People v. Scarano

• Decision Date: 09 February 2022
• Docket Number: C092538
• Citation: 290 Cal.Rptr.3d 121,74 Cal.App.5th 993
• Parties: The PEOPLE, Plaintiff and Respondent, v. Anthony SCARANO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

74 Cal.App.5th 993

290 Cal.Rptr.3d 121

The PEOPLE, Plaintiff and Respondent,

v.Anthony SCARANO, Defendant and Appellant.

C092538

Court of Appeal, Third District, California.

Filed February 9, 2022

Certified for Partial Publication.^*

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Supervising Deputy Attorney General, Doris A. Calandra, Deputy Attorney General, for Plaintiff and Respondent.

MURRAY, J.^**

Pursuant to a negotiated agreement approved by the trial court, defendant Anthony Ricardo Scarano was granted five years of supervised probation after he pleaded no contest to possession of a firearm by a felon. Among the conditions of probation were a search condition, drug treatment programming, and drug testing. On appeal, defendant contends the trial court erred in denying his motion to suppress evidence. He further contends his term of probation must be reduced from five years to two in accordance with the recent amendment to Penal Code ¹ section 1203.1, enacted while his appeal was pending in Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950).

We conclude defendant's suppression contention was not preserved because he did not renew his motion in the superior court.

As for Assembly Bill 1950, this case presents another situation regarding retroactivity of an ameliorative amendment to a penal statute and the appropriate remedy where the sentence had been imposed pursuant to a plea agreement. In enacting Assembly Bill 1950, the Legislature was, once again, silent on these matters. Because the Legislature did not expressly state its intent as to plea agreements in Assembly Bill 1950, the appellate courts are tasked with providing the answer to a question that need not have been asked.²

As the split on these retroactivity matters among the districts and on this court indicates, the answer is not an easy one.

We agree with the parties that Assembly Bill 1950 applies retroactively, but disagree with defendant that the appropriate remedy is for this court to order that his supervised probation term be reduced to two years. Rather, this matter must be remanded to allow the trial court and the prosecution the opportunity to withdraw from the original plea agreement.

Courts addressing the question of remedy for ameliorative amendments have focused primarily on the prosecution's ability to withdraw consent versus the defendant receiving the benefit of the statutory change. But we must also consider the role of the trial court in the context of plea bargaining. When a trial court accepts a negotiated resolution to a case and imposes the sentence agreed upon by the parties, it exercises discretion. In that exercise of discretion, a trial court must consider whether the proposed resolution is, " ‘in furtherance of the interests of society.’ " ( People v. Stamps (2020) 9 Cal.5th 685, 706, 264 Cal.Rptr.3d 769, 467 P.3d 168 ( Stamps ).) In making defendant's term of probation five years with a search condition, drug treatment programming, and drug testing, the trial court here impliedly concluded that five years of supervised probation with those conditions for the entire duration of probation furthered the interests of society. Defendant asks us to effectively resentence him, depriving the trial court of its discretion in determining whether the reduced term of probation is still in the interests of society in the locality where the court sits. We decline to do so.

We conclude remand for resentencing is required to allow the trial court to determine whether the reduced term of probation, given the totality of the circumstances relevant to sentencing (some of which may be unknown to us), is in furtherance of the interests of society or not. If the trial court concludes it is not, then in the exercise of its discretion, the court may withdraw its approval of the plea agreement. If, on the other hand, it determines that a term of two years of probation is consistent with the interests of society, then the prosecution should have the opportunity to withdraw its consent from the previously negotiated agreement. If either withdraws consent, the parties must be restored to the status quo ante with all counts and allegations implicated by the plea agreement reinstated.

We affirm the conviction but remand the matter back to the trial court for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

During the execution of a search warrant, officers found in defendant's home a loaded firearm and ammunition, two explosive devices, a checkbook stolen in a residential robbery, a fictitious check, a false identification with defendant's photograph, a bag of unopened mail addressed to multiple residents of the City of Elk Grove, 3.84 grams of methamphetamine, and drug paraphernalia.³ Two keys for cluster mailboxes were also found.

