People v. Sims ( 2021 )

Filed 1/12/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077024
Plaintiff and Respondent,
v. (Super. Ct. No. SCD281406)
TONY RAMON SIMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Jay M. Bloom, Judge. Affirmed in part, reversed in part, and remanded.
Justin Behravesh, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Daniel
Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff
and Respondent.
I
INTRODUCTION
Defendant Tony Ramon Sims appeals a judgment of conviction entered
after he pleaded guilty to two counts of possession of a firearm by a felon
(Pen. Code, § 29800, subd. (a)(1); counts 1 and 2)1 and one count of unlawful
possession of ammunition (§ 30305, subd. (a)(1)). He contends the trial court
erred in denying a motion to suppress incriminating evidence obtained
during a warrantless search of his vehicle. We conclude the court properly
denied the motion to suppress because the search of the defendant’s vehicle
was valid under the automobile exception to the warrant requirement and, in
the alternative, as a search incident to arrest.
The defendant also argues he is entitled to seek a reduction of his
three-year probation term under recently-enacted Assembly Bill No. 1950
(Stats. 2020, ch. 328, § 2). Effective January 1, 2021, Assembly Bill No. 1950
amended section 1203.1 to limit the maximum probation term a trial court is
authorized to impose for most felony offenses to two years. Relying on In re
Estrada (1965) 63 Cal.2d 740 (Estrada), the defendant asserts Assembly Bill
No. 1950’s limitation on the maximum duration of felony probation terms
constitutes an ameliorative change to the criminal law that applies
retroactively to cases that were not reduced to final judgment as of the new
law’s effective date. We agree.
Therefore, we affirm the judgment in part as to the defendant’s
conviction, reverse the judgment in part as to the defendant’s sentence, and
remand the matter for resentencing.
1 All further statutory references are to the Penal Code unless otherwise
noted.
2
II
BACKGROUND
A
Vehicle Search
The following facts are drawn from the preliminary hearing. (See
People v. Turner (2017) 13 Cal.App.5th 397, 400.)
Shortly before 3:00 a.m., two police officers entered a parking lot in
downtown San Diego. The officers were patrolling the area because the bars
in downtown San Diego closed at 2:00 a.m., exiting patrons were often
involved in criminal offenses, and the parking lot was known as a place
where people went to drink and loiter after they left the bars. According to
one of the officers, there were “people congregat[ing] … [and] partying” in the
parking lot, many of whom “scattered” when the officers entered it.
The officers approached a parked vehicle in the parking lot. The
defendant was seated in the front passenger seat and appeared to be passed
out. The keys to the vehicle were in the ignition when the officers
approached the vehicle. The officers engaged the defendant in conversation
and detected the odor of alcohol emanating from the defendant. They
observed that the defendant had bloodshot eyes, slurred his speech, fumbled
for his wallet, and appeared as though he was going to vomit. Based on these
observations, the officers immediately believed the defendant was intoxicated
and in violation of section 85.10 of the San Diego Municipal Code.2
At the officers’ request, the defendant provided his name. One officer
used his cell phone to search the defendant’s name on a criminal records
2 San Diego Municipal Code section 85.10 states: “No person who is
under the influence of intoxicating liquor or narcotic drugs shall be in or
about any motor vehicle, while such vehicle is in or upon any street or other
public place.”
3
database. The search yielded a record for a person named Tony Sims. The
person was on probation and, as a condition of probation, he had executed a
Fourth Amendment waiver. The database record included the person’s
birthdate, height, and weight, as well as a photograph of the person that was
approximately one square inch in size when displayed on the officer’s cell
phone.
The officer asked the defendant whether his birthdate was the
birthdate indicated on the database record. The defendant replied, “Yeah.”
The officer then asked the defendant whether he had been “checking in,”
apparently to determine whether he was reporting to a probation officer. The
defendant replied, “Yeah.” Based on these responses and the information
contained in the database record, the officer believed the defendant was the
Tony Sims whose information was recorded on the database record and,
therefore, that the defendant had executed a Fourth Amendment waiver.
