Jeffory D. v. Superior Court, A165722

• Court: California Court of Appeals
• Writing for the Court: Miller, J.
• Parties: JEFFORY D., Petitioner, v. THE SUPERIOR COURT OF MENDOCINO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
• Docket Number: A165722
• Decision Date: 19 January 2023

JEFFORY D., Petitioner,
v.
THE SUPERIOR COURT OF MENDOCINO COUNTY, Respondent;

THE PEOPLE, Real Party in Interest.

A165722

California Court of Appeals, First District, Second Division

January 19, 2023

NOT TO BE PUBLISHED

(Mendocino County Super. Ct. No. SCUK-CRCR-17902251)

Miller, J.

Pursuant to a plea agreement, Jeffory D. (petitioner or defendant) pleaded no contest to a felony count of sexual battery by restraint in exchange for placement on probation for up to five years. After the trial court granted petitioner four years' probation, the Legislature passed Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (AB 1950), effective January 1, 2021. Under AB 1950, most probation is limited to two-year terms, but others, including probation for crimes against victims of domestic violence, are statutorily exempt from this limit.

Subsequently, the probation department filed petitions to revoke petitioner's probation and he moved to dismiss the petitions, arguing his probation had been automatically terminated after two years under AB 1950.

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The district attorney responded that the four-year probation order was still valid because, even under AB 1950, such terms are permitted for offenses against victims of domestic violence as defined by Family Code section 6211 including, as relevant here, a person "related by consanguinity or affinity within the second degree" (Fam. Code, § 6211, subd. (f)), and the victim in this case was undisputedly a close relative of defendant.

The trial court rejected petitioner's argument finding that it was clear to the sentencing court and clear to the court now that the victim is a person defined by Family Code section 6211, and the two-year limitation on probation for most offenses under AB 1950 did not apply to this case under the facts that were known to the sentencing court at the time of plea and sentencing.

Petitioner asks this court for writs of mandate and prohibition ordering the superior court to grant his motion to dismiss the probation revocation petitions against him and to refrain from sentencing him, on the ground that his probation has expired based on the retroactive application of Penal Code^[1]section 1203.1, as amended by AB 1950. (Stats. 2020, ch. 328, § 2.) Petitioner contends that the maximum period of his probation is now two years, not the four years imposed by the trial court at the time of his sentencing. The Attorney General does not dispute the statute is retroactive but contends petitioner's offense was committed against a domestic violence victim and is therefore statutorily exempt from the two-year felony probation limit. Acknowledging the domestic violence exception, petitioner claims that his degree of consanguinity with the victim was not included in the public record and that the trial court impermissibly found facts after petitioner's

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sentencing to "lengthen" the penalty, without first obtaining an admission or jury verdict. We issued an order to show cause, and the matter has now been fully briefed. We now conclude petitioner's position is without merit, and we deny the petition.

BACKGROUND

Petitioner was charged in a first amended criminal complaint filed on June 14, 2017, with two felony counts of forcible rape of a minor over 14 years old (§§ 261, subd. (a)(2), 264, subd. (c)(1)) and one count of dissuading a witness by force or threat (§ 136.1, subd. (c)(1)). The minor victim was identified by her birthdate and the name "Jane Doe."

Change of Plea

On July 13, 2017, petitioner entered a negotiated plea of no contest to an added felony count of sexual battery of Jane Doe by restraint (§ 243.4) with the understanding that he would receive up to five years' probation (including the requirement that he participate in sex offender treatment) and the other charges would be dismissed. At the change of plea hearing, petitioner's attorney stated Dr. Kevin Kelly was going to conduct a psychological evaluation of petitioner and she would provide Kelly's report to the probation office as soon as she received it.

The stipulated factual basis for petitioner's plea was that "[d]uring the month of May of 2017, in the County of Mendocino, the defendant touched an intimate part of Jane Doe while she was unlawfully restrained by the accused and it was against her will. It was for the purpose of sexual gratification."

The district attorney reported at the change of plea hearing that she had met and discussed the case with the minor victim and the victim's father, and they agreed with the resolution. The sentencing court asked petitioner

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whether he understood "everything that's just been said," and he responded that he did.

