People v. Saeed CA1/2 ( 2023 )

Filed 2/23/23 P. v. Saeed CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant,
A164003
v.
ABDULNASSER SAEED, (Napa County Super. Ct.
No. 19CR000767)
Defendant and Respondent.
THE PEOPLE,
Plaintiff and Appellant, A164013
v.
(Napa County Super. Ct.
TAREQ SAEED,
No. 19CR000755)
Defendant and Respondent.
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.
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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.)
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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
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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
1And it appeared their codefendants were also sentenced in the same
proceeding. Tareq’s attorney observed that “all of the defendants have the
same terms of probation.”
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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
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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,
2 A different judge (the Honorable Mark S. Boessenecker), had presided
at the change of pleas and sentencings.
3 In April 2022, the Supreme Court transferred Stewart back to the
Court of Appeal with directions to vacate the decision and reconsider the
cause in light of Senate Bill No. 483 (2021–2022 Reg. Sess.), stating that the
decision “has no binding or precedential effect, and may be cited for
potentially persuasive value only. (Cal. Rules of Court, rule 8.1115(e)(3).)”
(People v. Stewart (2022) ___ Cal.5th ___ [292 Cal.Rptr.3d 570].)
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People v. France (2020) 58 Cal.App.5th 7144 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 AB 1950.”
DISCUSSION
The parties agree that AB 1950 is retroactive and applies to these
defendants. We note that the retroactivity of AB 1950 is currently under
review by our Supreme Court in People v. Prudholme (Aug. 26, 2021,
E076007), 2021 WL 3781712 (nonpub. opn.), review granted November 10,
2021, S271057. But for purposes of these consolidated appeals we will
assume that AB 1950 applies retroactively under In re Estrada (1965) 63
Cal.2d 740, to defendants who are currently serving a term of probation. (See
Bowden v. Superior Court (2022) 82 Cal.App.5th 735, 740, 741) (Bowden)
4As with Stewart, the Supreme Court has since transferred France
back to the Court of Appeal with directions to vacate the decision and
reconsider the cause in light of Senate Bill No. 483 and stating the decision
“has no binding or precedential effect, and may be cited for potentially
persuasive value only.” (People v. France (2022) ___ Cal.5th ___ [292
Cal.Rptr.3d 570].)
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[citing many published opinions holding that two-year felony probation
limitation in AB 1950 is retroactive]).
The sole issue raised by the People on appeal is whether they are
entitled to withdraw their consent to the plea agreements before the trial
court “unilaterally modifi[ies]” the terms by reducing the period of probation
to two years. The People’s appeal is premised on the assumption that a five-
year term of probation was an agreed upon term of the plea agreement.
A. The People Have Failed to Establish that the Length of Defendants’
Probationary Periods Was a Negotiated Term
Defendants raise a threshold issue in their respondents’ briefs on
appeal that the length of their probationary periods was not, in fact, an
agreed upon term of the plea agreements. In electing not to file reply briefs
on appeal, the People fail to respond to this issue altogether, effectively
conceding the point. “Since appellant has not deigned to reply to the
argument of respondent, we have a right to assume that the former deems
the argument of the latter unanswerable.” (Campbell v. Ingram (1918) 37
Cal.App. 728, 732.)
At the outset of their argument on appeal as to each defendant, the
People state, without citing the record: “Respondent’s probation term was
part of a carefully and intentionally negotiated plea agreement.”5
Tareq argues that the record does not support the People’s claim that
the “five years of felony probation was a term of the plea agreement.” He
points out that there was “no mention of five-year probation as a term of the
agreement in the plea agreement form, at the change of plea hearing, in the
5 The People’s only citation to the record in support of this assertion is
to Abdulnasser’s written plea form. The People use the identical language in
their opening brief on appeal as to Tareq, with the only citation to
Abdulnasser’s written plea form.
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probation report, at the sentencing hearing, or even at the hearing on the
early termination of probation.”
Abdulnasser makes a similar argument that the People are not entitled
to rescind the plea agreement “because the record fails to establish that a
five-year period of probation was a stipulated term of the agreement.” The
record as to Abdulnasser’s plea agreement is more ambiguous than Tareq’s.
As we have described, Abdulnasser’s plea form at paragraph 4 starts out “5
years formal probation—no initial state prison; waive appeal . . . no early
termination of probation,” suggesting that a five-year term of probation was a
term of the agreement. (Moreover, in connection with his motion to shorten
probation filed on February 18, 2021, Abdulnasser stated that “[t]he 5-year
term of probation was an explicit part of the plea agreement in this case,”
referring to this plea form, and that “[a[lthough the 5-year term of probation
was negotiated in this case,” he was still entitled to benefit from the change
in the law shortening probation to two years.)
But Abdulnasser argues on appeal that nothing in paragraph 4 of his
plea form specifies whether the five-year term represents the “maximum
terms the court might impose in its discretion versus specific terms that the
court must impose under the agreement.” He asserts the record
demonstrates that the parties intended “identical plea bargains” for him and
Tareq (recall Tareq’s counsel stated the “probation term sheet” was “the same
for all defendants”); yet neither paragraph 4 of Tareq’s plea form nor the
probation term sheet applicable to all defendants mentioned the length of
probation. Therefore, Abdulnasser argues, the reference to “5 years” in his
plea form must have been intended as no more than a maximum period of
probation the court could order in its discretion, while the probation term
sheet attached to Tareq’s plea form was intended as the “mandatory terms
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applicable to all defendants.” He points out the probation officer found his
written plea agreement “difficult to interpret” and urges that the “most
reasonable reading” of the words “NISP, 5 years FP, CTS” in paragraph 4 is
that it “set forth maximum terms permissible under the plea, followed by a
listing of the mandatory terms set forth in the Probation Conditions
Attachment” that is part of Tareq’s plea form. Abdulnasser also relies on the
fact that the probation officer “recommended” a five-year probation term
(rather than, for example, stating five years’ probation was “required” or
“stipulated” to pursuant to the plea agreement) as further indication that the
five-year term was not a mandatory stipulation.
