People v. Stewart

• Decision Date: 07 April 2021
• Docket Number: A157857
• Citation: 62 Cal.App.5th 1065,277 Cal.Rptr.3d 247
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Steven Matthew STEWART, Defendant and Appellant.

62 Cal.App.5th 1065

277 Cal.Rptr.3d 247

The PEOPLE, Plaintiff and Respondent,

v.Steven Matthew STEWART, Defendant and Appellant.

A157857

Court of Appeal, First District, Division 2, California.

Filed April 7, 2021

Certified for Partial Publication.^*

Kaiya R. Pirolo, Walnut Creek, by Appointment of the Court of Appeal First District Appellate Project, for Appellant.

Xavier Becerra Lance E. Winters Chief Assistant Attorney General Jeffrey M. Laurence Senior Assistant Attorney General Rene A. Chacon Supervising Deputy Attorney General Julia Y. Je Deputy Attorney General, for Respondent.

Kline, P.J. Steven Matthew Stewart was placed on probation after pleading no contest to one count of assault by means likely to result in great bodily injury. He contends the trial court abused its discretion in imposing a probation condition requiring him to refrain from using marijuana, a condition appellant sees as unrelated to his offense or future criminality. He further contends his period of probation must be reduced from three years to two years in accordance with a statutory amendment enacted while this appeal was pending. We agree that appellant is entitled to this reduction in the length of his probation period and otherwise affirm the judgment.

BACKGROUND

Napa County Police Officer Colton Adams testified at the preliminary hearing that on March 25, 2019, he was dispatched to an unrelated incident and flagged down by J.R., who told him she had just been assaulted by her ex-boyfriend, identified as appellant. J.R.’s hands were "fidgety," she "wasn't able to stop moving" and she "seemed hysterical" and appeared to have been crying. She said she and appellant had been arguing and appellant threatened to "bash her face in using his head," then as the argument continued, he "headbutted her in the face." Adams did not notice visible injuries, but J.R. reported that she felt pain. Adams did not have an opinion whether J.R. was high on methamphetamine.¹

A witness told Adams that as appellant and J.R. were arguing, appellant threatened to "beat her down," then attempted to punch her in the face with his left hand, missed the punch, and immediately headbutted her in the face. Another witness saw appellant suddenly headbutt J.R. as appellant and J.R. were arguing.

Appellant told Adams that he and J.R. were currently dating and had a five-year-old daughter together. He denied any physical altercation, saying the argument was all verbal. Appellant told Adams he and J.R. had been arguing for the past few days and, on the day of the incident, J.R. threatened to "put him in jail, because he needed to go to a program." He said he wanted her to go to a program with him. Adams testified that appellant was cooperative and calm.

Appellant was initially charged on March 27, 2019, with one count of felony making criminal threats ( Pen. Code, § 422 )² and one count of misdemeanor battery (domestic violence) (§ 243, subd. (e)(1)), with an allegation that appellant had a prior conviction for which he served a prison term (§ 667.5, subd. (b).) Following a preliminary hearing, appellant was held to answer, an information was filed stating the same charges, and appellant pled not guilty and denied the special allegations. Subsequently, an amended information added a third count of felony assault by means likely to cause great bodily injury (§ 245, subd. (a)). Pursuant to a negotiated agreement, appellant pled no contest to the third count and the others were dismissed with a Harvey³ waiver. On July 15, 2019, in accordance with the agreement, appellant was placed on probation for three years. The court imposed the terms and conditions recommended by the probation department, with a few modifications not relevant here.

This appeal followed.⁴

DISCUSSION

I.

At sentencing, defense counsel objected to imposition of the marijuana condition, arguing there was no indication drugs or alcohol were involved in the offense. On appeal, appellant contends the trial court abused its discretion in imposing this condition because it addresses conduct that is not illegal and is not reasonably related either to the offense or to future criminality. Two questions are presented: whether appellant can maintain this challenge to the probation condition after waiving his right to appeal as part of his plea bargain and, if so, whether the condition was properly imposed.

A.-B.^**

II.

As earlier indicated, in accordance with his plea agreement, appellant was placed on probation for a period of three years. At the time, the trial court had discretion to order probation "for a period of time not exceeding the maximum possible term of the sentence" or, where the maximum possible term was five years or less, for a maximum of five years. (Former § 1203.1, subd. (a).) While this appeal was pending, the Legislature enacted Assembly Bill No. 1950 (Assembly Bill 1950), amending section 1203.1, subdivision (a), to limit felony probation to a maximum term of two years, absent circumstances not applicable here. (Stats. 2020, ch. 328, § 2, eff. Jan. 1, 2021.) The legislation is silent as to retroactivity, but appellant argues it is ameliorative and therefore applies to his case pursuant to the reasoning of In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ).¹⁰

A.

