People v. Flores ( 2022 )

Filed 4/12/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081903
Plaintiff and Respondent,
(Super. Ct. No. BF177597A)
v.
JERMAN FLORES, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John R.
Brownlee, Judge.
Matthew Aaron Lopas, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A.
White, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On September 20, 2019, defendant Jerman Flores was charged by information
with one felony count of possession of a controlled substance for sale. (Health & Saf.
Code, § 11378; count 1.) On October 21, 2020, pursuant to the terms of a plea bargain,
the prosecutor amended the information to add one misdemeanor count of possession of a
controlled substance (Health & Saf. Code, § 11377, subd. (a); count 2); defendant pled no
contest to count 2; and the trial court dismissed count 1 and placed defendant on
probation for a term of three years with 60 days in custody and credit for 20 days of time
served. Defendant filed a timely notice of appeal.
Defendant raises one claim on appeal: entitlement to relief under Assembly Bill
No. 1950 (2019–2020 Reg. Sess.) (Assembly Bill 1950 or Assem. Bill 1950), effective
January 1, 2021. Assembly Bill 1950 amended former Penal Code sections 1203a and
1203.1, subdivision (a),1 to limit probation, respectively, to a period not to exceed one
year in misdemeanor cases and two years in felony cases, subject to certain exceptions
not applicable in this case. (Assem. Bill 1950, §§ 1–2.)2 The parties agree that Assembly
Bill 1950 is retroactive under Estrada3 and that it applies in this case because defendant’s
judgment is not final. They disagree on remedy, however.
Defendant requests modification of his probation term on review to a term no
greater than one year. The People’s main contention is that remand is required to afford
the prosecutor the opportunity to withdraw from the plea bargain or the trial court to
rescind its approval, restore the felony charge, and allow the parties to renegotiate the
1 All further statutory references are to the Penal Code unless otherwise stated.
2 Subsequently, Assembly Bill No. 177 effected changes to section 1203.1, provided for
repeal of the section on January 1, 2022, and then added section 1203.1, effective January 1,
2022. (Legis. Counsel’s Dig., Assem. Bill No. 177 (2021–2022 Reg. Sess.) Stats. 2021, ch. 257,
§§ 21–22, pp. 28–35.) Those changes are not relevant to the issue raised in this appeal.
3 In re Estrada (1965) 63 Cal.2d 740 (Estrada).
2.
plea bargain or proceed to trial, as provided for in People v. Stamps (2020) 9 Cal.5th 685,
707–708 (Stamps).
Based on the plain language and legislative intent underlying Assembly Bill 1950,
we conclude that defendant is entitled to modification of his probation term from three
years to one year on review. A contrary result would frustrate legislative intent and, as
explained herein, the California Supreme Court’s decision in Stamps is distinguishable.
Therefore, the remedy approved there does not apply. We shall reduce defendant’s term
of probation to one year and otherwise affirm the judgment. (§ 1260.)
DISCUSSION
I. Summary of Assembly Bill 1950
Defendant entered a plea of no contest to one misdemeanor count in 2020. At that
time, section 1203a provided that the period of probation could not exceed three years,
and that was the term imposed in this case. (Former § 1203a.) In his reply brief,
defendant argues that the three-year probation period was not a negotiated term of the
parties’ plea bargain. However, defendant’s trial counsel stated on the record that
defendant would “enter a no contest plea to [count 2] for three years [of] summary
probation, 60 days with a referral to the Work Release Program, fines and fees, and
search terms and testing for narcotics,” and the prosecutor concurred. As defendant’s
position is directly contradicted by the record, we reject his argument without need for
further discussion.
Subsequent to defendant’s plea and the imposition of probation, Assembly
Bill 1950 amended section 1203a to provide:
“(a) In all counties and cities …, the courts therein, having
jurisdiction to impose punishment in misdemeanor cases, may refer cases,
demand reports, and to do and require anything necessary to carry out the
purposes of Section 1203, insofar as that section applies to misdemeanors.
The court may suspend the imposition or execution of the sentence and
make and enforce the terms of probation for a period not to exceed one
year.
3.
“(b) The one-year probation limit in subdivision (a) shall not apply
to any offense that includes specific probation lengths within its
provisions.” (Italics added.)
The parties agree that the exception set forth in subdivision (b) of section 1203a
does not apply to defendant’s conviction for drug possession under Health and Safety
Code section 11377. Therefore, we proceed to the issue of retroactivity, which is not in
dispute, and the issue of remedy, which is in dispute.
II. Retroactivity
“‘It is well settled that a new statute is presumed to operate prospectively’”
(Stamps, supra, 9 Cal.5th at p. 698; accord, People v. Frahs (2020) 9 Cal.5th 618, 627–
628 (Frahs)), and “[t]he Penal Code provides that ‘[n]o part of it is retroactive, unless
expressly so declared’” (Stamps, supra, at p. 699, quoting § 3). “However, this
presumption is a canon of statutory interpretation rather than a constitutional mandate.
[Citation.] Accordingly, ‘the Legislature can ordinarily enact laws that apply
retroactively, either explicitly or by implication.’ [Citation.] Courts look to the
Legislature’s intent in order to determine if a law is meant to apply retroactively.”
(Frahs, supra, at p. 627, citing & quoting People v. Superior Court (Lara) (2018) 4
Cal.5th 299, 307.)
Pursuant to Estrada, “[n]ewly enacted legislation lessening criminal punishment
or reducing criminal liability presumptively applies to all cases not yet final on appeal at
the time of the legislation’s effective date.” (People v. Gentile (2020) 10 Cal.5th 830,
852, citing Estrada, supra, 63 Cal.2d at pp. 744–745; accord, People v. Esquivel (2021)
11 Cal.5th 671, 673 & 675–676; Stamps, supra, 9 Cal.5th at p. 699.) “This presumption
‘rests on an inference that, in the absence of contrary indications, a legislative body
ordinarily intends for ameliorative changes to the criminal law to extend as broadly as
possible, distinguishing only as necessary between sentences that are final and sentences
that are not.’” (People v. Gentile, supra, at p. 852; accord, People v. Esquivel, supra, at
p. 675; Stamps, supra, at p. 699.)
4.
“The issue … [is] one of legislative intent. (Estrada, supra, 63 Cal.2d at p. 744.)
‘Had the Legislature expressly stated which statute should apply, its determination, either
way, would have been legal and constitutional.’ (Ibid.) In the absence of such a
declaration of intent, we identified ‘one consideration of paramount importance’ (ibid.):
‘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. This intent seems obvious, because to
hold otherwise would be to conclude that the Legislature was motivated by a desire for
vengeance, a conclusion not permitted in view of modern theories of penology.’ (Id. at
p. 745.) Under those theories, punishment is appropriate to deter, confine, and
rehabilitate; ‘“[t]here is no place in the scheme for punishment for its own sake .…”’
(Ibid.)” (People v. Esquivel, supra, 11 Cal.5th at p. 674, fn. omitted.)
This court and other appellate courts considering the issue have concluded,
universally, that the change in the law under Assembly Bill 1950 is ameliorative and,
therefore, applies retroactively in all cases not yet final on appeal. (People v. Schulz
(2021) 66 Cal.App.5th 887, 895 (Schulz); accord, People v. Butler (2022) 75 Cal.App.5th
216, 220–221 (Butler); People v. Scarano (2022) 74 Cal.App.5th 993, 1003 (Scarano);
People v. Greeley (2021) 70 Cal.App.5th 609, 627; People v. Czirban (2021) 67
Cal.App.5th 1073, 1095; People v. Lord (2021) 64 Cal.App.5th 241, 245; People v.
Stewart (2021) 62 Cal.App.5th 1065, 1072–1073, review granted June 30, 2021, S268787
(Stewart); People v. Sims (2021) 59 Cal.App.5th 943, 960–961 (Sims); People v. Quinn
(2021) 59 Cal.App.5th 874, 881–882 (Quinn); People v. Burton (2020) 58 Cal.App.5th
5.
