People v. Weed CA2/7

Filed 7/15/21 P. v. Weed CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301436
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA143782)
v.
DAGAN NOKSI WEED,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael J. Schultz, Judge. Affirmed and
remanded with directions.
Julie Caleca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, and Blythe J. Leszkay and Nicholas
J. Webster, Deputy Attorneys General for Plaintiff and
Respondent.
INTRODUCTION
Dagan Noksi Weed appeals from the trial court’s order
revoking his probation and imposing a five-year prison sentence
the court had previously suspended. The trial court found Weed
willfully violated the terms of his probation when he took two
cars belonging to his wife, Christina Payano, one (a Lexus) on
April 5, 2019 and one (a BMW) on August 25, 2019. The trial
court also found Weed used force on April 5, 2019 when he hit
Payano three times with a backpack and kicked her in the face.
Weed argues substantial evidence did not support the trial
court’s finding he violated the terms of his probation because
Payano testified at the probation violation hearing she lied to the
police about the physical altercation. He also argues any
violation was not willful because he believed he had permission to
drive the cars. And Weed argues we should strike the two one-
year enhancements the trial court imposed under Penal Code
section 667.5, subdivision (b),1 because Senate Bill No. 136
(Senate Bill 136), which limits that enhancement to defendants
who served a prior prison sentence for a sexually violent offense,
applies retroactively to cases, like his, that are not final.
We conclude that substantial evidence supported the trial
court’s order revoking probation and that Senate Bill 136 applies
to Weed’s sentence. We also conclude the appropriate remedy is
a limited remand for the trial court to allow the parties to
withdraw from the plea agreement and seek the trial court’s
approval of a new sentence.
1 Statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
A. Weed Pleads Guilty to False Imprisonment by
Violence, and the Trial Court Places Him on
Probation
The People charged Weed with false imprisonment by
violence (§ 236), willful infliction of corporal injury resulting in a
traumatic condition on a spouse (§ 273.5, subd. (a)(1)), and
battery committed against a spouse or person with whom the
defendant is cohabiting (§ 243, subd. (e)(1)). The People also
alleged that Weed had one prior serious or violent felony
conviction within the meaning of the three strikes law (§§ 667,
subds. (b)-(i), 1170.12) and that he served two prior prison terms
within the meaning of section 667.5, subdivision (b).
Weed pleaded guilty to false imprisonment by violence and
admitted the two prior prison term allegations, and the court
dismissed the other charges and allegations pursuant to the plea
agreement. On August 13, 2018 the court imposed and
suspended execution of a five-year prison sentence, consisting of a
three-year term for false imprisonment by violence and two one-
year enhancements under section 667.5, subdivision (b), and
placed Weed on probation.
B. Weed Takes Payano’s Lexus Without Permission
On April 5, 2019 Payano contacted the Los Angeles Police
Department to report a carjacking and told Officer David Torres
that, while she was moving her Lexus for trash collection day,
Weed approached the passenger-side window and tried to take
the keys from the car. Payano stated that, when she got out of
the car to talk to Weed, he hit her three times with a backpack.
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Payano fell to the ground, and Weed kicked her in the mouth.
Weed drove away in the Lexus. Payano showed Officer Torres a
cut on the inside of her lip she said she received when Weed
kicked her. Officer Torres testified Payano was crying and
visibly upset.
C. Weed Takes Payano’s BMW Without Permission
On August 15, 2019 Payano reported to the police that the
previous day Weed had again taken a car from her, this time a
BMW, without permission. Later that day, Officer Joseph Braun
responded to a radio call concerning a possible assault with a
deadly weapon. Officer Braun drove to the scene, and Payano
flagged him down from her car. Payano told Officer Braun that
she had just returned from the police station and that Weed was
“over there” near a BMW. Officer Braun saw Weed and detained
him. After Officer Braun read Weed his rights under Miranda v.
Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694],
Weed stated he took the keys to the car the previous day from a
hook in Payano’s home. Weed stated that Payano called him
numerous times asking him to return the car, but that he refused
because he was with a friend.
