People v. Butler, B313121

CourtCalifornia Court of Appeals
Writing for the CourtHARUTUNIAN, J.
Citation75 Cal.App.5th 216,291 Cal.Rptr.3d 1
Parties The PEOPLE, Plaintiff and Respondent, v. Austin Robert BUTLER, Defendant and Appellant.
Decision Date15 February 2022
Docket NumberB313121

75 Cal.App.5th 216
291 Cal.Rptr.3d 1

The PEOPLE, Plaintiff and Respondent,
v.
Austin Robert BUTLER, Defendant and Appellant.

B313121

Court of Appeal, Second District, Division 8, California.

Filed February 15, 2022


Richard B. Lennon, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr. and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

HARUTUNIAN, J.*

75 Cal.App.5th 218

Austin Robert Butler pleaded no contest to unlawful possession of ammunition and admitted to prior prison terms in exchange for five years’ probation. After Butler violated his probation terms, the trial court revoked probation in February 2020.

Butler's sole claim on appeal is that the trial court lacked jurisdiction to revoke his probation under Assembly Bill No. 1950 (2019–2020 Reg. Sess.) because it applies retroactively. (Stats. 2020, ch. 328, § 2.) He argues that we should reverse, remand, and instruct the trial court to reinstate and then terminate his probation because he already served the maximum probation term allowed under Assembly Bill No. 1950.

The People concede that the trial court lacked jurisdiction to revoke Butler's probation and agree that we should remand. But they argue that on remand we should permit the People and trial court the opportunity to withdraw approval of the negotiated plea agreement.

We reject this contention. We agree with the reasoning in People v. Stewart (2021) 62 Cal.App.5th 1065, 277 Cal.Rptr.3d 247, review granted June 30, 2021, S268787 ( Stewart ). Stewart examined the issue presented here, followed the reasoning of our Supreme Court in Doe v. Harris (2013) 57 Cal.4th 64, 158 Cal.Rptr.3d 290, 302 P.3d 598, and held that in the context of

75 Cal.App.5th 219

Assembly Bill No. 1950, entering into a negotiated plea agreement does not insulate the parties from mandatory changes in the law that the legislature intended to apply to them.

We reverse and remand for the trial court to modify the term of probation to conform with Assembly Bill No. 1950 and terminate its revocation of probation and Butler's related prison sentence.

BACKGROUND

While Butler was on probation, deputies in the Los Angeles County Sheriff's Department went to his residence to arrest him pursuant to a no bail arrest warrant for absconding. There, they found 88 rounds of .22-caliber ammunition and 50 rounds of .38-caliber ammunition. Subsequently, Butler was charged in a felony complaint with unlawful possession of ammunition

291 Cal.Rptr.3d 3

and having two prior prison terms. The information charged the same.

On November 6, 2017, Butler pleaded no contest to the charge of unlawfully possessing the ammunition ( Pen. Code, § 30305, subd. (a)(1) ),1 and admitted to having two prior prison terms within the meaning of section 667.5, subdivision (b). Butler agreed to a five-year state prison sentence, consisting of the "upper term" of three years as to the ammunition charge, plus two consecutive one-year prison priors, with the prison sentence suspended and Butler placed on five years of felony probation.

The trial court sentenced Butler in accordance with the plea agreement. Butler violated the terms and conditions of his probation on several occasions. Consequently, the trial court summarily revoked Butler's probation on February 6, 2020.

On January 1, 2021, Assembly Bill No. 1950 took effect and reduced the maximum probationary term for most felony offenses to two years. (Stats. 2020, ch. 328, § 2 ; § 1203.1, subds. (a), (m).)

On April 30, 2021, Butler admitted to violating probation. But he claimed that under Assembly Bill No. 1950 the trial court had lost jurisdiction to revoke his probation because he had already served the maximum felony probation term of two years. He was placed on probation on November 6, 2017. The trial court disagreed with Butler on the jurisdictional issue and held that because it revoked Butler's probation before the January 1, 2021 effective date of Assembly Bill No. 1950, it still had jurisdiction.