Supp. 1, 14–16 (Burton); see People v. Faial (2022) 75 Cal.App.5th 738, 745, 746–747
[Assem. Bill No. 1950 applies retroactively to those serving a term of probation, but does
not invalidate revocation & termination of probation that occurred prior to effective date
of Assem. Bill No. 1950]; Kuhnel v. Appellate Division of Superior Court (2022) 75
Cal.App.5th 726, 729 & 732–733 [Assem. Bill No. 1950 applies retroactively to those
serving ongoing term of probation, but does not deprive trial court of authority to
adjudicate probation violation that occurred prior to effective date and resulted in
revocation of probation].) The People do not argue otherwise and given the absence of
any dispute on this point, we proceed to the issue of remedy in plea-bargained cases.
III. Remedy
A. Background
The People argue, in effect, that notwithstanding undisputed retroactive
application of Assembly Bill 1950 to all cases not yet final on review, defendant lacks
entitlement to reduction of his probation term under the change in the law. As stated in
Stamps, “[t]he 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 critical inquiry is one of
legislative intent. (Harris v. Superior Court (2016) 1 Cal.5th 984, 991 (Harris).) The
People’s argument for remand, and possibly withdrawal from the plea bargain, is based
on the remedy advanced by this court in People v. Ellis (2019) 43 Cal.App.5th 925, 943–
946 (Ellis) and subsequently approved by the California Supreme Court in Stamps.
Application of that remedy in this case cannot be viewed in isolation from the California
Supreme Court’s decisions in Harris and People v. Collins (1978) 21 Cal.3d 208, 214–
217 (Collins). Therefore, we first summarize the principles underlying plea bargains and
the high court’s relevant decisions in Collins, Harris, and Stamps.
6.
1. Plea Bargains
“‘The process of plea bargaining which has received statutory and judicial
authorization as an appropriate method of disposing of criminal prosecutions
contemplates an agreement negotiated by the People and the defendant and approved by
the court. [Citations.] Pursuant to this procedure the defendant agrees to plead guilty in
order to obtain a reciprocal benefit, generally consisting of a less severe punishment than
that which could result if he were convicted of all offenses charged. [Citation.] This
more lenient disposition of the charges is secured in part by prosecutorial consent to the
imposition of such clement punishment [citation], by the People’s acceptance of a plea to
a lesser offense than that charged, either in degree [citations] or kind [citation], or by the
prosecutor’s dismissal of one or more counts of a multi-count indictment or
information.… But implicit in all of this is a process of “bargaining” between the
adverse parties to the case—the People represented by the prosecutor on one side, the
defendant represented by his counsel on the other—which bargaining results in an
agreement between them.’” (Stamps, supra, 9 Cal.5th at p. 705, quoting People v. Orin
(1975) 13 Cal.3d 937, 942–943; accord, People v. Clancey (2013) 56 Cal.4th 562, 569–
570; People v. Segura (2008) 44 Cal.4th 921, 929–930.)
“‘Judicial approval is an essential condition precedent to the effectiveness of the
“bargain” worked out by the defense and prosecution.’” (Stamps, supra, 9 Cal.5th at
p. 705, quoting People v. Orin, supra, 13 Cal.3d at pp. 942–943; accord, People v.
Clancey, supra, 56 Cal.4th at p. 570; People v. Segura, supra, 44 Cal.4th at p. 930.) As
provided in section 1192.5, “[t]he statutory scheme contemplates that a court may
initially indicate its approval of an agreement at the time of the plea” (Stamps, supra, at
p. 705), but “up until sentencing” (id. at p. 706), retains “‘broad discretion to withdraw its
7.
prior approval of a negotiated plea’” (ibid., quoting People v. Johnson (1974) 10 Cal.3d
868, 873)).4
2. Collins
In Collins, the California Supreme Court considered the appropriate remedy in a
case that was resolved by plea bargain, but, prior to sentencing, the Legislature
decriminalized the conduct to which the defendant pled, undermining the basis for the
parties’ bargain. (Collins, supra, 21 Cal.3d at p. 213.) The defendant in Collins was
charged with 15 felony offenses, including three counts of forcible oral copulation in
violation of former section 288a, with one prior felony conviction allegation. (Collins,
supra, at p. 211.) He pled guilty to a single count of oral copulation under former
section 288a in exchange for dismissal of the other 14 counts and the prior felony
conviction allegation. (Collins, supra, at p. 211.) Criminal proceedings were
subsequently suspended, and the defendant was committed to a state hospital as a
mentally disordered sex offender. (Ibid.) While there, the Legislature repealed former
section 288a and enacted a new section. (Collins, supra, at p. 211.) The new section still
criminalized forcible oral copulation, but it decriminalized the conduct to which the
defendant pled guilty, simple oral copulation between consenting, nonprisoner adults.
(Id. at pp. 211, 213 & fn. 1.)
Criminal proceedings were thereafter reinstated, at which time the defendant
objected to the trial court’s jurisdiction to sentence him for conduct that was no longer
criminal. (Collins, supra, 21 Cal.3d at p. 211.) The trial court overruled the defendant’s
objection and imposed sentence. (Id. at pp. 211–212.) On review, the California
Supreme Court concluded that its decision in People v. Rossi was controlling and agreed
4 Assembly Bill No. 1171 made technical changes to section 1192.5, effective January 1,
2022, as a result of separate substantive changes to the crime of spousal rape. (Legis. Counsel’s
Dig., Assem. Bill No. 1171 (2021–2022 Reg. Sess.) Stats. 2021 ch. 626, § 43, p. 72.) The
changes made do not affect our analysis in this case.
8.
with the defendant that it was error to sentence him on conduct no longer punishable
under the law. (Collins, supra, at p. 213, citing People v. Rossi (1976) 18 Cal.3d 295,
304.) The high court then turned to the question of remedy. (Collins, supra, at p. 214.)
Beginning with the plea bargain principles articulated in People v. Orin, supra, 13
Cal.3d at pages 942–943, summarized in Stamps and set forth above, Collins stated,
“Critical to plea bargaining is the concept of reciprocal benefits. When either the
prosecution or the defendant is deprived of benefits for which it has bargained,
corresponding relief will lie from concessions made.” (Collins, supra, 21 Cal.3d at
p. 214, italics added.) The legislative change at issue decriminalized the conduct
underlying the sole count to which the defendant pled guilty, thereby eviscerating the
plea bargain and leaving the defendant invulnerable to any criminal consequence. (Id.
p. 215.) In that context, Collins explained, “When a defendant gains total relief from his
vulnerability to sentence, the state is substantially deprived of the benefits for which it
agreed to enter the bargain. Whether the defendant formally seeks to withdraw his guilty
plea or not is immaterial; it is his escape from vulnerability to sentence that
fundamentally alters the character of the bargain.” (Ibid., italics added.) Where a
defendant “seeks to gain relief from the sentence imposed but otherwise leave the plea
bargain intact[,] [t]his is bounty in excess of that to which he is entitled.” (Ibid.)5
However, “the defendant is also entitled to the benefit of his bargain. This is not a
case in which the defendant has repudiated the bargain by attacking his guilty plea; he
attacks only the judgment, and does so on the basis of external events—the repeal and
reenactment of [former] section 288a—that have rendered the judgment insupportable.”
(Collins, supra, 21 Cal.3d at p. 216, fn. omitted & italics added.) Collins concluded,
therefore, that where “external events and not [the] defendant’s repudiation undermined
5 As discussed in part III.B.3., what rises to the level of a substantial deprivation within the
meaning of Collins is an open question.
9.
th[e] plea bargaining agreement[,]” the court “must fashion a remedy that restores to the
state the benefits for which it bargained without depriving [the] defendant of the bargain
to which he remains entitled.” (Ibid., italics added.) Because the plea bargain resulted in
the dismissal of 14 other counts, the court opined in Collins that the remedy might “best
be effected by permitting the state to revive one or more of the dismissed counts, but
limiting [the] defendant’s potential sentence .…” (Ibid.)
This sentencing limitation was grounded in double jeopardy principles from past
cases, which served to “preclude vindictiveness and more generally to avoid penalizing a
defendant for pursuing a successful appeal.” (Collins, supra, 21 Cal.3d at p. 216.) The
court explained, “The defendant should not be penalized for properly invoking Rossi to
overturn his erroneous conviction and sentence by being rendered vulnerable to
punishment more severe than under his plea bargain. [¶] The disposition herein
substantially restores the agreement previously negotiated. It permits the defendant to
realize the benefits he derived from the plea bargaining agreement, while the People also
receive approximately that for which they bargained.” (Id. at p. 217.)