Payano called Weed’s probation office and spoke with
Probation Officer Jamaal Hawkins. Payano told Officer Hawkins
that Weed stole her BMW, which was in her mother’s name, and
that she was going to file a report at the police station. Payano
subsequently went to the probation office, spoke again with
Officer Hawkins, and told him she “had a tussle” with Weed
earlier in the day when she tried to take the car keys from him.
Payano also told Officer Hawkins the police had arrested Weed.
Payano explained that, given her small stature, she was “in no
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. . . situation to be getting into physical altercations” with Weed
and that she was afraid of him.
D. The Trial Court Revokes Weed’s Probation and Sets
a Probation Violation Hearing
On August 29, 2019 the trial court, after considering a
probation report and a motion by the prosecutor, revoked
Weed’s probation. The trial court remanded Weed to custody
and set a probation violation hearing for September 12, 2019.
E. Payano Recants at the Probation Violation Hearing
Officers Torres, Braun, and Hawkins testified at the
probation violation hearing, as did Payano. Payano confirmed
that on April 5, 2019 she called the police because Weed took her
Lexus without her consent and did not return it when she asked
him to. Payano stated that Weed had a key to the Lexus, that
she did not see Weed take the car, and that there was no physical
altercation on April 5, 2019. Payano also testified that she lied to
the police about the assault because she was angry Weed had
taken her car without permission and that most of her
statements to the police were not true.
Payano also confirmed that on August 15, 2019 she went to
the police station and reported that Weed had taken her car the
previous day without permission and refused to return it.
Payano further confirmed that, after she left the station, she
flagged down a police car she saw driving toward her mother’s
home and told the officers Weed had taken her car without her
permission. Payano, however, denied she had a physical
altercation with Weed and said she did not remember anything
else she told the police that day. Payano stated that she went to
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Weed’s probation office to discuss Weed’s mental health issues
with his probation officer and that she told Officer Hawkins that
Weed had taken her car without her consent. Payano testified
that she exaggerated and lied about the physical altercation and
that she loved Weed and did not want anything bad to happen to
him.
F. The Trial Court Revokes Weed’s Probation and
Imposes the Five-year Sentence
The trial court found by a preponderance of the evidence
Weed had willfully violated the terms of his probation. The trial
court found that Payano’s testimony at the hearing was designed
to convince the court Weed was “not violent or a domestic abuser”
and had not been violent toward or abused her in the past. The
court found her testimony that Weed had not engaged in
domestic violence was “clearly impeached” and not credible. The
trial court also found that Weed took the cars without consent
and that Weed used force to take the Lexus by hitting Payano
with the backpack and kicking her.
The trial court revoked Weed’s probation and imposed the
five-year prison term. The court stated it was concerned about
the safety of Weed, those who loved him, and the community.
Weed timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
“Section 1203.2, subdivision (a), authorizes a court to
revoke probation if the interests of justice so require and the
court, in its judgment, has reason to believe that the person has
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violated any of the conditions of his or her probation. [Citation]
“‘When the evidence shows that a defendant has not complied
with the terms of probation, the order of probation may be
revoked at any time during the probationary period.”’” (People v.
Urke (2011) 197 Cal.App.4th 766, 772, fn. omitted; see People v.
Leiva (2013) 56 Cal.4th 498, 504-505.)
“The standard of proof in a probation revocation proceeding
is proof by a preponderance of the evidence.” (Urke, supra,
197 Cal.App.4th at p. 772; see People v. Rodriguez (1990)
51 Cal.3d 437, 447 [“proof of facts supporting the revocation of
probation pursuant to section 1203.2(a) may be made by a
preponderance of the evidence”].) The evidence must show “‘the
probationer’s conduct constituted a willful violation of the terms
and conditions of probation.’” (People v. Cervantes (2009)
175 Cal.App.4th 291, 295; see People v. Galvan (2007)
155 Cal.App.4th 978, 982.) “In essence, the issue at a probation
revocation hearing is whether the defendant’s conduct
demonstrates that the leniency extended by the grant of
probation remains justified.” (People v. Garcia (2006) 39 Cal.4th
1070, 1087.)
We review the trial court’s finding a defendant violated the
terms of his or her probation for substantial evidence. (People v.
