People v. Shelly

• Citation: 81 Cal.App.5th 181,296 Cal.Rptr.3d 792
• Decision Date: 14 July 2022
• Docket Number: C094048
• Parties: The PEOPLE, Plaintiff and Respondent, v. Laura Marie SHELLY, Defendant and Appellant.
• Court: California Court of Appeals

81 Cal.App.5th 181

296 Cal.Rptr.3d 792

The PEOPLE, Plaintiff and Respondent,

v.Laura Marie SHELLY, Defendant and Appellant.

C094048

Court of Appeal, Third District, California.

Filed July 14, 2022

William G. Holzer, Huntington Beach, 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, Eric L. Christoffersen and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.

EARL, J.

Defendant Laura Marie Shelly pled no contest to one count of embezzlement by an employee. Pursuant to the negotiated plea, the trial court imposed a five-year term of felony probation. The court also ordered defendant to pay $72,972.47 in restitution. In this appeal, she argues the length of her probation must be reduced in light of Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950), which reduced the maximum length of felony probation to two or three years. She also argues the amount of restitution must be reduced by $5,816.25.

We agree, and the People concede, that Assembly Bill 1950 applies retroactively and entitles defendant to have the length of her probation reduced. The question is whether the People are then entitled to withdraw from the plea agreement. As explained below, we hold they are not. We also reduce the restitution order by $1,000.¹

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged with one count of embezzlement by an employee ( Pen. Code, § 508 ) and one count of unlawful use of personal identification information ( Pen. Code, § 530.5, subd. (a).)² In exchange for her plea of no contest to the embezzlement count, the prosecution agreed to dismiss the other count. As part of the plea agreement, she stipulated to the following factual basis: She was employed as a bookkeeper by Norwood Construction Services, and that in her role as an employee, she committed a felony by forging her boss's signature on several checks and cashing them for personal use.

On January 21, 2020, and per the parties’ plea agreement, the court imposed a five-year term of felony probation, and 365 days in the county jail (alternative custody program) with one day of custody credit.

On May 3, 2021, following a restitution hearing, defendant was ordered to pay $72,972.47 to the victim.

Defendant filed a notice of appeal on May 6, 2021, challenging both the length of her probation and the amount of the restitution order.³ As noted above, she argues (1) the length of her probation must be reduced to three years in light of Assembly Bill 1950, and (2) the amount of restitution must be reduced by $5,816.25.

DISCUSSION

IAssembly Bill 1950

Assembly Bill 1950 (Stats. 2020, ch. 328) took effect on January 1, 2021. It generally limits felony probation to a maximum of two years. ( § 1203.1, subd. (a).) There is an exception for felony convictions for, among other things, section 503 (embezzlement) if the total value of the property taken exceeds $25,000, in which case probation is limited to a maximum of three years.⁴ ( § 1203.1, former subd. (m)(2).)

Defendant argues that Assembly Bill 1950 is retroactive and requires that her probation term be reduced to comply with its new limits. The People agree. Both parties also agree that, under Assembly Bill 1950, the maximum period of defendant's probation is now three years because she pled no contest to embezzlement by an employee and the total value of the property taken exceeded $25,000, as evidenced by the restitution order, which included over $27,000 in forged checks.

Initially, we must determine whether Assembly Bill 1950 operates retroactively. We find that it does. All appellate courts that have considered the issue (including this one) have held that Assembly Bill 1950's new limit on probation is ameliorative and, therefore, applies retroactively to cases that are not yet final on appeal. (See People v. Flores (2022) 77 Cal.App.5th 420, 431-432, 292 Cal.Rptr.3d 488 [listing cases], review granted June 22, 2022, S274561 ( Flores ); see also, e.g., People v. Scarano (2022) 74 Cal.App.5th 993, 290 Cal.Rptr.3d 121, review granted June 1, 2022, S273830 ( Scarano ); People v. Schulz (2021) 66 Cal.App.5th 887, 281 Cal.Rptr.3d 469 ; People v. Lord (2021) 64 Cal.App.5th 241, 278 Cal.Rptr.3d 642 ; People v. Sims (2021) 59 Cal.App.5th 943, 273 Cal.Rptr.3d 792 ( Sims ); People v. Quinn (2021) 59 Cal.App.5th 874, 273 Cal.Rptr.3d 770 ( Quinn ); People v. Stewart (2021) 62 Cal.App.5th 1065, 277 Cal.Rptr.3d 247, review granted June 30, 2021, cause transferred Apr. 20, 2022, S268787 ( Stewart ).)⁵ Based on this unbroken line of authority, the parties agree that Assembly Bill 1950 applies retroactively, and we do too.

