P. v. Canedos

Filed 4/13/22; REVIEW GRANTED. See Cal. Rules of Court, rules 8.1105 and 8.1115 (and corresponding Comment, par. 2, concerning rule 8.1115(e)(3)).
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
v.

RONALD REYES CANEDOS,

Defendant and Appellant.
B308433

(Los Angeles County
Super. Ct. No. MA066185)

APPEAL from an order of the Superior Court of Los Angeles County, Shannon Knight, Judge. Reversed and remanded with directions.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
In 2020, the Legislature enacted Assembly Bill No. 1950 (Stats. 2020, ch. 328) (Assembly Bill No. 1950), which reduced themaximum duration of probation in most felony cases to twoyears, and in misdemeanor cases to one year. Under principles first established in In re Estrada (1965) 63 Cal.2d 740 (Estrada), courtshave held unanimously that the law applies retroactively to the benefit of defendantsserving probation terms in excess of the maximum under the new law. (People v. Quinn (2021) 59 Cal.App.5th 874, 879−884 (Quinn); People v. Sims (2021) 59 Cal.App.5th 943, 955−964 (Sims); People v. Lord (2021) 64 Cal.App.5th 241, 244−246 (Lord); People v. Stewart (2021) 62 Cal.App.5th 1065, 1070−1074(Stewart), review granted June30, 2021, S268787.)
This case requires us to determine how far the retroactive application of Assembly Bill No. 1950 extends. Defendant and appellant Ronald Reyes Canedos, unlike the defendants in the cases cited above, had violated the terms of his probationbefore Assembly Bill No. 1950 became effective on January 1, 2021. Canedos contends that the statute nevertheless applies retroactively to him. He argues that because he violated probation more than two years after the court imposed probation, we must reverse the sentence of 32 months in prison that the trial court imposed following the violation.
We agree, as we see no principled basis for denying retroactive relief to defendants in Canedos’s position. Although Canedos had violated the terms of his probation before Assembly Bill No. 1950 became effective, neither the trial court’s finding of a violation nor his original conviction was yet final for purposes ofretroactivity under Estrada. (See People v. Esquivel (2021) 11 Cal.5th 671, 678 (Esquivel); see alsoPeople v. McKenzie (2020) 9 Cal.5th 40, 47–48.) Unless the Legislature specifies otherwise,it is a matter of “presumed legislative intent” that anameliorative criminal statute applies retroactively to all defendants whose convictions were not yet final when the lawbecame effective. (Esquivel, supra,11 Cal.5th at p.680.)Wesee noindication in the text or legislative history of Assembly Bill No.1950 that the Legislature meant to limit its retroactive application.Under the new law, Canedos’s probation expired in2018, more than a year before he committed the violation. Thus, the court no longer had the authority to revoke Canedos’s probation and sentence him to prison. (See People v. Butler (2022) 75 Cal.App.5th 216, 220–221 (Butler), petn. for review pending, petn. filed Mar. 25, 2022, S273773.)
FACTUAL AND PROCEDURAL SUMMARY
On January 12, 2016, Canedos pleaded guilty to two countsof possession of a firearm by a felon (Pen. Code, § 29800, subd.(a)(1)), one count of possession of body armor by a violentfelon (§ 31360, subd. (a)), and one count of possession ofammunition by a felon (§ 30305, subd. (a)(1)). Thetrial court sentenced him to four years in prison and suspended execution ofthesentence pending the completion of four years of probation.
More than three years later, on December 17, 2019, Canedos became involved in an argument with his wife, O.S. According to statements from family members, Canedos pulled aknife on O.S., moved it back and forth in front of her face, andthreatened to kill O.S. and her mother. Three days later, onDecember 20, Canedos pleaded not guilty to several charges related to the incident, including assault with a deadly weapon (§245, subd. (a)(1)), and the trial court summarily revoked his probation.
At a trial on the new charges, a jury convicted Canedos inSeptember 2020 ofassault with a deadly weapon, and the court found him in violation of his probationterm requiring himto obey all laws. The court imposed an aggregate sentence of6years8 months in prison. The sentence consisted ofthe upperterm offour years for assaultwith a deadly weapon, plus consecutive terms of eightmonths—one third the middle term—for each of the four2016 counts. In a prioropinion, we affirmed the conviction of assault with a deadly weapon. (See People v. Canedos(Oct. 21, 2021, B307948) [nonpub. opn.].)