Butcher (2016) 247 Cal.App.4th 310, 318; People v. Urke, supra,
197 Cal.App.4th at p. 773; People v. Kurey (2001) 88 Cal.App.4th
840, 848.) On review for substantial evidence, “great deference is
accorded the trial court’s decision, bearing in mind that
‘[p]robation is not a matter of right but an act of clemency, the
granting and revocation of which are entirely within the sound
discretion of the trial court.’” (Urke, at p. 773; see Kurey, at
pp. 848-849 [“our review is limited to the determination of
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whether, upon review of the entire record, there is substantial
evidence of solid value, contradicted or uncontradicted, which will
support the trial court’s decision”].) “‘“[O]nly in a very extreme
case should an appellate court interfere with the discretion of the
trial court in the matter of denying or revoking probation.”’”
(Urke, at p. 773.) We review a trial court’s decision to revoke and
terminate probation for abuse of discretion. (See People v.
Rodriguez, supra, 51 Cal.3d at p. 443; People v. Michael W. (1995)
32 Cal.App.4th 1111, 1119.
B. Substantial Evidence Supported the Trial Court’s
Finding Weed Violated the Terms of His Probation
Weed argues substantial evidence did not support the trial
court’s finding he violated the terms and conditions of his
probation by assaulting Payano and taking her cars without
permission. Weed focuses on the fact that, at the probation
hearing, Payano said she lied to the police about the assault.
Weed also argues that he did not know he needed Payano’s
permission to use the cars and that, had he physically assaulted
Payano, her injuries would have been a lot worse.
Substantial evidence supported the trial court’s findings. It
was undisputed Weed took Payano’s Lexus on April 5, 2019 and
her BMW on August 15, 2019. The evidence showed that Weed
knew he needed Payano’s permission to take the cars and that
Weed knew he was using the cars without consent. Payano
testified that she often told Weed he had to ask her if he wanted
to use the car, that she told the police Weed took the Lexus
without her consent, and that he did not return it when she
asked him to. Payano made similar statements about the BMW
taking on August 5, 2019. Weed confirmed to Officer Braun that
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Payano had asked him to return the BMW, but that he refused
because he was busy.2
Weed argues Payano was not a credible witness because
she said she lied to the police about the April 5, 2019 incident.
Weed also argues the small cut on Payano’s lip was too minor of
an injury to show that Weed used force to take the Lexus or that
a physical struggle had occurred. Officer Torres, however,
testified Payano told him Weed struck her three times with a
backpack and kicked her in the face when she fell. Although
Payano testified these statements were lies, the trial court was
entitled to believe Officer Torres’s statements about what Payano
told him had occurred on April 5, 2019, and disbelieve Payano’s
attempts at the probation violation hearing to change her story.
(See People v. Gomez (2018) 6 Cal.5th 243, 280-281 [“‘[i]n deciding
the sufficiency of the evidence, a reviewing court resolves neither
credibility issues nor evidentiary conflicts,’” and “‘[r]esolution of
conflicts and inconsistencies in the testimony is the exclusive
province of the trier of fact’ [citation] in the ‘absence of patent
falsity, inherent improbability, or other reason to question [the
testimony’s] validity’”]; People v. Jones (2013) 57 Cal.4th 899,
963-964 [“‘we must accord due deference to the trier of fact and
not substitute our evaluation of the witness’s credibility for that
of the fact finder,’” and “‘unless the testimony is physically
2 Weed also argues he thought he had the legal right to take
the cars because they were community property. But Payano
testified that the cars were hers and that Weed did not have
permission to take them. And, even if the cars were community
property, Weed did not have the right to use violence to take
them.
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impossible or inherently improbable, [the] testimony of a single
witness is sufficient to support a conviction’”].)
That Payano’s injuries were limited and did not require
medical treatment did not preclude the court from disbelieving
Payano’s testimony. There was no direct evidence of how much
force Weed used to take the Lexus on April 5, 2019. The trial
court reasonably could have concluded Weed assaulted Payano
with enough force to take the car, but not enough to cause
extensive injuries. Indeed, the court stated Weed may have
assaulted Payano to humiliate her, not to inflict serious injury.