3. Harris
More recently, in Harris, the California Supreme Court considered Proposition 47
in the context of a plea bargain and concluded the electorate intended the change in the
law to apply without affording the People the opportunity to rescind the plea bargain.
(Harris, supra, 1 Cal.5th at p. 987.) The defendant, who was charged with robbery, pled
guilty to one count of grand theft, and admitted a prior robbery conviction in exchange
for dismissal of the robbery charge and a six-year prison sentence. (Ibid.) After
Proposition 47 was enacted, the crime to which the defendant pled guilty became a
misdemeanor and he filed a petition under section 1170.18 seeking recall of his sentence,
reclassification of his felony to a misdemeanor, and resentencing. (Harris, supra, at
p. 988.) The People argued they would be deprived of the benefit of their bargain and
sought to rescind the plea agreement and reinstate the robbery charge. (Ibid.) The trial
10.
court recalled defendant’s sentence, permitted the People to withdraw from the plea
agreement, and reinstated the felony charge. (Ibid.) Relying on Collins, the appellate
court, with one justice dissenting, denied the defendant’s petition for writ of mandate and
he appealed. (Harris, supra, at p. 988.) The California Supreme Court reversed the
judgment. (Id. at p. 987.)
In Harris, the high court considered the principles articulated in two relevant
decisions. First, the court summarized the remedy under Collins, which, as just
discussed, provided that the People could withdraw from the plea agreement and reinstate
one or more counts, but the defendant could not be subject to more severe punishment
than under the plea agreement. (Harris, supra, 1 Cal.5th at pp. 989–990.) The court then
summarized the general rule, articulated in Doe v. Harris, that “‘requiring the parties’
compliance with changes in the law made retroactive to them does not violate the terms
of the plea agreement, nor does the failure of a plea agreement to reference the possibility
the law might change translate into an implied promise the defendant will be unaffected
by a change in the statutory consequences attending his or her conviction. To that extent,
then, the terms of the plea agreement can be affected by changes in the law.’” (Harris,
supra, at p. 991, quoting Doe v. Harris (2013) 57 Cal.4th 64, 73–74 (Doe).)
After considering the intent of the initiative, Harris concluded the rule of Doe
applied (Harris, supra, 1 Cal.5th at p. 991), and the electorate bound the People to the
plea agreement without affording them the opportunity to withdraw, “based on the
unambiguous language of section 1170.18 and the expressed intent of Proposition 47”
(id. at p. 992). The court reached this conclusion on several grounds. First, the petition
process provided for by Proposition 47 expressly referred to convictions “‘whether by
trial or plea,’” and “[b]y expressly mentioning convictions by plea, Proposition 47
contemplated relief to all eligible defendants.” (Harris, supra, at p. 991, quoting
§ 1170.18, subd. (a).)
11.
Second, the statute mandated resentencing, absent a finding that resentencing
“‘would pose an unreasonable risk of danger to public safety.’” (Harris, supra, 1 Cal.5th
at pp. 991–992, quoting § 1170.18, subd. (b).) The court noted that “[t]his discretion to
find an unreasonable risk provides the ‘safety valve’ to protect the public; the statute
provides no other safety valve such as rescinding a plea bargain” (Harris, supra, at
p. 992), and “[t]he resentencing process that Proposition 47 established would often
prove meaningless if the prosecution could respond to a successful resentencing petition
by withdrawing from an underlying plea agreement and reinstating the original charges
filed against the petitioner” (ibid.).
Third, the court considered that “[o]ne of Proposition 47’s primary purposes is to
reduce the number of nonviolent offenders in state prisons, thereby saving money and
focusing prison on offenders considered more serious under the terms of the initiative”
and “[a]ccepting the People’s position would be at odds with that purpose.” (Harris,
supra, 1 Cal.5th at p. 992.) “‘If a reduction of a sentence under Proposition 47 results in
the reinstatement of the original charges and elimination of the plea agreement, the
financial and social benefits of Proposition 47 would not be realized, and the voters’
intent and expectations would be frustrated.’” (Ibid.)
For additional support, Harris looked to Doe, which provided that “‘the
Legislature [or here, the electorate], 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.’” (Harris, supra, 1
Cal.5th at p. 992, quoting Doe, supra, 57 Cal.4th at p. 70.) Relying on this language,
Harris concluded, “[t]he electorate may bind the People to a unilateral change in a
sentence without affording them the option to rescind the plea agreement. The electorate
did so when it enacted Proposition 47.” (Harris, supra, at p. 992.)
Harris also made clear that Doe did not impliedly overrule Collins, and it
distinguished Collins on the grounds that the legislative change there “eviscerated the
12.
judgment and the underlying plea bargain entirely, and it did so before the judgment.”
(Harris, supra, 1 Cal.5th at p. 993.)
4. Stamps
Finally, in Stamps, the California Supreme Court considered the appropriate
remedy where the defendant was entitled to seek the benefit of an ameliorative change in
the law, but the change at issue pertained to the trial court’s sentencing discretion under
section 1385. (Stamps, supra, 9 Cal.5th at p. 692.)6 The defendant in Stamps was
sentenced in accordance with a plea bargain that included a nine-year prison sentence,
five years of which were imposed for the then-mandatory prior serious felony conviction
enhancement (serious felony enhancement) under section 667, former subdivision (a)(1).7
(Stamps, supra, at p. 693.) While the defendant’s appeal was pending, the Legislature
passed Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill 1393), which, effective
January 1, 2019, “amended Penal Code sections 667, former subdivision (a)(1), and
1385, former subdivision (b), and granted trial courts the discretion to strike or dismiss
the previously mandatory five-year prior serious felony conviction enhancement under
section 667, subdivision (a)(1).” (Ellis, supra, 43 Cal.App.5th at p. 928, fn. omitted.) On
appeal, the defendant sought remand under Senate Bill 1393 so that he could request
relief from the enhancement based on the changed law. (Stamps, supra, at p. 693.)
The court addressed three issues in Stamps. (Stamps, supra, 9 Cal.5th at p. 692.)
First, the court considered whether a certificate of probable cause under section 1237.5
was required where the issue raised on appeal was based on a postplea change in the law.
6 Senate Bill No. 81 amended section 1385, effective January 1, 2022, but those
amendments are not relevant to our analysis here. (Legis. Counsel’s Dig., Sen. Bill No. 81
(2021–2022 Reg. Sess.) Stats. 2021, ch. 721, § 1, pp. 1–3.)
7 Effective January 1, 2022, Assembly Bill No. 1171 made changes to section 667, but
those changes are not relevant to our analysis here. (Legis. Counsel’s Dig., Assem. Bill
No. 1171 (2021–2022 Reg. Sess.) Stats. 2021, ch. 626, § 27, pp. 47–51.)
13.
(Stamps, supra, at p. 694.)8 The court explained, “‘[T]he general rule in California is that
plea agreements are deemed to incorporate the reserve power of the state to amend the
law or enact additional laws for the public good and in pursuance of public policy.’ (Doe
v. Harris (2013) 57 Cal.4th 64, 71.) ‘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’ (id. at p. 66), and ‘[i]t follows … that requiring the parties’
compliance with changes in the law made retroactive to them does not violate the terms
of the plea agreement’ (id. at p. 73.)” (Stamps, supra, at pp. 695–696.)9 The court
concluded that the defendant did not need a certificate of probable cause “because the
claim does not challenge [the] plea as defective when made.” (Stamps, supra, at p. 696.)
Next, the court concluded that Senate Bill 1393, in eliminating the restriction
prohibiting courts from striking serious felony enhancements under section 1385, was
ameliorative within the meaning of Estrada and, therefore, applied retroactively to all
cases not yet final on appeal. (Stamps, supra, 9 Cal.5th at p. 699.)
8 Section 1237.5, provides:
“No appeal shall be taken by the defendant from a judgment of conviction upon a
plea of guilty or nolo contendere, or a revocation of probation following an admission of
violation, except where both of the following are met:
“(a) The defendant has filed with the trial court a written statement, executed
under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or
other grounds going to the legality of the proceedings.
“(b) The trial court has executed and filed a certificate of probable cause for
such appeal with the clerk of the court.”