The officer asked the defendant to exit the vehicle for a vehicle search.
However, the defendant was paralyzed from the waist down. Because the
defendant was unable to exit the vehicle without assistance, the officer began
to search the vehicle while the defendant remained seated in the front
passenger seat. During the ensuing search, the officer recovered a loaded
semi-automatic handgun from the rear passenger floorboard. The defendant
was then handcuffed and removed from the vehicle, after which the officer
continued to search the vehicle. The officer seized a second loaded semi-
automatic handgun from underneath the front passenger seat and handgun
ammunition from the rear driver side floorboard.
The police later determined the defendant was not the person whose
record was produced during the criminal records database search and he had
not executed a Fourth Amendment waiver.
4
B
Procedural Background
The defendant was charged by information with two counts of
possession of a firearm by a felon and one count of unlawful possession of
ammunition.
The defendant filed a pretrial motion to suppress all evidence obtained
during the search of his vehicle, including the firearms and ammunition. He
asserted the warrantless search violated his Fourth Amendment right to be
free from unreasonable searches and seizures. The trial court considered and
denied the suppression motion at the preliminary hearing. It found the
evidence obtained during the search was admissible for three independent
reasons: (1) the search was permissible under the automobile exception to
the warrant requirement because there was probable cause that evidence of
the defendant’s public intoxication would be found in the vehicle; (2) the
search was permissible as a search incident to arrest; and (3) the evidence
was admissible under the good faith exception to the exclusionary rule.3
Thereafter, the defendant filed a motion to dismiss the information
under section 995, which the trial court denied. The court determined the
search of the vehicle was permissible because the officers had probable cause
to arrest the defendant and search the vehicle based on the defendant’s state
of intoxication. It found, in the alternative, the evidence was admissible
under the good faith exception to the exclusionary rule.
3 The court did not expressly reference the automobile exception.
However, it opined the defendant was “drunk in public” under section 647,
subdivision (f), “or whatever statute [the People] want[ed] to use. So … the[]
[police] ha[d] … probable cause to search the vehicle for evidence of that.” It
is clear to us, and the defendant agrees, that the court relied on the
automobile exception as the basis for this ruling.
5
Over the objection of the prosecutor, the trial court then offered the
defendant an indicated sentence of three years of probation. The defendant
pleaded guilty to the face of the information and, per the court’s indicated
sentence, was placed on probation for three years.
III
DISCUSSION
A
Warrantless Search
The defendant appeals the judgment on grounds that the warrantless
search of his vehicle violated his Fourth Amendment rights. Based on the
alleged constitutional violation, the defendant contends the trial court erred
in denying his motion to suppress the evidence obtained during the
warrantless search of his vehicle.
1
Legal Principles
The Fourth Amendment guarantees the right to be free from
unreasonable searches and seizures. (U.S. Const., 4th Amend.) “Warrantless
searches are presumed to be unreasonable, therefore illegal, under the
Fourth Amendment, subject only to a few carefully delineated exceptions.”
(People v. Vasquez (1983) 138 Cal.App.3d 995, 1000.) As discussed more fully
below, two exceptions are relevant for purposes of this appeal—the
automobile exception and the exception for searches incident to arrest.
In reviewing a trial court’s determination on a motion to suppress
evidence, “we rely on the trial court’s express and implied factual findings,
provided they are supported by substantial evidence, to independently
determine whether the search was constitutional. [Citation.] ‘Thus, while we
ultimately exercise our independent judgment to determine the constitutional
6
propriety of a search or seizure, we do so within the context of historical facts
determined by the trial court.’ [Citation.] It is the trial court’s role to
evaluate witness credibility, resolve conflicts in the testimony, weigh the
evidence, and draw factual inferences. [Citation.] We review those factual
findings under the deferential substantial evidence standard, considering the
evidence in the light most favorable to the trial court’s order.” (People v. Lee
(2019) 40 Cal.App.5th 853, 860–861 (Lee).)
2
Automobile Exception
The trial court found the search of the defendant’s vehicle was
constitutionally permissible under the automobile exception to the warrant
requirement. We agree.
