 2019, in accordance with the
agreement, appellant was placed on probation for three years. The court
imposed the terms and conditions recommended by the probation
department, with a few modifications not relevant here.
This appeal followed.4
DISCUSSION
I.
At sentencing, defense counsel objected to imposition of the marijuana
condition, arguing there was no indication drugs or alcohol were involved in
the offense. On appeal, appellant contends the trial court abused its
discretion in imposing this condition because it addresses conduct that is not
illegal and is not reasonably related either to the offense or to future
criminality. Two questions are presented: whether appellant can maintain
this challenge to the probation condition after waiving his right to appeal as
3 People v. Harvey (1979) 25 Cal.3d 754.
4 Appellant filed a notice of appeal on the day he was sentenced, July
15, 2019, but did not request a certificate of probable cause. In December, he
filed a motion in this court for permission to request a late certificate of
probable cause, which we granted over respondent’s opposition. Appellant
filed an amended notice of appeal and request for a certificate of probable
cause in the trial court on January 2, 2020, and the trial court granted the
certificate of probable cause the same day.
3
part of his plea bargain and, if so, whether the condition was properly
imposed.
A.
The plea form appellant signed on June 14, 2019, included a section
entitled “Plea Bargain,” which stated, “The following promises have been
made to me as a condition of my plea(s) . . . ,” followed by a handwritten list
of terms. Among these handwritten terms was “waive appeal.” Appellant
initialed this section of the plea form.5 He argues, however, that this general
waiver of appeal was not knowing and intelligent as to the marijuana
condition because the plea bargain did not expressly contemplate the court
imposing this condition. Respondent disagrees.
“To be enforceable, a defendant’s waiver of the right to appeal must be
knowing, intelligent, and voluntary.” (People v. Panizzon (1996) 13 Cal.4th
68, 80 (Panizzon).) A “ ‘general waiver’ ”—one that “is nonspecific, e.g., ‘I
waive my appeal rights’ or ‘I waive my right to appeal any ruling in this
case’ ” (id. at p. 85, fn. 11)—“ordinarily includes error occurring before but not
after the waiver because the defendant could not knowingly and intelligently
waive the right to appeal any unforeseen or unknown future error. (In re
Uriah R. (1999) 70 Cal.App.4th 1152, 1157.) Thus, a waiver of appeal rights
does not apply to ‘ “possible future error” [that] is outside the defendant’s
contemplation and knowledge at the time the waiver is made.’ ([Panizzon], at
p. 85; see also People v. Sherrick (1993) 19 Cal.App.4th 657, 659; People v.
Vargas (1993) 13 Cal.App.4th 1653, 1662.)” (People v. Mumm (2002) 98
Cal.App.4th 812, 815.)
5 Appellant also initialed a printed section of the form stating, “I
understand I have the right to appeal the judgment of the court by filing a
notice of appeal . . . .”
4
People v. Patton (2019) 41 Cal.App.5th 934, 940–941 (Patton), held that
a defendant’s waiver of the right to appeal did not bar his challenge to a
later-imposed condition of probation that was not referenced in the plea
agreement. Respondent distinguishes Patton as involving a specific waiver:
The defendant agreed to waive his right to appeal “any sentence stipulated
herein,” which Patton construed as applying to “the specifics of the stipulated
sentence specified in his plea agreement” and “not encompass[ing] provisions
(such as particular conditions of probation) that were to be determined in
future proceedings.” (Id. at pp. 942–943.)
Respondent correctly notes that Patton referred to the waiver in that
case as “limited” in scope, whereas the waiver in the present case is general.
But that distinction begs the question: As stated above, a general waiver of
the right to appeal does “not include error occurring after the waiver” that is
not “within defendant’s contemplation and knowledge at the time the waiver
was made.”6 (People v. Vargas, supra, 13 Cal.App.4th at pp. 1653, 1662.)
Appellant maintains that is the situation here.
6 Appellant expends considerable effort anticipating respondent’s
reliance on People v. Espinoza (2018) 22 Cal.App.5th 794, which held that a
certificate of probable cause was required for an appeal challenging a
probation condition where the defendant’s plea bargain included a waiver of
the right to appeal “the judgment and rulings of the court.” The court
reached this conclusion because it viewed the challenge to a condition of
probation as in substance a challenge to the appellate waiver and, therefore,
to the validity of the plea. As Espinoza summarized its holding, “when a
defendant waives the right to appeal as part of a plea agreement, and the
waiver’s terms encompass the issue the defendant wishes to raise, the
defendant must obtain a certificate of probable cause to avoid dismissal of the
appeal. With a certificate of probable cause in hand, the defendant may
argue that the waiver is not enforceable as to the issue raised, whether
because the waiver was not knowing and intelligent or for some other reason.
5
Respondent argues the marijuana condition was not an unforeseen or
unknown error outside the scope of the appeals waiver because the plea
agreement clearly contemplated appellant would be placed on probation with
conditions, and several references in the agreement indicate the parties
contemplated the waiver would apply to future error with respect to
“conditions prohibiting the use of certain substances.”
The plea form specified that the following promises had been made as
part of the plea bargain: “C.T.S. at sentencing, 3 yrs. Formal prob., 52 wks.
