People v. Faial

Filed 2/28/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A159026
v.
JERRY ANTHONY FAIAL, (San Mateo County Super. Ct.
No. SC083808)
Defendant and Appellant.
Defendant Jerry Anthony Faial appeals after the trial court revoked his
probation and ordered execution of his previously imposed but suspended
sentence. Defendant argues: (1) due to the passage of Assembly Bill No. 1950
(2019–2020 Reg. Sess.) (Assembly Bill 1950), his probation retroactively
terminated before it was revoked and he is entitled to discharge from
confinement; (2) his prior prison term enhancements under Penal Code
section 667.5, subdivision (b) are invalid because they were not based on
sexually violent offenses; and (3) he is entitled to additional credits.1
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts B and C of the
Discussion.
1 All further statutory references are to the Penal Code unless otherwise
provided.
1
In the published portion of this opinion, we conclude the passage of
Assembly Bill 1950 did not invalidate the trial court’s orders revoking and
terminating defendant’s probation and executing the previously imposed 12-
year sentence. In the unpublished portion of this opinion, we agree that
defendant’s section 667.5, subdivision (b) enhancements must be stricken and
that he is entitled to additional credits, so we will remand to the trial court
for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2015, the People charged defendant by information with
first degree burglary (§ 460, subd. (a), count 1), petty theft with a prior theft-
related conviction (§ 666, subd. (a), count 4), and two counts of criminal
threats (§ 422, counts 5 and 6). The burglary charge stemmed from his
entering his father’s home in violation of a stay away order and taking tools.
The remaining counts involved his stealing from a department store and
threatening loss prevention officers.
As to the burglary count, the People alleged that defendant was
released on bail or on his own recognizance at the time of the offense
(§ 12022.1). The People also alleged defendant suffered two prior strike
offenses (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)), two prior serious
felony convictions (§ 667, subd. (a)(1)), and two prior prison terms (§ 667.5,
subd. (b)). Defendant was convicted of all four counts, and all special and
enhancement allegations were either found true or admitted.
Prior to sentencing, San Mateo County Superior Court Judge Donald
Ayoob granted defendant’s motion to strike both of his strike priors. The
court indicated it was doing so in the interests of justice, in part because the
specific circumstances of the presently charged offenses rendered them less
serious. On May 4, 2017, the court imposed a total sentence of 12 years on
2
defendant, consisting of the low term of two years for the first degree
burglary count, plus two consecutive five-year terms for the section 667,
subdivision (a)(1) priors, and concurrent terms for the petty theft with a prior
count and the criminal threats counts. Defendant waived all credits. The
court suspended execution of the sentence and placed defendant on four years
of probation. Among the terms of defendant’s probation was that in lieu of
one year in jail, he was to complete a particular residential treatment
program from which he could not leave until approved to do so by the
program director and his probation officer.
In November 2017, defendant admitted violating the terms of his
probation by not completing the program. Five weeks after it revoked
defendant’s probation, the trial court reinstated it and ordered defendant to
complete a different program. The court indicated defendant would not
receive credit for the time he spent in his first program, but would earn credit
from the day he surrendered himself to the day of the probation violation
hearing
On May 14, 2019, defendant’s probation officer filed an affidavit
indicating defendant had again violated the terms of his probation, this time
by failing to abstain from use and possession of alcohol on different occasions,
resisting arrest, possessing a knife, and possessing drug paraphernalia. The
two alleged violations for failure to abstain from alcohol use and possession
occurred on January 14, 2019 and around late March 2019. The remaining
alleged violations occurred on May 9, 2019. A minute order dated May 15,
2019 indicates probation was revoked as of that date. In July 2019, the
probation officer filed an amended affidavit with the same allegations, and
added a seventh alleged violation for a urine analysis with positive results for
alcohol confirmed on May 23, 2019.
3
On November 7, 2019, San Mateo Superior Court Judge Robert Foiles
held a revocation hearing, found all but the seventh of the alleged probation
violations true, and ordered execution of the previously imposed but
suspended 12-year sentence. Judge Foiles indicated the sentence was
structured as follows: an aggravated six-year term for the first degree
burglary count; a two-year consecutive term for the on-bail enhancement;
eight-month consecutive terms for each of the remaining counts; two years
total for the two section 667.5, subdivision (b), enhancements; and striking of
the section 667, subdivision (a), enhancements in the interests of justice. The
court awarded defendant a total of 547 days of custody credit. Defendant
appealed.