"Generally, statutes are presumed to apply only prospectively. ( [People v. Superior Court (Lara) (2018)] 4 Cal.5th [299,] 307 [228 Cal.Rptr.3d 394, 410 P.3d 22].) However, this presumption is a canon of statutory interpretation rather than a constitutional mandate. ( Ibid. ) Accordingly, ‘the Legislature can ordinarily enact laws that apply retroactively, either explicitly or by implication.’ ( Ibid. ) Courts look to the Legislature's intent in order to determine if a law is meant to apply retroactively. ( Ibid. )" ( People v. Frahs (2020) 9 Cal.5th 618, 627, 264 Cal.Rptr.3d 292, 466 P.3d 844 ( Frahs ).)

Estrada held that "amendatory statutes that lessen the punishment for criminal conduct are ordinarily intended to apply retroactively." ( Frahs, supra, 9 Cal.5th at p. 627, 264 Cal.Rptr.3d 292, 466 P.3d 844.) The Estrada court reasoned that " ‘[w]hen 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.’ " ( Frahs , at pp. 627–628, 264 Cal.Rptr.3d 292, 466 P.3d 844.) " ‘ Estrada stands for the proposition that, "where the amendatory statute mitigates punishment and there is no saving[s] clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." ’ " ( Id. at p. 628, 264 Cal.Rptr.3d 292, 466 P.3d 844, quoting People v. Nasalga (1996) 12 Cal.4th 784, 792, 50 Cal.Rptr.2d 88, 910 P.2d 1380.)

Respondent argues Estrada does not apply to Assembly Bill 1950 because probation is not punishment. Several recent cases have rejected this view. ( 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. Burton (2020) 58 Cal.App.5th Supp. 1, 272 Cal.Rptr.3d 797 ( Burton ) [Assem. Bill 1950 limitation on duration of misdemeanor probation].) As explained in those opinions, while probation is viewed as " ‘an act of clemency in lieu of punishment’ " and primarily "rehabilitative in nature" ( People v. Moran (2016) 1 Cal.5th 398, 402, 205 Cal.Rptr.3d 491, 376 P.3d 617 ), probation "can be invasive, time-consuming, and restrictive for a probationer" ( Sims, at p. 959, 273 Cal.Rptr.3d 792 ), who may be subjected to numerous conditions, including restrictions on activities and associations that would otherwise be lawful and requirements such as drug and/or alcohol testing, meetings with probation officers, and submission to warrantless searches and seizures. The probationer " ‘is in constructive custody—he is under restraint’ [citations]" and " ‘there is no question it is a sanction that imposes significant restrictions on the civil liberties of a defendant.’ [Citations].)" ( Ibid. ) The California Supreme Court recognized in People v. Edwards (1976) 18 Cal.3d 796, 801, 135 Cal.Rptr. 411, 557 P.2d 995, that "the traditional view that a grant of probation is a privileged act of grace or clemency has been discredited in favor of the modern view that such a grant should be deemed an alternative form of punishment in those cases when it can be used as a correctional tool." And People v. Delgado (2006) 140 Cal.App.4th 1157, 1170, 45 Cal.Rptr.3d 501, viewed probation as punishment in holding that retroactive application of a law imposing mandatory probation conditions, including a minimum term, increased punishment in violation of ex post facto principles. (See also, People v. Williams (1988) 200 Cal.App.3d Supp. 1, 246 Cal.Rptr. 464 [retroactive application of law extending maximum length of probation period unconstitutionally increased punishment].)

By limiting the maximum duration of probation, Assembly Bill 1950 has "a direct and significant ameliorative benefit for at least some probationers who otherwise would be subject to additional months or years of potentially onerous and intrusive probation conditions." ( Sims, supra, 59 Cal.App.5th at 959, 273 Cal.Rptr.3d 792.) Shortening the length of probation terms is also ameliorative in that it reduces the "potential for the [probationer] to be incarcerated due to a violation." ( Burton, supra, 58 Cal.App.5th Supp. at p. 15, 272 Cal.Rptr.3d 797.) Probation violations—which may be based on conduct not amounting to a new crime and need only be proven by a preponderance of the evidence—often result in incarceration. ( Sims, at p. 960, 273...