DISCUSSION
A.Retroactivity of Assembly Bill No. 1950
In September 2020, the Legislature enacted Assembly Bill No. 1950, which reduced the maximum duration of probation incases in which the court suspends the execution of a sentence pending the successful completion of probation. Previously, section 1203.1, subdivision (a) allowed courts to impose up to fiveyears of probation in cases where the suspended sentence was five years or less. Under the new law, which became effective January 1, 2021,the maximum period of probation istwo years.
“Generally, a statute applies prospectively unless otherwise stated in the language of the statute, or when retroactive application is clearly indicated by legislative intent.” (People v. Winn(2020) 44 Cal.App.5th 859, 872.) Beginning with its opinion in Estrada, however,our Supreme Court has recognized an exception to thisrule inameliorative criminal statutes. Thecourt explained that “[w]henthe Legislature amends a statute soas to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper aspunishment for the commission of the prohibited act. It is aninevitable inference that the Legislature must have intended that the newstatute imposing the new lighter penalty now deemed to be sufficient should applyto every case to which it constitutionally could apply. The amendatory act imposing thelighter punishment can be applied constitutionally to acts committed before its passage provided thejudgment convicting the defendant of the act is not final. This intent seems obvious,because to hold otherwise would be toconclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.” (Estrada, supra, 63 Cal.2d at p.745.)
In People v. Francis (1969) 71 Cal.2d 66, the court held thatthis presumption of retroactivity applies where a new lawmerely allows for a possibility of reduced punishment by giving the trialcourt discretion to impose a lesser sentence. (Id.atp.76.) In subsequent years, the court has reaffirmed thisdoctrine numerous times and applied it to a wide range ofameliorative criminal laws. (See Esquivel, supra,11Cal.5th atpp. 675–676[listing cases].)
In People v. Burton (2020) 58 Cal.App.5th Supp. 1 (Burton),the courtapplied this doctrine toAssembly Bill No.1950 andheldthat the law applies retroactively because itisan ameliorative statute that reduces a criminal defendant’s potential punishment. Although “ ‘[p]robation is neither “punishment” [citation] nor a criminal “judgment” [citation]’” (Burton, supra,58 Cal.App.5th Supp. at p.16), the court recognized that probation isarestriction on liberty and increases the likelihood that theprobationer will be found in violation of probation andincarcerated. In addition, the court recognized that the Legislature, in enacting Assembly Bill No. 1950, intended to prevent probationers from further involvement inthecriminal justice system because of probation violations thatdo not involve new criminal conduct.(Burton, supra, 58 Cal.App.5th Supp. at p.15.) With no evidence of legislative intent to the contrary, the court concluded that the ameliorative changes of Assembly Bill No. 1950 should “ ‘extend as broadly aspossible’ ” (Burton, supra, at p. 16, quoting People v. Conley (2016) 63 Cal.4th 646, 657 (Conley)), including todefendants already on probation. Several subsequent cases that have considered the issue reached thesame conclusion (see, e.g., Quinn, supra,59Cal.App.5th at pp.879−884; Sims, supra,59Cal.App.5th at pp. 955−964; Lord,supra,64Cal.App.5th at pp. 244−246; Stewart, supra,62Cal.App.5th at pp. 1070−1074, review granted), and we see noreason to disagree.
B.Retroactive Application to Defendants with Existing Violations
The Attorney General does not take issue with the analysis above, but contends that Assembly Bill No.1950 does not apply retroactively to Canedos because the court had already found that he violated probation before the law became effective.Thiswas not the situation in the cases cited above, where the defendant challenged theprobation order as part of a direct appeal of a conviction. (See Quinn, supra,59Cal.App.5th at p.878; Stewart,supra,62 Cal.App.5th at pp.1069–1070, review granted; Sims, supra,59Cal.App.5th at pp. 946–947; Lord, supra,64 Cal.App.5th at p.243.)In two recent cases, People v. Faial(2022) 75 Cal.App.5th 738 (Faial)and Kuhnel v. Superior Court (2022)75 Cal.App.5th 726(Kuhnel), the First District, Division Three agreed with the Attorney General and held that Assembly Bill No. 1950 applies retroactively only to “defendants whose probation has not been revoked and terminated” (Faial, supra,75 Cal.App.5th at p. 746).