9 Effective January 1, 2020, the Legislature added section 1016.8 to the Penal Code, which
provides, in relevant part, “A plea bargain that requires a defendant to generally waive unknown
future benefits of legislative enactments, initiatives, appellate decisions, or other changes in the
law that may occur after the date of the plea is not knowing and intelligent” (id., subd. (a)(4)),
and “[a] provision of a plea bargain that requires a defendant to generally waive future benefits
of legislative enactments, initiatives, appellate decisions, or other changes in the law that may
retroactively apply after the date of the plea is void as against public policy” (id., subd. (b)).
(Legis. Counsel’s Dig., Assem. Bill No. 1618 (2019–2020 Reg. Sess.) Stats. 2019, ch. 586, § 1,
pp. 1–2.)
14.
Finally, the court addressed the appropriate remedy where the defendant sought a
form of relief from the trial court which, if granted, would affect the sentence negotiated
by the parties. (Stamps, supra, 9 Cal.5th at p. 700.) The court rejected the defendant’s
argument that he was entitled to request the trial court exercise discretion to strike the
serious felony enhancement but leave the remainder of the plea bargain intact. (Ibid.)
The court explained that “section 1385 ordinarily does not authorize a trial court to
exercise its discretion to strike in contravention of a plea bargain for a specified term.
Section 1192.5 allows a plea to ‘specify the punishment’ and ‘the exercise by the court
thereafter of other powers legally available to it,’ and ‘[w]here the plea is accepted by the
prosecuting attorney in open court and is approved by the court, the defendant, except as
otherwise provided in this section, cannot be sentenced on the plea to a punishment more
severe than that specified in the plea and the court may not proceed as to the plea other
than as specified in the plea.’” (Ibid.) Thus, “[e]ven applying section 1385 as amended,
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), and therefore, “it is not
enough for [the] 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, [the] 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” (ibid.).
The court concluded “the legislative history [did] not demonstrate any intent to
overturn existing law regarding a court’s lack of authority to unilaterally modify a plea
agreement.” (Stamps, supra, 9 Cal.5th at p. 702, italics omitted.) The court explained
that “Senate Bill 1393 was intended to bring a court’s discretion to strike a five-year
serious felony enhancement in line with the court’s general discretion to strike other
15.
enhancements. Thus, 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.” (Ibid.)
Stamps distinguished Harris, on which the defendant relied, explaining that
Proposition 47 “created a mechanism to allow defendants to seek relief under the new
law, even though they had already been sentenced. [Citations.] The resentencing
provision applied to those ‘serving a sentence for a conviction, whether by trial or plea’
[citation] and drew ‘no express distinction between persons serving final sentences and
those serving nonfinal sentences, instead entitling both categories of prisoners to petition
courts for recall of sentence.’ [Citation.] The provision also allowed defendants who had
already completed their sentences to have their offenses designated as misdemeanors.
[Citation.] The electorate thus evinced an intent that these offenses be treated as
misdemeanors no matter how or when a defendant suffered the conviction. As Harris
reasoned, to allow the prosecution, in response to a successful resentencing petition, to
withdraw from a plea agreement and reinstate dismissed charges would frustrate electoral
intent to treat these offenses uniformly as misdemeanors, essentially denying meaningful
relief to those convicted through plea bargains.” (Stamps, supra, 9 Cal.5th at p. 704,
citing Harris, supra, 1 Cal.5th at p. 992.)
Stamps concluded that “[n]othing in the language and legislative history of Senate
Bill 1393 suggests an intent to modify section 1192.5’s mandate that ‘the court may not
proceed as to the plea other than as specified in the plea’ without the consent of the
parties. As discussed, Senate Bill 1393’s amendment of section 1385 now allows a trial
court to strike a serious felony enhancement just as it may do with any other
enhancement. Unlike in Harris, the remedy [the] defendant seeks, to allow the court to
strike the serious felony enhancement but otherwise retain the plea bargain, would
frustrate the Legislature’s intent to have section 1385 apply uniformly, regardless of the
16.
type of enhancement at issue, by granting the court a power it would otherwise lack for
any other enhancement. That Senate Bill 1393 is silent regarding pleas and provides no
express mechanism for relief undercuts any suggestion that the Legislature intended to
create special rules for plea cases involving serious felony enhancements.” (Stamps,
supra, 9 Cal.5th at p. 704.)
Nevertheless, “[a]t the time the court accepted the plea agreement and sentenced
[the] defendant, the law did not allow it to consider striking the serious felony
enhancement in furtherance of justice under section 1385. Senate Bill 1393 changed the
law to allow such discretion, and we have now concluded that provision applies
retroactively. If he desires, [the] defendant should be given the opportunity to seek the
court’s exercise of its section 1385 discretion. If the court on remand declines to exercise
its discretion under section 1385, that ends the matter and [the] defendant’s sentence
stands.” (Stamps, supra, 9 Cal.5th at p. 707.) “However, if the court is inclined to
exercise its discretion, … such a determination would have consequences to the plea
agreement” given that “the court is not authorized to unilaterally modify the plea
agreement by striking the serious felony enhancement but otherwise keeping the
remainder of the bargain.” (Ibid.)
“[T]he court [might also] withdraw its prior approval of the plea agreement.”
(Stamps, supra, 9 Cal.5th at p. 708.) “The court’s exercise of its new discretion to strike
the serious felony enhancement, whether considered a new circumstance in the case or
simply a reevaluation of the propriety of the bargain itself, would fall within the court’s
broad discretion to withdraw its prior approval of the plea agreement. Section 1192.5
contemplates that ‘[a] change of the court’s mind is thus always a possibility.’” (Ibid.)
Stamps concluded that “‘[g]iven that defendants in criminal cases presumably
obtained some benefit from the plea agreement, … there will be defendants who
determine that, notwithstanding their entitlement to seek relief based on the change in the
law, their interests are better served by preserving the status quo. That determination,
17.
however, lies in each instance with the defendant.’” (Stamps, supra, 9 Cal.5th at p. 708,
quoting Ellis, supra, 43 Cal.App.5th at p. 944.) To “short-circuit[] th[e] process by
refusing a limited remand ‘would be effectively insulating the agreement from retroactive
changes in the law, in contravention of the law.’” (Stamps, supra, at p. 709, fn. omitted,
quoting Ellis, supra, at p. 946.)
B. Analysis
As previously stated, all appellate courts and the one superior court weighing in on
the issue have concluded that Assembly Bill 1950 is ameliorative within the meaning of
Estrada and, therefore, it applies retroactively to all cases not yet final on review. Given
the People’s position on remedy, we first consider whether there is any indication the
Legislature intended to exclude from the broad reach of Estrada those cases resolved by
plea bargain. The answer to that question is one of legislative intent, and the framework
guiding our analysis is well established.
“We review de novo questions of statutory construction. [Citation.] In doing so,
‘“our fundamental task is ‘to ascertain the intent of the lawmakers so as to effectuate the
purpose of the statute.’”’ [Citation.] We begin with the text, ‘giv[ing] the words their
usual and ordinary meaning [citation], while construing them in light of the statute as a
whole and the statute’s purpose [citation].’ [Citation.] ‘If no ambiguity appears in the
statutory language, we presume that the Legislature meant what it said, and the plain
meaning of the statute controls.’” (People v. Blackburn (2015) 61 Cal.4th 1113, 1123;
accord, Walker v. Superior Court (2021) 12 Cal.5th 177, 194; People v. Ruiz (2018) 4
Cal.5th 1100, 1105–1106.)
“‘If, however, the statutory language lacks clarity, we may resort to extrinsic
sources, including the ostensible objects to be achieved and the legislative history.
[Citation.] In such situations, we strive to select the construction that comports most
closely with the Legislature’s apparent intent, with a view to promoting rather than
defeating the statute[’s] general purposes. [Citation.] We will avoid any interpretation
18.
that would lead to absurd consequences.’ [Citation.]” (People v. Montes (2003) 31
Cal.4th 350, 356, quoting People v. Walker (2002) 29 Cal.4th 577, 581; accord, Smith v.
LoanMe, Inc. (2021) 11 Cal.5th 183, 190.) These same principles apply in interpreting a
voter initiative. (People v. Raybon (2021) 11 Cal.5th 1056, 1065.)
At the outset, we are not the first court to observe that the law has undergone
substantial transformation within the past decade and within the past several years in
particular in California, leaving courts at every level to determine how to implement an
array of changes in the absence of express legislative or voter intent. Many of the
questions raised are not susceptible to a single or simple answer. We empathize with the
frustration voiced by our colleagues in Scarano and urge greater clarity from the
Legislature and electorate on these matters. (Scarano, supra, 74 Cal.App.5th at pp. 999–
1000 & fn. 2 (maj. opn.).)
