People v. Romandia CA6 ( 2021 )

Filed 8/17/21 P. v. Romandia CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048272
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. 19CR03782)
v.
ISAAC ROMANDIA,
Defendant and Appellant.
Appellant Isaac Romandia pleaded no contest to unlawful sexual intercourse with
a minor (Pen. Code, § 261.5, subd. (c)1). The trial court suspended imposition of
sentence and placed Romandia on felony probation for three years with conditions.
Subsequently, the trial court ordered additional probation conditions, including requiring
Romandia to provide passwords for his electronic devices and accounts and submit to
searches of his electronic devices.
On appeal, Romandia contends the conditions regarding his electronic devices and
accounts are unconstitutionally vague and overbroad and, relatedly, that his defense
counsel was ineffective for failing to adequately object to them. Romandia further asserts
1
Unspecified statutory references are to the Penal Code.
that this matter should be remanded to allow the trial court to reduce his probationary
term under Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950).
For the reasons explained below, we reverse the order of probation and remand
this matter for resentencing with directions to the trial court to modify Romandia’s
probationary term in accordance with Assembly Bill 1950. We otherwise affirm the trial
court’s order modifying the conditions of Romandia’s probation.
I. FACTS AND PROCEDURAL BACKGROUND
Romandia met the minor victim through social media when she was 13 years old.2
For three years thereafter, Romandia used social media applications (Instagram and
Snapchat) to maintain contact with the victim. In February 2019, when the victim was 16
years old, she and Romandia engaged in oral copulation and unprotected sexual
intercourse at Romandia’s worksite.
The following day, the victim sent a text message to Romandia and asked him to
take her to a medical facility to obtain birth control. While in Romandia’s car, the victim
realized Romandia was not driving her to the medical facility and threatened to jump out
of the car. Romandia and the victim also had sexual intercourse that day. Romandia was
aware that he was more than three years older than the victim. The next day, the victim’s
father learned of the interaction between the victim and Romandia and notified law
enforcement.
In May 2019, the Santa Cruz County District Attorney filed a complaint charging
Romandia with contacting a minor to commit a sexual offense (§ 288.3, subd. (a); count
1), oral copulation with a minor (§ 287, subd. (b)(1); count 2), and two counts of
unlawful sexual intercourse with a minor who is more than three years younger than him
(§ 261.5. subd. (c); counts 3 & 4).
2
Because Romandia entered a plea of no contest, the facts recounted here are
drawn from the probation officer’s memorandum filed in support of a request for
modification of Romandia’s probation.
2
On October 9, 2019, pursuant to a “stipulated resolution,” Romandia pleaded no
contest to count 4 (i.e., sexual intercourse with a minor, under section 261.5, subdivision
(c)).3 In accord with the plea agreement, the trial court suspended imposition of sentence
and placed Romandia on formal probation for three years with conditions, including 180
days in county jail, compliance with a protective/no-contact order, and obeyance of all
laws. The court dismissed the remaining counts in the complaint upon the district
attorney’s motion.
In July 2020, the Santa Cruz County Probation Department requested modification
of the terms of Romandia’s probation. In a memorandum to the trial court dated July 8,
2020, Romandia’s probation officer described Romandia’s failure to cooperate with the
probation officer and comply with probation requirements.
In the memorandum, the probation officer explained that he had been assigned in
April 2020 to supervise Romandia and contacted him by telephone the day after being
assigned. Romandia told the probation officer that he lived with relatives and drove a
2012 Dodge Charger. The probation officer asked Romandia to provide his license plate
number that day, but Romandia did not comply with the request. The probation officer
also told Romandia to report monthly to the probation department using the county’s
website. Romandia said he understood the probation officer’s expectations.
Nevertheless, Romandia failed to report in May and June 2020.
3
Romandia’s defense counsel described the “stipulated resolution” as follows:
“The People are prepared to dismiss all counts except for Count 4. Mr. Romandia will
enter a no contest plea to the single violation of Penal Code Section 261.5(c). [¶] The
agreement is: This is a stipulated 180-day county jail sentence to be served at halftime.