Under the automobile exception, “ ‘police who have probable cause to
believe a lawfully stopped vehicle contains evidence of criminal activity or
contraband may conduct a warrantless search of any area of the vehicle in
which the evidence might be found.’ ” (Lee, supra, 40 Cal.App.5th at p. 862;
see U.S. v. Ross (1982) 456 U.S. 798, 800 [when police have probable cause,
they “may conduct a probing search of compartments and containers within
the vehicle whose contents are not in plain view”].) The historical rationale
for the automobile exception was that the “ready mobility” of a vehicle creates
a risk that evidence of a crime or contraband will be lost while a warrant is
obtained. (California v. Carney (1985) 471 U.S. 386, 391, 391–392; see
Carroll v. United States (1925) 267 U.S. 132, 153.) Over time, courts have
also recognized a second rationale for the automobile exception—a person has
a “lesser expectation of privacy” in his or her vehicle due to “the pervasive
regulation of vehicles capable of traveling on the public highways.” (Carney,
at pp. 391, 392; see Cady v. Dombrowski (1973) 413 U.S. 433, 440–441.)
7
Probable cause “is a more demanding standard than mere reasonable
suspicion.’ [Citation.] It exists ‘where the known facts and circumstances are
sufficient to warrant a man of reasonable prudence in the belief that
contraband or evidence of a crime will be found….’ In determining whether a
reasonable officer would have probable cause to search, we consider the
totality of the circumstances.” (Lee, supra, 40 Cal.App.5th at p. 862.)
The People argue the officers had probable cause to search the
defendant’s vehicle because it was reasonable to believe the search would
produce evidence the defendant was publicly intoxicated in violation of San
Diego Municipal Code section 85.10.4 We concur. The trial court found the
defendant was “drunk in public,” a finding that is supported by ample
evidence. One officer testified he came to believe the defendant was
intoxicated immediately when he encountered the defendant. He based this
belief on his personal observations that the defendant had bloodshot eyes,
slurred his speech, fumbled with his wallet, seemed as though he was going
to vomit, and emitted an odor of alcohol.
Given the defendant’s clear state of intoxication, it was reasonable for
the officers to believe a search of the vehicle in which the defendant was
passed out would produce evidence of alcohol consumption, such as unsealed
alcohol containers. (People v. Molina (1994) 25 Cal.App.4th 1038, 1042
[officer had probable cause to search vehicle for open containers of alcohol
after noticing odor of beer during traffic stop]; see U.S. v. Hulsey (7th Cir.
2001) 11 Fed.Appx. 607, 611 [search of motorist’s vehicle justified based on
4 The People do not address whether there was probable cause to search
for evidence of a violation of section 647, subdivision (f), the public
intoxication statute. Rather, they argue exclusively that there was probable
cause to search for evidence of a violation of the San Diego Municipal Code
section 85.10.
8
odor of alcohol and motorist’s admission she consumed alcohol]; U.S. v.
Neumann (8th Cir. 1999) 183 F.3d 753, 755, 756 [officer had probable cause
to search vehicle for open container of alcohol where he detected a “faint odor
of alcohol” on motorist’s breath and motorist appeared nervous].)
The defendant contends the officers lacked probable cause to search his
vehicle because his state of intoxication, standing alone, did not give rise to a
reasonable inference that he consumed alcohol in the vehicle (as opposed to a
bar), or that unsealed containers of alcohol would be found in the vehicle.
Assuming without deciding that “something more” than the defendant’s state
of intoxication was necessary for the officers to have probable cause for the
search, there was “something more” here. The encounter between the officers
and the defendant occurred shortly before 3:00 a.m., after nearby bars had
closed. At the hearing on the defendant’s suppression motion, one of the
officers testified the parking lot where the defendant was parked was “a
known place to hang out after [bars closed], drink, [and] loiter around.” The
officer added that there were “people congregat[ing] … around their cars,
partying” when the officer and his partner entered the parking lot. These
facts, coupled with the defendant’s signs of inebriation, provided the officers
probable cause to search the vehicle for evidence that the defendant was
publicly intoxicated in violation of San Diego Municipal Code section 85.10.
