75 Cal.App.5th 738
Cal. Ct. App.2022Background
- In May 2017 Judge Ayoob imposed a 12-year sentence (suspended) and placed Jerry Faial on four years' probation; execution of sentence could be ordered on probation revocation. Faial waived credits at sentencing.
- Faial admitted a probation violation in Nov. 2017; probation was briefly revoked, then reinstated with a different program and a promise to award custody credit for certain custody periods.
- Probation officer alleged additional violations in January, March and May 2019; the court summarily revoked probation on May 15, 2019 and, after a November 7, 2019 revocation hearing, found six violations, terminated probation, and ordered execution of the previously imposed 12-year sentence.
- Faial appealed, arguing (1) Assembly Bill 1950 (shortening felony probation to two years) retroactively terminated his probation before revocation, invalidating the revocation and order executing sentence; (2) Penal Code § 667.5(b) prior prison-term enhancements are invalid under later statutory amendment; and (3) he is entitled to additional custody credits.
- The Court (published portion) held AB 1950 did not invalidate the revocation and execution because the revocation and termination occurred before AB 1950’s effective date and Faial was already serving his executed sentence when the law took effect.
- The Court (unpublished portions) agreed the two § 667.5(b) enhancements must be stricken under the 2020 amendment and that credit calculations should be revisited; it remanded for resentencing, vacating the § 667.5(b) enhancements and instructing recalculation of credits; otherwise the judgment was affirmed.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Faial) | Held |
|---|---|---|---|
| Retroactivity of AB 1950 (probation shortened to 2 yrs) | AB 1950 applies retroactively to defendants on probation when it took effect, but does not invalidate valid pre-2021 revocations already executed. | AB 1950 retroactively shortened his 4-year probation to 2 years, divesting the court of jurisdiction to revoke after two years and rendering the revocation and execution void. | Rejected: AB 1950 did not invalidate a properly taken revocation and execution that occurred before the statute’s effective date; defendant was already serving his sentence when AB 1950 became effective. |
| Validity of § 667.5(b) prior prison-term enhancements after SB 136 (2019) | Enhancements are inapplicable where prior terms were not for sexually violent offenses; People concedes amendment applies. | Enhancements should be stricken because the amended statute limits enhancements to prior sexually violent offenses. | Granted: § 667.5(b) enhancements stricken; remand for resentencing so court can reexamine overall sentence without those enhancements. |
| Custody credit calculation | People acknowledges certain credits should be awarded and agrees dates require correction. | Seeks an additional 87 days (56 days for 2017 revocation custody plus 213 days for program custody), claiming trial court miscalculated. | Remand: court instructed to recalculate credits on remand (discrepancy as to exact dates left for trial court to resolve). |
Key Cases Cited
- People v. Lara, 4 Cal.5th 299 (Cal. 2018) (Supreme Court held ameliorative change affecting transfer hearings applied retroactively to nonfinal juvenile cases)
- People v. Frahs, 9 Cal.5th 618 (Cal. 2020) (Supreme Court applied a new mental-health diversion statute retroactively to cases not yet final)
- People v. Buycks, 5 Cal.5th 857 (Cal. 2018) (discussed retroactive relief and necessity of clear legislative intent when relief affects final sentences)
- People v. Sims, 59 Cal.App.5th 943 (Cal. Ct. App. 2021) (held AB 1950 applies retroactively to defendants who remained on active probation when the law took effect)
- People v. Howard, 16 Cal.4th 1081 (Cal. 1997) (on revocation of probation, a previously imposed sentence must be ordered into effect)