As we shall discuss, the majority of criminal cases are resolved by plea, and
determining whether and how ameliorative changes in the law apply within the context of
a plea bargain has proven challenging. The answer will necessarily be informed by the
specific nature of the change, its effects, and underlying legislative or voter intent.
Courts have agreed that the Estrada presumption applies to Assembly Bill 1950 and have
agreed on the legislative intent underlying the bill. However, courts have split on what
that means in terms of remedy and, more specifically, whether the remedy articulated in
Stamps is confined to its facts or applies more broadly. For the reasons set forth below,
we conclude that the Legislature, in enacting Assembly Bill 1950, reduced the maximum
probation term in felony and misdemeanors in all nonfinal cases, except for the express
exceptions provided for in sections 1203a and 1203.1. We conclude, further, that this
case does not involve the issue that informed the disposition in Stamps and, therefore, the
remedy articulated in Stamps does not apply here.
19.
1. Assembly Bill 1950
a. Language of Bill
As a threshold matter, the Legislature or the electorate may, through express
reference to plea bargains, convictions by plea, or resentencing provisions, speak directly
to its intent that the change in the law apply to all cases and bind the parties to their plea
agreements. The electorate did so when it enacted Proposition 47, as discussed in Harris.
(Harris, supra, 1 Cal.5th at p. 992.) The Legislature also did so when it recently enacted
Senate Bill No. 483 (2020–2021 Reg. Sess.) (Senate Bill 483 or Sen. Bill 483), which,
subject to certain exceptions, invalidates prior prison term and prior drug conviction
enhancements imposed under Penal Code section 667.5, former subdivision (b),10 and
Health and Safety Code section 11370.2, respectively. (Legis. Counsel’s Dig., Sen.
Bill 483, Stats. 2021, ch. 728, §§ 1–3, pp. 2–4.)
Senate Bill 483 provides, “The Legislature finds and declares that in order to
ensure equal justice and address systemic racial bias in sentencing, it is the intent of the
Legislature to retroactively apply Senate Bill 180 of the 2017–18 Regular Session and
Senate Bill 136 of the 2019–20 Regular Session to all persons currently serving a term of
incarceration in jail or prison for these repealed sentence enhancements. It is the intent of
the Legislature that any changes to a sentence as a result of the act that added this
section shall not be a basis for a prosecutor or court to rescind a plea agreement.”
(Legis. Counsel’s Dig., Sen. Bill 483, Stats 2021, ch. 728, § 1, p. 2, italics added.)
To effect the Legislature’s intent, Senate Bill 483 added sections 1171 and 1171.1
to the Penal Code. Section 1171 provides that “[a]ny sentence enhancement that was
imposed prior to January 1, 2018, pursuant to Section 11370.2 of the Health and Safety
Code, except for any enhancement imposed for a prior conviction of violating or
10 Effective January 1, 2022, Assembly Bill No. 1171 amended section 667.5, but those
amendments are not relevant here. (Legis. Counsel’s Dig., Assem. Bill No. 1171 (2021–2022
Reg. Sess.) Stats. 2021, ch. 626, § 28, pp. 51–53.)
20.
conspiring to violate Section 11380 of the Health and Safety Code is legally invalid.”
(Id., subd. (a).) Section 1171.1 provides that “[a]ny sentence enhancement that was
imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for
any enhancement imposed for a prior conviction for a sexually violent offense as defined
in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally
invalid.” (Id., subd. (a).) Both sections have recall and resentencing provisions (§§ 1171,
subd. (c), 1171.1, subd. (c)), and cap the sentence by providing that “[r]esentencing …
shall result in a lesser sentence than the one originally imposed as a result of the
elimination of the repealed enhancement, unless the court finds by clear and convincing
evidence that imposing a lesser sentence would endanger public safety. Resentencing
pursuant to this section shall not result in a longer sentence than the one originally
imposed” (§§ 1171, subd. (d)(1), 1171.1, subd. (d)(1)).
Proposition 47 and Senate Bill 483 spoke specifically to plea bargains and
resentencing. However, they also expressed intent to bind the parties to their plea
bargains, and were designed to extend relief beyond the already broad Estrada
presumption to include convictions in final cases and to allow trial courts to consider the
risk to public safety in determining the availability or scope of relief, adding new sections
to the Penal Code to effect this purpose. (§§ 1170.18, subd. (b), 1171, subd. (d)(1),
1171.1, subd. (d)(1).) Assembly Bill 1950 does not share these features; it amended
existing Penal Code sections rather than added new statutes and it does not reach beyond
nonfinal cases. These and other distinctions aside, “the Legislature ‘is deemed to be
aware of existing laws and judicial constructions in effect at the time legislation is
enacted.’” (Frahs, supra, 9 Cal.5th at p. 634, quoting People v. Weidert (1985) 39 Cal.3d
836, 844.) Given the Estrada presumption and its longstanding application to all cases
not yet final on review, the Legislature’s mere silence on plea bargain or resentencing
procedures simply does not support a reasonable inference that it intended to exclude
plea-bargained cases from relief under Assembly Bill 1950. (Scarano, supra, 74
21.
Cal.App.5th at p. 1019 (dis. opn. of Raye, P.J.); Stewart, supra, 62 Cal.App.5th at
pp. 1078–1079, review granted.)
As the California Supreme Court has explained, “[b]ecause the Estrada rule
reflects a presumption about legislative intent, rather than a constitutional command, the
Legislature (or … the electorate) may choose to modify, limit, or entirely forbid the
retroactive application of ameliorative criminal law amendments if it so chooses.”
(People v. Conley (2016) 63 Cal.4th 646, 656.) “Our cases do not ‘dictate to legislative
drafters the forms in which laws must be written’ to express an intent to modify or limit
the retroactive effect of an ameliorative change; rather, they require ‘that the Legislature
demonstrate its intention with sufficient clarity that a reviewing court can discern and
effectuate it.’” (Id. at pp. 656–657, quoting In re Pedro T. (1994) 8 Cal.4th 1041, 1048–
1049.)
Therefore, we next consider the exclusions the Legislature expressly included in
the bill. As previously stated, the Legislature provided that if the court granted probation,
the probationary period may not exceed two years in felony cases and one year in
misdemeanor cases. (§§ 1203.1, subd. (a), 1203a, subd. (a).) However, for felony cases,
the Legislature specifically excluded violent felonies within the meaning of
section 667.5, subdivision (c) (§ 1203.1, subds. (g)(3)(A), (l)(1)), and grand theft from an
employer, embezzlement, and theft by false pretenses where the value of the property
taken exceeds $25,000 (id., subd. (l)(2)); and for both felony and misdemeanor cases, the
Legislature excluded offenses with specific probationary periods (id., subd. (l)(1)).
This safety valve was added to the third and final version of the bill, and its
inclusion represents the Legislature’s express determination that certain offenses—
violent offenses, select offenses resulting in a high-dollar loss amount,11 and offenses
11 These crimes were described as “‘white-collar crimes’” by the bill’s author. (Sen. Com.
on Public Safety, Rep. of Assem. Bill 1950, June 10, 2020, p. 4.)
22.
where the Legislature previously determined that public policy was served by a specific
term of probation—should be excluded from relief. (Schulz, supra, 66 Cal.App.5th at
pp. 897–898.) Under the expressio unius est exclusio alterius principle of statutory
interpretation, “the presence of express exceptions ordinarily implies that additional
exceptions are not contemplated.” (People v. Standish (2006) 38 Cal.4th 858, 870;
accord, In re J.W. (2002) 29 Cal.4th 200, 209.) “[T]he principle always is subordinate to
legislative intent” (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 126;
accord, People v. Standish, supra, at p. 870), but here, as discussed next, its application is
not contrary to the intent underlying the legislation.
b. Legislative Intent
“‘Probation is generally reserved for convicted criminals whose conditional
release into society poses minimal risk to public safety and promotes rehabilitation.’”