“A negotiated plea agreement is a form of contract, and it is interpreted
according to general contract principles. [Citations.] ‘The fundamental goal
of contractual interpretation is to give effect to the mutual intention of the
parties. (Civ. Code, § 1636.) If contractual language is clear and explicit, it
governs. (Civ. Code, § 1638.) On the other hand, “[i]f the terms of a promise
are in any respect ambiguous or uncertain, it must be interpreted in the
sense in which the promisor believed, at the time of making it, that the
promisee understood it.” [Citations.]’ [Citation.] ‘The mutual intention to
which the courts give effect is determined by objective manifestations of the
parties' intent, including the words used in the agreement, as well as
extrinsic evidence of such objective matters as the surrounding circumstances
under which the parties negotiated or entered into the contract; the object,
nature and subject matter of the contract; and the subsequent conduct of the
parties. [Citations.]’ ” (People v. Shelton (2006) 37 Cal.4th 759, 767.) As our
Supreme Court wrote in People v. Feyrer (2010) 48 Cal.4th 426, 438,
superseded by statute on another ground as stated in People v. Park (2013)
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56 Cal.4th 782, 804, “we are mindful of the rule that every term of a plea
agreement should be stated on the record.”
In this case, it was never made explicit whether the length of probation
was a stipulated term of the plea agreement. The district attorney never
stated the terms of the plea agreement on the record, nor did the court. The
arraignments on the pleas were cursory. The record is clear the parties all
intended that Abdulnasser and Tareq would be subject to the same plea
agreement terms, yet their plea forms are not the same. The probation
department had difficulty interpreting the terms of Abdulnasser’s plea
agreement. Abdulnasser’s written plea form mentions “5 years formal
probation.” Tareq’s does not. The Probation Conditions Form was intended
to apply to all defendants, but it is attached only to Tareq’s. In the end, their
terms of probation were virtually identical. No one contested the length of
probation when the trial court imposed it at sentencing, but that does not
mean that it was a stipulated term.
Given the parties’ clear intention that Abdulnasser and Tareq were
agreeing to the same negotiated disposition and no length of probation was
specified on Tareq’s plea form, we can discern no reason why one defendant
would have no specified length of probation while another’s plea agreement
required a stipulated to five-year term, especially in light of the repeated
references by the prosecutor that the plea agreements were the same as for
all defendants. Tareq’s plea agreement did not include a mandatory five-year
term. In these circumstances, we do not construe the ambiguous words of
paragraph 4 of Abdulnasser’s plea agreement to mean that his plea
agreement was for a mandatory five-year probation term while Tareq’s
agreement was for an unspecified length of probation.
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In sum, we agree with defendants that there is no factual underpinning
for the district attorney even to seek to withdraw from the plea agreement.
The People’s appellate claim fails at the outset because they have not shown
that five-year probationary periods were agreed-to terms of the plea bargains.
B. Assuming the Parties Agreed to Five-Year Terms of Probation, the
People are Not Entitled to Withdraw Consent to the Plea Bargains
In any event, even if we assume the parties did specifically agree
defendants’ probationary periods would be five years, the People are not
entitled to relief on appeal. The People’s claim presents an issue of statutory
interpretation for our independent review. (People v. Saxton (2021) 68
Cal.App.5th 428, 432.)
The Courts of Appeal are currently split as to whether the prosecution
may withdraw from a negotiated plea agreement in the face of a motion to
shorten probation under AB 1950 such as the motions made by defendants
here. (Bowden, supra, 82 Cal.App.5th at p. 746 [citing cases].) When our
court was first confronted with this issue, we concluded that, when there was
a plea agreement and AB 1950 applied retroactively to shorten the
defendant’s term of probation, it was not necessary to give the prosecution an
opportunity to withdraw from the plea agreement. (Stewart, supra, 62
Cal.App.5th at pp. 1074–1079.) Our colleagues in Division Three recently
reached the same conclusion that the Legislature “did not intend for the
prosecution or the trial court to be permitted to withdraw their approval from
a plea agreement modified by Assembly Bill 1950.” (Bowden, at p. 746.)
Other courts have taken the same position. (See, e.g. People v. Shelly (2022)
81 Cal.App.5th 181, 186, rev. granted (Sept. 21, 2022, S276031) [citing
cases].) Yet other courts have taken the opposite position. (See, e.g. People v.
Scarano (2022) 74 Cal.App.5th 993, 1000, rev. granted (June 1, 2022,
S273830.) And the issue is before our Supreme Court in People v. Prudholme,
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supra, S271057. In the meantime, we are persuaded by Bowden, supra, 82
Cal.App.5th 735; People v. Butler (2022) 75 Cal.App.5th 216, 219, review
granted June 1, 2022, S273773; Shelly, supra, 81 Cal.App.5th 181; People v.
Flores (2022) 77 Cal.App.5th 420, review granted June 22, 2022, S274561; as
well as the reasoning in our earlier opinion in Stewart, supra, 62 Cal.App.5th
at pages 1074–1079.
Thus, we conclude that the People are not entitled to withdraw from
the plea agreements with either Tareq or Abdulnasser, and the orders
shortening and terminating probation are affirmed.
DISPOSITION
The order terminating Abdulnasser Saeed’s probation is affirmed. The
order terminating Tareq Saeed’s probation is affirmed.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Richman, J.
A164003, People v. Abdulnasser Saeed; A164013, People v. Tareq Saeed
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