Mr. Romandia will go today to CAPs to apply. If he doesn’t get into CAPs and qualifies
for an electronic monitor, I’ll bring it back to the Court to see if you’ll give permission to
do that. Mr. Romandia understands there are no promises in that regard. [¶] He agrees
that in 18 months this case can be calendared for a [section] 17(b) and reduced to a
misdemeanor, assuming Mr. Romandia does well on formal felony probation.” The
district attorney assented to defense counsel’s description of the agreement.
3
The probation officer recounted further that in late June 2020, he attempted to
contact Romandia. Romandia returned the probation officer’s call the following day.
When the probation officer reminded Romandia about reporting monthly, Romandia
responded, “ ‘Yeah, yeah, yeah, I got to check in monthly, yadda, yadda, yadda.’ ” The
probation officer also reminded Romandia of “the expectations of probation.” Romandia
became defensive and said, “ ‘Yeah, because I’m a big threat to society.’ ” The probation
officer then directed Romandia to report in person to further review the terms and
conditions of his probation.
Romandia and the probation officer met on July 6, 2020. The probation officer
characterized Romandia’s behavior during the meeting as “blatantly rude,” including
“avoid[ing] eye contact,” “getting on his telephone,” and “rolling his eyes every time he
was given a directive.” When asked again to provide his license plate number, Romandia
stated he drove a silver Dodge Charger. When asked how he had arrived at the probation
department that day, Romandia said he drove his blue BMW. The probation officer
asked for the vehicle’s license plate number and Romandia said he did not know it. The
probation officer sought to verify the make and model of the car, but Romandia initially
directed the probation officer to a location other than that where the vehicle was in fact
parked. The probation officer ultimately observed that Romandia’s BMW was mint-
colored, not blue.
The probation officer explained in his memorandum to the trial court that
Romandia “continues to display a disrespectful, uncooperative type of attitude” and “[h]is
resistance towards supervision is concerning as he continues to provide false information
and does not appear to have a desire to be on probation and follow simple terms and
conditions.” The probation officer stated further: “Given that Mr. Romandia does not
have search terms, probation cannot effectively ensure that he is not having contact with
the victim or other minors through his social media accounts or by any other electronics.”
The probation officer recommended that the trial court add four conditions to Romandia’s
4
probation, including three related to Romandia’s electronic devices, accounts, and
wireless networks.
On July 14, 2020, the trial court held a hearing on the probation department’s
request to modify the conditions of Romandia’s probation. The trial court informed
Romandia that the probation department was asking the court to “add some terms to help
make it clear to you that you need to be responsible and allow them to monitor you even
more closely.” When the trial court asked defense counsel if she had anything to say,
defense counsel said, “Your Honor, I’m going to object as to the search of the electronic
devices. I’m objecting on Fi[f]th Amendment grounds.”
The trial court noted that Romandia had used social media to maintain contact
with the victim. The court also found, “[b]ased on that and Mr. Romandia’s failure to
comply with Probation and his dishonesty with Probation,” there is “a sufficient nexus
between the requested electronic device addition.” In accord with the probation
department’s recommendation, the court modified Romandia’s probation to include four
additional conditions. The trial court stated the additional conditions as follows:
“Number one, participate in an educational, vocational, or therapeutic program at
the direction of the probation officer.
“Number two, you must make available to Probation all of your user IDs and
passwords for all your electronic devices and accounts. Including but not limited to:
Your computers, cameras, cell phones, gaming consoles and devices, social networking
sites, e-mail accounts, online storage, chat rooms, and blogs. You must not encrypt those
passwords, user IDs, or access codes [(hereafter condition No. 2)].
“Number three you may not have any access to any open wireless networks. All
your wireless networks must be closed and locked down with the passwords provided to
the probation officer.
