81 Cal.App.5th 181
Cal. Ct. App.2022Background
- Laura Shelly pled no contest to one count of embezzlement by an employee; an allied count (unlawful use of personal identification) was dismissed under a plea agreement.
- At sentencing (Jan. 21, 2020) the court imposed five years felony probation and 365 days in county jail (alternative custody); later a restitution hearing awarded $72,972.47 to the victim.
- Defendant appealed, arguing (1) Assembly Bill 1950 (effective Jan. 1, 2021) retroactively limits felony probation to two or three years (three years here because loss exceeded $25,000), and (2) the restitution award should be reduced by $5,816.25.
- The People conceded AB 1950 applies retroactively but argued they should be allowed to withdraw from the plea (or the court to withdraw approval) if the reduced probation term deprived them of the bargain.
- The Court of Appeal held AB 1950 applies retroactively, reduced Shelly’s probation from five years to three years, denied the People the right to withdraw from the plea, and reduced restitution by $1,000 (rejecting other reductions).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AB 1950’s shorter felony-probation limits apply retroactively and require modification of Shelly’s plea-based sentence | AB 1950 is retroactive; People agree reduction applies but contend they should be allowed to withdraw or renegotiate the plea if deprived of the bargain | AB 1950 applies retroactively; reduce probation to three years and leave plea intact | AB 1950 applies retroactively; probation reduced to three years; plea remains in effect and People may not withdraw |
| Whether the Stamps remand/Collins-type remedy (allowing People or court to rescind plea approval) is required when ameliorative law reduces an agreed sentence | Stamps requires remand so court/prosecutor can accept reduction or withdraw from plea when a sentence term is altered | Stamps is distinguishable; Legislature directly invalidated the longer probation term so the remedy is not required | Stamps remedy not required here: legislative change (not court discretion) altered the term; allowing withdrawal would frustrate legislative intent and Estrada’s retroactivity presumption |
| Whether $1,000 included in restitution was a compensable loss | Victim’s accounting included the $1,000 transfer among unauthorized transfers | Transfer was between victim’s own accounts (no actual loss) | $1,000 was not a loss to the victim; restitution reduced by $1,000 |
| Whether $7,442.50 for bookkeepers’ investigative time was excessive | Probation report and victim’s statements provide prima facie support for claimed hours/amount | Defendant argued actual wages/hours show a lower amount (~$2,626.25) | Court upheld the $7,442.50 award as not an abuse of discretion given equivocal contrary evidence |
Key Cases Cited
- People v. Stamps, 9 Cal.5th 685 (Cal. 2020) (Supreme Court holding remand may be required where discretionary legislative change allows courts to alter plea terms, and describing remedy consequences)
- People v. Collins, 21 Cal.3d 208 (Cal. 1978) (rule that when legislative change eviscerates bargain the People may seek to revive dismissed charges to restore the benefit of the bargain)
- In re Estrada, 63 Cal.2d 740 (Cal. 1965) (presumption that ameliorative penal statutes apply retroactively to nonfinal judgments)
- Doe v. Harris, 57 Cal.4th 64 (Cal. 2013) (plea agreements are deemed to incorporate the Legislature’s reserve power to amend the law)
- People v. Flores, 77 Cal.App.5th 420 (Cal. Ct. App. 2022) (applied AB 1950 retroactively and reduced probation without allowing People to withdraw)
- People v. Scarano, 74 Cal.App.5th 993 (Cal. Ct. App. 2022) (held remand under Stamps was required in that case; discussed tension between Stamps and AB 1950 decisions)
- People v. Stewart, 62 Cal.App.5th 1065 (Cal. Ct. App. 2021) (held AB 1950’s mandatory reduction differs from discretionary statutes and does not require Stamps remand)
- People v. Gemelli, 161 Cal.App.4th 1539 (Cal. Ct. App. 2008) (probation report and victim testimony constitute prima facie evidence of loss for restitution purposes)