The defendant asserts the officers did not have probable cause to
search his vehicle because they already had “enough information” to
determine he was publicly intoxicated and “[n]o search of the car was
necessary” to determine whether he was in violation of San Diego Municipal
Code section 85.10. However, the automobile exception is not so narrow that
it applies only when the evidence or contraband believed to be in a vehicle is
non-duplicative of other evidence or strictly essential to establish a criminal
9
offense. Rather, where officers have probable cause that a lawfully-stopped
vehicle contains evidence of criminal activity or contraband, such probable
cause “alone satisfies the automobile exception to the Fourth Amendment’s
warrant requirement ….” (Maryland v. Dyson (1999) 527 U.S. 465, 467.)
For all these reasons, we conclude the police officers had probable cause
to search the defendant’s vehicle for evidence of his public intoxication.
Accordingly, we conclude the search was constitutionally permissible under
the automobile exception to the warrant requirement.
3
Search Incident to Arrest
As an alternative basis for denying the suppression motion, the trial
court determined the search of the defendant’s vehicle was permissible as a
search incident to the defendant’s arrest for public intoxication. Once again,
we agree with the trial court.
Under the so-called Gant rule, police may conduct a warrantless search
of the passenger compartment of a vehicle and any containers therein, as an
incident to a lawful arrest of a recent occupant of the vehicle, so long as “the
arrestee is within reaching distance of the passenger compartment at the
time of the search or it is reasonable to believe the vehicle contains evidence
of the offense of arrest.” (Arizona v. Gant (2009) 556 U.S. 332, 351, italics
added (Gant).) The “exception derives from interests in officer safety and
evidence preservation that are typically implicated in arrest situations.” (Id.
at p. 338; see People v. Macabeo (2016) 1 Cal.5th 1206, 1214 [“A search
incident to arrest ‘has traditionally been justified by the reasonableness of
searching for weapons, instruments of escape, and evidence of crime when a
person is taken into official custody and lawfully detained.’ ”].) The Gant rule
10
is a “two-part rule” and a warrantless search will be upheld if either prong is
satisfied. (People v. Johnson (2018) 21 Cal.App.5th 1026, 1035.)
Before we address whether the search satisfied the Gant rule, we
consider a predicate issue contested by the parties—whether the search was
incident to a custodial arrest. We conclude it was. At the hearing on the
suppression motion, the arresting officer testified that upon encountering the
defendant, he and his partner “were going to place [the defendant] under
arrest for [violating section] 85.10 of the municipal code since there[] [was] no
one around to take care of him. He[] [was] drunk in public. Couldn’t take
care of himself.” The officer added, “[H]e[] [was] drunk in or around a
vehicle. There[] [were] keys in the ignition. He [didn’t] have any friends to
take care of him. We [couldn’t] leave him with somebody else. He[] [was]
clearly too intoxicated to help himself, and the keys [were] still there…. So
he was being placed under arrest in order to be taken to detox or to jail.”
The transcript of the officer’s bodyworn camera footage corroborates
this testimony. Before the search, the officer instructed the defendant to exit
the vehicle. At that point, a bystander asked the officer, “Why is he being
detained?” The officer replied, “Because he’s drunk in[] and around a vehicle
… with no one else around him.” The officer’s contemporaneous statement
that the defendant was being detained due to his state of intoxication,
together with the officer’s hearing testimony, supports the trial court’s
11
implied finding that the officers searched the vehicle incident to a custodial
arrest.5
The defendant argues the officers did not search his vehicle incident to
an arrest; he claims they instead searched it based solely on their mistaken
belief that he was on probation and subject to a Fourth Amendment waiver.
But the testifying officer refuted this claim during the suppression hearing.
According to the officer, he searched the vehicle both because he believed
(erroneously, as it turns out) that the defendant executed a Fourth
Amendment waiver and because the defendant was under arrest for public
intoxication. After receiving the officer’s testimony, the trial court expressly
opined the defendant was “drunk in public” and found the search was
incident to an arrest. In urging us to reject these findings and disbelieve the
testifying officer, the defendant asks us to reweigh the evidence and
substitute our findings for those of the trial court. We decline the defendant’s
invitation, which runs contrary to well-settled principles of appellate review.