The sentencing court accepted petitioner's change of plea and ordered that he would remain out of custody on bail. The district attorney asked that certain conditions of bail be added, including that defendant would "comply with the protective order until that's modified," a modification to which defense counsel readily agreed. This was a reference to the protective order dated June 2, 2017, then in place, which identified the victim by her full first, middle and last names and date of birth.^[2]

Motion to Withdraw Plea

Before sentencing, petitioner filed a motion to withdraw his plea. In support of petitioner's motion, his counsel filed a declaration under penalty of perjury from "the father of both Jeffory, the 'defendant' and [Jane Doe], the alleged victim in this case." Using the victim's first name throughout his declaration, petitioner's father referred to the victim and petitioner as "my daughter" and "my son;" he referred to and discussed the "allegation by my daughter against my son;" and he discussed what "my son" said about "his sister." Petitioner's father referred to his daughter by the same first name as that of the protected victim in the Protective Order.

Sentencing Hearing

Petitioner withdrew his motion to withdraw the plea sometime before the sentencing hearing on January 5, 2018.^[3]

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At sentencing, the trial court stated it had read and reviewed the probation officer's report and recommendation and the 18-page psychological evaluation by Dr. Kelly. The probation officer's report itself summarized Dr. Kelly's report in detail, noting the psychological evaluation had been done "at the request of defense counsel." As part of the evaluation, petitioner had talked with Dr. Kelly about the incidents that gave rise to the charges; the probation officer's report quoted Dr. Kelly's report, which referred to these incidents as petitioner's interactions with "his sister."^[4]

In discussing potential terms of probation, including a stay-away order, the attorneys and the sentencing court assiduously avoided using the victim's name in open court. Nonetheless, the district attorney observed that certain

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probation terms could be monitored and revised, "especially the issue of contacting the victim in this case since they're family members ...."

Along those lines, there was this colloquy between the court and defense counsel, referring obliquely to the victim by her initials:

"[Defense counsel]: . . . And he does have a complete stay away-

"The Court: And he has [probation] term 14 that is a stay-away from-

"[Defense counsel]: -from the person here, so . . .

"The Court: -the initials [ ]." (Italics added.)

The discussion of another condition of probation made clear that the victim was a sibling of petitioner's and was under 18. A person identified as Ms. Plaza, who appeared to be from the probation department, informed the court that "Dr. Kelly-after examining the defendant, [recommended] he not reside with any females younger than 18." When the sentencing court asked defendant to clarify who lived in his home, and defendant responded that he then lived with his father and younger brother (age 16), the sentencing court wanted to modify the probation office's proposed condition which, as then phrased, would have prohibited petitioner from living in a residence where there were any children under the age of 18 residing. The sentencing court said it did not want to "disrupt his family." But when Ms. Plaza proposed some alternative language ("[w]ith the exception of sibling?"), the sentencing court rejected it in light of the sibling relationship between petitioner and the victim:

"The Court: No. We can't do that because that encompasses other people." (Italics added.)

Instead, the court modified the probation condition to provide an exception for petitioner's younger brother, who was identified by name.

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At the end of the hearing, the sentencing court asked for a termination of the June 2017 Protective Order described above, and the no contact order became a term of probation. The sentencing court suspended imposition of sentence and placed petitioner on probation for four years.

Probation Revocations

On January 30, 2019, the probation department filed a petition to revoke petitioner's probation. He admitted the allegations and on August 14, 2019, the court reinstated his probation on the condition that he serve a previously suspended 180 days in the county jail.

The probation department filed a second petition to revoke petitioner's probation on April 20, 2021, an amended petition on December 3, 2021, and apparently a "second amended" petition on March 1, 2022. On June 23, 2021 and April 29, 2022, petitioner admitted violating certain conditions of his probation.^[5]

In advance of the sentencing hearing on his probation revocation set for April 29, 2022, petitioner filed a motion to dismiss the pending petitions alleging violations of probation and to terminate probation on the ground that the trial court no longer had jurisdiction over him because, by retroactive application of newly enacted AB 1950, his period of probation had to be reduced from four years to a maximum of two years, citing section 1203.1,...