Bat. Prog., no early term. of prob., search & test clause, all 1203.097 terms,
no early termination of probation, waive appeal, no 17(b) @ sentencing,
restitution (if any).” The agreement thus specified that appellant would be
placed on probation for three years and expressly stated several conditions to
be imposed: A batterer’s program, a search clause, a substance testing
clause, and “all 1203.097 terms.” Section 1203.097 requires certain terms of
probation for domestic violence offenses. One of these is that the defendant
complete a batterer’s program (§ 1203.097, subd. (a)(6)), and respondent
notes that one of the components the batterer’s program must include is a
“requirement that the defendant attend group sessions free of chemical
influence.” (§ 1203.097, subd. (c)(1)(E).) Additionally, respondent maintains
appellant’s express agreement to a “search & test” clause put him on notice
that he would be prohibited from possessing and using certain substances. In
And if the reviewing court determines that the waiver is not enforceable, it
will reach the merits of the defendant’s underlying claim.” (Id. at p. 803.)
Appellant takes issue with the Espinoza court’s view that a challenge
to a probation condition imposed after a plea amounts to a challenge to the
plea itself. That view is not directly at issue here, as appellant did obtain a
certificate of probable cause. For this reason, and because respondent does
not rely on Espinoza, we do not find it necessary to address appellant’s
argument that the case was wrongly decided.
6
respondent’s view, appellant would have understood a standard test clause
could include alcohol, illegal drugs and marijuana and, therefore, “[t]hese
specified terms were not outside of appellant’s contemplation at the time the
waiver was made.”
We are not convinced. “The right of appeal should not be considered
waived or abandoned except where the record clearly establishes it.” (People
v. Vargas, supra, 13 Cal.App.4th at p. 1662.) Appellant’s plea bargain
expressly referred to the section 1203.097 probation terms for domestic
violence offenders, but the term respondent relies upon as relevant to
substance abuse mandates only that the defendant attend a batterer’s
program that requires attendance at group sessions free of chemical
influence. This term does not imply a general prohibition against all use of
“chemical substances,” much less all use of marijuana. And while the
specification in the agreement that appellant would be subject to search and
test conditions may reasonably be construed as implicitly acknowledging he
would be prohibited from possessing and using illegal substances, the same is
not necessarily true for legally possessed substances such as alcohol and
marijuana as allowed under Health and Safety Code section 11362.1.
In Patton, the court explained that the fact the defendant knew at the
time of his plea that “some unspecified ‘reasonable’ restrictions or
requirements could be imposed as a condition of his probation does not mean
he was agreeing to accept anything the court decided to include, regardless of
how unreasonable he thought it was.” (Patton, supra, 41 Cal.App.5th at
p. 940.) Similarly, although appellant’s appellate waiver was broader than
the one in Patton, we cannot find it was “ ‘knowing, intelligent, and
voluntary’ ” with respect to a later-imposed condition of probation that was
not among the specific terms of probation referenced in the plea bargain.
7
(Panizzon, supra, 13 Cal.4th at pp. 80, 85.) Accordingly, we conclude
appellant’s waiver does not prevent him from challenging imposition of the
marijuana condition.
B.
Appellant argues the trial court abused its discretion in imposing the
probation condition prohibiting him from possessing or using marijuana.
“ ‘The primary goal of probation is to ensure “[t]he safety of the
public . . . through the enforcement of court-ordered conditions of probation.”
(Pen. Code, § 1202.7.)’ (People v. Carbajal (1995) 10 Cal.4th 1114, 1120
(Carbajal).) Accordingly, the Legislature has empowered the court, in
making a probation determination, to impose any ‘reasonable conditions, as it
may determine are fitting and proper to the end that justice may be done,
that amends may be made to society for the breach of the law, for any injury
done to any person resulting from that breach, and generally and specifically
for the reformation and rehabilitation of the probationer. . . .’ (Pen. Code,
§ 1203.1, subd. (j).)” (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)
“Generally, ‘[a] condition of probation will not be held invalid unless it
“(1) has no relationship to the crime of which the offender was convicted, (2)
relates to conduct which is not in itself criminal, and (3) requires or forbids
conduct which is not reasonably related to future criminality . . . .”
[Citation.]’ ([People v.] Lent [(1975)] 15 Cal.3d [481,] 486.) This test is
conjunctive—all three prongs must be satisfied before a reviewing court will
invalidate a probation term. (Id. at p. 486, fn. 1; see also People v.
Balestra (1999) 76 Cal.App.4th 57, 68–69 (Balestra).) As such, even if a
condition of probation has no relationship to the crime of which a defendant
was convicted and involves conduct that is not itself criminal, the condition is
valid as long as the condition is reasonably related to preventing future
8
criminality. (See Carbajal, supra, 10 Cal.4th at 1121.)” (Olguin, supra, 45
Cal.4th at pp. 379–380.)
Appellant argues the marijuana condition is invalid because it has no
relationship to his offense, relates to conduct that is not in itself criminal,
and is not reasonably related to future criminality. The first two points are
not at issue: As respondent agrees, it does not appear that appellant was
under the influence of any controlled substance at the time of the assault or
that marijuana or other drugs were otherwise involved in the offense, and
adult possession and use of up to 28.5 grams of marijuana is legal, subject to
various conditions. (§ 11362.1.)
The question is whether the condition is reasonably related to future
criminality. Appellant argues it is not, as he has no history of use or abuse of
marijuana and there is “no indication that marijuana use would trigger
alcohol use or affect his mental health.” Respondent maintains the condition
was reasonably imposed based on appellant’s history of using other drugs and
the risk of marijuana inhibiting his mental health treatment by interfering
with medication appellant was taking for bipolar disorder.