(People v. Lieng (2010) 190 Cal.App.4th 1213, 1218 [“In reviewing the ruling
on a motion to suppress, the appellate court defers to the trial court’s factual
findings, express or implied, when supported by substantial evidence.”].)
We further conclude the trial court did not err in reaching its implied
finding that the vehicle search satisfied the Gant rule. At the time the
officers began to search the vehicle—and discovered the first loaded
5 The fact that the search of the vehicle occurred before the defendant’s
formal arrest is of no moment, given that the formal “arrest follow[ed]
‘quickly on the heels’ of the search” and was “supported by probable cause
independent of the fruits of the search ….” (U.S. v. Smith (9th Cir. 2004) 389
F.3d 944, 951; see Rawlings v. Kentucky (1980) 448 U.S. 98, 111 [“Where the
formal arrest followed quickly on the heels of the challenged search of
petitioner’s person, we do not believe it particularly important that the
search preceded the arrest rather than vice versa.”].)
12
firearm—the defendant was unsecured and seated in the front passenger seat
of the vehicle. The defendant was plainly “within reaching distance of the
passenger compartment” while he was unrestrained and seated inside the
passenger compartment. (Gant, supra, 556 U.S. at p. 351.) Therefore, the
search—at least the portion of the search conducted while the defendant was
seated in the vehicle—was warranted under the first prong of the Gant rule.
The defendant asserts it was unreasonable for the arresting officers to
believe he might grab something from the vehicle’s rear floorboard because
he was paralyzed. However, “Gant provides the generalized authority to
search the entire passenger compartment of a vehicle and any containers
therein incident to arrest.” (People v. Nottoli (2011) 199 Cal.App.4th 531, 555
(Nottoli), italics added; see Thornton v. U.S. (2004) 541 U.S. 615, 623 [“Once
an officer determines that there is probable cause to make an arrest, it is
reasonable to allow officers to ensure their safety and to preserve evidence by
searching the entire passenger compartment.”].) “ ‘[T]he only question the
trial court asks is whether the area searched is generally “reachable without
exiting the vehicle, without regard to the likelihood in the particular case
that such a reaching was possible.” ’ ” (U.S. v. Allen (1st Cir. 2006) 469 F.3d
11, 15, italics omitted; see United States v. Stegall (8th Cir. 2017) 850 F.3d
981, 985 [“actual reachability under the circumstances” is irrelevant when
considering the scope of a passenger compartment search].) The backseat of
a passenger compartment is generally reachable by an unrestrained person
seated in the front of the compartment, irrespective of whether the area was
reachable by the defendant in this particular instance. Accordingly, the
search was proper under the first prong of the Gant test.
In any event, the entire search of the vehicle—both before and after the
defendant was handcuffed and removed from the vehicle—was a valid search
13
incident to arrest under the second prong of the Gant test. For the reasons
previously discussed in our analysis of the automobile exception, the officers
had a reasonable basis to believe the vehicle contained evidence relevant to
establish that the defendant was publicly intoxicated in violation of San
Diego Municipal Code section 85.10. (See People v. Quick (2016) 5
Cal.App.5th 1006, 1012–1013 [“ ‘[W]hen a driver is arrested for driving under
the influence, or being under the influence, it will generally be reasonable for
an officer to believe evidence related to that crime might be found in the
vehicle.’ ”], quoting People v. Evans (2011) 200 Cal.App.4th 735, 750; Nottoli,
supra, 199 Cal.App.4th at p. 553 [defendant’s “arrest for ‘being under the
influence of a controlled substance’ supplied a reasonable basis for believing
that evidence ‘relevant’ to that type of offense might be in his vehicle.”].) For
that independent reason, we conclude the search was a valid search incident
to arrest.6
B
Assembly Bill No. 1950
At the time the defendant was sentenced, section 1203.1,
subdivision (a) provided that a court may impose felony probation “for a
period of time not exceeding the maximum possible term of the sentence.” It
further provided that “where the maximum possible term of the sentence is
five years or less, then the period of suspension of imposition or execution of
sentence may, in the discretion of the court, continue for not over five years.”
