People v. FaialPeople v. Faial
FACTUAL AND PROCEDURAL BACKGROUND
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
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 violations for failure to abstain from alcohol use and possession occurred on January 14, 2019 and around late March 2019. The remaining alleged violations occurred on May 9, 2019. A minute order dated May 15, 2019 indicates probation was revoked as of that date. In July 2019, the probation officer filed an amended affidavit with the same allegations, and added a seventh alleged violation for a urine analysis with positive results for alcohol confirmed on May 23, 2019.
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
Effective January 1, 2021, Assembly Bill 1950 amended
In assessing whether Assembly Bill 1950‘s amendment of section 1203.1 was intended to have the application urged by defendant, we observe the statute addresses essentially three matters: a trial court‘s authority to grant probation for a term not exceeding two years except as otherwise specified (e.g.,
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.)
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
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, 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. (Lara, at pp. 303–304, 308–309.) In Frahs, 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. (Frahs, at pp. 624–625.) 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 retroactive application of the ameliorative effects of the respective laws. (Lara, at p. 309; Frahs, at pp. 630–632.) Notably, the laws
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
In sum, 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.3
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 section 667.5(b) enhancements. This is unpersuasive. Judge Foiles indicated the 12-year sentence he was executing was simply the one imposed by Judge Ayoob, which is consistent with established law. (
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
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.