DISCUSSION
A. Assembly Bill No. 1950
As indicated, on May 4, 2017 the trial court imposed a sentence of 12
years but suspended its execution and placed defendant on four years of
probation. A little over two years later, on May 15, 2019, the trial court
summarily revoked defendant’s probation based on two alleged probation
violations occurring in January and March of 2019 and four alleged violations
occurring on May 9, 2019. In November 2019, the court found the six alleged
violations true, terminated defendant’s probation, and ordered execution of
his 12-year sentence.
On appeal, defendant does not challenge the sufficiency of the evidence
supporting the six probation violations. Instead, he argues that Assembly
Bill 1950—which limits probation terms to two years for most felonies—
applies to his case and divested the trial court of jurisdiction to revoke and
terminate his probation after he had been on probation for two years. Put
another way, he contends that Assembly Bill 1950 applies retroactively to
4
shorten his probation term from four years to two years, thereby retroactively
depriving the trial court of jurisdiction to revoke his probation after passage
of the two-year mark and rendering the revocation and termination of his
probation invalid. We cannot agree.
Effective January 1, 2021, Assembly Bill 1950 amended section 1203.1
to shorten the period of probation for most misdemeanors and felonies. For
purposes of this case, section 1203.1, subdivision (a), 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).)
As explained in the Legislative Counsel’s Digest, whereas previous law had
authorized courts to grant a period of probation “not exceeding the maximum
term for which the person could be imprisoned,” Assembly Bill 1950 instead
“authorize[s] a court to impose a term of probation not longer than 2 years,
except as [otherwise] specified.” (Legis. Counsel’s Dig., Assem. Bill No. 1950
(2019—2020 Reg. Sess.) Stats. 2020, ch. 328; see People v. Sims (2021) 59
Cal.App.5th 943, 947.) This change in the law bars the imposition of more
than two years of probation for a felony offense unless the offense is a violent
felony listed in section 667.5, subdivision (c), or is subject to a specific
probation length, or is specifically excluded from the statute’s two-year limit.
(§ 1203.1, former subds. (a), (m), added by Stats. 2020, ch. 328, § 2, now
subds. (a), (l).)2
2 Assembly Bill 1950’s provisions were retained in full when section
1203.1 was later repealed and added again as section 1203.1. (Stats. 2021,
ch. 257, §§ 21–22 (Assem. Bill No. 177).) As relevant here, however, former
section 1203.1, subdivision (m), was redesignated as section 1203.1,
5
Appellate courts are so far unanimous in holding that Assembly Bill
1950 applies retroactively to defendants who were serving a term of
probation when the legislation became effective on January 1, 2021; in such
cases, the courts have acted to reduce the length of their probation terms.
(E.g., People v. Greeley (2021) 70 Cal.App.5th 609, 627; People v. Czirban
(2021) 67 Cal.App.5th 1073, 1095; People v. Schultz (2021) 66 Cal.App.5th
887, 894–895; People v. Lord (2021) 64 Cal.App.5th 241, 244–246; People v.
Stewart (2021) 62 Cal.App.5th 1065, 1071–1074, review granted June 30,
2021, S268787; People v. Sims, supra, 59 Cal.App.5th at p. 964; People v.
Quinn (2021) 59 Cal.App.5th 874, 881–885.) While we have no quarrel with
those decisions, we are not persuaded that Assembly Bill 1950 invalidates a
trial court’s revocation and termination of a defendant’s probation where, as
here, such actions were properly taken before Assembly Bill 1950’s effective
date.
In assessing whether Assembly Bill 1950’s amendment of section
1203.1 was intended to have the application urged by defendant, we observe
the statute addresses essentially three matters: a trial court’s authority to
grant probation for a term not exceeding two years except as otherwise
specified (e.g., § 1203.1, subds. (a)); the permissible terms and conditions of
probation that should be considered (e.g., id., subds. (a)–(e), (g), (i)); and
specific details for the implementation or modification of certain conditions
(e.g., id., subds. (h), (j), (k)). The amended statute, however, includes no
terms purporting to modify a trial court’s authority to revoke and terminate
probation due to a defendant’s violation of probation terms or conditions. Nor
subdivision (l). Henceforth, this opinion will cite to the current version of the
statute.
6
did Assembly Bill 1950 undertake to amend section 1203.2 or section
1203.3—the statutes that confer and address such authority.
As the legislative history reflects, the drafters of Assembly Bill 1950
acted on studies showing that probation services 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.” (Assem.