(Former § 1203.1, subd. (a).)
6 Because the search of the vehicle was constitutionally permissible
under the automobile exception and as a search incident to arrest, we do not
consider whether the trial court properly denied the suppression motion
under the good faith exception to the exclusionary rule.
14
During the pendency of this appeal, the Legislature enacted Assembly
Bill No. 1950, which amended section 1203.1. (Stats. 2020, ch. 328, § 2.)
Subject to exceptions not applicable here, section 1203.1, subdivision (a), as
amended, provides that a felony probation term cannot exceed two years.7
The defendant contends Assembly Bill No. 1950’s two-year limitation
for felony probation terms applies retroactively to cases like his own that
were not final when the new law became effective on January 1, 2021. In
support of this argument, the defendant relies on the presumption of
retroactivity articulated in Estrada, supra, 63 Cal.2d 740. As we will explain,
we agree with the defendant that Assembly Bill No. 1950’s two-year felony
probation limitation applies retroactively.
1
The Estrada Presumption
By default, criminal statutes are presumed to apply prospectively only.
(§ 3 [“No part of [the Penal Code] is retroactive, unless expressly so
declared.”]; see People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307
(Lara).) “However, this presumption is a canon of statutory interpretation
rather than a constitutional mandate. [Citation.] Accordingly, ‘the
Legislature can ordinarily enact laws that apply retroactively, either
explicitly or by implication.’ ” (People v. Frahs (2020) 9 Cal.5th 618, 627
(Frahs).) To determine whether a law is meant to apply retroactively, the
role of a court is to determine the intent of the Legislature. (Ibid.)
In Estrada, supra, 63 Cal.2d 740, the Supreme Court set forth an
important qualification to the default presumption against retroactivity. The
7 Assembly Bill No. 1950 also amended section 1203a to limit the
maximum length of a misdemeanor probation term for most misdemeanor
offenses to one year. (Stats. 2020, ch. 328, § 1.)
15
Estrada Court recognized that when the Legislature enacts a new law
ameliorating a criminal penalty, it determines “that its former penalty was
too severe and that a lighter punishment is proper as punishment for the
commission of the prohibited act.” (Id. at p. 745.) The Estrada Court
determined that in the absence of an express savings clause or other
indication of prospective-only application, courts must infer the Legislature
intended its new ameliorative law to apply “to every case to which it
constitutionally could apply,” including cases in which the criminal acts were
committed before the law’s passage provided the defendant’s judgment is not
final. (Ibid.) To hold otherwise, the Estrada Court reasoned, “would be to
conclude that the Legislature was motivated by a desire for vengeance, a
conclusion not permitted in view of modern theories of penology.” (Ibid.)
The ameliorative law at issue in Estrada was a law that reduced the
penalties applicable to a particular criminal offense. (Estrada, supra, 63
Cal.2d at pp. 743–744.) However, the Estrada presumption of retroactivity
has been applied in numerous other contexts since it was first articulated.
For instance, the Supreme Court has applied the Estrada presumption to
statutes governing penalty enhancements and substantive offenses. (Frahs,
supra, 9 Cal.5th at p. 628 [collecting cases].) Further, and pertinent to this
appeal, it has applied the Estrada presumption “to statutes that merely made
a reduced punishment possible.” (Id. at p. 629 [collecting cases].)
People v. Francis (1969) 71 Cal.2d 66 was an early case in which the
Supreme Court applied the Estrada presumption to a law that merely made
reduced punishment possible. In that case, the Legislature modified the
punishment for possession of marijuana, which had been a straight felony, to
permit it to be treated as a misdemeanor. (Id. at p. 70.) The People argued
the amendment did not reflect a “legislative determination that the ‘former
16
penalty was too severe,’ ” and thus did not apply retroactively, because it
afforded courts “discretion to impose either the same penalty as under the
former law or a lesser penalty.” (Id. at p. 76.) The Supreme Court rejected
this argument and applied the Estrada presumption. (Ibid.) Although the
new law did not guarantee a lighter sentence for defendants, the presumption
of retroactivity applied because the new law reflected a legislative
determination that “the former penalty provisions may have been too severe
in some cases ….” (Id. at p. 76, italics added.)