“And number four you must submit your person, residence, vehicles, and areas
under your dominion and control including your electronic and storage devices to search
5
and seizure at any time of the day or night, with or without a warrant for contact with the
victim or other minors or your social networking activities [(hereafter condition No. 4)].”
After the trial court stated the additional conditions, defense counsel said, “I want
to reiterate my Fifth Amendment objection, triple protection, due process, the conditions
as stated are overbroad.” The court overruled the objections.
Romandia timely filed a notice of appeal from the trial court’s July 14, 2020 order
modifying the terms of his probation.
II. DISCUSSION
A. Challenged Probation Conditions
Romandia contends “the electronic search probation condition is
unconstitutionally vague and overbroad.”4 (Capitalization omitted.) Romandia argues
specifically that the electronics search conditions unnecessarily burden a number of
rights—namely: (1) his “right to privacy and do[] not provide adequate notice of the
kinds of information subject to [them]”; (capitalization omitted) (2) his “right[] against
self-incrimination and fail[] to specify how discovered information may be utilized”;
(capitalization omitted) and (3) his “right to free speech and do[] not provide adequate
notice of the kinds of information subject to [them].” (Capitalization omitted.) He
maintains that, given these flaws, we should strike or order modification of the
electronics search conditions. Relatedly, Romandia contends his defense counsel
performed deficiently and prejudiced him by failing to “clearly articulate objections to
4
Romandia does not specify exactly which of the additional conditions imposed
by the trial court is “the electronic search probation condition” that he now challenges.
He does, however, quote condition No. 2 in his argument. Further, the Attorney General
states that Romandia’s claim appears to challenge condition No. 2 (regarding his “user
IDs and passwords for all [his] electronic devices and accounts”) and condition No. 4
(regarding the search of his “electronic and storage devices”). In his reply brief,
Romandia does not dispute the Attorney General’s characterization of the scope of his
claim. We therefore proceed on the premise that Romandia challenges condition Nos. 2
and 4 in this appeal. We will refer to those conditions collectively as the “electronics
search conditions.”
6
the electronics search condition[s] on First, Fourth, and Fourteenth [A]mendment
grounds.”
The Attorney General counters that the electronics search conditions are valid
under People v. Lent (1975) 15 Cal.3d 481 (Lent), are not unconstitutionally vague or
overbroad, do not implicate Romandia’s Fifth Amendment privilege against self-
incrimination, and do not violate his First Amendment right to free speech.5 The
Attorney General further contends that the only ground “raised on appeal that was not
raised below is the claim that the conditions violate [Romandia]’s First Amendment
rights,” any objection on that ground would have lacked merit, and, regardless of any
alleged deficient performance, Romandia fails to demonstrate prejudice.6
1. Legal Principles and Standard of Review
“The sentencing court has broad discretion to determine whether an eligible
defendant is suitable for probation and, if so, under what conditions.” (People v.
Carbajal (1995) 10 Cal.4th 1114, 1120; § 1203.1, subd. (j).) Nevertheless, a “probation
condition that imposes limitations on a person’s constitutional rights must closely tailor
those limitations to the purpose of the condition to avoid being invalidated as
unconstitutionally overbroad.” (In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.).)
Stated differently, a probation condition “ ‘is unconstitutionally overbroad . . . if it (1)
“impinge[s] on constitutional rights,” and (2) is not “tailored carefully and reasonably
related to the compelling state interest in reformation and rehabilitation.” [Citations.]
5
In his reply brief, Romandia states that he “did not raise— a reasonableness
challenge under Lent.” We thus presume that the electronics search conditions are
reasonable in this case. (See In re Ricardo P. (2019) 7 Cal.5th 1113, 1118 [citing Lent]
(Ricardo P.); § 1203.1, subd. (j).)
6
The Attorney General does not otherwise assert forfeiture as to Romandia’s First
Amendment argument and has addressed the merits of that argument in the respondent’s
brief. We thus will address the merits of Romandia’s First Amendment argument,
assuming it is not forfeited. Because we consider the merits of all arguments raised by
Romandia challenging the electronics search conditions, we need not address his related
claim of ineffective assistance of counsel.