C. Senate Bill 136 Applies to Weed’s Two One-year
Sentence Enhancements
In enacting Senate Bill 136, the Legislature amended
section 667.5, subdivision (b), effective January 1, 2020, to limit
the sentence enhancement to prison terms imposed for specific
violent sexual offenses. (See Stats. 2019, ch. 590, § 1.) Senate
Bill 136 applies to all cases not yet final. (People v. Esquivel
(2021) 11 Cal.5th 671, 673; see People v. Hernandez (2020)
55 Cal.App.5th 942, 947 (Hernandez) [“Senate Bill 136 applies
retroactively to all defendants whose judgments were not yet
final as of the statute’s effective date”], review granted Jan. 27,
2021, S265739.)
Weed argues, the People concede, and we agree his case is
not final because the trial court, when it placed Weed on
probation, imposed and suspended execution of a five-year prison
sentence and because he can still obtain direct review of the trial
court’s order revoking probation and imposing the five-year
sentence. As the Supreme Court held in People v. Esquivel,
supra, 11 Cal.5th 671, a case is not yet final for purposes of
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Senate Bill 136 when “a defendant is placed on probation with
execution of an imposed state prison sentence suspended”
because the defendant can “still timely obtain direct review of an
order revoking probation and causing the state prison sentence to
take effect.” (Esquivel, at p. 673.) The Supreme Court in
Esquivel explained that a case like Weed’s is not final under In re
Estrada (1965) 63 Cal.2d 740 because the defendant has “not yet
exhausted direct review of the order causing his carceral
punishment to take effect. The time for him to seek that review
had not expired. And he had not successfully completed
probation.” (Esquivel, at p. 678; cf. People v. Chavez (2018)
4 Cal.5th 771, 782, [the trial court’s power is “significantly
attenuated” once the probation period ends].) Therefore, Weed is
entitled to the benefits of Senate Bill 136.
D. The Trial Court Must Dismiss the Two Sentence
Enhancements Under Section 667.5, Subdivision (b),
but the Court Cannot Impose the Rest of the Sentence
Weed argues the proper remedy is to strike the two one-
year sentence enhancements under section 667.5, subdivision (b),
and leave the rest of the sentence intact, which would reduce his
prison sentence from five years to three. The People argue the
appropriate remedy is to allow the prosecutor to accept the
reduction on Weed’s sentence or to withdraw consent to, or to
renegotiate, the plea agreement. The People’s position is more
consistent with the Supreme Court’s decision in People v. Stamps
(2020) 9 Cal.5th 685 (Stamps).
In Stamps the Supreme Court held that Senate Bill
No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393), which
authorizes a trial court to dismiss in the interest of justice a
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serious felony enhancement under section 667, subdivision (a),
did not authorize the trial court to modify a plea agreement by
striking the enhancements. (Stamps, supra, 9 Cal.5th at p. 692.)
The Supreme Court concluded a trial court could dismiss the
enhancement and leave the plea agreement intact only if the
Legislature in enacting Senate Bill 1393 “intended to overturn
long-standing law that a court cannot unilaterally modify an
agreed-upon term by striking portions of it under section 1385.”
(Stamps, at p. 701.) After analyzing the legislative history of
Senate Bill 1393, the Supreme Court held that Senate Bill 1393
did not entitle defendants to “‘“whittle down”’” their sentences
and that the Legislature did not intend “to overturn existing law
regarding a court’s lack of authority to unilaterally modify a plea
agreement. Indeed, none of the legislative history materials
mention plea agreements at all.” (Stamps, at pp. 702, 706.)