The Supreme Court employed similar reasoning in Lara, supra, 4
Cal.5th 299. In that case, the Supreme Court was asked to decide whether to
give retroactive application to a provision of Proposition 57 that eliminated
prosecutors’ unilateral authority to charge a juvenile offender directly in
adult court and instead required prosecutors to obtain a juvenile court’s
approval before trying a juvenile offender in adult court. (Id. at pp. 305–306.)
Proposition 57 was “different from the statutory changes in Estrada” because
it “did not ameliorate the punishment, or possible punishment, for a
particular crime; rather, it ameliorated the possible punishment for a class of
persons, namely juveniles.” (Id. at p. 308.) Nonetheless, the Court held that
the Estrada presumption applied. According to the Supreme Court, the fact
that Proposition 57 had a potential ameliorating benefit in some cases for
some juvenile offenders warranted retroactive application. (Id. at p. 309.)
Just last year, the Supreme Court applied the Estrada presumption of
retroactivity to another law that merely made reduced punishment possible,
in Frahs, supra, 9 Cal.5th 618. The law at issue in Frahs was a statute
establishing a pretrial diversion program for certain defendants with mental
health disorders. (Id. at pp. 626–627.) Under the pretrial diversion statute,
defendants who were granted diversion were referred to a mental health
17
treatment program and entitled to a possible dismissal of their criminal
charges. (Id. at pp. 626–627.) Because a court’s decision to grant diversion
could result in a defendant receiving mental health treatment, avoiding
criminal prosecution, and maintaining a clean criminal record, as opposed to
suffering a prison sentence, the pretrial diversion statute “offer[ed] a
potentially ameliorative benefit for a class of individuals—namely, criminal
defendants who suffer[ed] from a qualifying mental disorder.” (Id. at p. 631.)
Based on the pretrial diversion statute’s ameliorative nature, the Supreme
Court determined the statute fell “squarely within the spirit of the Estrada
rule,” and was therefore entitled to retroactive application. (Ibid.)
With these principles in mind, we turn to whether Assembly Bill
No. 1950’s two-year limitation on felony probation operates retroactively.
2
Application
The People assert Assembly Bill No. 1950’s felony probation limitation
is not subject to the Estrada presumption of retroactivity. They contend the
Estrada presumption applies only to criminal laws that reduce punishment
and, according to the People, probation is not punishment.
The People are correct that “[a] grant of probation is ‘qualitatively
different from such traditional forms of punishment as fines or
imprisonment.’ ” (People v. Moran (2016) 1 Cal.5th 398, 402.) Probation is
primarily rehabilitative and a grant of probation is considered an act of grace
or clemency in lieu of traditional forms of punishment. (Ibid.; but see People
v. Edwards (1976) 18 Cal.3d 796, 801 [probation is “an alternative form of
punishment in those cases when it can be used as a correctional tool”]; Fetters
v. County of Los Angeles (2016) 243 Cal.App.4th 825, 837 [“Both California
and federal courts … regard probation as a ‘form of punishment’ ”]; People v.
18
Delgado (2006) 140 Cal.App.4th 1157, 1170 [retroactive application of statute
mandating imposition of certain probation conditions violated ex post facto
principles because it “impose[d] greater punishment in probation cases”].)
However, we do not believe the label affixed to probation—i.e., whether
it is labeled punishment, rehabilitation, or some combination—is necessarily
determinative of whether the Estrada presumption of retroactivity applies.
When a court places a defendant on probation, it may, of course, fine the
defendant or order the defendant confined in jail, or both. (§ 1203.1,
subd. (a).) But it has discretion to impose a variety of other probation
conditions as well. It may, for example, require that the probationer submit
to searches of electronic devices and social media accounts (People v.