7
The essential question in an overbreadth challenge is the closeness of the fit between the
legitimate purpose of the restriction and the burden it imposes on the defendant’s
constitutional rights—bearing in mind, of course, that perfection in such matters is
impossible, and that practical necessity will justify some infringement.’ ” (People v.
Arevalo (2018) 19 Cal.App.5th 652, 656–657 (Arevalo).)
“Under the void for vagueness doctrine, based on the due process concept of fair
warning, an order ‘ “must be sufficiently precise for the probationer to know what is
required of him [or her], and for the court to determine whether the condition has been
violated.” ’ [Citation.] The doctrine invalidates a condition of probation ‘ “ ‘so vague
that [persons] of common intelligence must necessarily guess at its meaning and differ as
to its application.’ ” ’ [Citation.] By failing to clearly define the prohibited conduct, a
vague condition of probation allows law enforcement and the courts to apply the
restriction on an ‘ “ ‘ad hoc and subjective basis, with the attendant dangers of arbitrary
and discriminatory application.’ ” ’ ” (In re Victor L. (2010) 182 Cal.App.4th 902, 910,
quoting Sheena K., supra, 40 Cal.4th at p. 890.) “[A] probation condition should not be
invalidated as unconstitutionally vague ‘ “ ‘if any reasonable and practical construction
can be given to its language.’ ” ’ ” (People v. Hall (2017) 2 Cal.5th 494, 501.)
On appeal, we generally review a trial court’s decision to impose conditions of
probation for abuse of discretion. (People v. Olguin (2008) 45 Cal.4th 375, 379
(Olguin).) However, whether a probation condition is unconstitutionally overbroad or
vague is a question of law, which we review de novo. (See People v. Appleton (2016)
245 Cal.App.4th 717, 723; see also Sheena K., supra, 40 Cal.4th at p. 888.)
2. Analysis
We first consider Romandia’s assertions regarding his right to privacy. Romandia
contends that the electronics search conditions “seem[] to completely ignore that [he] has
any privacy rights whatsoever” and “permit[] searches of everything from [his] private
8
medical and financial records to communications with an employer, a closest friend, or
relative, to information that is political or romantic.”
We are not persuaded by Romandia’s overbreadth argument. Generally, “[a]
probation condition should be given ‘the meaning that would appear to a reasonable,
objective reader.’ ” (Olguin, supra, 45 Cal.4th at p. 382.) Further, we must presume that
a probation officer will reasonably exercise the discretion afforded him or her by a
probation condition and will not arbitrarily restrict a probationer’s freedoms in a manner
not tailored to rehabilitative or safety purposes. (See id. at p. 383.) Under these
principles, the electronics search conditions are not as broad and burdensome as
Romandia purports. Although condition No. 2 does not explicitly state any limitation on
its requirement that Romandia provide “all of [his] user IDs and passwords for all [of his]
electronic devices and accounts,” we conclude that the condition must be read in
combination with condition No. 4, which limits searches of Romandia’s “electronic and
storage devices” to inspection “for contact with the victim or other minors or [his] social
networking activities.” When condition Nos. 2 and 4 relating to electronically stored
information are read together, the probation department can only request, under condition
No. 2, that Romandia make available his user IDs and passwords to facilitate searches of
his electronic devices and accounts for the purpose delineated in condition No. 4.
Having clarified the scope of the electronics search conditions, we next examine
“ ‘the closeness of the fit between the legitimate purpose of the restriction and the burden
it imposes on [Romandia]’s constitutional rights.’ ” (Arevalo, supra, 19 Cal.App.5th at
p. 657.) There is no doubt that the electronics search conditions impinge on
constitutional privacy rights. (See Ricardo P., supra, 7 Cal.5th at pp. 1122–1123.)
