THE PEOPLE,
A159026
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FIRST APPELLATE DISTRICT, DIVISION THREE
Filed 2/28/22
CERTIFIED FOR PARTIAL PUBLICATION*
(San Mateo County Super. Ct. No. SC083808)
Defendant Jerry Anthony Faial appeals after the trial court revoked his probation and ordered execution of his previously imposed but suspended sentence. Defendant argues: (1) due to the passage of Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950), his probation retroactively terminated before it was revoked and he is entitled to discharge from confinement; (2) his prior prison term enhancements under
In the published portion of this opinion, we conclude the passage of Assembly Bill 1950 did not invalidate the trial court‘s orders revoking and terminating defendant‘s probation and executing the previously imposed 12-year sentence. In the unpublished portion of this opinion, we agree that defendant‘s
In September 2015, the People charged defendant by information with first degree burglary (
As to the burglary count, the People alleged that defendant was released on bail or on his own recognizance at the time of the offense (
Prior to sentencing, San Mateo County Superior Court Judge Donald Ayoob granted defendant‘s motion to strike both of his strike priors. The court indicated it was doing so in the interests of justice, in part because the specific circumstances of the presently charged offenses rendered them less serious. On May 4, 2017, the court imposed a total sentence of 12 years on defendant, consisting of the low term of two years for the first degree burglary count, plus two consecutive five-year terms for the
In November 2017, defendant admitted violating the terms of his probation by not completing the program. Five weeks after it revoked defendant‘s probation, the trial court reinstated it and ordered defendant to complete a different program. The court indicated defendant would not receive credit for the time he spent in his first program, but would earn credit from the day he surrendered himself to the day of the probation violation hearing
On May 14, 2019, defendant‘s probation officer filed an affidavit indicating defendant had again violated the terms of his probation, this time by failing to abstain from use and possession of alcohol on different occasions, resisting arrest, possessing a knife, and possessing drug paraphernalia. The two alleged
On November 7, 2019, San Mateo Superior Court Judge Robert Foiles held a revocation hearing, found all but the seventh of the alleged probation violations true, and ordered execution of the previously imposed but suspended 12-year sentence. Judge Foiles indicated the sentence was structured as follows: an aggravated six-year term for the first degree burglary count; a two-year consecutive term for the on-bail enhancement; eight-month consecutive terms for each of the remaining counts; two years total for the two
DISCUSSION
A. Assembly Bill No. 1950
As indicated, on May 4, 2017 the trial court imposed a sentence of 12 years but suspended its execution and placed defendant on four years of probation. A little over two years later, on May 15, 2019, the trial court summarily revoked defendant‘s probation based on two alleged probation violations occurring in January and March of 2019 and four alleged violations occurring on May 9, 2019. In November 2019, the court found the six alleged violations true, terminated defendant‘s probation, and ordered execution of his 12-year sentence.
On appeal, defendant does not challenge the sufficiency of the evidence supporting the six probation violations. Instead, he argues that Assembly Bill 1950—which limits probation terms to two years for most felonies—applies to his case and divested the trial court of jurisdiction to revoke and terminate his probation after he had been on probation for two years. Put another way, he contends that Assembly Bill 1950 applies retroactively to shorten his probation term from four years to two years, thereby retroactively depriving the trial court of jurisdiction to revoke his probation after passage of the two-year mark and rendering the revocation and termination of his probation invalid. We cannot agree.
Effective January 1, 2021, Assembly Bill 1950 amended
Appellate courts are so far unanimous in holding that Assembly Bill 1950 applies retroactively to defendants who were serving a term of probation when the legislation became effective on January 1, 2021; in such cases, the courts have acted to reduce the length of their probation terms. (E.g., People v. Greeley (2021) 70 Cal.App.5th 609, 627; People v. Czirban (2021) 67 Cal.App.5th 1073, 1095; People v. Schultz (2021) 66 Cal.App.5th 887, 894-895; People v. Lord (2021) 64 Cal.App.5th 241, 244-246; People v. Stewart (2021) 62 Cal.App.5th 1065, 1071-1074, review granted June 30, 2021, S268787; People v. Sims, supra, 59 Cal.App.5th at p. 964; People v. Quinn (2021) 59 Cal.App.5th 874, 881-885.) While we have no quarrel with those decisions, we are not persuaded that Assembly Bill 1950 invalidates a trial court‘s revocation and termination of a defendant‘s probation where, as here, such actions were properly taken before Assembly Bill 1950‘s effective date.