75 Cal.App.5th 220

After finding it had jurisdiction, the trial court sentenced Butler to a three-year prison term. It recognized that the law had changed since the original five-year prison sentence, rendering two of the five years’ sentence invalid because they were one-year prison enhancements under section 667.5 subdivision (b). The trial court therefore subtracted the two invalid years. The court awarded Butler custody and conduct credits, sentencing him to 320 days after application of credits.

Butler timely filed a notice of appeal and the trial court granted him a certificate of probable cause allowing him to appeal the jurisdictional ruling.

DISCUSSION

I. The Trial Court Lost Jurisdiction to Revoke Butler's Probation Pursuant to Assembly Bill No. 1950

At the time of Butler's sentencing in 2017, felony probation could be imposed for a maximum of five years or the length of the underlying prison term, whichever was shorter. (Former § 1203.1, subd. (a).) The trial court thus had the authority at sentencing to impose the initial five-year probation term.

Assembly Bill No. 1950 amended section 1203.1, subdivision (a), which now states in relevant part: "The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding two years, and upon those terms and conditions as it shall determine." ( § 1203.1, subd. (a).) There is an exception to the new two-year limitation for certain felonies, but the parties agree it does not apply here. (See § 1203.1, subd. (m).)

Butler contends that Assembly Bill No. 1950 applies retroactively to his probationary term. The People do not contest that Assembly Bill No. 1950 applies retroactively to cases not yet final on appeal, and they agree that the trial court had lost

291 Cal.Rptr.3d 4

jurisdiction to revoke probation when it sentenced Butler to 320 days in prison.

We agree with the parties. Every court of appeal to address this issue is in accord as to the retroactive application of Assembly Bill No. 1950 to cases not yet final, and we agree with their conclusions and reasoning and need not recite them here. (E.g., People v. Greeley (2021) 70 Cal.App.5th 609, 627, 285 Cal.Rptr.3d 548 ; People v. Czirban (2021) 67 Cal.App.5th 1073, 1095, 282 Cal.Rptr.3d 817 ; People v. Schulz (2021) 66 Cal.App.5th 887, 895, 281 Cal.Rptr.3d 469 ;

75 Cal.App.5th 221

People v. Gonsalves (2021) 66 Cal.App.5th 1, 12, 280 Cal.Rptr.3d 705 ; People v. Lord (2021) 64 Cal.App.5th 241, 245–246, 278 Cal.Rptr.3d 642 ; People v. Sims (2021) 59 Cal.App.5th 943, 955–964, 273 Cal.Rptr.3d 792 ( Sims ); People v. Quinn (2021) 59 Cal.App.5th 874, 879–885, 273 Cal.Rptr.3d 770 ( Quinn ) .)

Accordingly, Assembly Bill No. 1950 applies retroactively to Butler, and the trial court lacked jurisdiction to revoke his probationary term.

II. The People May Not Renegotiate the Plea on Remand

Butler and the People agree that we should remand, but disagree as to what should be permitted on remand. Butler asks this court to reverse the revocation of his probation in accord with Assembly Bill No. 1950, and then to order the trial court to reinstate and then terminate his probation because he already served more than the maximum probation term allowed. The People argue that the trial court and the People should be afforded the opportunity to accede to the modified term of probation or to withdraw approval for the negotiated plea agreement. We agree with Butler.

The People rely on our Supreme Court's decision in People v. Stamps (2020) 9 Cal.5th 685, 264 Cal.Rptr.3d 769, 467 P.3d 168 ( Stamps ). In Stamps , the court held that Senate Bill No. 1393, amending section 667, subdivision (a) to give trial courts the discretion to strike a five-year prior serious felony conviction enhancement, applied to the defendant's case retroactively. ( Stamps, supra, at p. 698, 264 Cal.Rptr.3d 769, 467 P.3d 168.) As to the remedy, the court rejected the defendant's argument that it should remand to the trial court to consider whether to exercise its new discretion to strike the serious felony conviction, while leaving the remainder of the plea agreement intact. ( Id. at p. 700, 264 Cal.Rptr.3d 769, 467 P.3d 168.) Stamps held that the because of Senate Bill No. 1393, the trial court could now exercise its discretion to dismiss a prior serious felony enhancement, but the prosecution could also withdraw from the plea agreement. ( Stamps, supra, at pp. 707–708, 264 Cal.Rptr.3d 769, 467 P.3d 168.)