(People v. Moran (2016) 1 Cal.5th 398, 402, quoting People v. Carbajal (1995) 10
Cal.4th 1114, 1120.) It is “‘an act of clemency in lieu of punishment [citation], and its
primary purpose is rehabilitative in nature [citation].’” (People v. Moran, supra, at
p. 402, quoting People v. Howard (1997) 16 Cal.4th 1081, 1092.) Given the purpose of
probation and the subset of criminal defendants for whom it is an appropriate disposition,
the legislative history for Assembly Bill 1950 reflects, at bottom, concern “that lengthy
probationary periods do not serve a rehabilitative function and unfairly lead to
reincarceration for technical violations.” (Quinn, supra, 59 Cal.App.5th at p. 879;
accord, Stewart, supra, 62 Cal.App.5th at pp. 1073–1074, review granted; Sims, supra,
59 Cal.App.5th at pp. 961–962; Burton, supra, 58 Cal.App.5th Supp. at pp. 17–18.)12
12 As stated in Schulz, Assembly Bill 1950 “was drafted [specifically] to address the
following factors: the effect of probation on already marginalized populations; the burden of
probation fees on the poor; the high cost to taxpayers of incarcerating individuals for minor,
technical, noncriminal violations of probation; and research reflecting that probation services are
most effective the first 18 months of supervision and that increased supervision and services
earlier on reduces likelihood to recidivate.” (Schulz, supra, 66 Cal.App.5th at p. 897, citing Sen.
23.
The legislation was underpinned by research showing “that probation services,
such as mental health care and addiction treatment, are most effective during the first
18 months of supervision,” and “that providing increased supervision and services earlier
reduces an individual’s likelihood to recidivate.” (Sen. Com. on Public Safety, Rep. of
Assem. Bill 1950, June 10, 2020, p. 4.) Additional research cited “‘suggests that the
maximum time needed to engage probationers in behavior change and reduce the
likelihood of reoffending is no more than two years, while also creating incentives for
individuals to engage in treatment and services early on.’” (Id. at p. 5.) The bill’s author
concluded that it “creates reasonable and evidence-based limits on probation terms, while
lowering costs to taxpayers, allowing for the possible investment of savings in effective
measures proven to reduce recidivism and increasing public safety for all Californians.
The bill also supports probation officers in completing the duties of their job more
effectively, by making their caseloads more manageable.” (Id. at p. 4.)
As Harris recognized, “[m]any criminal cases are resolved by negotiated plea.”
(Harris, supra, 1 Cal.5th at p. 992.) Indeed, “plea bargaining is an integral component of
the criminal justice system and essential to the expeditious and fair administration of our
courts. [Citations.] Commentators have estimated that in most jurisdictions, between 80
and 90 percent of criminal cases are disposed of by guilty pleas [citation], which, in the
majority of cases, are the product of plea bargains.” (In re Alvernaz (1992) 2 Cal.4th
924, 933; accord, Lafler v. Cooper (2012) 566 U.S. 156, 170, citing Missouri v. Frye
(2012) 566 U.S. 134, 143–144 [“[C]riminal justice today is for the most part a system of
pleas, not a system of trials. Ninety-seven percent of federal convictions and ninety-four
percent of state convictions are the result of guilty pleas.”]; In re Chavez (2003) 30
Com. on Public Safety, Rep. of Assem. Bill 1950 (2019–2020 Reg. Sess.) June 10, 2020, pp. 4–
5.)
24.
Cal.4th 643, 654, fn. 5 [vast majority of criminal cases resolved by plea]; People v. West
(1970) 3 Cal.3d 595, 604–605.)
Assembly Bill 1950 “reflects [the Legislature’s] categorical determination that a
shorter term of probation is sufficient for the purpose of rehabilitation.” (Quinn, supra,
59 Cal.App.5th at p. 885.) Given that the majority of all criminal cases are resolved by
plea, applying Assembly Bill 1950 only in a minority subset of cases would frustrate the
Legislature’s intent to advance specific social and financial public policy goals through
the reduction of probation terms, and it would do so in most cases. (See Harris, supra, 1
Cal.5th at p. 992.) These financial and social goals were the driver for the legislation
rather than a benefit merely incidental to a separate primary purpose. Applying
Assembly Bill 1950 to all cases not yet final on review except for those specifically
excluded by the Legislature effectuates legislative intent. (Scarano, supra, 74
Cal.App.5th at p. 1019 (dis. opn. of Raye, P.J.).) A contrary interpretation that excludes
application in cases in which probation was a term of the plea bargain plainly and directly
thwarts legislative intent. (See Butler, supra, 75 Cal.App.5th at p. 225 [allowing
prosecutor “to withdraw from the plea agreement … would frustrate legislative intent”];
accord, Stewart, supra, 62 Cal.App.5th at pp. 1078–1079 [same], review granted.)
2. Stamps Remedy
The People raise no dispute as to the foregoing, but contend that the remedy in
Stamps nevertheless applies where probation was a negotiated term of the parties’ plea
bargain. We recognize there is a split of authority on the application of Stamps to
ameliorative legislation in general,13 and in the context of Assembly Bill 1950, one
13 In Barton II and Hernandez, this court applied the Stamps remedy to legislative changes
that eliminated specific sentence enhancements, concluding that although the changes were
retroactive under Estrada, the defendants were not entitled to obtain relief while also maintaining
the remainder of their plea bargain. (People v. Barton (2020) 52 Cal.App.5th 1145, 1158–1159
(Barton II) [Sen. Bill No. 180 (2017–2018 Reg. Sess.) (Senate Bill 180 or Sen. Bill 180)];
People v. Hernandez (2020) 55 Cal.App.5th 942, 956–959 [Sen. Bill No. 136 (2019–2020 Reg.
Sess.) (Senate Bill 136 or Sen. Bill 136)], review granted Jan. 27, 2021, S265739 & transferred
25.
appellate court, with one justice dissenting, has applied the Stamps remedy.14 (Compare
Scarano, supra, 74 Cal.App.5th at pp. 1009–1013 (maj. opn.) [applying Stamps] with
Butler, supra, 75 Cal.App.5th at pp. 221–225 [rejecting application of Stamps remedy];
Scarano, supra, at pp. 1018–1019 (dis. opn. of Raye, P.J.) [same]; Stewart, supra, 62
Cal.App.5th at pp. 1077–1079 [same], review granted.) However, we conclude Stamps is
distinguishable and it neither requires nor supports a result different than we reach in this
case.
In Stamps, as discussed, the California Supreme Court concluded that Senate Bill
1393 applied retroactively under Estrada (Stamps, supra, 9 Cal.5th at p. 699), and
because plea bargains are not insulated from changes in the law the Legislature or
electorate intended to apply (id. at p. 707, citing Ellis, supra, 43 Cal.App.5th at p. 946;
§ 1016.8), the defendant was entitled to the relief the Legislature provided, which was the
opportunity to request relief under section 1385 from the serious felony enhancement
(Stamps, supra, at pp. 704–705). Here, too, Assembly Bill 1950 applies retroactively
Dec. 22, 2021, with instructions to vacate opinion & reconsider matter in light of Sen. Bill 483 &
limiting citation to potentially persuasive value only (Hernandez); accord, People v. Ruggiero
(2021) 65 Cal.App.5th 1126, 1129–1130 [Stamps applies to Sen. Bill 136 with sentence cap on
any renegotiated plea]; People v. Houle (2021) 64 Cal.App.5th 395, 403–404 [same], review
granted July 28, 2021, S269337; People v. Joaquin (2020) 58 Cal.App.5th 173, 178 [same],
review granted Feb. 24, 2021, S266594; People v. Griffin (2020) 57 Cal.App.5th 1088, 1096–
1099 [same], review granted Feb. 17, 2021, S266521; cf. People v. Andahl (2021) 62
Cal.App.5th 203, 212–215 [Stamps remedy does not apply relief under to Sen. Bill 136], review
granted June 16, 2021, S268336; People v. France (2020) 58 Cal.App.5th 714, 725–730 [same],
review granted Feb. 24, 2021, S266771.)
The enactment of Senate Bill 483 abrogated Barton II and Hernandez, and as the law
continues to evolve post-Stamps, so, too, do views on the matter. Legislative, or voter, intent is
the critical inquiry and is context specific. In this instance, for the reasons set forth herein, we
conclude that defendants are entitled to relief under Assembly Bill 1950 and the Stamps remedy
does not apply.