We disagree. The Supreme Court’s recent decision in Esquivelcompels the conclusion that, although the trial court terminated Canedos’s probation, that decision was notyet final for purposes of Estrada retroactivity. Esquivel was similarly situated to Canedos: He wassentenced to five years in prison, with the sentence suspended pending the completion of probation. (Esquivel, supra, 11 Cal.5th at p. 673.) He did not initially challenge the sentence, but filed an appeal after the court three years later found him in violation of the terms of his probation and ordered the suspended sentence into effect. (Ibid.)In the interim, the Legislature had enacted a statute restricting the applicability of certain sentence enhancements that constituted two years of Esquivel’s sentence. The court held thatthe law applied retroactively to Esquivel. (Id. at p.678.) The court explained that “[t]his case was not final, for purposes oftheEstradapresumption, because the ‘criminal prosecution orproceeding’brought against defendant was not complete whenthe ameliorative legislation at issue took effect. [Citation.]Defendant had not exhausted direct review of the order causing his carceral punishment to take effect. The time for him to seekthat review had not expired. And he had not successfully completed probation.”(Ibid.) The revocation of probation didnotprevent Esquivel from challenging the validity of hissentence on appeal because the revocation was not yet final.
The same is true in this case. The trial court terminated Canedos’s probation in 2020, but that decision was still on appeal, and therefore not yet final for purposes of Estrada, whenAssembly Bill No. 1950 became effective.
The Attorney General contends that the Legislature didnotintend for Assembly Bill No. 1950 to apply retroactively todefendants like Canedos, noting that the law contains no mechanism for shortening existing probation terms, and does not address retroactive application to defendants who violated the terms of their probation before the law became effective. But thisargument misunderstands theEstrada presumption.Silence on the question of retroactivity means that an ameliorative law isfullyretroactive as a matter of “presumed legislative intent.” (Esquivel, supra, 11 Cal.5th at p. 680.) If the Legislature means to limit the scope of retroactive application, it must so specify: “Our cases do not ‘dictateto legislative drafters the forms in which laws must be written’ toexpress an intent to modify or limit the retroactive effect of anameliorative change; rather, theyrequire ‘that the Legislature demonstrate its intention withsufficient clarity thata reviewing court can discern and effectuate it.’ ” (Conley, supra, 63 Cal.4th at pp. 656–657.)
Thus, in Conley, the court held thatProposition36, which limited the application of the“Three Strikes” law, was not fully retroactive because the electorate created a specific mechanism for convicted defendants to seek resentencing. (Conley, supra,63 Cal.4th atpp. 657–659.)The court explained that “[w]here, ashere, the enacting body creates a special mechanism for application of the new lesser punishment to persons who have previously been sentenced, and where thebody expressly makes retroactive application of the lesser punishment contingent on acourt’s evaluation of the defendant’s dangerousness,we can nolonger say with confidence, as we did inEstrada,that the enacting body lacked any discernible reason to limit application ofthe law with respect to cases pending on direct review.” (Id. atpp. 658–659.) Assembly Bill No. 1950 contains no equivalent provision, and there is no basis for us to infer a limitation on the retroactive effect of the law.
Two additional recent cases support our position that Assembly Bill No. 1950 applies retroactively to Canedos. InPeople v. Superior Court (Lara)(2018) 4 Cal.5th 299, theSupreme Court held that Proposition 57, which barred prosecutors from initiating charges against juvenile defendants in adult court, applied fully retroactively to a case not yet final. The defendant in the case had been validly charged in adult courtbefore the law was enacted, and the trial court, finding Proposition 57 retroactive, transferred the case to the juvenile court for a fitness hearing. The People sought writ relief, but theSupreme Court ultimately agreed with the trial court that the defendant was entitled to the benefit of Proposition 57despitethe prior filing of charges in adult court. (Lara, supra, atpp. 307–314.) InPeople v. Frahs(2020) 9 Cal.5th 618, the Supreme Court likewise held that a new law creating a diversion program for defendants with mental health disorders applied retroactively to the defendant’s case, which was pending appeal of defendant’s conviction when the new program was enacted. Although thedefendant was convicted of robbery before the law became effective, the court remanded the case to the trial court toholdamental health eligibility hearing, with the possibility ofultimately dismissing the charges against him. (Id. at pp.640−641.) Thus, in both cases, the commencement of proceedings under existing law did not deny the defendant thebenefit of the retroactive application of a new law rendering the priorproceedings potentially invalid.