According to the probation officer’s presentence report, appellant, 42
years of age, reported that he drank alcohol heavily from ages 22 to 30 and
sustained four convictions for driving under the influence (DUI). The
probation report lists three such convictions, for offenses in 1994, 1998, and
2006.7 Appellant reported that he was currently consuming alcohol only once
a month and it is “no longer a problem.” He reported past use of
7 The report additionally lists, under “DMV Record,” five convictions for
driving while driving privilege has been suspended or revoked for a DUI
conviction. (Veh. Code, § 14601.2, subd. (a).) Several of these are for more
recent offense dates—2015, 2016, and 2017—and the report states that
appellant’s driver’s license is “suspended/revoked.”
9
hallucinogens, “mushrooms” once a month from age 16 to 24, and “acid”
“every couple of months” from age 20 to 26. He had never engaged in
substance abuse treatment. His criminal history includes a conviction for
unauthorized possession of a controlled substance (Health & Saf. Code,
§ 11377, subd. (a)) in 2015.
In addition, appellant’s history includes convictions for assault with a
deadly weapon (§ 245, subd. (a)) in 2004; resisting a peace officer in 2016
(§ 148.1, subd. (a)) and in 1995 (§ 148.10 [resulting in death or serious bodily
injury]); and driving in a willful or wanton manner while evading a pursuing
peace officer (Veh. Code, § 2800.2, subd. (a)) in 2001 and 2017.
Appellant was diagnosed with bipolar disorder in 2003, for which he
takes medication. He has been hospitalized approximately five times and
used to attend monthly therapy but had not seen a therapist in two years.
The probation officer stated, “Abstention and testing are recommended to
encourage a sober lifestyle. If he cannot maintain sobriety on his own while
on probation, he should complete an alcohol and drug assessment in his
county of residence and engage in the recommended level of treatment.
Considering the defendant suffers from bipolar and takes prescription
medication, ‘street’ drugs and/or alcohol may negatively interfere with his
medication and can cause a disruption in his mental health regiment [sic]. It
is recommended the defendant continue with mental health services.”
The marijuana condition was one of several addressing potential
substance use. Appellant was prohibited from using, consuming, or
possessing “any marijuana or illegal drugs or substances, including
nonprescribed controlled substances, unless specifically authorized by the
court,” from possessing drug paraphernalia, and from drinking or possessing
alcoholic beverages or being in places where alcohol is sold as the primary
10
income of the business. He was required to submit to a blood, breath, or
urine test if requested by law enforcement or a probation officer, and to
submit to search and seizure by a probation officer or law enforcement at any
time, with or without a warrant or reasonable suspicion.8
The court stated, “With regard to 20 and 21 [the marijuana and alcohol
conditions], the defendant’s criminal history reflects a drug and alcohol
abuse. And then when you combine that with the mental health issues
described in the report, I think that very much supports the abstain from
marijuana.”
Appellant argues any relationship between marijuana use or possession
and prevention of future criminality is merely hypothetical, noting that no
evidence was offered to support the probation officer’s opinion that use of
“ ‘street drugs’ ” might interfere with appellant’s medication for bipolar
disorder and arguing that a mental health issue does not have any
relationship to potential future criminality. Appellant points to In re Ricardo
P. (2019) 7 Cal.5th 1113, 1121 (Ricardo P.), which confirmed that “Lent’s
third prong requires more than just an abstract or hypothetical relationship
between the probation condition and preventing future criminality.”
Ricardo P. held that while there need not be a “ ‘nexus between the
probation condition and the defendant’s underlying offense or prior
offenses,’ ” there must be a “degree of proportionality between the burden
imposed by a probation condition and the legitimate interests served by the
condition.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) The electronic device
search in that case did not satisfy this requirement because nothing in the
record indicated the minor had ever used an electronic device or social media
8 Defense counsel objected to both the marijuana and alcohol
conditions, but only the marijuana condition is challenged on this appeal.
11
in connection with criminal conduct, the trial court imposed the condition
based on indications the minor had previously used marijuana and a
“generalization” that minors typically brag about their drug use on social
media, and the “sweeping probation condition requiring Ricardo to submit all
of his electronic devices and passwords to search at any time . . . significantly
burdens privacy interests.” (Id. at pp. 1122–1123.)
The marijuana condition does not similarly implicate a fundamental
interest, and its relationship to future criminality is supported by
considerably more than the generalization relied on in Ricardo P. Although
there is no evidence appellant was under the influence of drugs or alcohol at
the time of the offense, his history includes both alcohol and drug abuse,
albeit not specifically marijuana. His comments to Officer Adams that J.R.
threatened to “put him in jail, because he needed to go to a program” and that
he wanted her to go to a program with him, suggest a contemporaneous issue
with substance abuse. Appellant does not challenge the no-alcohol probation
condition. Cases have recognized a connection between alcohol and drugs
with respect to probation conditions, upholding alcohol prohibitions in cases
where the defendant’s offense related to drug use because of alcohol’s similar
effects in impairing judgment and the ability to control behavior. (People v.