Weed argues there is a “significant difference” between
Senate Bill 1393, which gives the trial court discretion to strike
enhancements, and Senate Bill 136, which eliminates an
enhancement for all but a limited number of crimes. Weed relies
on People v. France (2020) 58 Cal.App.5th 714, review granted
February 24, 2021, S266771, where the court held that the
Legislature, in enacting Senate Bill 136, required courts to strike
certain one-year enhancements by “making the enhancement
portion of [the defendant’s] sentence illegal” and that “construing
Senate Bill 136 to allow the People to withdraw from plea
deals containing the affected enhancements could prevent the
Legislature from fully realizing its goals of departing from mass
incarceration, saving money on prison costs, and keeping families
together.” (France, at pp. 729-730.) The court in France modified
the judgment by striking the one-year enhancement under
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section 667.5, subdivision (b). (France, at p. 730.) Several courts
have agreed with France. (See People v. Stewart (2021)
62 Cal.App.5th 1065, 1077 [“‘That the parties enter into a plea
agreement . . . does not have the effect of insulating them from
changes in the law that the Legislature has intended to apply to
them.’”], review granted June 30, 2021, S268787; People v.
Andahl (2021) 62 Cal.App.5th 203, 215 [“[w]e find France the
better-reasoned opinion and agree that the remedy discussed in
Stamps has no application to the legislative action invalidating
the one-year sentence enhancements”], review granted June 16,
2021, S268336.)
The People rely on Hernandez, supra, 55 Cal.App.5th 942,
review granted, where the court held that the enhancements
under section 667.5, subdivision (b), “were integral to the plea
agreement and the specified sentence” and that the trial court
does not have the authority to modify the plea agreement after
striking the enhancements. (Hernandez, at p. 957.) The court in
Hernandez concluded that, although the trial court “must dismiss
the two prior prison term enhancements that were an integral
part of defendant’s specified sentence, it cannot unilaterally
modify the plea agreement by keeping the remainder of the
bargain intact, and the People may withdraw from the plea
agreement.” (Id. at pp. 958-959.) Several courts have agreed
with Hernandez. (See People v. Ruggerio (June 25, 2021,
B305655) ___ Cal.App.5th ___, ___ [2021 WL 2619978, p. 1]
[California law does not allow the trial court to make “‘“unilateral
changes to a material term of the plea agreement” without the
consent of the prosecution’”]; People v. Houle (2021)
64 Cal.App.5th 395, 400 [Stamps “forecloses [the] defendant’s
initial argument that the enhancements should be stricken but
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the remainder of the plea bargain left intact”]; People v. Griffin
(2020) 57 Cal.App.5th 1088, 1095 [same], review granted Feb. 17,
2021, S266521.) The Supreme Court granted review in
Hernandez to resolve this split in authority.3
In the meantime, we conclude Hernandez is more
consistent with the Supreme Court’s decision in Stamps. As the
court in Hernandez explained, “there is no evidence the
Legislature intended Senate Bill 136 to permit the trial court to
unilaterally modify a plea agreement once the prior prison term
enhancements are stricken.” (Hernandez, supra, 55 Cal.App.5th
at p. 958, review granted; see People v. Ruggerio, supra,
___ Cal.App.5th at p. ___ [p. 1].) “‘Whether by withdrawal of its
prior approval or the granting of a withdrawal/rescission request
by one or both of the parties, the trial court “‘“must restore the
parties to the status quo ante.”’” [Citations.] The parties may
then enter into a new plea agreement, which will be subject to
the trial court’s approval, or they may proceed to trial on the
reinstated charges.’” (People v. Griffin, supra, 57 Cal.App.5th at
p. 1096, review granted; see Ruggerio, at p. ___ [p. 2] [once the
court strikes the enhancement, the prosecution is entitled to
withdraw its consent to, and the court may withdraw its approval
3 In particular, the Supreme Court granted review to
decide (1) whether, if a defendant’s prior prison term
enhancements are stricken under Senate Bill 136, the remainder
of the sentence agreed to under a plea agreement remains intact
or the case must be remanded to allow the People to withdraw
from the plea agreement and to obtain the trial court’s approval
and (2) whether, if the plea agreement is rescinded in light of
Senate Bill 136, the court can sentence the defendant to a term
longer than provided for in the original agreement.
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of, the plea agreement]; Hernandez, at p. 960 [the People are
“‘“entitled to the same remedy as the defendant—withdrawal of
assent to the plea agreement”’”].)
DISPOSITION
The order revoking Weed’s probation is affirmed. The trial
court is directed to dismiss Weed’s two one-year sentence
enhancements and to allow the parties to reconsider the plea
agreement.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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