14 In addition to the cases cited in footnote 13, People v. Prudholme, 2021 Cal.App. Unpub.
Lexis 5513, review granted November 10, 2021, S271057, is pending review by the California
Supreme Court. The court ordered briefing on the issues of whether Assembly Bill 1950 is
retroactive under Estrada and whether the Stamps remand procedure applies.
26.
under Estrada and because defendant’s plea bargain is not insulated from this change in
the law (§ 1016.8), he is entitled to the relief the Legislature provided, which is the
reduction of the maximum term of probation from three years to one year.
Stamps addressed an additional concern not presented here, however. Senate
Bill 1393 did not directly modify a term of the parties’ plea bargain, unlike Assembly
Bill 1950. Rather, it merely afforded the defendant the opportunity to ask the trial court
to exercise its sentencing discretion under section 1385 as to the serious felony
enhancement. The defendant in Stamps sought more than the relief to which he was
entitled under Senate Bill 1393; should he succeed in persuading the court to strike the
enhancement under section 1385, he also wanted to maintain the rest of his plea bargain.
The effect of this is a request that the trial court modify a term of the plea bargain,
unilaterally. Under established law, the trial court lacks the statutory or inherent
authority to do so. (§ 1192.5; Stamps, supra, 9 Cal.5th at p. 701; People v. Segura,
supra, 44 Cal.4th at p. 931.)
Therefore, Stamps considered whether “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.” (Stamps, supra, 9 Cal.5th at p. 701.) The legislative
history reflected concern that under then-existing law, the lack of discretion to strike five-
year serious felony enhancements resulted in a “‘“rigid and arbitrary system [that]
mete[s] out punishments that are disproportionate to the offense, which does not serve the
interests of justice, public safety, or communities.”’” (Id. at p. 702.) The legislative
history also reflected that the bill would result in an estimated cost savings in the
millions. (Ibid.) However, the primary purpose in enacting Senate Bill 1393 was to
achieve uniformity in sentencing discretion; that is, “to have section 1385 apply
uniformly, regardless of the type of enhancement at issue, by granting the court the power
it would otherwise lack .…” (Stamps, supra, at p. 704.) Thus, the underlying legislative
intent not only failed to offer support for the defendant’s argument that he was entitled to
27.
request the enhancement be stricken while maintaining the remainder of his bargain, but
it undercut his argument. (Id. at p. 702.)
The remedy in Stamps served to reconcile the defendant’s entitlement to request
the trial court exercise its newly expanded sentencing discretion under Senate Bill 1393
with the trial court’s lack of authority to modify a term of the parties’ plea bargain. In
order to give effect to the former within the confines of established law governing the
latter, the court concluded the defendant was entitled to request relief under Senate Bill
1393. This afforded the defendant all that he was entitled to under the law: the
opportunity to avail himself of the ameliorative change under Senate Bill 1393. If the
trial court concluded it was not in the interest of justice to strike the enhancement, that
would end the matter. If the trial court was inclined to grant relief in a given case, it
would necessitate modification of the plea agreement and whether viewed as a
withdrawal by the court of its prior approval or an opportunity afforded to the prosecutor
to either accept the new terms or withdraw from the plea agreement, having the
enhancement stricken while also maintaining the remainder of the bargain was in excess
of the bounty to which the defendant was entitled under Senate Bill 1393. Reduction in
the maximum probation term under Assembly Bill 1950, which was effected by the
Legislature directly and does not rely upon the trial court’s exercise of its sentencing
discretion, is distinguishable. (Scarano, supra, 74 Cal.App.5th at p. 1019 (dis. opn. of
Raye, P.J.) [“The power at issue is not the unilateral power of a court to modify a plea
agreement but the power of a court to determine that the agreement has been superseded
by the Legislature’s intent as expressed in a particular legislative enactment.”]; Stewart,
supra, 62 Cal.App.5th at pp. 1078–1079 [discussing unilateral modification by trial court
versus “‘direct and conclusive effect on the legality of existing sentences’”], review
granted.)
28.
3. Collins Principles
Finally, we consider Collins, as the California Supreme Court has not departed
from the decision and Harris affirmed it remains good law. (Harris, supra, 1 Cal.5th at
p. 993.) Stamps did not discuss Collins at length and did not look to Collins for remedy,
but we believe the explanation lies in the distinction between the types of relief afforded
by the legislation at issue—mere entitlement to request the trial court exercise newly
acquired sentencing discretion, which did not directly affect any term of the plea bargain
(Stamps, supra, 9 Cal.5th at p. 707), compared with decriminalization of conduct, which
directly affected a term of the plea bargain and undermined the bargain entirely (Collins,
supra, 21 Cal.3d at pp. 213–215).
We already concluded that the People’s position they should be afforded the
opportunity to withdraw from the plea bargain is contrary to the plain language of
Assembly Bill 1950 and would frustrate legislative intent, and we explained why Stamps
is distinguishable as to remedy. The result urged by the People is also inconsistent with
the principles articulated in Collins in several respects.
First, the People’s suggested remedy—withdrawal and return to the status quo—
speaks only to their interests without taking into consideration defendant’s interests, in
disregard of the concept of reciprocity in plea bargaining. This is a situation where the
Legislature afforded defendant the relief at issue; he did not elect to repudiate his plea
bargain. (Collins, supra, 21 Cal.3d at p. 216; cf. Stamps, 9 Cal.5th at pp. 707–708.)
Second, the People’s suggested remedy places defendant in the untenable position of
potentially being both deprived of the benefit of the change in the law to which he is
entitled and deprived of the benefit of his bargain. Collins proscribes such a result; as
previously stated, a defendant exercising his right to appeal based on an ameliorative
change in the law “should not be penalized … by being rendered vulnerable to
punishment more severe than under his plea bargain.” (Collins, supra, 21 Cal.3d at
pp. 216–217; accord, People v. Hanson (2000) 23 Cal.4th 355, 360 & fn. 2 (Hanson);
29.
People v. Hood (1969) 1 Cal.3d 444, 459; People v. Henderson (1963) 60 Cal.2d 482,
496–497 (Henderson); see People v. Andahl, supra, 62 Cal.App.5th at p. 213
[recognizing, in the context of Sen. Bill 136, that allowing recission of plea agreement by
People or recission of approval by court “may result in the defendant, paradoxically,
facing a harsher sentence than he did before he asserted his rights under Estrada”],
review granted.)15
Collins approved a remedy designed to restore the People’s benefit of the bargain.
However, in that case, as discussed, the Legislature decriminalized the conduct
underlying the single count to which the defendant pled guilty, and the court recognized
that “[w]hen a defendant gains total relief from his vulnerability to sentence, the state is
substantially deprived of the benefits for which it agreed to enter the bargain.” (Collins,
supra, 21 Cal.3d at p. 215, italics added.) Under those specific circumstances, affording
15 “Under the general rule of state constitutional law that the California Supreme Court has
referred to as the Henderson rule, ‘[w]hen a defendant successfully appeals a criminal
conviction, California’s constitutional prohibition against double jeopardy precludes the
imposition of more severe punishment on resentencing.’” (People v. Vizcarra (2015) 236
Cal.App.4th 422, 431, italics omitted, quoting Hanson, supra, 23 Cal.4th at p. 357.) In
Henderson, the California Supreme Court explained that “[a] defendant’s right of appeal from an
erroneous judgment is unreasonably impaired when he is required to risk his life to invoke that
right. Since the state has no interest in preserving erroneous judgments, it has no interest in
foreclosing appeals therefrom by imposing unreasonable conditions on the right to appeal.”
(Henderson, supra, 60 Cal.2d at p. 497; accord, Hanson, supra, at p. 365.) The rule, which is
grounded in double jeopardy and due process principles, serves to shield criminal defendants
from having to choose between letting an erroneous conviction stand and risking more severe
consequences on remand. (Hanson, supra, at pp. 365–367.) “‘“[A] defendant faced with such a
‘choice’ takes a ‘desperate chance’ in securing the reversal of the erroneous conviction. The law
should not, and in our judgment does not, place the defendant in such an incredible dilemma.”’”