Smith (1983) 145 Cal.App.3d 1032, 1034–1035 [commenting on similarity of
effects of alcohol to effects of marijuana and other drugs, including “lessening
of internalized self-control”]; People v. Lindsay (1992) 10 Cal.App.4th 1642,
1645 [impairment of judgment due to alcohol consumption could reduce drug
addict’s willpower to refrain from drug use]; People v. Beal (1997) 60
Cal.App.4th 84, 87 (Beal) [alcohol use related to future criminality where
defendant has history of substance abuse]; People v. Malago (2017)
8 Cal.App.5th 1301, 1308 [avoiding alcohol would increase defendant’s ability
12
to avoid drug use].) Despite the legalization of recreational use of marijuana,
it remains a controlled substance, classified as a hallucinogen. (Health &
Saf. Code, § 11054, subd. (d)(13).)
Appellant’s present offense reflects impaired judgment and loss of self-
control, as do some of his past offenses. It is neither unduly speculative nor
unreasonable to view the use of substances that tend to impair judgment and
ability to control behavior—whether alcohol or marijuana—as increasing the
risk of future commission of offenses of this type. Nor is it unreasonable to
view use of such substances as potentially interfering with the efficacy of
appellant’s mental health treatment, whether by adverse interaction with the
prescribed medication for his bipolar disorder or by undermining his
compliance with taking that medication. According to the probation report,
based on a validated actuarial risk assessment tool for domestic violence
offenders, appellant was considered to be at “high” risk to commit future
domestic violence.9 The court did not abuse its discretion in imposing the
marijuana condition as one measure to reduce the risk of future offense, in
accordance with the probation department’s recommendation for
“[a]bstention and testing . . . to encourage a sober lifestyle.”
Appellant’s reliance upon People v Kiddoo (1990) 225 Cal.App.3d 922(Kiddoo) (overruled on other grounds by People v. Welch (1993) 5 Cal.4th 228,
237) is unavailing. Appellant likens his case to Kiddoo, which invalidated a
probation condition prohibiting alcohol (id. at p. 927), and distinguishes it
from Beal, supra, 60 Cal.App.4th at page 85, which upheld such a condition.
Kiddoo found “no factual indication in the record that the proscribed
behavior, in the defendant’s case, is reasonably related to future criminal
9According to the probation report, a score of 7 or higher places an
offender in the highest of 7 risk categories; appellant’s score was 8.
13
behavior” because there was no indication alcohol was related to his offense
of possession of methamphetamine, despite the facts that the 33-year-old
defendant had used marijuana, methamphetamine, amphetamine, cocaine,
and alcohol since age 14; said he was a social drinker and used
methamphetamine sporadically; and had a prior conviction for possession of
marijuana at age 22. (Kiddoo, at pp. 927–928.)
The defendant in Beal, who pled guilty to methamphetamine
possession and possession for sale, characterized herself as a social drinker
and did not consider alcohol use a problem but admitted having become
involved with methamphetamine at age 26, smoking marijuana and cocaine
in her late 20s and experimenting with LSD, was selling methamphetamine
to support her drug habit at the time of her arrest, and told the probation
officer she “suffered from ‘chemical dependency.’ ” (Beal, supra, 60
Cal.App.4th at p. 86.) Rejecting the defendant’s reliance upon Kiddoo, the
Beal court stated: “Although an argument can be made that Kiddoo is
factually distinguishable from this case (see People v. Lindsay, [supra,] 10
Cal.App.4th [at p.] 1644), we disagree with the fundamental assumptions
in Kiddoo that alcohol and drug abuse are not reasonably related, and that
alcohol use is unrelated to future criminality where the defendant has a
history of substance abuse.” (Beal, at pp. 86–87, fn. omitted.) The same
court reaffirmed this view, disagreeing with Kiddoo, in Balestra, supra, 76
Cal.App.4th at pages 68–69, and People v. Malago, supra, 8 Cal.App.5th at
page 1308, and we agree. In light of appellant’s history of alcohol and drug
abuse, mental health issues and commission of a domestic violence offense
reflecting inability to control his emotions and conduct, the marijuana
condition is reasonably related to future criminality and not disproportionate.
14
II.
As earlier indicated, in accordance with his plea agreement, appellant
was placed on probation for a period of three years. At the time, the trial
court had discretion to order probation “for a period of time not exceeding the
maximum possible term of the sentence” or, where the maximum possible
term was five years or less, for a maximum of five years. (Former § 1203.1,
subd. (a).) While this appeal was pending, the Legislature enacted Assembly
Bill No. 1950 (Assembly Bill 1950), amending section 1203.1, subdivision (a),
to limit felony probation to a maximum term of two years, absent
circumstances not applicable here. (Stats. 2020, ch. 328, § 2, eff. Jan. 1,
2021.) The legislation is silent as to retroactivity, but appellant argues it is
ameliorative and therefore applies to his case pursuant to the reasoning of
In re Estrada (1965) 63 Cal.2d 740 (Estrada).10
A.
“Generally, statutes are presumed to apply only prospectively. ([People
v. Superior Court (Lara) (2018)] 4 Cal.5th [299,] 307.) However, this
presumption is a canon of statutory interpretation rather than a
constitutional mandate. (Ibid.) Accordingly, ‘the Legislature can ordinarily
enact laws that apply retroactively, either explicitly or by implication.’ (Ibid.)
Appellant first raised this claim in a petition for rehearing after we
10
filed an opinion affirming his conviction, arguing rehearing was required to
preserve his constitutional right to effective assistance of counsel and
forestall a petition for writ of habeas corpus based on ineffective assistance of
counsel. Assembly Bill 1950 was signed by the Governor on September 30,
2020, the day after appellant’s attorney filed the reply brief on this appeal.
