People v. Saeed

• Decision Date: 23 February 2023
• Docket Number: A164003,A164013
• Parties: THE PEOPLE, Plaintiff and Appellant, v. ABDULNASSER SAEED, Defendant and Respondent. THE PEOPLE, Plaintiff and Appellant, v. TAREQ SAEED, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Appellant, v. ABDULNASSER SAEED, Defendant and Respondent.

THE PEOPLE, Plaintiff and Appellant, v. TAREQ SAEED, Defendant and Respondent.

A164003, A164013

California Court of Appeals, First District, Second Division

February 23, 2023

NOT TO BE PUBLISHED

(Napa County Super. Ct. Nos. 19CR000767, No. 19CR000755)

Miller, J.

In 2019, defendants Abdulnasser Saeed and Tareq Saeed reached plea agreements, and the trial court subsequently placed each defendant on probation for a five-year term. The following year, the Legislature enacted Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (AB 1950), which limited most probation terms to two years. Over the opposition of the district attorney, defendants successfully moved for orders shortening their periods of probation to two years based on AB 1950 and terminating probation.

The People (by the Napa County District Attorney) appeal. They agree AB 1950 applies retroactively to defendants' cases but contend they should have been allowed to withdraw from the plea agreements because the five-year periods of probation were negotiated terms of the agreement and they are entitled to the benefit of their bargain. Defendants respond that the record does not support the People's claim that the duration of their probation terms was a negotiated term of the plea agreements, and in any event, their probation terms are not insulated from the Legislature's subsequent change of the law. The People chose not to file reply briefs leaving defendants' detailed analysis of the factual record unchallenged.

We conclude the People have failed to establish that the duration of the probation was a negotiated term of defendants' plea agreements and, even assuming it was a negotiated term, the People are not entitled to withdraw from the plea agreements based on the change in the law. Accordingly, we affirm the trial court orders shortening probation.

BACKGROUND

In March 2019, following an undercover investigation into the Napa Smoke and Vape store, Abdulnasser Saeed and Tareq Saeed were charged with furnishing marijuana to a minor over 14 (Health &Saf. Code, § 11361, subd. (b); count 1) selling, offering to sell, or transportation of marijuana for sale to a minor (id., § 11360, subd. (a)(3)(D); count 2), possession for sale of marijuana involving a minor (id., § 11359, subd. (d); count 3), maintaining a place for sale or use of a controlled substance (id., § 11366; count 4), and conspiracy to commit a crime (Pen. Code, § 182, subd. (a)(1); counts 5, 6, and 7.)

Change of Pleas

On September 5, 2019, Tareq and Abdulnasser (we refer to each defendant by his first name to avoid confusion) pled no contest to counts 1 and 4, and the remaining counts were dismissed.

The change of plea hearings were very brief, and two other codefendants also entered pleas at the same court hearing. After all four defense counsel made their appearances Tareq's attorney stated, "we all have [plea] forms for the court," explaining, "there's a typed out probation term sheet and it's the same for all defendants."

The trial court began with Abdulnasser. As pertinent here, for both Abdulnasser's and Tareq's changes of plea, the court relied on the written plea form and did not state the terms of the pleas on the record. Nor did any counsel.

In Abdulnasser's case, after checking that he understood and signed his "separate 3-page plea form," the trial court accepted Abdulnasser's no contest pleas to counts 1 and 4.

Abdulnasser's "separate 3-page plea form" described the terms of the plea agreement. Paragraph 4 of his plea form had the following printed language: "The following promises have been made to me as a condition of my plea(s). No other promises have been made. I understand that if the Court refuses to follow this plea bargain then I will be allowed to withdraw my plea(s) . . . and enter a not guilty plea." In the lines that followed, the handwritten terms began "5 years formal probation-no initial state prison; waive appeal . . . no early termination of probation" and continued in detail for six lines and a note in the margin. In addition to more standard terms of probation, were such items as defendant "to close/vacate/term lease any/all smoke shops of Napa County;" "not to own . . . be employed at/volunteer or be present at any smoke, vape tobacco or 'head shop' in Napa County," and "not to have any financial interest in any smoke shops in Napa County."

For the change of plea in Tareq's case, the trial court referred again to a "three page Plea Form," adding "[a]nd I'll include probation conditions attachment," referring to a separate page attached to Tareq's plea form. The court accepted Tareq's plea.

