People v. Flores, F081903

• Court: California Court of Appeals
• Writing for the Court: MEEHAN, J.
• Citation: 77 Cal.App.5th 420,292 Cal.Rptr.3d 488
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jerman FLORES, Defendant and Appellant.
• Docket Number: F081903
• Decision Date: 12 April 2022

77 Cal.App.5th 420
292 Cal.Rptr.3d 488

The PEOPLE, Plaintiff and Respondent,
v.
Jerman FLORES, Defendant and Appellant.

F081903

Court of Appeal, Fifth District, California.

Filed April 12, 2022

Matthew Aaron Lopas, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.

MEEHAN, J.

77 Cal.App.5th 428

INTRODUCTION

On September 20, 2019, defendant Jerman Flores was charged by information with one felony count of possession of a controlled substance for sale. ( Health & Saf. Code, § 11378 ; count 1.) On October 21, 2020, pursuant to the

77 Cal.App.5th 429

terms of a plea bargain, the prosecutor amended the information to add one misdemeanor count of possession of a controlled substance ( Health & Saf. Code, § 11377, subd. (a) ; count 2); defendant pled no contest to count 2; and the trial court dismissed count 1 and placed defendant on probation for a term of three years with 60 days in custody and credit for 20 days of time served. Defendant filed a timely notice of appeal.

Defendant raises one claim on appeal: entitlement to relief under Assembly Bill No. 1950 (2019–2020 Reg. Sess.) (Assembly Bill 1950 or Assem. Bill 1950), effective January 1, 2021. Assembly Bill 1950 amended former Penal Code sections 1203a and 1203.1, subdivision (a),¹ to limit probation, respectively, to a period not to exceed one year in misdemeanor cases and two years in felony cases, subject to certain exceptions not applicable in this case. (Assem. Bill 1950, §§ 1–2.)² The parties agree that Assembly Bill 1950 is retroactive

292 Cal.Rptr.3d 492

under Estrada³ and that it applies in this case because defendant's judgment is not final. They disagree on remedy, however.

Defendant requests modification of his probation term on review to a term no greater than one year. The People's main contention is that remand is required to afford the prosecutor the opportunity to withdraw from the plea bargain or the trial court to rescind its approval, restore the felony charge, and allow the parties to renegotiate the plea bargain or proceed to trial, as provided for in People v. Stamps (2020) 9 Cal.5th 685, 707–708, 264 Cal.Rptr.3d 769, 467 P.3d 168 ( Stamps ).

Based on the plain language and legislative intent underlying Assembly Bill 1950, we conclude that defendant is entitled to modification of his probation term from three years to one year on review. A contrary result would frustrate legislative intent and, as explained herein, the California Supreme Court's decision in Stamps is distinguishable. Therefore, the remedy approved there does not apply. We shall reduce defendant's term of probation to one year and otherwise affirm the judgment. ( § 1260.)

DISCUSSION

I. Summary of Assembly Bill 1950

Defendant entered a plea of no contest to one misdemeanor count in 2020. At that time, section 1203a provided that the period of probation could not

77 Cal.App.5th 430

exceed three years, and that was the term imposed in this case. (Former § 1203a.) In his reply brief, defendant argues that the three-year probation period was not a negotiated term of the parties' plea bargain. However, defendant's trial counsel stated on the record that defendant would "enter a no contest plea to [count 2] for three years [of] summary probation, 60 days with a referral to the Work Release Program, fines and fees, and search terms and testing for narcotics," and the prosecutor concurred. As defendant's position is directly contradicted by the record, we reject his argument without need for further discussion.

Subsequent to defendant's plea and the imposition of probation, Assembly Bill 1950 amended section 1203a to provide:

"(a) In all counties and cities ..., the courts therein, having jurisdiction to impose punishment in misdemeanor cases, may refer cases, demand reports, and to do and require anything necessary to carry out the purposes of Section 1203, insofar as that section applies to misdemeanors. The court may suspend the imposition or execution of the sentence and make and enforce the terms of probation for a period not to exceed one year.

