People v. Stewart CA1/2

Filed 6/8/22 P. v. Stewart CA1/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A157857
v.
STEVEN MATTHEW STEWART, (Napa County Super. Ct. No.
19CR000855)
Defendant and Appellant.
This case returned to us from the California Supreme Court with
directions to vacate our prior opinion and reconsider the matter in light of
recent legislation. As we will explain, external events have rendered the
appeal moot and we now order it dismissed.
BACKGROUND
Steven Matthew Stewart was placed on probation after pleading no
contest to one count of assault by means likely to result in great bodily injury.
He challenged the imposition of a probation condition requiring him to
refrain from using marijuana as unrelated to his offense or future
criminality, and we affirmed in an unpublished opinion. (People v. Stewart
(A157857, Nov. 12, 2020 [nonpub. opn.].) While the appeal was pending, the
Legislature enacted Assembly Bill No. 1950 (Assembly Bill 1950), amending
Penal Code section 1203.1, subdivision (a), to limit felony probation to a
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maximum term of two years, absent circumstances not applicable here.
(Stats. 2020, ch. 328, § 2, eff. Jan. 1, 2021.) Stewart petitioned for rehearing,
seeking the benefit of the amended statute.
We granted Stewart’s petition for rehearing and issued an opinion
April 7, 2021, modifying the probation order to specify that he was granted
probation for a period of two years. In so doing, we rejected the Attorney
General’s arguments that (1) Assembly Bill 1950 does not apply retroactively
and (2) if it does, the case would have to be remanded to give the prosecution
an opportunity to either agree to the new term, or withdraw from the plea
agreement pursuant to which probation was imposed. This remedy was
required by People v. Stamps (2020) 9 Cal.5th 685 (Stamps) in the context of
retroactive application of Senate Bill No. 1393, which amended Penal Code
section 13851 to remove a prohibition against trial courts striking prior
serious felony convictions for purposes of enhancement under section 667.
(Stats. 2018, ch. 1013, § 2.)
After we issued our opinion, the Attorney General filed a petition for
rehearing, arguing Assembly Bill 1950 did not apply to this case for a reason
not raised in the Attorney General’s opposition to Stewart’s petition for
rehearing—that Assembly Bill 1950 contains an exception for offenses
involving a domestic violence victim. We denied rehearing.
The Attorney General then petitioned for review by the California
Supreme Court. The petition asked the Supreme Court to grant review and
defer briefing pending resolution of People v. Hernandez (2020) 55
Cal.App.5th 942, review granted January 27, 2021, S265739 (Hernandez), a
case that followed Stamps in the context of retroactive application of Senate
Bill No. 136 (2019-2020 Reg. Sess.), which limited prior prison term
1 Further statutory references will be to the Penal Code.
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enhancements under section 667.5, subdivision (b), to prior prison terms for
specified sexually violent offenses. The petition also asked the Supreme
Court to decide whether cases involving domestic violence victims are
exempted from Assembly Bill 1950’s limit on probation terms. The Supreme
Court granted review and deferred further action pending consideration of
Hernandez. (People v. Stewart (2021) 62 Cal.App.5th 1065, review granted
June 30, 2021, S268787.)
On April 20, 2022, the Supreme Court transferred the case back to us
with directions to vacate our decision and reconsider the cause in light of
Senate Bill No. 483 (Senate Bill 483) (2020-2021 Reg. Sess.). Senate Bill 483,
subject to specified exceptions, invalidates certain enhancements for prior
prison terms (§ 667.5, former subd. (b)) and drug convictions (Health & Saf.
Code, § 11370.2) imposed before those enhancements were eliminated by
Senate Bill No. 136 and Senate Bill No. 180 (2017-2018 Reg. Sess.),
respectively. Most relevant here, Senate Bill 483 expressly states the
Legislature’s intent to apply Senate Bills Nos. 136 and 180 retroactively and
intent “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 No. 483, Stats. 2021, ch. 728,
§ 1; People v. Flores (2022) 77 Cal.App.5th 420, 503, petn. for review filed
May 16, 2022.)
Following transfer, Stewart filed a supplemental brief arguing Senate
Bill 483 required no change in our previous analysis. The Attorney General’s
supplemental brief argued, as in his petition for rehearing, that Assembly
Bill 1950 does not apply to this case because Stewart’s offense involved a
domestic violence victim and, alternatively, if Assembly Bill 1950 applies, we
should remand in accordance with Stamps. The Attorney General reiterated
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his view that the Stamps remedy is applicable to Senate Bill 1950 cases and
argued that Senate Bill 483 does not bar its application.
Shortly thereafter, the Attorney General informed us that Stewart’s
probation had been revoked and he had been sentenced to a year in prison
consecutive to the sentence imposed in a separate case. The Attorney
General stated it “appears the Stamps remedy issue in this case is moot” but
asked us to affirm the judgment for the reasons discussed in his
supplemental brief.
We asked the parties to address whether the appeal was moot in whole
or in part. In response, both acknowledge the case is moot but ask us to
exercise our discretion to decide an issue of public importance. For the
Attorney General, that issue is whether an offense against a domestic
violence victim is exempt from the two-year probation limitation under
Assembly Bill 1950. For Stewart, the issue is retroactive application of
Assembly Bill 1950 and “the subsequent remedy.” Stewart argues the
domestic violence issue was forfeited by the Attorney General’s failure to
raise it in his response to Stewart’s petition for rehearing 2 and outside the
scope of the Supreme Court’s transfer order.