Tareq's plea form, at paragraph 4, stated "See attached Terms," and had a few references to concurrent time with his misdemeanor case. The attached typewritten sheet, entitled "Probation Conditions Attachment," did not mention the length of probation, but it contained in substance the same restrictions on involvement in smoke, vape, tobacco and head shops as Abdulnasser's. It said nothing about a five-year term of probation, nor was anything said about the length of probation on the record in the hearing.

Sentencing

Tareq and Abdulnasser were sentenced at the same proceeding on October 3, 2019.^[1] The Recommendations section of each defendant's probation report "respectfully recommended [that] imposition of sentence be suspended, and the defendant be GRANTED FORMAL PROBATION for a period of five (5) years" with recommended terms and conditions. The probation department recommended virtually identical terms of probation for Abdulnasser and for Tareq.

At sentencing, Tareq's counsel objected to a term of probation recommended by the probation department that she said was "not part of the plea agreement," noting "[W]e had, I think, a tight list of probation terms" and "all of the defendants have the same terms of probation."

Abdulnasser's counsel asked for the same minor modifications to the proposed terms of probation as Tareq had, noting Abdulnasser is "similarly situated to Tareq Saeed, in that he is on the business license, and the lease."

With some minor modifications, the trial court imposed all of the conditions of probation recommended by the probation department. The conditions were virtually identical for Tareq and Abdulnasser. For each, imposition of sentence was suspended, and each defendant was placed on "five years of formal probation on conditions one through 39, as recommended."

Motion to Shorten Probation

AB 1950 took effect on January 1, 2021, making two years the maximum length of probation, with exceptions not applicable to these defendants.

On February 18, 2021, Abdulnasser filed a motion to shorten probation based on AB 1950, seeking a new expiration date of October 3, 2021. Abdulnasser acknowledged that "the 5-year term of probation was negotiated in this case," but argued he was nonetheless entitled to the legislature's change in the law regarding the length of probation.

Tareq filed a similar motion to shorten probation, seeking the same relief but not mentioning a plea agreement.

On April 7, 2021, the district attorney filed a single opposition brief, not differentiating between the two defendants. It asserted that “one of the negotiated terms of the plea agreement involved the length of the probation term. The bargained-for plea agreement entered into by both the People and the defendant and accepted by the court specifically states that the defendants will serve a five-year term on formal probation." The district attorney argued the court should either enforce the agreed upon disposition or "unwind the plea" putting all parties "in a pre-plea posture to start anew."

On September 13, 2021, the court (the Honorable Cynthia P. Smith) heard argument on the motion to shorten probation.^[2] The defense counsel who had represented Tareq when he reached the negotiated disposition now represented both defendants. The district attorney and defense counsel agreed that none of the charges against defendants was exempt from the new two-year limit on felony probation. Relying on this court's opinion in People v. Stewart (2021) 62 Cal.App.5th 1065, 1074, review granted and cause transferred April 20, 2022, S268787 (Stewart),^[3] defense counsel argued that granting the motion would merely enforce current law. The district attorney argued the "People are being denied the benefit of their bargain. It seems like in this case there was specific-it's not just about the probation length, but there were specific terms put in place to protect the public, and prison was avoided by this agreement which would allow five years of these particular terms to protect the public."

At a hearing on September 17, 2021, the trial court granted defendants' motions, relying on the reasoning in Stewart, supra, 62 Cal.App.5th 1065 People v. France (2020) 58 Cal.App.5th 714^[4] and Harris v. Superior Court (2016) 1 Cal.5th 984. The court explained, "Here, the court is not unilaterally modifying a plea agreement, as that is clearly not permitted. Nor is it exercising its discretion, as was the case in [People v.] Stamps [9 Cal.5th 685 (Stamps)]. Instead, it is enforcing a mandatory change in the law that results in a legislative change to the plea bargain." In so ruling, the court observed that "I know that this plea with [Tareq and Abdulnasser], as well as two other co-defendants, was carefully, and thoughtfully, and vigorously crafted. And the Court just does not-given the state of the law, the court does not see how it can parse between plea agreements and others; and therefore, is granting the Petition based upon . . . the court's interpretation, the application of ...