In assessing whether Assembly Bill 1950‘s amendment of
As the legislative history reflects, the drafters of Assembly Bill 1950 acted on studies showing that probation services are “most effective during the first 18 months of supervision” and that “providing increased supervision and services earlier reduces an individual‘s likelihood to recidivate.” (Assem. Floor Analysis, 3d reading analysis of Assem. Bill. No. 1950 (2019-2020 Reg. Sess.) as amended June 10, 2020, p. 1 (Assem. 3d Reading).) The various legislative analyses highlighted the cost savings of reducing probation periods and noted the bill would allow for “the reinvestment of funding into supportive services for people on misdemeanor and felony probation rather than keeping this population on supervision for extended periods.” (Assem. 3d Reading, at p. 1; Assem. Com. on Appropriations, Analysis of Assem. Bill. No. 1950 (2019-2020 Reg. Sess.) as amended May 21, 2020, p. 1 (Assem. Appropriations Analysis); see Sen. Com. on Public Safety, Analysis of Assem. Bill. No. 1950 (2019-2020 Reg. Sess.) as amended June 10, 2020, p. 4 (Sen. Public Safety Analysis).) The analyses also referenced comments from supporters of the bill that shortening probation periods would not only “‘decrease the amount of time that an individual must suffer for a prior misdeed,‘” but also “‘has the added benefit of incentivizing compliance.‘” (Assem. 3d Reading, at p. 2; Assem. Appropriations Analysis, at p. 2.) Finally, other analyses that focused on public safety noted Assembly Bill 1950 “supports probation officers in completing the duties of their job more effectively, by making their caseloads more manageable.” (Sen. Public Safety Analysis, at p. 4; see Assem. Com. on Public Safety, Analysis of Assem. Bill. No. 1950 (2019-2020 Reg. Sess.) as amended May 6, 2020, p. 4.)
Consistent with the statutory terms and legislative history, the appellate courts have unanimously held that Assembly Bill 1950‘s mandate for shorter probation periods should extend to defendants who were on probation when the legislation became effective on January 1, 2021. (See cases cited, ante, at p. 6.) Indeed, these and future probationers alike would benefit from the law‘s reduced probation periods and the resulting incentivization of compliance toward rehabilitation, as well as from the drafters’ anticipation that cost savings would allow more effective supervision and increased availability of supportive services to reduce possible recidivism. But these legislative aims are not advanced by extending the law to former probationers who were serving executed sentences as of the law‘s effective date, and nothing in the statutory language indicates such defendants were intended to
Here, there is no dispute that in May 2019, under the law as it then existed, defendant was validly on probation and the trial court was duly authorized to summarily revoke that probation based on defendant‘s alleged probation violations. (
In arguing that Assembly Bill 1950 should apply retroactively to former probationers such as himself, defendant relies principally on People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara) and People v. Frahs (2020) 9 Cal.5th 618 (Frahs). In Lara, at pp. 303-304, 308-309, the Supreme Court held that a new law‘s requirement of a transfer hearing before a juvenile could be tried as an adult applies retroactively to all juveniles who had been charged directly in adult court and whose cases were not yet final. In Frahs, at pp. 624-625, the court concluded that a new law creating a pretrial diversion program for certain defendants with mental disorders applies retroactively to defendants whose judgments of conviction are pending on appeal. Those authorities do not support defendant‘s position.