DISCUSSION
“ ‘ “[W]hen, pending an appeal from the judgment of a lower court, and
without any fault of the [opposing party], an event occurs which renders it
2 Stewart also cites the Attorney General’s failure to raise this issue in
his respondent’s brief filed on September 9, 2020, but that brief predated both
enactment of the new legislation and Stewart’s petition for rehearing seeking
application of Assembly Bill 1950 to this case. Assembly Bill 1950 was signed
by the Governor and filed with the Secretary of State on September 30, 2020,
and became effective on January 1, 2021. Stewart filed his petition for
rehearing on November 23, 2020, and the Attorney General filed his response
on January 7, 2021.
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impossible for this court, if it should decide the case in favor of [defendant], to
grant him any effectual relief whatever, the court will not proceed to a formal
judgment, but will dismiss the appeal” ’ as moot. (Paul v. Milk Depots, Inc.
(1964) 62 Cal.2d 129, 132, quoting Consol. etc. Corp. v. United A. etc. Workers
(1946) 27 Cal.2d 859, 863.)” (People v. DeLeon (2017) 3 Cal.5th 640, 645.)
The present appeal is moot: The only issues pertain to the conditions and
duration of probation, and Stewart is no longer on probation.
We have discretion to decide a moot issue that “ ‘is likely to recur,
might otherwise evade appellate review, and is of continuing public
interest.’ ” (People v. DeLeon, supra, 3 Cal.5th at p. 646, quoting People v.
Morales (2016) 63 Cal.4th 399, 409.) Both parties urge us to exercise this
discretion, arguing the issues they raise are likely to recur and evade
appellate review because of the relatively short duration of probation terms.
We do not find this course of action appropriate. The question the
Attorney General would have us decide is outside the scope of the Supreme
Court’s transfer order and not properly before us. The Attorney General did
not raise the issue in his response to Stewart’s petition for rehearing, and we
denied the petition for rehearing by which the Attorney General attempted to
raise it after we issued our modified opinion. The Supreme Court’s transfer
order directed us to reconsider the case in light of Senate Bill 483 and made
no mention of the entirely separate question whether Assembly Bill 1950
applies to a case involving a victim of domestic violence.3 Pursuant to rule
3 Nor did the Supreme Court refer to this issue when it granted review:
Its order addressed the first ground upon which the Attorney General sought
review, deferring further action pending resolution of Hernandez, and did not
mention the Attorney General’s suggestion that it would also be appropriate
for the court to decide whether Assembly Bill 1950 applies to cases involving
a domestic violence victim. In fact, the Attorney General acknowledged in his
petition that this case was “a less than perfect vehicle for addressing this
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8.200, subdivision (b)(2), of the California Rules of Court, “[s]upplemental
briefs must be limited to matters arising after the previous Court of Appeal
decision in the cause, unless the presiding justice permits briefing on other
matters.” (Cal. Rules of Ct., rule 8.200(b)(2); People v. Vasquez (2022)
74 Cal.App.5th 1021, 1026, fn. 10.)
As to the retroactivity of Assembly Bill 1950 and applicability of the
Stamps remedy, as Stewart recognizes, a number of other appellate courts
have addressed these issues. Indeed, the issues are currently before the
Supreme Court in People v. Prudholme (Aug. 26, 2021, E076007 [nonpub.
opn.]), review granted November 10, 2021, S271057.4 They are no longer
relevant in the present case, and no useful purpose would be served by our
further addressing them.
issue on review” because the Attorney General did not immediately recognize
and raise it before we issued our opinion, we summarily denied rehearing,
and our opinion was unlikely to be afforded precedential value on the issue
because our only references to the statute on which the Attorney General’s
argument was based were in the unpublished portion of the opinion.
4The Court of Appeal in Prudholme found the Stamps remedy
applicable to an Assembly Bill 1950 case. The Supreme Court initially
granted review and ordered further action deferred pending resolution of
Hernandez, then ordered briefing on whether Assembly Bill 1950 applies
retroactively and, if so, whether Stamps applies.
The Supreme Court has granted review in other cases presenting these
issues, with further action deferred pending consideration and disposition in
Prudholme. (People v. Scarano (2022) 74 Cal.App.5th 993, review granted
June 1, 2022, S273830 [Stamps applicable]; People v. Butler (2022) 75
Cal.App.5th 216, review granted June 1, 2022, S273773 [Stamps
inapplicable].) Petitions for review are currently pending in at least two
other cases. (People v. Canedos (2022) 77 Cal.App.5th 469, petn. for review
filed May 16, 2022, S274244 [Stamps inapplicable]; People v. Flores, supra,
77 Cal.App.5th 420, petn. for review filed May 16, 2022, S274561 [Stamps
inapplicable].)
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DISPOSITION
The appeal is dismissed as moot.
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_________________________
Kline, J.*
We concur:
_________________________
Stewart, Acting P.J.
_________________________
Miller, J.
People v. Stewart (A157857)
* Assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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