People v. Torres CA5

Filed 12/20/21 P. v. Torres CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082017
Plaintiff and Respondent,
(Super. Ct. No. VCF397983)
v.
JOSE TORRES, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Michael A. Canzoneri, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Meehan, Acting P.J., Snauffer, J. and DeSantos, J.
INTRODUCTION
Defendant Jose Torres was charged with first degree burglary (Pen. Code, §§ 459,
460, subd. (a); count 1), 1 felony vandalism (§ 594, subd. (a); count 2), and misdemeanor
possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 3). At
the pretrial conference, defendant entered a plea of guilty to counts 1 and 2, and the
prosecutor dismissed count 3. The trial court gave an indicated sentence of two years
eight months in state prison, 2 suspended, and felony probation for a period of three years,
conditioned on serving 365 days in jail.
In accordance with the indicated sentence, on November 12, 2020, defendant was
sentenced to two years eight months in state prison, suspended; and placed on probation
for three years with 365 days in jail. 3 Additionally, the court imposed a restitution fine of
$500 under section 1202.4, subdivision (b)(1); a probation revocation restitution fine of
$500 under section 1202.44, subdivision (a), suspended; a total court operations
assessment of $80 under section 1465.8, subdivision (a)(1); a total court facilities
assessment of $60 under Government Code section 70373, subdivision (a)(1); a
$10 crime prevention fee under section 1202.5; a $10 citation processing fee under
former Government Code section 29550, subdivision (f); and a $250 presentence
investigation and report preparation fee under former section 1203.1b, subdivision (a).
Defendant advances two claims on appeal. First, pursuant to Assembly
Bill No. 1950 (2019−2020 Reg. Sess.), effective January 1, 2021, he seeks modification
of his probation term from three years to two years. Second, pursuant to Assembly
1 All further statutory references are to the Penal Code unless otherwise stated.
2 The lower term of two years on count 1 and one-third of the middle term on count 2.
3 The court also resolved five other pending cases, which are not at issue in this appeal.
2.
Bill No. 1869 (2019−2020 Reg. Sess.), effective July 1, 2021, he seeks an order striking
the citation processing fee and the presentence investigation and report fee. 4
The People concede defendant is entitled to relief under Assembly Bill 1950 and
Assembly Bill 1869, but they characterize the three-year probation period as a negotiated
term of the parties’ plea agreement. They argue the appropriate remedy, therefore, is a
remand to allow the prosecution to either accept reduction of the probation term to
two years or withdraw from the plea agreement, in accordance with People v. Stamps
(2020) 9 Cal.5th 685, 707−708 (Stamps).
We agree with the parties that defendant is entitled to relief under Assembly
Bill 1950 and Assembly Bill 1869. However, this case involves an indicated sentence
rather than a negotiated plea agreement to a stipulated sentence as in Stamps. As we shall
explain, because applying Assembly Bill 1950 to defendant’s sentence in this case does
not deprive the People of the benefit of their plea bargain, they are not entitled to remand.
In accordance with Assembly Bill 1950, we shall reduce defendant’s term of probation to
two years and pursuant to Assembly Bill 1869, we shall strike the unpaid portions of the
citation processing fee and the presentence investigation and report preparation fee.
(§ 1260.) Except as modified, judgment is affirmed.
DISCUSSION
I. Assembly Bill 1950
A. Assembly Bill 1950 Applies Retroactively
“As amended by Assembly Bill No. 1950, subdivision (a) of section 1203.1
provides, ‘The court, or judge thereof, in the order granting probation, may suspend the
imposing or the execution of the sentence and may direct that the suspension may
continue for a period of time not exceeding two years, and upon those terms and
4 Stats. 2020, ch. 328, § 2 (Assembly Bill 1950) and Stats. 2020, ch. 92, § 2 (Assembly
Bill 1869).
3.
conditions as it shall determine. The court, or judge thereof, in the order granting
probation and as a condition thereof, may imprison the defendant in a county jail for a
period not exceeding the maximum time fixed by law in the case…. ’ ”5 (People v.
Schulz (2021) 66 Cal.App.5th 887, 892.) In People v. Schulz, this court considered the
issue of retroactivity and concluded that defendants are entitled to application of
Assembly Bill 1950 in cases not yet final on appeal. (People v. Shulz, at p. 895; accord,
People v. Czirban (2021) 67 Cal.App.5th 1073, 1095; People v. Lord (2021) 64
Cal.App.5th 241, 245−246; People v. Sims (2021) 59 Cal.App.5th 943, 964.)
Accordingly, we concur with the parties on that point.
B. Remedy
With respect to remedy, the People contend 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)(1).