"(b) The one-year probation limit in subdivision (a) shall not apply to any offense that includes specific probation lengths within its provisions." (Italics added.)

The parties agree that the exception set forth in subdivision (b) of section 1203a does not apply to defendant's conviction for drug possession under Health and Safety Code section 11377. Therefore, we proceed to the issue of retroactivity, which is not in dispute, and the issue of remedy, which is in dispute.

II. Retroactivity

" ‘It is well settled that a new statute is presumed to operate prospectively’ " ( Stamps, supra , 9 Cal.5th at p. 698, 264 Cal.Rptr.3d 769, 467 P.3d 168 ; accord,

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People v. Frahs (2020) 9 Cal.5th 618, 627–628, 264 Cal.Rptr.3d 292, 466 P.3d 844 ( Frahs )), and "[t]he Penal Code provides that ‘[n]o part of it is retroactive, unless expressly so declared’ " ( Stamps, supra , at p. 699, 264 Cal.Rptr.3d 769, 467 P.3d 168, quoting § 3 ). "However, this presumption is a canon of statutory interpretation rather than a constitutional mandate. [Citation.] Accordingly, ‘the Legislature can ordinarily enact laws that apply retroactively, either explicitly or by implication.’ [Citation.] Courts look to the Legislature's intent in order to determine if a law is meant to apply retroactively." ( Frahs, supra , at p. 627, 264 Cal.Rptr.3d 292, 466 P.3d 844, citing & quoting People v. Superior Court (Lara ) (2018) 4 Cal.5th 299, 307, 228 Cal.Rptr.3d 394, 410 P.3d 22.)

Pursuant to Estrada , "[n]ewly enacted legislation lessening criminal punishment or reducing criminal liability presumptively applies to all cases

77 Cal.App.5th 431

not yet final on appeal at the time of the legislation's effective date." ( People v. Gentile (2020) 10 Cal.5th 830, 852, 272 Cal.Rptr.3d 814, 477 P.3d 539, citing Estrada, supra , 63 Cal.2d at pp. 744–745, 48 Cal.Rptr. 172, 408 P.2d 948 ; accord, People v. Esquivel (2021) 11 Cal.5th 671, 673 & 675–676, 279 Cal.Rptr.3d 659, 487 P.3d 974 ; Stamps, supra , 9 Cal.5th at p. 699, 264 Cal.Rptr.3d 769, 467 P.3d 168.) "This presumption ‘rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.’ " ( People v. Gentile, supra , at p. 852, 272 Cal.Rptr.3d 814, 477 P.3d 539 ; accord, People v. Esquivel, supra , at p. 675, 279 Cal.Rptr.3d 659, 487 P.3d 974 ; Stamps, supra , at p. 699, 264 Cal.Rptr.3d 769, 467 P.3d 168.)

"The issue ... [is] one of legislative intent. ( Estrada, supra , 63 Cal.2d at p. 744 [48 Cal.Rptr. 172, 408 P.2d 948].) ‘Had the Legislature expressly stated which statute should apply, its determination, either way, would have been legal and constitutional.’ ( Ibid. ) In the absence of such a declaration of intent, we identified ‘one consideration of paramount importance’ ( ibid. ): ‘When the Legislature amends a statute so as to lessen the punishment[,] it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.' ( Id. at p. 745 [48 Cal.Rptr. 172, 408 P.2d 948].) Under those theories, punishment is appropriate to deter, confine, and rehabilitate; ‘ "[t]here is no place in the scheme for punishment for its own sake ...." ’ ( Ibid. )" ( People v. Esquivel, supra , 11 Cal.5th at p. 674, 279 Cal.Rptr.3d 659, 487 P.3d 974, fn. omitted.)

This court and other appellate courts considering the issue have concluded, universally, that the change in the law under Assembly Bill 1950 is ameliorative and, therefore, applies retroactively in all cases not 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

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