However, Romandia, “as a probationer, has a diminished expectation of liberty and
privacy as compared to an ordinary citizen.” (People v. Garcia (2017) 2 Cal.5th 792, 810
(Garcia); see also United States v. Knights (2001) 534 U.S. 112, 119.) Furthermore, his
expectation of privacy “is markedly different from the broader privacy guaranteed under
9
the Fourth Amendment to individuals who are not serving sentences or on grants of
probation.” (In re Q.R. (2020) 44 Cal.App.5th 696, 703–704 (Q.R.) [distinguishing the
expectation of privacy at issue in Riley v. California (2014) 573 U.S. 373].)
Generally speaking, electronics search conditions can serve a legitimate purpose in
that they “promote rehabilitation and reduce recidivism while helping to protect the
community from potential harm by probationers.” (People v. Robles (2000) 23 Cal.4th
789, 795.) Importantly here, Romandia’s prior behavior evinced his inclination to use
electronic devices and social media to communicate with his minor victim over a period
of years. In addition, at sentencing, the trial court ordered Romandia to stay away from
the victim and obey all laws. Consequently, the probation department has a compelling
interest here in curtailing similar behavior by Romandia in the future and monitoring any
instrumentality he might use to engage in that behavior. (See People v. Ebertowski
(2014) 228 Cal.App.4th 1170, 1175–1176 (Ebertowski).)
Further, as we explained above, the electronics search conditions in this case are
limited by their stated purpose, i.e., to search for any contact with the victim or other
minors and social networking activities. Given Romandia’s past behavior, such
monitoring of his electronic devices and accounts by the probation department is
appropriate to ensure that he is adequately supervised and rehabilitated while on
probation. The electronics search conditions also do not place unnecessary burdens on
Romandia’s privacy rights because they are closely tailored and reasonably related to the
legitimate purpose. Based on the facts here, we conclude that the electronics search
conditions are not unconstitutionally overbroad as applied to Romandia.7 (See Q.R.,
supra, 44 Cal.App.5th at p. 704; Ebertowski, supra, 228 Cal.App.4th at pp. 1175–1176.)
7
We note that the California Supreme Court’s decision Ricardo P.—which
Romandia cites and which addressed a challenge to an electronics search condition under
Lent—also is factually distinguishable from Romandia’s case. In Ricardo P., there was
“no suggestion in the record . . . that Ricardo has ever used electronic devices to commit,
10
Regarding the alleged vagueness of the electronics search conditions as related to
privacy, Romandia contends the conditions “do[] not distinguish between the types of
information available to probation and the types of information not subject to the order.”
When reviewing a probation condition challenged on vagueness grounds, we are “guided
by the principles that ‘abstract legal commands must be applied in a specific context,’ and
that, although not admitting of ‘mathematical certainty,’ the language used must have
‘ “reasonable specificity.” ’ ” (Sheena K., supra, 40 Cal.4th at p. 890.)
Here, contrary to Romandia’s contention, the electronics search conditions state
the types of electronic devices and accounts that are subject to user ID and password
disclosure (under condition No. 2) and to search for specified information (under
condition No. 4). Given the level of specificity in condition Nos. 2 and 4, we conclude
the electronics search conditions are not unconstitutionally vague. Rather, the conditions
are sufficient for Romandia to know what is required of him and for the court to
determine whether the conditions have been violated. (See In re Malik J. (2015) 240
Cal.App.4th 896, 904–905.)
We turn next to Romandia’s argument that the electronics search conditions
unnecessarily burden his privilege against self-incrimination. “The Fifth Amendment to
the United States Constitution states that ‘[n]o person . . . shall be compelled in any
criminal case to be a witness against himself [or herself].’ The high court has made clear
that the meaning of this language cannot be divorced from the historical practices at
which it was aimed, namely, the brutal inquisitorial methods of ‘ “putting the accused
upon his [or her] oath and compelling him [or her] to answer questions designed to
uncover uncharged offenses, without evidence from another source.” ’ [Citations.] At its
core, the privilege protects against the ‘cruel trilemma of self-accusation, perjury or
contempt.’ [Citation.] Accordingly, the amendment prohibits the direct or derivative
plan, discuss, or even consider unlawful use or possession of drugs or any other criminal
activity.” (Ricardo P., supra, 7 Cal.5th at p. 1119.)