Floor Analysis, 3d reading analysis of Assem. Bill. No. 1950 (2019–2020 Reg.
Sess.) as amended June 10, 2020, p. 1 (Assem. 3d Reading).) The various
legislative analyses highlighted the cost savings of reducing probation
periods and noted the bill would allow for “the reinvestment of funding into
supportive services for people on misdemeanor and felony probation rather
than keeping this population on supervision for extended periods.” (Assem.
3d Reading, at p. 1; Assem. Com. on Appropriations, Analysis of Assem. Bill.
No. 1950 (2019–2020 Reg. Sess.) as amended May 21, 2020, p. 1 (Assem.
Appropriations Analysis); see Sen. Com. on Public Safety, Analysis of Assem.
Bill. No. 1950 (2019–2020 Reg. Sess.) as amended June 10, 2020, p. 4 (Sen.
Public Safety Analysis).) The analyses also referenced comments from
supporters of the bill that shortening probation periods would not only
“ ‘decrease the amount of time that an individual must suffer for a prior
misdeed,’ ” but also “ ‘has the added benefit of incentivizing compliance.’ ”
(Assem. 3d Reading, at p. 2; Assem. Appropriations Analysis, at p. 2.)
Finally, other analyses that focused on public safety noted Assembly Bill
1950 “supports probation officers in completing the duties of their job more
effectively, by making their caseloads more manageable.” (Sen. Public Safety
Analysis, at p. 4; see Assem. Com. on Public Safety, Analysis of Assem. Bill.
No. 1950 (2019–2020 Reg. Sess.) as amended May 6, 2020, p. 4.)
7
Consistent with the statutory terms and legislative history, the
appellate courts have unanimously held that Assembly Bill 1950’s mandate
for shorter probation periods should extend to defendants who were on
probation when the legislation became effective on January 1, 2021. (See
cases cited, ante, at p. 6.) Indeed, these and future probationers alike would
benefit from the law’s reduced probation periods and the resulting
incentivization of compliance toward rehabilitation, as well as from the
drafters’ anticipation that cost savings would allow more effective supervision
and increased availability of supportive services to reduce possible
recidivism. But these legislative aims are not advanced by extending the law
to former probationers who were serving executed sentences as of the law’s
effective date, and nothing in the statutory language indicates such
defendants were intended to benefit from this change in the law. Had the
Legislature intended to overturn pre-2021 revocation and termination orders
that were based on violations committed while defendants were validly on
probation, with the effect of upending their properly executed sentences, we
may assume the Legislature could have demonstrated that intent through
statutory language and would have at least mentioned the matter in the
various legislative analyses of the bill. It did not. (Cf. People v. Buycks
(2018) 5 Cal.5th 857, 878–884, 889–890 [Proposition 47, which explicitly
reclassified certain felonies to misdemeanors and mandated that reduced
convictions be misdemeanors “for all purposes,” construed as also providing
retroactive relief against felony-based enhancements where the underlying
felony was reduced to a misdemeanor under the measure].)
Here, there is no dispute that in May 2019, under the law as it then
existed, defendant was validly on probation and the trial court was duly
authorized to summarily revoke that probation based on defendant’s alleged
8
probation violations. (§§ 1203.2, subd. (a), 1203.3, subd. (a).) Likewise, there
is no dispute that when Assembly Bill 1950 went into effect, defendant’s
probation had already been properly terminated based on those violations
and he was in prison serving his executed 12-year sentence. Under these
circumstances, invocation of Assembly Bill 1950 is unavailing.
In arguing that Assembly Bill 1950 should apply retroactively to former
probationers such as himself, defendant relies principally on People v.
Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara) and People v. Frahs (2020)
9 Cal.5th 618 (Frahs). In Lara, the Supreme Court held that a new law’s
requirement of a transfer hearing before a juvenile could be tried as an adult
applies retroactively to all juveniles who had been charged directly in adult
court and whose cases were not yet final. (Lara, at pp. 303–304, 308–309.)
In Frahs, the court concluded that a new law creating a pretrial diversion
program for certain defendants with mental disorders applies retroactively to
defendants whose judgments of conviction are pending on appeal. (Frahs, at
pp. 624–625.) Those authorities do not support defendant’s position.