IIProper Remedy

The main question raised by this appeal is: What is the proper remedy in light of the fact that defendant's sentence was imposed as part of a plea agreement? The answer to this question has not generated the same unanimity as the question of whether Assembly Bill 1950 operates retroactively. At least two potential answers have emerged among California's appellate courts.

Three appellate courts have found that a defendant is entitled to have the length of his or her probation reduced to comply with Assembly Bill 1950's new limits—full stop. ( Stewart, supra , 62 Cal.App.5th 1065, 277 Cal.Rptr.3d 247 ; People v. Butler (2022) 75 Cal.App.5th 216, 291 Cal.Rptr.3d 1, review granted June 1, 2022, S273773 ( Butler ); Flores, supra , 77 Cal.App.5th 420, 292 Cal.Rptr.3d 488, rev. granted.)

Citing our Supreme Court's recent decision in Stamps, supra , 9 Cal.5th 685, 264 Cal.Rptr.3d 769, 467 P.3d 168, two of our colleagues in Scarano, supra , 74 Cal.App.5th 993, 290 Cal.Rptr.3d 121, review granted, recently held that although a defendant is entitled to have the length of his or her probation reduced, the People must then be given the opportunity to either accept the reduction or withdraw from the plea agreement and the trial court must be given the opportunity to withdraw its prior approval of the plea agreement. ( Scarano , at pp. 1005-1006, 290 Cal.Rptr.3d 121.) This remedy, i.e., allowing the People or the court to withdraw consent to a plea agreement when legislation subsequently ameliorates part of the agreed-upon sentence, is often referred to as the Stamps remedy or the Stamps remand procedure. In addition to finding the Stamps remedy is required, the Scarano court also held there is no sentencing cap if the People or the court withdraw their consent to the original plea agreement. ( Id. at pp. 1014-1018, 290 Cal.Rptr.3d 121.)

Defendant argues we must simply reduce the length of her probation to three years while leaving the rest of the plea agreement intact—which is the result reached in Stewart, Butler , and Flores . The People argue they must be given the opportunity to either accept the reduced probation term or withdraw from the plea agreement "if the reduced probation term is found to have deprived the People of the benefit of their bargain,"—which is similar, albeit not identical, to the result reached in Scarano . We agree with defendant and disagree with the People for two reasons. First, we find reducing defendant's probation term would not deprive the People of the benefit of their bargain, and they are thus not entitled to withdraw from the plea agreement. Second, we find that Stamps is distinguishable and requiring the Stamps remedy here would undermine the Legislature's intent in enacting Assembly Bill 1950.

A. Application of Assembly Bill 1950 Will Not Deprive the People of the Benefit of Their Bargain

As noted above, the People contend they "must be allowed an opportunity to withdraw from the agreement if the reduced probation term is found to have deprived the People of the benefit of their bargain ." (Italics added.) The italicized language comes largely from our Supreme Court's decision in People v. Collins (1978) 21 Cal.3d 208, 145 Cal.Rptr. 686, 577 P.2d 1026 ( Collins ). We find Collins is instructive.

The defendant in Collins was charged with 15 separate felony counts, including burglary, attempted burglary, forcible rape, assault with intent to commit rape, and forcible oral copulation. Pursuant to a plea bargain, he agreed to plead guilty to one count of oral copulation, and in return, the prosecutor agreed to strike the allegation that the crime was committed by means of force and to dismiss the 14 remaining counts. ( Collins, supra , 21 Cal.3d at p. 211, 145 Cal.Rptr. 686, 577 P.2d 1026.) Prior to sentencing, the Legislature decriminalized nonforcible oral copulation, which was the only crime to which the defendant had pled guilty. The trial court nonetheless sentenced the defendant to state prison. The defendant appealed, arguing the trial court erred in imposing a sentence because the conduct to which he pled guilty was no longer punishable at the time of sentencing. ( Id. at pp. 211-212, 145 Cal.Rptr. 686, 577 P.2d 1026.) Our Supreme Court agreed and reversed the conviction because "[a] conviction cannot stand on appeal when it rests upon conduct that is no longer sanctioned." ( Id. at p. 213, 145 Cal.Rptr. 686, 577 P.2d 1026.)

As relevant here, the Supreme Court also held the People must be permitted to revive one or more of the dismissed counts because the change in law had deprived them of the benefit of the plea bargain. " ‘The process of plea bargaining ... contemplates an agreement negotiated by the People and the defendant and approved by the court.... Pursuant to this procedure the defendant agrees to plead guilty in order to obtain a reciprocal benefit, generally consisting of a less severe punishment than that which could result if he were convicted of all offenses charged.’ [¶] Critical to plea bargaining is the concept of reciprocal benefits. When either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from concessions...