However, defendant was sentenced approximately one year ago, and “[t]he court [retains]
the authority at any time during the term of probation to revoke, modify, or change its
order of suspension of imposition or execution of sentence.” (§ 1203.3, subd. (a).)
Further, reducing defendant’s probation term will not deprive the trial court of its
authority to determine whether he successfully completed probation or whether he has
met the requirements for expungement under section 1203.4, in the event he applies for
such relief.
5 Although not relevant in this case, there are exceptions to the two-year felony probation
limit, set forth in section 1203.1, subdivision (m). Effective January 1, 2022, these exceptions
are renumbered to subdivision (l) of section 1203.1. (Assem. Bill No. 177 (Reg. Sess.
2021−2022) Stats. 2021, ch. 257, § 22.)
4.
1. Stamps Remand
The People also cite Stamps for the proposition that “in negotiated plea cases …
where an agreed term becomes unenforceable, the People may withdraw from the plea or
the trial court may rescind its approval and return the parties to the status quo ante, when
all charges were on the table, to renegotiate or go to trial.” Defendant maintains that
remand is not required because the three-year probation period was not a negotiated term
of the parties’ plea bargain. We agree with defendant.
In Stamps, the parties entered a plea agreement for a stipulated sentence of
nine years in prison, five years of which was attributable to the prior serious felony
conviction enhancement imposed under former section 667, subdivision (a)(1). 6 (Stamps,
supra, 9 Cal.5th at pp. 692−693.) The defendant thereafter sought remand to allow him
to request the trial court strike the five-year enhancement under Senate Bill No. 1393
(2017−2018 Reg. Sess.) (Senate Bill 1393), which was enacted during the pendency of
the defendant’s appeal. (Stamps, at p. 693.) The California Supreme Court held that the
defendant was not required to obtain a certificate of probable cause to seek relief based
on the ameliorative change in the law and that Senate Bill 1393 applied retroactively to
cases not yet final on appeal. (Stamps, at pp. 698−699.) The question, then, was one of
remedy given that the parties’ plea bargain included a stipulated sentence of nine years in
prison. (Id. at p. 700.)
Relevant to the People’s argument in this case, where a defendant is entitled to
seek relief under an ameliorative change in the law but entered into a plea bargain,
Stamps explained,
6 This court’s decisions in People v. Hernandez (2020) 55 Cal.App.5th 942, 944−946,
review granted Jan. 27, 2021, S265739, and People v. Barton (2020) 52 Cal.App.5th 1145, 1149,
cited by defendant, also involved negotiated plea agreements to stipulated sentences. (Accord,
People v. Ellis (2019) 43 Cal.App.5th 925, 928 (Ellis).)
5.
“The proper remedy requires an examination of the court’s role in
approving a plea agreement. ‘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.’ [Citations.] ‘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.)
Stamps concluded the appropriate remedy was to remand the matter to allow the
defendant to seek relief under Senate Bill 1393 because to do otherwise “ ‘would be
effectively[, and impermissibly,] insulating the [plea] agreement from retroactive changes
in the law .…’ ” (Stamps, supra, 9 Cal.5th at p. 709, quoting Ellis, supra, 43 Cal.App.5th
at p. 946.) Stamps cautioned, however, that because the trial court was not permitted to
unilaterally modify the terms of the negotiated plea agreement, and because it also had
broad discretion to withdraw its approval of a negotiated plea agreement, a defendant’s
request for relief was not without potential consequences to the plea agreement. (Stamps,
at pp. 707−708, citing Ellis, at p. 944.) Stamps recognized that the Legislature or “[t]he
electorate may bind the People to a unilateral change in a sentence without affording
them the option to rescind the plea agreement” (Stamps, at p. 703, quoting Harris v.
Superior Court (2016) 1 Cal.5th 984, 992), but where that is not so, a trial court electing
to grant the defendant the relief sought “ ‘ “must restore the parties to the status quo
ante” ’ ” ( Stamps, at p. 707, quoting Ellis, at p. 944). This follows not only from the
6.
principles discussed concerning the court’s role in the context of a plea bargain but also
encompasses the concept of reciprocal benefits, which entitles the party deprived of the
benefit of its bargain to a restorative remedy. (People v. Collins (1978) 21 Cal.3d 208,
214−216; see Stamps, at pp. 703−704.)