The court in Faialdistinguished these cases from Assembly Bill No. 1950 on the ground that“the laws inLaraandFrahsdid not contemplate obliteration of the offenders’ accountability for conduct predating the new laws; rather, the offenders remained answerable for such conduct through the juvenile justice system or through the mental health diversion program.” (Faial, supra,75 Cal.App.5th at p. 746.) We do not believe this distinction isdispositive.First, Estrada retroactivity applies not only in caseslike Frahs and Lara, where a new law creates a mechanism for possible reduced punishment, but also where a new law eliminates all culpability for a defendant’s conduct. For example, in People v. Rossi(1976) 18 Cal.3d 295, the Legislature decriminalized oral copulation between consenting adults after the defendant was convicted of the offense. The Supreme Court held that Estrada required reversing the conviction(id. at pp.302–304) despite the fact that, as the dissent noted, this would allow the “defendant to entirely escape punishment forheroffense” (id. at p. 305 (dis. opn. of Clark, J.)). Courts havereached similar conclusions where a change in the law decriminalized a defendant’s conduct in selling devices to allow piracy of pay television service (People v. Babylon (1985) 39 Cal.3d 719, 721) and in possessing medical marijuana (People v. Trippet(1997) 56 Cal.App.4th 1532, 1544–1545). The court in Faial cited no authority to support its conclusion that a different rule should apply here.
Second, Assembly Bill No. 1950 does not “obliterate” a defendant’s liability for criminal conduct. It simply shortens themaximum time during which a defendant may berequired toobeyterms of probation or punished for violating those terms.Indeed, as the court in Faialacknowledged, this was the purpose of the law as indicated in the legislative history. The drafters ofthe law “acted on studies showing that probation services are‘most effective during the first 18 months of supervision’ andthat‘providing increased supervision and services earlier reduces an individual’s likelihood to recidivate.’ ” (Faial, supra, 75 Cal.App.5th at p. 744.) Reducing “probation periodswould not only ‘ “decrease the amount of time that an individual must sufferfor a prior misdeed,” ’ but also ‘ “has the added benefit of incentivizing compliance.” ’”(Ibid.)
Unlike theFaial court, we conclude that it is consistent with these stated purposes of the law to apply it retroactively todefendants like Canedos who violated the terms of their probation before the law became effective.The Legislature believed it would be counterproductive to incarcerate defendants for minor violations of the terms of their probation committed more than two years after the original offense.Consistent withthat purpose, if the violation is serious, as in this case, thedefendant may be prosecuted for a new crime.Indeed, a juryconvicted Canedos of assault with a deadly weapon, and thecourt sentenced him to four years in prison.
We recognize that retroactively applying Assembly BillNo.1950 to defendants with existing violations does not “ ‘ “incentiviz[e] compliance” ’ ” with probation rules (Faial, supra, 75 Cal.App.5th at p. 744), but this is not enough to overcome theEstrada presumption where neither the statute northe legislative history explicitly addresses restricting retroactivity. (See Conley, supra, 63 Cal.4th at pp. 656–657.)
In Kuhnel, the same division of the Court of Appeal thatissued Faial offered a separate justification for holding thatAssembly Bill No. 1950 does not apply retroactively to existing probation violations. The court relied on two statutes governing the revocation of probation. The first, section 1203.3, subdivision(a), provides that “[t]he courthas theauthority atany time during the term of probation to revoke, modify, orchange its order of suspension of imposition or execution of sentence.” (Italics added.) This means that “ ‘[a]n order revoking probation must be made within the period of time circumscribed in the order of probation.Otherwise, the probationary period terminates automatically on the last day.’ ” (Hilton v. Superior Court(2014) 239 Cal.App.4th 766, 773, italics omitted.) Next, section 1203.2, subdivision (a) provides that the trial court’s action to revoke probation, “summary or otherwise, shall serve totoll the running of the period of supervision.” As the Supreme Court explained in People v. Leiva(2013) 56 Cal.4th 498 (Leiva), the purpose ofthis statute is to allow trial courts time to deal with violations occurring near the end of a probation term. By tolling the probation term for a reasonable period, the statute “preserve[s] thetrial court’s authority to hold a formal probation violation hearing at a time afterprobation would have expired with regard to a violation that was alleged to have occurredduringthe probationary period.” (Id. at pp. 514−515.)