The laws at issue in Lara and Frahs require that certain classes of
persons be afforded the opportunity to show that their crimes and
circumstances warranted rehabilitative or treatment-focused dispositions
rather than prosecution and sentencing in the criminal courts. (See Lara,
supra, 4 Cal.5th at pp. 303, 309 [emphasizing juvenile court’s goal of
rehabilitation]; Frahs, supra, 9 Cal.5th at pp. 629, 631 [allowing for potential
dismissal of charges for defendants with qualifying mental health disorders
upon satisfactory participation in mental health diversion program].) In
those cases, the Supreme Court determined that the respective offenders
should benefit from retroactive application of the ameliorative effects of the
respective laws. (Lara, at p. 309; Frahs, at pp. 630–632.) Notably, the laws
9
in Lara and Frahs did not contemplate obliteration of the offenders’
accountability for conduct predating the new laws; rather, the offenders
remained answerable for such conduct through the juvenile justice system or
through the mental health diversion program, provided their circumstances
were suitable for those alternatives to criminal court.
In this case, we reiterate our agreement with the decisions holding that
Assembly Bill 1950 applies retroactively to a specific class of persons—i.e.,
defendants whose probation has not been revoked and terminated. For such
persons, Assembly Bill 1950 acts in mitigation by shortening their probation
terms regardless of when those terms were established. But nothing in Lara
or Frahs supports defendant’s interpretation of Assembly Bill 1950 as
benefiting persons who are no longer on probation but are serving their
executed sentences. There is no indication that Assembly Bill 1950 was
intended to extinguish a defendant’s accountability for probation violations,
or to otherwise invalidate revocation and termination orders predating
January 1, 2021. Moreover, we note that probation violations sometimes
involve criminal conduct, and that Assembly Bill 1950 evinced no intent to
excuse conduct that was addressed as a violation of probation rather than
prosecuted as a new criminal charge. Finally, and ultimately, Assembly Bill
1950’s basic aims to incentivize compliance and allow for increased
supervision and services for offenders working toward rehabilitation are
inconsequential for former probationers like defendant. Accordingly, we are
not persuaded that Lara and Frahs support the overly broad retroactive
effect that defendant urges.
Defendant additionally relies on People v. Sims, supra, 59 Cal.App.5th
943, for the proposition that Assembly Bill 1950 applies retroactively to non-
final cases. But significantly, the defendant in Sims was on active probation
10
at the time of his appeal. There was no evidence of a probation violation, and
the trial court had neither revoked nor terminated his probation by the time
Assembly Bill 1950 became effective. (Sims, at pp. 947, 949.) Thus, the
factual context of Sims clearly lends no support to defendant’s claim that
Assembly Bill 1950 applies retroactively to invalidate the revocation and
termination of his probation and the resulting execution of his sentence.
In sum, we conclude the passage of Assembly Bill 1950 did not
invalidate the trial court’s orders revoking and terminating defendant’s
probation and executing the previously imposed 12-year sentence.3
B. Prior Prison Term Enhancements
Next, defendant argues the enhancements imposed on him under
section 667.5, subdivision (b) (section 667.5(b)) must be stricken given
statutory amendments made by Senate Bill No. 136 (2019–2020 Reg. Sess.).
When defendant was sentenced, former section 667.5(b) generally
provided for a one-year enhancement for each prior prison term (or jail term
imposed under section 1170, subdivision (h)) that a defendant served in the
preceding five years. But effective January 1, 2020, section 667.5(b) was
modified to permit that enhancement only when the prior prison term is for a
sexually violent offense as defined in Welfare and Institutions Code
section 6600, subdivision (b). (Stats. 2019, ch. 590, § 1.) The People agree
that defendant is entitled to the benefit of the change in the law. We agree
insofar as the trial court’s order for execution of the sentence indicated that
defendant’s sentence included terms for two section 667.5(b) priors, and the
3 Having reached this conclusion, we need not and do not address the
People’s arguments that defendant is not entitled to the benefit of the law as
amended by Assembly Bill 1950 because defendant’s burglary conviction
qualifies as a violent felony, or that probation was actually terminated during
defendant’s second year of probation.
11
record reflects the underlying prior convictions were not for any sexually
violent offense as defined in Welfare and Institutions Code section 6600,
subdivision (b). As charged in the information, the section 667.5(b)
enhancements were based on violations of section 460, subdivision (a), and
section 136.1, subdivision (c)(1).
We now address defendant’s invitation to simply strike the
enhancements rather than remand the matter to the trial court for
resentencing.
When part of a sentence is stricken on appeal, a remand for “ ‘a full
resentencing as to all counts is appropriate, so the trial court can exercise its
sentencing discretion in light of the changed circumstances.’ ” (People v.