The laws at issue in Lara and Frahs require that certain classes of persons be afforded the opportunity to show that their crimes and circumstances warranted rehabilitative or treatment-focused dispositions rather than prosecution and sentencing in the criminal courts. (See Lara, supra, 4 Cal.5th at pp. 303, 309 [emphasizing juvenile court‘s goal of rehabilitation]; Frahs, supra, 9 Cal.5th at pp. 629, 631 [allowing for potential dismissal of charges for defendants with qualifying mental health disorders upon satisfactory participation in mental health diversion program].) In those cases, the Supreme Court determined that the respective offenders should benefit from
In this case, we reiterate our agreement with the decisions holding that Assembly Bill 1950 applies retroactively to a specific class of persons—i.e., defendants whose probation has not been revoked and terminated. For such persons, Assembly Bill 1950 acts in mitigation by shortening their probation terms regardless of when those terms were established. But nothing in Lara or Frahs supports defendant‘s interpretation of Assembly Bill 1950 as benefiting persons who are no longer on probation but are serving their executed sentences. There is no indication that Assembly Bill 1950 was intended to extinguish a defendant‘s accountability for probation violations, or to otherwise invalidate revocation and termination orders predating January 1, 2021. Moreover, we note that probation violations sometimes involve criminal conduct, and that Assembly Bill 1950 evinced no intent to excuse conduct that was addressed as a violation of probation rather than prosecuted as a new criminal charge. Finally, and ultimately, Assembly Bill 1950‘s basic aims to incentivize compliance and allow for increased supervision and services for offenders working toward rehabilitation are inconsequential for former probationers like defendant. Accordingly, we are not persuaded that Lara and Frahs support the overly broad retroactive effect that defendant urges.
Defendant additionally relies on People v. Sims, supra, 59 Cal.App.5th 943, for the proposition that Assembly Bill 1950 applies retroactively to non-final cases. But significantly, the defendant in Sims was on active probation at the time of his appeal. There was no evidence of a probation violation, and the trial court had neither revoked nor terminated his probation by the time Assembly Bill 1950 became effective. (Sims, at pp. 947, 949.) Thus, the factual context of Sims clearly lends no support to defendant‘s claim that Assembly Bill 1950 applies retroactively to invalidate the revocation and termination of his probation and the resulting execution of his sentence.
B. Prior Prison Term Enhancements
Next, defendant argues the enhancements imposed on him under
When defendant was sentenced, former
We now address defendant‘s invitation to simply strike the enhancements rather than remand the matter to the trial court for resentencing.
When part of a sentence is stricken on appeal, a remand for “‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.‘” (People v. Buycks, supra, 5 Cal.5th at p. 893.) If, however, the trial court “imposed the maximum possible sentence, [then] regardless of whether [an] enhancement was stricken, there is no need to remand the matter to the trial court to exercise its sentencing discretion anew.” (Id. at p. 896, fn. 15.)
Here, defendant contends a remand is unnecessary because the trial court imposed the maximum possible sentence. But as the People point out, “the imposition of the upper term on the burglary count did not preclude imposition of one of the five-year serious felony prior enhancements and adjustments in the terms on the burglary or the other counts (counts 4, 5, and 6, the petty theft with a prior and criminal threats counts) to replace the no longer applicable one-year enhancements.” We agree. The record reflects that the trial court struck the
Defendant counters that the sentence as structured by the “executing” judge was a “contractual” sentence that cannot be changed, aside from striking the
C. Credits
Defendant contends the trial court failed to award him 87 additional days of custody credit in addition to the 547 days awarded. More specifically, he claims he is entitled to an additional 56 days of credit for time spent in custody during his late-2017 revocation proceedings, as well as a total of 213 days of credit for the time he spent in his program from November 22, 2017 to June 23, 2018.
The People agree that the trial court indicated it would award defendant credit to cover the date he surrendered himself in connection with his 2017 revocation proceedings to the date of his revocation hearing. The People also acknowledge that November 22, 2017 to June 23, 2018 amounts to 213 days, not 183 days. Because we are remanding this matter for resentencing, we will instruct the court to also recalculate defendant‘s credits.4
DISPOSITION
The matter is remanded for resentencing. The trial court is instructed to vacate the enhancements imposed under
Fujisaki, J.
WE CONCUR:
Tucher, P. J.
Petrou, J.
A159026
People v. Faial (A159026)
Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Robert Foiles
Attorneys:
Allan Charles Dell‘Ario under appointment by the First District Appellate Project‘s Independent Case System on behalf of Defendant and Appellant.
Rob Bonta, Attorney General, Lancee Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Alice B. Lustre, Supervising Deputy Attorney General Catherine A. Rivlin, Supervising Deputy Attorney General on behalf of Plaintiff and Respondent.