11
criminal use against an individual of ‘testimonial’ communications of an incriminatory
nature, obtained from the person under official compulsion.” (People v. Low (2010) 49
Cal.4th 372, 389–390.)
The electronics search conditions here do not burden Romandia’s Fifth
Amendment privilege against self-incrimination. It is a “settled proposition that a person
may be required to produce specific documents even though they contain incriminating
assertions of fact or belief because the creation of those documents was not ‘compelled’
within the meaning of the privilege.” (United States v. Hubbell (2000) 530 U.S. 27, 35–
36; see also Fisher v. United States (1976) 425 U.S. 391, 401 (Fisher) [“[T]he Fifth
Amendment protects against ‘compelled self-incrimination, not (the disclosure of) private
information.’ ”]; People v. Sanchez (1994) 24 Cal.App.4th 1012, 1024.) Because the
electronics search conditions do not compel Romandia to generate incriminatory
statements, they do not implicate his Fifth Amendment privilege.
Even if we assume that the electronics search conditions require “compelled
testimonial communications,” (Fisher, supra, 425 U.S. at p. 409) the conditions do not
violate Romandia’s Fifth Amendment privilege because they do not purport to authorize
the use of any of Romandia’s communications in a criminal proceeding. (See Chavez v.
Martinez (2003) 538 U.S. 760, 767–769; Maldonado v. Superior Court (2012) 53 Cal.4th
1112, 1134.) “A state may validly insist on answers to even incriminating questions and
hence sensibly administer its probation system, as long as it recognizes that the required
answers may not be used in a criminal proceeding and thus eliminates the threat of
incrimination.” (Minnesota v. Murphy (1984) 465 U.S. 420, 435, fn. 7; see also Garcia,
supra, 2 Cal.5th at pp. 806–807.) For this reason, the electronics search conditions do not
impinge on Romandia’s Fifth Amendment privilege and thus are not overbroad as to that
constitutional protection.
We also reject Romandia’s argument that the electronics search conditions are
vague “because there is no clarification in the condition that the information may not be
12
used in a subsequent criminal proceeding.” The conditions are, on their face, clear and
specific. That the conditions do not explicitly bar a prosecutor from seeking to use
evidence obtained pursuant to the conditions in a subsequent criminal proceeding does
not render the conditions vague. If such a circumstance were to occur, Romandia could
then assert any applicable Fifth Amendment privilege. (See Garcia, supra, 2 Cal.5th at
pp. 803, 806–807.)
As for Romandia’s contention that the electronics search conditions are overbroad
because they have a “chilling effect” on his First Amendment right to free speech, we are
not persuaded by his argument. Romandia asserts that, given the electronics search
conditions, he “may be hesitant or fearful to express many lawful and legitimate
thoughts, feelings, and ideas.” We do not doubt that the electronics search conditions
may affect Romandia’s speech in terms of contact with minors and social networking.
But as explained above, the conditions are narrowly tailored and reasonably related to a
compelling State interest in preventing future criminality by Romandia. In this
circumstance, we conclude the electronics search conditions do not unnecessarily
impinge on Romandia’s right to free speech. (See Sheena K., supra, 40 Cal.4th at p.
890.) For similar reasons, we reject Romandia’s vagueness argument. Contrary to
Romandia’s assertion, the electronics search conditions reasonably notify him that his
electronic devices and accounts are subject to search for any communication made to
contact the victim or other minors and his social networking activities.
In sum, given the circumstances in this case, the probation department has a
compelling interest in monitoring Romandia’s behavior to promote his reformation and
rehabilitation while protecting the public from any further criminal activity with minors.
The challenged electronics search conditions serve that purpose with specificity and
without unduly burdening Romandia’s constitutional rights. We conclude the electronics
search conditions are not unconstitutionally vague or overbroad as applied to Romandia.