Buycks, supra, 5 Cal.5th at p. 893.) If, however, the trial court “imposed the
maximum possible sentence, [then] regardless of whether [an] enhancement
was stricken, there is no need to remand the matter to the trial court to
exercise its sentencing discretion anew.” (Id. at p. 896, fn. 15.)
Here, defendant contends a remand is unnecessary because the trial
court imposed the maximum possible sentence. But as the People point out,
“the imposition of the upper term on the burglary count did not preclude
imposition of one of the five-year serious felony prior enhancements and
adjustments in the terms on the burglary or the other counts (counts 4, 5,
and 6, the petty theft with a prior and criminal threats counts) to replace the
no longer applicable one-year enhancements.” We agree. The record reflects
that the trial court struck the section 667, subdivision (a) enhancements in
an exercise of discretion to achieve justice given the circumstances before it.
But the court could have structured the sentence in a different way to reach a
sentence of 12 years, regardless of the section 667.5(b) enhancements.
Indeed, as discussed, Judge Ayoob originally imposed the 12-year sentence in
12
2017 by utilizing the low term on the burglary count plus the section 667,
subdivision (a) enhancements, without ever imposing the section 667.5(b)
enhancements. But Judge Foiles, who ordered execution of the sentence after
revoking probation, structured the sentence differently by utilizing the
section 667.5(b) enhancements for the 12-year term.
Defendant counters that the sentence as structured by the “executing”
judge was a “contractual” sentence that cannot be changed, aside from
striking the section 667.5(b) enhancements. This is unpersuasive. Judge
Foiles indicated the 12-year sentence he was executing was simply the one
imposed by Judge Ayoob, which is consistent with established law. (§ 1203.2,
subd. (c) [“Upon any revocation and termination of probation the court
may . . . , if the judgment has been pronounced and the execution thereof has
been suspended, . . . revoke the suspension and order that the judgment shall
be in full force and effect.”]; People v. Howard (1997) 16 Cal.4th 1081, 1088
[“On revocation of probation, if the court previously had imposed sentence,
the sentencing judge must order that exact sentence into effect”].) Why
Judge Foiles set out a structure for executing the sentence in 2019 that
differed from the one Judge Ayoob utilized for imposing the sentence in 2017
is unexplained by the parties or anything in the record. Ultimately, however,
these circumstances do not support defendant’s position that the structure of
the 12-year sentence, as set out by Judge Foiles, was “contractual.” The
circumstances here only strengthen the conclusion that a remand for
resentencing is appropriate.
C. Credits
Defendant contends the trial court failed to award him 87 additional
days of custody credit in addition to the 547 days awarded. More specifically,
he claims he is entitled to an additional 56 days of credit for time spent in
13
custody during his late-2017 revocation proceedings, as well as a total of 213
days of credit for the time he spent in his program from November 22, 2017 to
June 23, 2018.
The People agree that the trial court indicated it would award
defendant credit to cover the date he surrendered himself in connection with
his 2017 revocation proceedings to the date of his revocation hearing. The
People also acknowledge that November 22, 2017 to June 23, 2018 amounts
to 213 days, not 183 days. Because we are remanding this matter for
resentencing, we will instruct the court to also recalculate defendant’s
credits.4
DISPOSITION
The matter is remanded for resentencing. The trial court is instructed
to vacate the enhancements imposed under section 667.5(b) and to
recalculate defendant’s credits. In all other respects, the judgment is
affirmed.
4 The reporter’s transcript of the revocation hearing on November 21,
2017, indicates defendant was taken into custody in connection with his 2017
revocation proceedings on October 24, 2017, but a minute order in the clerk’s
transcript seems to indicate he was taken into custody on October 16, 2017.
In any event, we need not resolve that discrepancy here. We leave it to the
trial court to determine the correct number of credits to be awarded on
remand.
14
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
A159026
15
People v. Faial (A159026)
Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Robert Foiles
Attorneys:
Allan Charles Dell’Ario under appointment by the First District Appellate
Project’s Independent Case System on behalf of Defendant and Appellant.
Rob Bonta, Attorney General, Lancee Winters, Chief Assistant Attorney
General, Jeffrey M. Laurence, Senior Assistant Attorney General, Alice B.
Lustre, Supervising Deputy Attorney General Catherine A. Rivlin,
Supervising Deputy Attorney General on behalf of Plaintiff and Respondent.
16