The Stamps ’s decision was based upon several factors tied to the law at issue there:...

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6 practice notes
  • People v. Flores, F081903
    • United States
    • California Court of Appeals
    • April 12, 2022
    ...yet final on appeal. ( People v. Schulz (2021) 66 Cal.App.5th 887, 895, 281 Cal.Rptr.3d 469 ( Schulz ); accord, People v. Butler (2022) 75 Cal.App.5th 216, 220–221, 291 Cal.Rptr.3d 1 ( Butler ); 292 Cal.Rptr.3d 494 People v. Scarano (2022) 74 Cal.App.5th 993, 1003, 290 Cal.Rptr.3d 121 ( Sca......
  • Kuhnel v. Superior Court, A163307
    • United States
    • California Court of Appeals
    • February 28, 2022
    ...this case. We acknowledge that another appellate court recently reached a different result in People v. Butler (Feb. 15, 2022, B313121) 75 Cal.App.5th 216, ––– Cal.Rptr.3d ––––, but without addressing section 1203.2(a) or Leiva , supra , 56 Cal.4th at p. 512, 154 Cal.Rptr.3d 634, 297 P.3d 8......
  • People v. Canedos, B308433
    • United States
    • California Court of Appeals
    • April 13, 2022
    ...Thus, the court no longer had the authority to revoke Canedos's probation and sentence him to prison. (See People v. Butler (2022) 75 Cal.App.5th 216, 220–221, 291 Cal.Rptr.3d 1 ( Butler ), petn. for review pending, petn. filed Mar. 25, 2022, S273773.)FACTUAL AND PROCEDURAL SUMMARYOn Januar......
  • People v. Shelly, C094048
    • United States
    • California Court of Appeals
    • July 14, 2022
    ...reduced to comply with Assembly Bill 1950's new limits-full stop. (Stewart, supra, 62 Cal.App.5th 1065; People v. Butler (2022) 75 Cal.App.5th 216, review granted June 1, 2022, S273773 (Butler); Flores, supra, 77 Cal.App.5th 420, rev. granted.) Citing our Supreme Court's recent decision in ......
  • Request a trial to view additional results
5 cases
  • People v. Flores, F081903
    • United States
    • California Court of Appeals
    • April 12, 2022
    ...yet final on appeal. ( People v. Schulz (2021) 66 Cal.App.5th 887, 895, 281 Cal.Rptr.3d 469 ( Schulz ); accord, People v. Butler (2022) 75 Cal.App.5th 216, 220–221, 291 Cal.Rptr.3d 1 ( Butler ); 292 Cal.Rptr.3d 494 People v. Scarano (2022) 74 Cal.App.5th 993, 1003, 290 Cal.Rptr.3d 121 ( Sca......
  • People v. Canedos, B308433
    • United States
    • California Court of Appeals
    • April 13, 2022
    ...Thus, the court no longer had the authority to revoke Canedos's probation and sentence him to prison. (See People v. Butler (2022) 75 Cal.App.5th 216, 220–221, 291 Cal.Rptr.3d 1 ( Butler ), petn. for review pending, petn. filed Mar. 25, 2022, S273773.)FACTUAL AND PROCEDURAL SUMMARYOn Januar......
  • People v. Shelly, C094048
    • United States
    • California Court of Appeals
    • July 14, 2022
    ...reduced to comply with Assembly Bill 1950's new limits-full stop. (Stewart, supra, 62 Cal.App.5th 1065; People v. Butler (2022) 75 Cal.App.5th 216, review granted June 1, 2022, S273773 (Butler); Flores, supra, 77 Cal.App.5th 420, rev. granted.) Citing our Supreme Court's recent decision in ......
  • People v. Hernandez, B315487
    • United States
    • California Court of Appeals
    • June 30, 2022
    ...courts accepted their agreement without discussing the alternative of applying AB 1950 on appeal. (See People v. Butler (2022) 75 Cal.App.5th 216, 221; People v. Czirban (2021) 67 Cal.App.5th 1073, 1095; People v. Lord (2021) 64 Cal.App.5th 241, 246; People v. Sims (2021) 59 Cal.App.5th 943......
  • Request a trial to view additional results

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