2. Probation Not a Negotiated Term of Parties’ Plea Agreement
In contrast with Senate Bill 1393, at issue in Stamps and Ellis, relief under
Assembly Bill 1950 is mandatory rather than discretionary, but our disposition here rests
on a different distinction: this case involves an indicated sentence by the trial court rather
than a plea bargain for a stipulated sentence as in Stamps and Ellis.7 Thus, defendant is
not seeking through application of Assembly Bill 1950 “ ‘to whittle down the [stipulated]
sentence [he negotiated,] “but otherwise leave the plea bargain intact .…” ’ ” (Ellis,
supra, 43 Cal.App.5th at p. 943.)
The record reflects that the parties negotiated an agreement under which defendant
would enter a plea to counts 1 and 2, both felonies, and the prosecutor would dismiss
count 3, a misdemeanor. The record reflects no other terms negotiated by the parties as
part of their plea agreement. Rather, the trial court gave an indicated sentence, which it
later imposed at the sentencing hearing.
“An indicated sentence is not a plea bargain, or a contract between the defendant
and the court .…” (People v. Smith (2014) 227 Cal.App.4th 717, 730; accord, People v.
Superior Court (Jalalipour) (2015) 232 Cal.App.4th 1199, 1209.) “[A]n indicated
sentence, properly understood, ‘represents the trial court’s application of the law (its
7 Neither Stamps nor Ellis endeavored to address every conceivable permutation involving
application of a retroactive change in the law to a case resolved by plea bargain, and both were
decided in the context of Senate Bill 1393, under which relief was left to the sound discretion of
the trial court. Pertinent to our disposition here, Ellis recognized that “[t]he terms of a plea
bargain are unique to the case in which the bargain was reached .…” (Ellis, supra, 43
Cal.App.5th at p. 944.)
7.
ordinary sentencing discretion) to assumed facts.’ ” (People v. Clancey (2013) 56 Cal.4th
562, 581 (Clancey).)
“When a trial court properly indicates a sentence, it has made no promise that the
sentence will be imposed. Rather, the court has merely disclosed to the parties at an early
stage—and to the extent possible—what the court views, on the record then available, as
the appropriate sentence so that each party may make an informed decision.” (Clancey,
supra, 56 Cal.4th at p. 575.) An indicated sentence “does [not] divest a trial court of its
ability to exercise its discretion at the sentencing hearing, whether based on the evidence
and argument presented by the parties or on a more careful and refined judgment as to the
appropriate sentence.” (Id. at p. 576.) “The development of new information at
sentencing may persuade the trial court that the sentence previously indicated is no longer
appropriate for this defendant or these offenses. Or, after considering the available
information more carefully, the trial court may likewise conclude that the indicated
sentence is not appropriate. Thus, even when the trial court has indicated its sentence, the
court retains its full discretion at the sentencing hearing to select a fair and just
punishment.” (Ibid.)
In this case, the parties were aware of Assembly Bill 1950 at the time of the
sentencing hearing, although it was not yet effective, and there was some disagreement
regarding the future impact of the legislation. The prosecutor, who was not involved in
the negotiations that led to the plea agreement, sought to secure an agreement at
sentencing to probation for three years based on his belief that Assembly Bill 1950 would
apply retroactively unless defendant waived the issue. 8 Defense counsel pointed out this
8 In addition to the fact that relief under Assembly Bill 1950 is mandatory rather than
discretionary, the prosecutor’s belief he could successfully insulate the sentence imposed from
any future change in the law under Assembly Bill 1950 by virtue of defendant’s agreement to the
court’s indicated sentence is infirm. Section 1016.8, effective January 1, 2020, provides, “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
8.
prosecutor had not been involved in the plea negotiations and a three-year probation term
was not a term of the parties’ negotiated plea agreement.
The trial court declined to weigh in on the effect of Assembly Bill 1950, but, after
reviewing the record from the plea hearing concluded that because the court advised
defendant of the probation term, it was part of the plea bargain. The parties considered
having the prosecutor who negotiated the plea agreement appear, but the trial court
elected to proceed with sentencing on the record as it stood and neither party objected.
We are confined to the record before us, and there is no evidence that a three-
year probationary period, or any other component of the sentence imposed, was a
negotiated term of the parties’ plea agreement. (People v. Smith, supra, 227 Cal.App.4th
at p. 730.) A trial court cannot unilaterally modify the parties’ plea agreement to change
its terms and it cannot bargain with the defendant over the sentence; to do so is
impermissible. 9 (Clancey, supra, 56 Cal.4th at pp. 573, 575.) As such, the trial court’s
statement at sentencing that it had advised defendant the indicated sentence included a
three-year probation term does not transform probation into an agreed upon term of the
parties’ negotiated plea agreement. Accordingly, on this record, we conclude that
application of Assembly Bill 1950 to defendant’s sentence does not deprive the People of
the benefit of their bargain, and we reject their argument that they are entitled to remand
under Stamps so they may agree to the one-year probation term reduction or withdraw
from the plea bargain. (See People v. Henderson (2021) 67 Cal.App.5th 785, 789
[striking enhancement under Senate Bill No. 136 did not require remand in open plea
retroactively apply after the date of the plea is void as against public policy.” (§ 1016.8,
subd. (b).)