We agree with the Kuhnel court’s application of these statutes to the specific facts of that case. Kuhnel involved a defendant sentenced to three years of probation for misdemeanor embezzlement. (Kuhnel, supra, 75 Cal.App.5th at p. 729.) Under Assembly Bill No. 1950, the maximum probation term for most misdemeanor offenses is one year. (§ 1203a.) The defendant violated her probation within 11 months of her conviction. Thus, even under the new law, she could be held liable for violating probation. The prosecution, which had no reason tobelieve it was facing a ticking clock, waited two additional months before seeking to revoke her probation. The court reasoned that Estrada “does not require us to play ‘gotcha’ with the prosecution, imposing an after-the-fact, artificial deadline for summary revocation. The rationale of Estrada provides no basis for departing from the general rule of prospective application when analyzing the date by which a court must have summarily revoked probation in order to preserve its authority to adjudicate a violation committed during a probationer’s first year.” (Kuhnel, supra, 75 Cal.App.5th at p. 736.)
We do not find this reasoning persuasive, however, in caseslike Canedos’s, where the defendant’s misconduct occurredoutside of the maximum probation term under Assembly Bill No.1950. In these cases, the violation did not “occur[ ] duringthe probationary period” (Leiva, supra,56 Cal.4th atp.515) as amended by the new statute. Thus, there isno justification for tolling the probation term under section1203.2, subdivision (a).
C.Application to Canedos
Because Assembly Bill No. 1950 applies retroactively toCanedos’s case, the maximum duration of his probation was twoyears, expiring in January 2018. Thus, by the time Canedos committed assault with a deadly weapon in 2019, the court nolonger had jurisdiction to revokehis probation. (See Butler, supra,75 Cal.App.5th at pp. 220–221, petn. for review pending.)We must therefore reverse the trial court’s order revoking probation.
In many cases, that would not be the end of the story:Wewould need to remand the case to the trial court for a full resentencing hearing. Under the full sentencing rule, when weoverturn a portion of a defendant’s sentence and remand thecase, “the resentencing court has jurisdiction to modify everyaspect of the sentence, and not just the portion” that was the basis of the resentencing hearing. (People v. Buycks (2018) 5Cal.5th 857, 893.) “This rule is justified because an aggregate prison term is not a series of separate independent terms, butoneterm made up of interdependent components. The invalidityof one component infects the entire scheme.” (People v. Hill(1986) 185 Cal.App.3d 831, 834.)
The trial court is bound by a significant restriction on itsresentencing authority after a successful appeal, however: Thenew sentence must be no more severe than the original one.(People v. Hanson (2000) 23 Cal.4th 355, 358–360.) This requirement is consistent with the function of Estrada to allowdefendants to benefit from retroactive ameliorative changesin the law, as well as with the intent of the Legislature in enacting Assembly Bill No. 1950 to reduce the risk to probationers ofreincarceration. (See Stewart, supra, 62 Cal.App.5th at pp.1073–1074, review granted.)
In this case,because any other sentence the court might imposefor his 2016 convictions would be more severe than theoriginal order suspending his sentence and placing him onfouryears of probation, there is no reason to remand for resentencing.Thus, we see no alternative but to orderthe trialcourt to reduce Canedos’s sentence to two years of probation, vacate its finding thatCanedos violated probation, and to strike the portion of the prison sentence attributable to that finding. (See Butler, supra,75Cal.App.5th at pp.225–226, petn. for review pending.)
DISPOSITION
The court’s finding that Canedos violated probation isvacated and the 2 years8 months portion of the sentence attributable to the probation violation is stricken. The court isdirected to enter an order modifying Canedos’s term ofprobation to two years in accordance with Penal Code section1203.1, subdivision (a) as amended by Assembly Bill No. 1950, reinstating probation, and terminating probation nuncpro tunc to January 12, 2018. The court shall resentence Canedos to fouryears in prison for the 2020 conviction of assaultwith a deadly weapon. The trial court is also directed topreparean amended abstract of judgment and to forward acertifiedcopy tothe Department of Corrections and Rehabilitation.
CERTIFIED FOR PUBLICATION.

ROTHSCHILD, P. J.
We concur:

BENDIX, J.

CRANDALL, J.*