Counsel did not seek leave of court to file a supplemental brief arguing
appellant was entitled to the shortened period of probation. (Cal. Rules of
Court, rule 8.200(a)(4).) We granted rehearing to permit consideration of this
claim.
15
Courts look to the Legislature’s intent in order to determine if a law is meant
to apply retroactively. (Ibid.)” (People v. Frahs (2020) 9 Cal.5th 618, 627
(Frahs).)
Estrada held that “amendatory statutes that lessen the punishment for
criminal conduct are ordinarily intended to apply retroactively.” (Frahs,
supra, 9 Cal.5th at p. 627.) The Estrada court reasoned that “ ‘[w]hen 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.’ ” (Frahs, at pp. 627–628.) “ ‘Estrada stands for the proposition that,
“where the amendatory statute mitigates punishment and there is no
saving[s] clause, the rule is that the amendment will operate retroactively so
that the lighter punishment is imposed.” ’ ” (Id. at p. 628, quoting People v.
Nasalga (1996) 12 Cal.4th 784, 792.)
Respondent argues Estrada does not apply to Assembly Bill 1950
because probation is not punishment. Several recent cases have rejected this
view. (People v. Sims (2021) 59 Cal.App.5th 943 (Sims); People v. Quinn
(2021) 59 Cal.App.5th 874 (Quinn); People v. Burton (2020) 58 Cal.App.5th
Supp. 1 (Burton) [Assem. Bill 1950 limitation on duration of misdemeanor
probation].) As explained in those opinions, while probation is viewed as “ ‘an
act of clemency in lieu of punishment’ ” and primarily “rehabilitative in
nature” (People v. Moran (2016) 1 Cal.5th 398, 402), probation “can be
invasive, time-consuming, and restrictive for a probationer” (Sims, at p. 959),
who may be subjected to numerous conditions, including restrictions on
16
activities and associations that would otherwise be lawful and requirements
such as drug and/or alcohol testing, meetings with probation officers, and
submission to warrantless searches and seizures. The probationer “ ‘is in
constructive custody—he is under restraint’ [citations]” and “ ‘there is no
question it is a sanction that imposes significant restrictions on the civil
liberties of a defendant.’ [Citations].)” (Ibid.) The California Supreme Court
recognized in People v. Edwards (1976) 18 Cal.3d 796, 801, that “the
traditional view that a grant of probation is a privileged act of grace or
clemency has been discredited in favor of the modern view that such a grant
should be deemed an alternative form of punishment in those cases when it
can be used as a correctional tool.” And People v. Delgado (2006) 140
Cal.App.4th 1157, 1170, viewed probation as punishment in holding that
retroactive application of a law imposing mandatory probation conditions,
including a minimum term, increased punishment in violation of ex post facto
principles. (See also, People v. Williams (1988) 200 Cal.App.3d Supp. 1[retroactive application of law extending maximum length of probation period
unconstitutionally increased punishment].)
By limiting the maximum duration of probation, Assembly Bill 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 959.) Shortening the length of probation terms is also
ameliorative in that it reduces the “potential for the [probationer] to be
incarcerated due to a violation.” (Burton, supra, 58 Cal.App.5th at
p. Supp. 15.) Probation violations—which may be based on conduct not
amounting to a new crime and need only be proven by a preponderance of the
evidence—often result in incarceration. (Sims, at p. 960.) The longer the
17
period of probation, the more likely the probationer will be found in violation
of a probation condition. Conversely, by limiting the duration of probation,
Assembly Bill 1950 ameliorates possible punishment for probationers as a
class by “ensur[ing] that at least some probationers who otherwise would
have been imprisoned for probation violations will remain violation free and
avoid incarceration.” (Sims, at p. 960.)
This view of Assembly Bill 1950 is in keeping with the California
Supreme Court’s application of the Estrada principle to legislation that
makes reduced punishment possible, as well as that which directly reduces
technical punishment. Lara, supra, 4 Cal.5th 299, applied Estrada in its
analysis of Proposition 57, which eliminated prosecutors’ discretion to charge
juveniles in adult court, instead requiring a transfer hearing for the juvenile
court to determine whether the matter should be heard in juvenile or adult
court. Although “Proposition 57 does not reduce the punishment for a crime,”
Lara held Estrada’s “rationale” applied because “[t]he possibility of being
treated as a juvenile in juvenile court—where rehabilitation is the goal—
rather than being tried and sentenced as an adult can result in dramatically
different and more lenient treatment.” (Lara, at p. 303.) The “possible”
reduction of punishment was also the focus in Frahs, supra, 9 Cal.5th 618,
which found retroactive a statute creating a pretrial diversion program for
certain defendants with mental health disorders. Likening the case to Lara,
the court stated that the statute “provides a possible ameliorating benefit for
a class of persons—namely, certain defendants with mental disorders—by
offering an opportunity for diversion and ultimately the dismissal of charges.”
(Frahs, at p. 624; People v. Francis (1969) 71 Cal.2d 66 [amendment allowing
trial court to exercise sentencing discretion more favorably for individual
defendants applied retroactively].)