9 The record does not suggest the trial court improperly induced defendant’s plea and the
parties do not claim otherwise. (Clancey, supra, 56 Cal.App.4th at p. 575; see People v.
Superior Court (Jalalipour), supra, 232 Cal.App.4th at p. 1209 [trial court engaged in improper
judicial plea bargaining when it promised to reduce charges to misdemeanors in exchange for
guilty plea].)
9.
case where resulting sentence remained within range contemplated by the parties].) We
express no view on what the outcome might be on different facts.
We need not remand where it would be an idle act and wasteful of judicial
resources. (People v. Ledbetter (2014) 222 Cal.App.4th 896, 904.) Under the
circumstances of this case, the People fail to persuade us that remand is necessary or an
appropriate use of scarce judicial resources. Accordingly, under section 1260, we shall
modify defendant’s probation term to two years. (Accord, People v. Quinn (2021) 59
Cal.App.5th 874, 885.)
II. Assembly Bill 1869
“Effective July 1, 2021, Assembly Bill 1869 ‘eliminate[d] the range of
administrative fees that agencies and courts are authorized to impose to fund elements of
the criminal legal system and … eliminate[d] all outstanding debt incurred as a result of
the imposition of [identified] administrative fees.’ ” (People v. Greeley (2021) 70
Cal.App.5th 609, 625 (Greeley), quoting Stats. 2020, ch. 92, § 2.) Defendant contends
that under Assembly Bill 1869, he is entitled to relief from the unpaid portions of the
$10 citation processing fee imposed under former Government Code section 29550,
subdivision (f), and the $250 presentence investigation and report fee imposed under
former section 1203.1b, subdivision (a). The People concede defendant is entitled to
relief, and we accept the concession. (Greeley, supra, at pp. 626−627.)
Assembly Bill 1869 added Government Code section 6111, which provides, “On
and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to
Section 27712, subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2,
and 29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible
and any portion of a judgment imposing those costs shall be vacated.” (Gov. Code,
§ 6111, subd. (a).)
Assembly Bill 1869 also added section 1465.9, which provides, “The balance of
any court-imposed costs pursuant to Section 987.4, subdivision (a) of Section 987.5,
10.
Sections 987.8, 1203, 1203.1e, 1203.016, 1203.018, 1203.1b, 1208.2, 1210.15, 1463.07,
3010.8, 4024.2, and 6266, as those sections read on June 30, 2021, shall be unenforceable
and uncollectible and any portion of a judgment imposing those costs shall be vacated.”
(§ 1465.9, subd. (a).)10
Pursuant to the plain language of Government Code section 6111, subdivision (a),
and section 1465.9, subdivision (a), as of July 1, 2021, any unpaid balances from the
citation processing fee imposed under former Government Code section 29550,
subdivision (f), and the presentence investigation and report fee imposed under former
section 1203.1b, subdivision (a), are unenforceable and uncollectible. (Greeley, supra,
70 Cal.App.5th at pp. 626−627; accord, People v. Lopez-Vinck ( 2021) 68 Cal.App.5th
945, 954.) Therefore, we vacate any balances remaining unpaid as of July 1, 2021.
(Greeley, at pp. 626−627; accord, People v. Lopez-Vinck, at p. 954.)
DISPOSITION
Pursuant to Assembly Bill 1950, defendant’s term of probation is reduced from
three years to two years; and pursuant to Assembly Bill 1869, any balances from the
citation fee imposed under former Government Code section 29550, subdivision (f), and
the presentence investigation and report fee imposed under former section 1203.1b,
subdivision (a), that were unpaid as of July 1, 2021, are vacated. The trial court shall
amend its records to reflect these modifications to its orders and shall forward a copy of
the amended orders to any appropriate authorities. The judgment is otherwise affirmed.
10 Subdivision (b) of section 1465.9 provides, “On and after January 1, 2022 the balance of
any court-imposed costs pursuant to Sections 1001.15, 1001.16, 1001.90, 1202.4, 1203.1,
1203.1ab, 1203.1c, 1203.1m, 1203.4a, 1203.9, 1205, 1214.5, 2085.5, 2085.6, or 2085.7, as those
sections read on December 31, 2021, shall be unenforceable and uncollectible and any portion of
a judgment imposing those costs shall be vacated.”
11.