13
B. Romandia’s Probationary Term
At the time of Romandia’s plea and sentencing in October 2019, the trial court had
the authority to impose a three-year probationary term. (Former § 1203.1, subd. (a).) On
January 1, 2021, Assembly Bill 1950 took effect and reduced the maximum probationary
term for most felony offenses to two years. (Stats. 2020, ch. 328, § 2; § 1203.1, subds.
(a), (m); People v. Quinn (2021) 59 Cal.App.5th 874, 879 (Quinn).) Section 1203.1,
subdivision (a), now states in relevant part: “The court, or judge thereof, in the order
granting probation, may suspend the imposing or the execution of the sentence and may
direct that the suspension may continue for a period of time not exceeding two years, and
upon those terms and conditions as it shall determine.” (§ 1203.1, subd. (a).) There is an
exception to the new two-year limitation for certain felonies, but that exception does not
apply here. (See § 1203.1, subd. (m).)
Romandia contends the statutory change effected by Assembly Bill 1950 applies
retroactively to his probationary term because his case is not yet final on appeal. The
Attorney General does not contest that Assembly Bill 1950 is an ameliorative change that
applies to cases not yet final on appeal. We decide that Romandia’s claim under
Assembly Bill 1950 can be considered in this appeal from an order modifying his
probation. (See People v. McKenzie (2020) 9 Cal.5th 40, 43, 45-46.) We further decide
that Assembly Bill 1950 applies to Romandia, and the suspension of imposition of
Romandia’s sentence and his related probationary term may therefore not exceed two
years. (Quinn, supra, 59 Cal.App.5th at pp. 879–885; People v. Sims (2021) 59
Cal.App.5th 943, 955–964 (Sims); People v. Stewart (2021) 62 Cal.App.5th 1065, 1070–
1074 (Stewart); § 1203.1, subds. (a), (m).)
Given that Romandia’s probationary term is subject to the current two-year
limitation in section 1203.1, we must determine the proper remedy to effectuate the new
law. Romandia contends “the matter should be remanded for his felony probation to be
reduced to two years.” The Attorney General agrees that remand is appropriate and states
14
that “remanding the case and directing the trial court to terminate probation consistent
with [Assembly Bill] 1950 is preferable to the appellate court striking any term in excess
of that provided by [Assembly Bill] 1950, or terminating probation without remand.”8
We conclude that remanding this matter for resentencing under current section
1203.1—without directing the trial court to reduce Romandia’s probationary term to two
years—is the proper remedy because it will afford the trial court an opportunity to
reexamine the terms and conditions of probation in light of the reduction of the maximum
term of probation. (See Sims, supra, 59 Cal.App.5th at p. 964; People v. Lord (2021) 64
Cal.App.5th 241, 245–246.) We will reverse the order of probation and remand the
matter to the trial court for resentencing with a general direction to modify Romandia’s
probationary term in accordance with current section 1203.1, subdivision (a).
III. DISPOSITION
The order of probation is reversed, and the matter is remanded to the trial court for
resentencing with directions to modify Romandia’s term of probation in accord with
Penal Code section 1203.1, subdivision (a), as amended by Assembly Bill No. 1950
(2019-2020 Reg. Sess.). We otherwise affirm the trial court’s July 14, 2020 order
modifying the conditions of Romandia’s probation.
8
We note the Attorney makes no argument that, on remand, the district attorney
must be given an opportunity to either agree to the reduced probationary term or
withdraw from the plea agreement under which probation was imposed, or that the trial
court should be allowed to rescind its approval of the agreement. (See Stewart, supra, 62
Cal.App.5th at pp. 1074–1079 [rejecting the application of People v. Stamps (2020) 9
Cal.5th 685 to Assembly Bill 1950].) We thus express no opinion on that issue and
otherwise only note that the “stipulated resolution” described by defense counsel in this
case did not include any length for the probationary term agreed to by the parties and
approved by the trial court.
15
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P.J.
____________________________________
Grover, J.
H048272
People v. Romandia