(Henderson, supra, at p. 496, quoting Gomez v. Superior Court (1958) 50 Cal.2d 640, 651–652;
Hanson, supra, at p. 366 [“More basically, it is the chilling effect on the right to appeal
generated by the risk of a more severe punishment that lies at its core.”].) There are exceptions
to the rule, including where a defendant “seeks to withdraw a guilty plea or repudiate a plea
bargain” (Hanson, supra, at p. 360, fn. 2; see Stamps, supra, 9 Cal.5th at pp. 707–708), or “if the
initial sentence was unlawful or unauthorized” (People v. Neely (2009) 176 Cal.App.4th 787,
800, citing People v. Craig (1998) 66 Cal.App.4th 1444, 1449; accord, People v. Serrato (1973)
9 Cal.3d 753, 763–765, disapproved on another ground in People v. Fosselman (1983) 33 Cal.3d
572, 583, fn. 1).
30.
the defendant relief from his sentence while maintaining the plea bargain would result in
“bounty in excess of that to which he is entitled” (ibid.), and the court concluded that
restoring lost benefits to the state “may be best effected ” by allowing the state to revive
some of the dismissed charges so long as the defendant did not face more severe
punishment than his plea bargain had called for (id. at p. 216).
As a practical matter, given defendant’s entitlement to the reduction of his
probation term and the limitation in Collins precluding any punishment greater than that
under the terms of the plea bargain, the options for restructuring a plea bargain in the
context of a probation case would appear limited.16 Notwithstanding practical
difficulties, the reduction in defendant’s term of probation differs materially from the
decriminalization of the defendant’s conduct in Collins and does not necessitate the
restorative remedy approved there.
Assembly Bill 1950 merely reduces the probationary period to which defendant is
subject under the terms of his plea bargain, in accordance with the Legislature’s
determination that probationary periods beyond 18 to 24 months do not serve the
rehabilitative goal of probation and divert resources that are best focused on the first 12
to 24 months of probation. Assembly Bill 1950 does not substantially deprive the state of
the benefit of its bargain by either decriminalizing the conduct to which defendant pled or
affording him total relief from criminal consequences through the elimination of
probation. Collins is distinguishable on this point, therefore. A contrary conclusion
would thwart Legislative intent, as discussed, and would contravene section 1016.8,
which codified the rule in Doe and provides that plea agreements are not insulated from
changes in the law that the Legislature intended to apply. (§ 1016.8, subd. (a)(1).)
16 Probation is not technically punishment, but it is nevertheless a restrictive, burdensome
consequence imposed as a result of conviction. (Schulz, supra, 66 Cal.App.5th at pp. 894–895;
Sims, supra, 59 Cal.App.5th at p. 959; Burton, supra, 58 Cal.App.5th Supp. at pp. 15–16.)
31.
Where that line as drawn in Collins might lie in other contexts—that is, at what
point the state has been substantially deprived of the benefit of its bargain such that a
restorative remedy is required—is an open question. The Legislature or electorate may
certainly, in enacting an ameliorative change in the law, express intent to bind the parties
to their plea bargains, as in Senate Bill 483 (Legis. Counsel’s Dig., Sen. Bill 483, Stats.
2021, ch. 728, § 1, p. 2; §§ 1171, subds. (c)–(d)(1), 1171.1, subds. (c)–(d)(1)), and
Proposition 47 (Harris, supra, 1 Cal.5th at p. 992). In other instances, the ameliorative
change in the law may apply to all nonfinal cases under Estrada but the text and intent
are silent as to whether the Legislature or electorate intended the parties be bound to their
plea bargains, irrespective of how significantly the change might undermine a particular
plea bargain. In that situation, the restorative remedy Collins approved may best be
viewed as a safety net, applicable in situations not where an ameliorative change has
merely affected a term of the plea bargain, but where the change to which the defendant
is entitled has the unintended consequence of substantially undermining the basis for the
plea bargain, leaving the defendant with a windfall beyond that which was intended.
(Collins, supra, 21 Cal.3d at pp. 215–216; see Scarano, supra, 74 Cal.App.5th at p. 1020
(dis. opn. of Raye, P.J.).) The decriminalization of the conduct underlying the sole count
to which the defendant in Collins pled, leaving him invulnerable to punishment, is an
example of this unintended consequence and would seem to represent one end of a
spectrum. (Collins, supra, at pp. 215–216.)17
17 As set forth in Barton I, the defendant pled guilty to two charges and admitted suffering
two prior drug offense convictions in exchange for dismissal of four other charges and a
stipulated sentence of eight years eight months. (People v. Barton (2019) 32 Cal.App.5th 1088,
1092 (Barton I).) A concern underlying our decision in Barton II was that the defendant’s
sentence was reduced by almost 70 percent following Senate Bill 180’s elimination of the two
prior drug offense enhancements she admitted as part of her plea deal, which constituted six
years of her total sentence. (Barton II, supra, 52 Cal.App.5th at p. 1155.) In Hernandez,
elimination of the prior prison term enhancements reduced the defendant’s sentence by
20 percent. (Hernandez, supra, 55 Cal.App.5th at p. 946.) These are fair concerns and in the
context of Senate Bill 180 and Senate Bill 136, they were answered by the enactment of Senate
32.
It does not appear that a bright line rule is readily available, as each statute or
initiative must first be analyzed and then, to the extent Estrada applies but there is no
clear intent to bind the parties to their plea bargains irrespective of the potential
consequences to the bargain, the impact on the plea bargain must be considered through
the lens of Collins. It bears repeating that not every impact on a plea bargain will raise
concern; Collins spoke to a substantial deprivation and did so in the context of a complete
evisceration of the bargain. (Collins, supra, 21 Cal.3d at p. 215; Harris, supra, 1 Cal.5th
at p. 993; see Scarano, supra, 74 Cal.App.5th at p. 1020 (dis. opn. of Raye, P.J.).)
Moreover, as the court recognized in Stamps, not every plea bargain will involve
dismissed counts or enhancements allowing for some measure of reconstitution. (Stamps,
supra, 9 Cal.5th at p. 709.)
The questions raised by these issues simply do not lend themselves to easy
answers. We anticipate further clarification from the California Supreme Court in light
of the cases currently pending review, cited herein. Given the interpretative difficulties
courts have faced, the divergence of opinion on these matters, and the sheer volume of
nonfinal criminal cases in this state, the majority of which involve plea bargains, the
benefit of greater specificity from the Legislature, or the electorate, cannot be overstated.
4. Defendant Entitled to Modification on Review
In sum, we conclude that defendant is entitled under Assembly Bill 1950 to
modification of his probation term to no more than one year. We need not remand a
matter when it would be an idle act wasteful of judicial resources (People v. Ledbetter
(2014) 222 Cal.App.4th 896, 904), and because the maximum probationary period has
expired, we shall modify defendant’s probation term on review (§ 1260).
Bill 483, which provided that prosecutors may not rescind plea agreements, and included recall
and resentencing provisions. (Legis. Counsel’s Dig., Sen. Bill 483, Stats. 2021, ch. 728, §§ 1–3,
pp. 2–4; §§ 1171, subds. (c)–(d), 1171.1, subds. (c)–(d).)
33.
The People’s remaining arguments do not compel a different result. They contend
that remand would permit the trial court to adjust, modify, or strike any probation terms
prior to the termination of probation, and would allow the trial court to determine
whether defendant met his conditions of probation for the purpose of expungement relief
under section 1203.4, subdivision (a).18 However, defendant entered his plea and the
trial court imposed probation in October 2020. Therefore, given our conclusion that he is
entitled to application of Assembly Bill 1950, his one-year probation term has ended by
operation of law. (People v. Chavez (2018) 4 Cal.5th 771, 783 [“[S]ection 1203.3
provides for automatic discharge at the end of the probation term.”].) Further,
modification of the term on review will not deprive the trial court of its authority to
determine whether defendant successfully completed probation or whether he has met the
requirements for expungement under section 1203.4, subdivision (a), in the event he
applies for such relief.
18 Assembly Bill No. 1281 amended section 1203.4 effective January 1, 2022, but the
changes are not relevant to our analysis. (Legis. Counsel’s Dig., Assem. Bill No. 1281 (2021–
2022 Reg. Sess.) Stats. 2021, ch. 209, § 1, p. 1–3.)
34.
DISPOSITION
In accordance with Assembly Bill 1950, defendant’s three-year probation term is
reduced to one year, and the trial court is directed to amend its records to reflect this
modification. The judgment is otherwise affirmed.
MEEHAN, J.
WE CONCUR:
LEVY, Acting P. J.
PEÑA, J.
35.