18
We agree with the Sims, Quinn, and Burton courts that Assembly Bill
1950 ameliorates punishment within the meaning of Estrada. Although the
Legislature could have chosen to limit or forbid the retroactive application of
the amendment (People v. Conley, (2016) 63 Cal.4th 646, 656), it did not do
so. Assembly Bill 1950 contains no express requirement that it be applied
only prospectively, and, like the Sims, Quinn, and Burton courts, we see no
indication of such intent in the legislative history.
To the contrary, the legislative history demonstrates that the
amendment was motivated by concerns that apply to current probationers as
much as future ones. As extensively detailed in the Sims, Quinn, and Burton
opinions, the legislative analyses of Assembly Bill 1950 reflect concern with
the social and financial costs of the existing probation system—in particular,
with probation as “a pipeline for re-entry into the carceral system” due to the
large number of people incarcerated for violations of probation, most of which
are “ ‘technical’ and minor in nature.” (Assem. Floor Analysis, 3d reading of
Assem. Bill 1950 (2019-2020 Reg. Sess.) as amended May 21, 2020, p. 1.)11
11 According to the bill’s author, “California’s adult supervised
probation population is around 548,000—the largest of any state in the
nation, more than twice the size of the state’s prison population, almost four
times larger than its jail population and about six times larger than its parole
population. [¶] A 2018 Justice Center of the Council of State Governments
study ( [as of Apr. 7, 2021]) found that a large portion of people violate
probation and end up incarcerated as a result. The study revealed that 20%
of prison admissions in California are the result of supervised probation
violations, accounting for the estimated $2 billion spent annually by the state
to incarcerate people for supervision violations. Eight percent of people
incarcerated in a California prison are behind bars for supervised probation
violations. Most violations are ‘technical’ and minor in nature, such as
missing a drug rehab appointment or socializing with a friend who has a
19
The legislative analyses further address the apparent absence of need for
longer probation periods with regard to rehabilitation. “Research
(https://calbudgetcenter.org/resources/sentencing-in-californiamoving-toward-
a-smarter-more-cost-effective-approach/) by the California Budget & Policy
Center shows that probation services, such as mental healthcare and
addiction treatment, are most effective during the first 18 months of
supervision. Research also indicates that providing increased supervision
and services earlier reduces an individual’s likelihood to recidivate.” (Assem.
Floor Analysis, 3d reading of Assem. Bill 1950 (2019-2020 Reg. Sess.) as
amended June 10, 2020, p. 1.)
It is apparent that the Legislature determined the rehabilitative
purpose of probation could best be met, and deleterious effects of the
probation system minimized, by shortening the maximum duration of
probation. As stated by the Sims court, “[w]hile these legislative materials do
not speak directly to the issue of retroactivity, they suggest the Legislature
viewed Assembly Bill No. 1950 as an ameliorative change to the criminal law
that would ensure that many probationers avoid imprisonment. Presumably,
the Legislature was aware such ameliorative changes apply retroactively
under the Estrada presumption. (See People v. Carrasco (1981) 118
Cal.App.3d 936, 945 [‘A cardinal principle of statutory construction is that
criminal record.” (Assem. Floor Analysis, 3d reading of Assem. Bill 1950
(2019-2020 Reg. Sess.) as amended May 21, 2020, p. 1.) Additionally, the
Prison Policy Institute has found that “like incarceration, probation affects
already marginalized populations in troubling ways. Black Americans make
up 13% of the U.S. adult population, but 30% of those under community
supervision.” Additionally, probation fees are an enormous burden on the
poor. (Sen. Com. on Public Safety, Rep. on Assem. Bill 1950 (2019-2020 Reg.
Sess.) as amended June 10, 2020, p. 4.)
20
the Legislature is presumed to be aware of existing judicial practices and
interpretations when it enacts a statute.’].) There is no indication in the
law’s text or legislative materials that the Legislature intended to alter the
default Estrada presumption. This omission suggests the Legislature had no
such intent.” (Sims, supra, 59 Cal.App.5th at pp. 962–963.)
B.
This case presents one issue not addressed in Sims, Quinn, or Burton.
While appellant asks us to order that his term of probation be reduced to two
years, respondent maintains we cannot do so because the prosecution must
be given an opportunity to either agree to this new term or withdraw from
the plea agreement pursuant to which probation was imposed. Respondent’s
argument is based on the rule that a court lacks authority to unilaterally
modify a plea bargain after it has been accepted. (People v. Stamps (2020) 9
Cal.5th 685, 700–702.)
Stamps held that Senate Bill No. 1393 (Senate Bill 1393), amending
section 667, subdivision (a), to give trial courts discretion to strike the five-
year prior serious felony conviction enhancement, applied to the defendant’s
case retroactively because the judgment was not yet final. (Stamps, supra, 9
Cal.5th at p. 699.) The Supreme Court held the case should be remanded for
the trial court to exercise its discretion, but rejected the defendant’s
argument that the trial court should consider striking the enhancement while
otherwise leaving his plea bargain intact. (Stamps, at p. 700.) “ ‘ “ ‘A plea
agreement is, in essence, a contract between the defendant and the
prosecutor to which the court consents to be bound.’ [Citations.] Should the
court consider the plea bargain to be unacceptable, its remedy is to reject it,
not to violate it, directly or indirectly. [Citation.] Once the court has
accepted the terms of the negotiated plea, ‘[it] lacks jurisdiction to alter the
21
terms of a plea bargain so that it becomes more favorable to a defendant
unless, of course, the parties agree.’ ” ’ ” (Id. at p. 701, quoting People v.