The prosecution charged defendant with six felony counts, including possession of a firearm by a felon ( § 29800 ), and three misdemeanors.⁴ The People also alleged defendant was previously convicted of a strike offense, a 2008 conviction for assault with a deadly weapon with the infliction of great bodily injury. ( §§ 245, subd. (a)(1), 12022.7.)

Prior to a preliminary hearing defendant filed a section 1538.5 motion to quash the warrant and suppress the evidence found at his home, which the magistrate denied.⁵

Thereafter, the parties agreed to a resolution of all of the charges. Under the terms of the agreement, defendant would plead to count one if he prevailed on his Romero⁶ motion to dismiss the prior strike conviction allegation. Before the Romero hearing, the parties had been discussing a plea agreement. On the record, defense counsel told the court the defense had counteroffered with two alternatives: "[W]e have counter-offered to the People both 16-month state prison prior to this hearing and also probation with time served. [¶] It would be our preference that the People try to see if they can do time served because then [defendant] can be placed on probation immediately and be searchable for five years which would be far more than he would get if he were to go to prison on this case in terms of searchability and supervision ." (Italics added.)

Later, just before the Romero hearing, defense counsel told the court that defendant was prepared to resolve the case for a plea to a single count, count one, and the prosecution's offer of probation and 364 days in jail. Counsel argued that since the prisons were not transporting due to the COVID-19 pandemic, defendant would likely end up doing all of his time locally, "and I think the best thing for the community and for [defendant] is to be under the supervision of probation for five years ." (Italics added.) Counsel added that the prosecution would not ask for a prison sentence if the Romero motion was granted. The parties agreed that defendant's maximum exposure before the court's ruling on the Romero motion was 23 years two months.

Thereafter, the court granted defendant's Romero motion, noting among other things that defendant suffered from drug addiction and was willing to participate in a rehabilitation program if placed on probation. Defendant then accepted the People's offer made prior to the Romero ruling but contingent upon that ruling and pleaded no contest to count one—felon in possession of a firearm.⁷ In exchange for his plea, the remaining charges were dismissed, some with a Harvey⁸ waiver. The trial court suspended imposition of sentence and placed defendant on five years of formal probation with one year in the county jail and credit for time served. Among the conditions of probation the court imposed were a search condition and the requirements that defendant participate in a drug rehabilitation program "under the direction of the Probation Officer" and drug testing.

DISCUSSION

I. Motion to Suppress^***

II. Assembly Bill 1950

While this appeal was pending Assembly Bill 1950 took effect. With exceptions not applicable here, it changes the maximum length of probation for felony cases to two years. ( § 1203.1, subd. (a).)⁹ Applying In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, the parties agree that Assembly Bill 1950 applies retroactively to defendant. We do too. ( People v. Lord (2021) 64 Cal.App.5th 241, 246, 278 Cal.Rptr.3d 642 ; People v. Sims (2021) 59 Cal.App.5th 943, 955-964, 273 Cal.Rptr.3d 792.) But, as in other cases involving ameliorative amendments, the parties here disagree on the remedy.

Defendant asks this court to reduce his term of probation to two years. Relying on the remedy explained in Stamps, supra, 9 Cal.5th 685, 264 Cal.Rptr.3d 769, 467 P.3d 168, the People seek remand and the opportunity to void the plea agreement, so "the parties are returned to status quo ante and [defendant's] prosecution reinstated." (See Stamps, at p. 692, 264 Cal.Rptr.3d 769, 467 P.3d 168.) We agree with the People.

A. The Stamps Remedy

In Stamps, supra , 9 Cal.5th 685, 264 Cal.Rptr.3d 769, 467 P.3d 168, the defendant pleaded no contest to first degree burglary and, pursuant to a plea agreement, was sentenced to nine years, including a five-year prior serious felony enhancement ( § 667, subd. (a)(1) ). ( Stamps, at p. 693, 264 Cal.Rptr.3d 769, 467 P.3d 168.) Two remaining first degree burglary counts, a strike allegation, and three prior prison commitment enhancements were dismissed. ( Ibid . ) While the appeal was pending, Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) took effect, affording trial courts discretion to dismiss prior serious felony enhancements in the interests of justice under section 1385. ( Stamps, at p. 693, 264 Cal.Rptr.3d 769, 467 P.3d 168.) The defendant argued that, under Estrada , Senate Bill 1393 should be applied retroactively, entitling...