People v. Faial

• Citation: 75 Cal.App.5th 738,290 Cal.Rptr.3d 687
• Decision Date: 28 February 2022
• Docket Number: A159026
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jerry Anthony FAIAL, Defendant and Appellant.
• Court: California Court of Appeals

75 Cal.App.5th 738

290 Cal.Rptr.3d 687

The PEOPLE, Plaintiff and Respondent,

v.Jerry Anthony FAIAL, Defendant and Appellant.

A159026

Court of Appeal, First District, Division 3, California.

Filed February 28, 2022

Certified for Partial Publication.^*

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.

Fujisaki, J. 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 (Assembly Bill 1950), his probation retroactively terminated before it was revoked and he is entitled to discharge from confinement; (2) his prior prison term enhancements under Penal Code section 667.5, subdivision (b) are invalid because they were not based on sexually violent offenses; and (3) he is entitled to additional credits.¹

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 In the unpublished portion of this opinion, we agree that defendant's section 667.5, subdivision (b) enhancements must be stricken and that he is entitled to additional credits, so we will remand to the trial court for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2015, the People charged defendant by information with first degree burglary ( § 460, subd. (a), count 1), petty theft with a prior theft-related conviction ( § 666, subd. (a), count 4), and two counts of criminal threats ( § 422, counts 5 and 6). The burglary charge stemmed from his entering his father's home in violation of a stay away order and taking tools. The remaining counts involved his stealing from a department store and threatening loss prevention officers.

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 ( § 12022.1 ). The People also alleged defendant suffered two prior strike offenses ( §§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d) ), two prior serious felony convictions ( § 667, subd. (a)(1) ), and two prior prison terms ( § 667.5, subd. (b) ). Defendant was convicted of all four counts, and all special and enhancement allegations were either found true or admitted.

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 section 667, subdivision (a)(1) priors, and concurrent terms for the petty theft with a prior count and the criminal threats counts. Defendant waived all credits. The court suspended execution of the sentence and placed defendant on four years of probation. Among the terms of defendant's probation was that in lieu of one year in jail, he was to complete a particular residential treatment program from which he could not leave until approved to do so by the program director and his probation officer.

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.

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 section 667.5, subdivision (b), enhancements; and striking of the section 667, subdivision (a), enhancements in the interests of justice. The court awarded defendant a total of 547 days of custody credit. Defendant appealed.

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 section 1203.1 to shorten the period of probation for most misdemeanors and felonies. For purposes of this case, section 1203.1, subdivision (a), 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).) As explained in the Legislative Counsel's Digest, whereas previous law had authorized courts to grant a period of probation "not exceeding the maximum term for which the person could be imprisoned," Assembly Bill 1950 instead "authorize[s] a court to impose a term of probation not longer than 2 years, except as [otherwise] specified." (Legis. Counsel's Dig., Assem. Bill No. 1950 (2019—2020 Reg. Sess.) Stats. 2020, ch. 328; see People v. Sims (2021) 59 Cal.App.5th 943, 947, 273 Cal.Rptr.3d 792.) This change in the law bars the imposition of more than two years of probation for a felony offense unless the offense is a violent felony listed in section 667.5, subdivision (c), or is subject to a specific probation length, or is specifically excluded from the statute's two-year limit. ( § 1203.1, former subds. (a), (m), added by Stats. 2020, ch. 328, § 2, now subds. (a), (l).)²

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, 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, 894–895, 281 Cal.Rptr.3d 469 ; People v. Lord (2021) 64 Cal.App.5th 241, 244–246, 278 Cal.Rptr.3d 642 ; People v. Stewart (2021) 62 Cal.App.5th 1065, 1071–1074, 277 Cal.Rptr.3d 247, review granted June 30, 2021, S268787; People v. Sims , supra , 59 Cal.App.5th at p. 964, 273 Cal.Rptr.3d 792 ; People v. Quinn (2021) 59 Cal.App.5th 874, 881–885, 273 Cal.Rptr.3d 770.) 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 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., § 1203.1, subds. (a) ); the permissible terms and conditions of probation that should be considered (e.g., id ., subds. (a)–(e),...