Cunningham (1996) 49 Cal.App.4th 1044, 1047.) Accordingly, Stamps held
the proper remedy was remand to allow the defendant to seek relief under
Senate Bill 1393. If the trial court declined to exercise its discretion to strike
the enhancement, the prior sentence would stand. If the court was inclined
to exercise its discretion, the prosecution could agree to modify the plea
bargain, but if it did not so agree, the prosecutor could withdraw from the
agreement. The court could also withdraw its prior approval of the plea
agreement. (Stamps, at pp. 707–708.)
A different conclusion was reached in People v. France (2020) 58
Cal.App.5th 714 (France) (review granted Feb. 24, 2021, S266771), which
found retroactive Senate Bill No. 136 (Senate Bill 136), amending section
667.5, subdivision (b), to limit its one-year prior prison term enhancement to
prior prison terms for sexually violent offenses. (See also People v. Andahi
(Mar. 19, 2021, C090707) ___ Cal.App.5th ___, 2021 WL 1049820.) Prior to
amendment, the statute required courts to impose the enhancement for each
prior prison term, although courts could exercise their discretion to strike the
enhancement pursuant to section 1385. (France, at p. 718.) Since the
defendant’s prior prison term enhancement was not for a sexually violent
offense and his conviction was not final, he was entitled to relief. (Id. at pp.
718–721.) But, unlike Stamps, France found it appropriate to modify the
judgment by striking the one-year enhancement despite the sentence having
been imposed pursuant to a plea bargain. (France, at pp. 727–730.)
For the France majority, the critical factor distinguishing Stamps was
that Senate Bill 1393, at issue in Stamps, gave the trial court discretion to
strike an enhancement while Senate Bill 136 “reduc[ed] sentences directly by
22
significantly narrowing the scope of an enhancement.” (France, supra, 58
Cal.App.5th at p. 728.) Under Senate Bill 1393, “it is ultimately a trial court
that chooses whether an enhancement is eliminated—meaning that [the
change in law] directly implicates the prohibition on a trial court’s ability to
unilaterally modify an agreed-upon sentence.” (France, at p. 728.) In Senate
Bill 136, by contrast, “the Legislature itself has mandated the striking of
affected prison priors by making the enhancement portion of France’s
sentence illegal.” (France, at pp. 728–729.)
Additionally, while Stamps found that applying Senate Bill 1393 to
plea-bargained sentences but otherwise preserving the plea agreement would
have been contrary to the purpose of the legislation, France concluded the
opposite was true for Senate Bill 136. Prior to Senate Bill 1393, trial courts
generally had discretion to strike sentence enhancements pursuant to section
1385, but section 667, subdivision (a), prohibited exercising that discretion
with respect to serious felony conviction enhancements. Senate Bill 1393
eliminated that prohibition in order to create uniformity in sentencing
discretion. Stamps explained that because courts do not have discretion to
strike enhancements that are part of an approved plea bargain, allowing a
court to modify a plea bargain involving a serious felony conviction
enhancement would undermine the goal of uniformity by elevating these
enhancements over others. (Stamps, supra, 9 Cal.5th at pp. 702, 704; France,
supra, 58 Cal.App.5th at p. 729.) France concluded that preventing
application of Senate Bill 136 to plea-bargained sentences “would thwart or
delay the full achievement of the Legislature’s intent to reduce the expense
and ineffectiveness of enhanced prison sentences based on prior prison terms,
especially given that pleas of guilty or no contest ‘represent the vast majority
23
of felony and misdemeanor dispositions in criminal cases.’ ” (France, at
p. 728, quoting In re Chavez (2003) 30 Cal.4th 643, 654, fn. 5.)
Respondent urges us to adopt the reasoning of Justice Pollak’s dissent
in France, which concluded the majority misapplied Stamps. Justice Pollak
focused on the absence of indication in Senate Bill 136 that the Legislature
“intended ‘to change well-settled law that a court lacks discretion to modify a
plea agreement unless the parties agree to the modification.’ ” (France,
supra, 58 Cal.App.5th at p. 734 (dis. opn. of Pollak, J.), quoting Stamps,
supra, 9 Cal.5th at p. 702.) Rejecting the majority’s reliance on the fact that
Senate Bill 136 mandated striking the defendant’s enhancement, Justice
Pollak stated that “the reduction of the agreed four-year term to three years
without the prosecutor’s consent would be no less unilateral than if striking
the enhancement had been within the court’s discretion. It was not the fact
that striking the enhancement in Stamps was discretionary that would have
rendered automatic reduction of the sentence unilateral and impermissible;
that outcome was precluded because the prosecution, which had agreed to a
nine-year sentence, had not agreed to any lesser sentence.” (France, at
p. 734.) Justice Pollak’s view is consistent with several recent cases
addressing Senate Bill 136. (People v. Hernandez (2020) 55 Cal.App.5th 942(Hernandez), review granted Jan. 27, 2021, S265739; People v. Griffin (2020)
57 Cal.App.5th 1088, review granted Feb. 17, 2021, S266521; People v.
Joaquin (2020) 58 Cal.App.5th 173, review granted Feb. 24, 2021, S266594.)
As applied to the issues in the present case, we find the analysis of the
France majority more persuasive. As the majority 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
24
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 (2013) 57 Cal.4th 64, 70 (Doe), “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 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. . . .” ’ (People v. Gipson (2004) 117 Cal.App.4th 1065, 1070.)
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.” (Doe, at p. 66.)
The Hernandez court, and the dissent in France, dismissed the
significance of the distinction between a change in law permitting the trial
court to make a discretionary decision that could alter the terms of a plea
bargain and a change in law necessarily altering such terms because Stamps
focused on indicators of legislative intent to alter the rule prohibiting courts
from unilaterally altering approved plea bargains. (Hernandez, supra, 55
Cal.App.5th at p. 957; France, supra, 58 Cal.App.5th at p. 734 (dis. opn. of
Pollak, J.); see France, at p. 729, fn. 6.) But because the Stamps court was
concerned only with legislation permitting the trial court to make a
discretionary decision that could alter the terms of a plea bargain, it had no
25
reason to consider distinctions between such laws and laws that directly
invalidate a term of a plea bargain. As the France majority noted, the
contention that “the operative question is not one of discretion, but merely
whether a legislative change gives a court ‘authority to modify the plea
agreement by leaving the remnants of the agreed-upon sentence intact
without securing the parties’ assent to the modification.’ ” “But this
contention overlooks Doe, which established that plea agreements generally
incorporate the Legislature’s reserve power to change the law. (Doe,
supra, 57 Cal.4th at p. 66, 73.) . . . Under Doe, it matters very much whether
a court makes a discretionary change to a plea bargain (as in Stamps) or the
Legislature makes a change in the law that necessarily affects the bargain
(as here).” (France, at p. 729, fn. 6.)
Assembly Bill 1950, like the statute at issue in France, “does not
involve Stamps’s repeated and carefully phrased concern with the ‘long-
standing law that a court cannot unilaterally modify an agreed-upon term by
striking portions of it under section 1385’ ” but rather “has a direct and
conclusive effect on the legality of existing sentences pursuant to Estrada.”
(France, supra, 58 Cal.App.5th at p. 729, italics in France.)
Moreover, as earlier discussed, Stamps was influenced by the fact that
allowing the defendant to have his prior serious felony conviction
enhancement stricken but keep the rest of his plea agreement intact would be
counter to the goal of the legislation at issue in that case. Applying Assembly
Bill 1950 to reduce the duration of a plea-bargained grant of probation does
not present any such problem. On the contrary, 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
26
periods the Legislature deemed unnecessary and deleterious. (See, France,
supra, 58 Cal.App.5th at pp. 729–730 [“construing Senate Bill 136 to allow
the People to withdraw from plea deals containing the affected enhancements
could prevent the Legislature from fully realizing its goals of departing from
mass incarceration, saving money on prison costs, and keeping families
together”]; Harris v. Superior Court (2016) 1 Cal.5th 984, 992 [allowing
prosecution to withdraw from plea agreement and reinstate original charges
if defendant successfully petitioned for resentencing under Proposition 47
would undermine proposition’s purpose of reducing number of nonviolent
offenders in prison].)
Finally, we agree with the France majority’s conclusion that Stamps
should not be read as holding retroactive ameliorative legislation may be
applied to plea bargained sentences only if legislative intent for it to do so is
express. Disagreeing with Hernandez,12 France explained, “Stamps did not
hold that such express provisions are necessary for a retroactive legislative
amendment to authorize a trial court to strike an agreed-upon enhancement
while holding the parties to the remaining terms of the plea agreement,” only
that “the absence of such provisions ‘undercuts’ the notion that the
Legislature intended to affect the otherwise applicable and long-standing bar
on a trial court’s ability to unilaterally modify plea-bargained sentences.
(Stamps, supra, 9 Cal.5th at p. 704.) As Stamps made clear by also analyzing
Senate Bill 1393’s purpose, the question of how a statute applies to plea-
bargained sentences comes down to legislative intent. (See Stamps, at
12 Hernandez stated that the silence of Senate Bill 136 regarding pleas
“refutes any suggestion the Legislation intended to create special rules for
the court to unilaterally modify the plea agreement once the enhancements
are stricken.” (Hernandez, supra, 55 Cal.App.5th at p. 958.)
27
pp. 701–702.)” (France, supra, 58 Cal.App.5th at pp. 727–728.) Furthermore,
requiring 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 as discussed above, the Estrada presumption of
retroactivity arises only when an ameliorative amendment lacks an express
retroactivity provision. (Estrada, supra, 63 Cal.2d at pp. 744–745.) 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’
(Estrada, at p. 745), particularly as defendants who plead guilty represent
the vast majority of convictions (In re Chavez [(2003)] 30 Cal.4th [643,] 654,
fn. 5). We see no indication in Stamps that the Supreme Court intended such
a result.” (France, supra, 58 Cal.App.5th at p. 730.)
DISPOSITION
The probation order is modified by specifying that appellant is granted
formal probation for a period of two (2) years. In all other respects, the
judgment is affirmed.
28
_________________________
Kline, P.J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
People v. Stewart (A157857)
29
Trial Court: Napa County Superior Court
Trial Judge: Hon. Mark S. Boessenecker
Attorney for Appellant: By Appointment of the Court of Appeal
First District Appellate Project
Kaiya R. Pirolo
Attorneys for Respondent: Attorney General of California
Xavier Becerra
Lance E. Winters
Chief Assistant Attorney General
Jeffrey M. Laurence
Senior Assistant Attorney General
Rene A. Chacon
Supervising Deputy Attorney General
Julia Y. Je
Deputy Attorney General
30