Ebertowski (2014) 228 Cal.App.4th 1170), submit to periodic drug testing
(Health & Saf. Code, § 11551), refrain from associating with persons or
groups of persons (People v. Mendez (2013) 221 Cal.App.4th 1167), and obtain
permission from a probation officer before changing addresses or leaving the
state or county (People v. Matranga (1969) 275 Cal.App.2d 328; see People v.
Relkin (2016) 6 Cal.App.5th 1188). A probationer may even be required to
wear a continuous electronic monitoring device that alerts a probation officer
to the probationer’s whereabouts at all times (§ 1210.7 et seq.).
As these illustrative examples make clear, probation—though often
deemed preferable to imprisonment from the perspective of a defendant—can
be invasive, time-consuming, and restrictive for a probationer.8 A
probationer “is in constructive custody—he is under restraint.” (People v.
Crus-Lopez (2018) 27 Cal.App.5th 212, 221; see People v. Cisneros (1986) 179
8 If a defendant does not believe probation is preferable, “he or she may
refuse probation and choose to serve the sentence.” (People v. Olguin (2008)
45 Cal.4th 375, 379.)
19
Cal.App.3d 117, 120 [a probationer is in “constructive incarceration”].) Thus,
“[w]hile probation is not technically a ‘punishment,’ being ‘ “rehabilitative in
nature” ’ [Citation], there is no question it is a sanction that imposes
significant restrictions on the civil liberties of a defendant.” (People v. Davis
(2016) 246 Cal.App.4th 127, 140, fn. 6; see Hicks on Behalf of Feiock v. Feiock
(1988) 485 U.S. 624, 639, fn. 11 [“A determinate term of probation puts the
contemnor under numerous disabilities that he cannot escape”].) By limiting
the maximum duration a probationer can be subject to such restraint,
Assembly Bill No. 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.
Further, a trial court possesses broad discretion to revoke probation “if
the interests of justice so require and the court, in its judgment, has reason to
believe … the person has violated any of the conditions of their supervision
….” (§ 1203.2, subd. (a).) A probation violation need not be proven beyond a
reasonable doubt or by clear or convincing evidence; a mere preponderance of
the evidence is sufficient to support a finding that a probation condition has
been violated. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.) Upon a
finding that a probation condition has been violated, courts can—and
routinely do—sentence noncompliant probationers to prison to serve out their
sentences. (§ 1203.2, subd. (c); see Feinstein, Reforming Adult Felony
Probation to Ease Prison Overcrowding: An Overview of California S.B. 678
(2011) 14 Chapman L.Rev. 375, 380–381 [“A probationer ‘fails’ probation
when he has his probation status revoked due to a technical violation, like
failing a drug test, or he is convicted for a new crime. Of those who fail each
year, a significant portion–somewhere from 14,532 to an upward estimate of
20,000–winds up in state prison.”], footnotes omitted.)
20
There is no dispute that the longer a probationer remains on probation,
the more likely it is he or she will be found to be in violation of a probation
condition. There also is no dispute that the longer a probationer remains on
probation, the more likely it is he or she will be sentenced to prison for a
probation violation. Assembly Bill No. 1950 does not guarantee that a
probationer will abide by his or her probation conditions and, as a result,
avoid imprisonment. However, by limiting the duration of felony probation
terms, Assembly Bill No. 1950 ensures that at least some probationers who
otherwise would have been imprisoned for probation violations will remain
violation-free and avoid incarceration. Like the laws at issue in Lara and
Frahs, Assembly Bill No. 1950 thus ameliorates possible punishment for a
class of persons—felony probationers. In the absence of a contrary indication,
we must apply the Estrada presumption and presume the Legislature
intended its “ ‘ameliorative change[] to the criminal law to extend as broadly
as possible, distinguishing only as necessary between sentences that are final
and sentences that are not.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 881,
quoting People v. Conley (2016) 63 Cal.4th 646, 657 (Conley).)
Our conclusion is consistent with People v. Burton (2020) 58
Cal.App.5th Supp. 1, a recent decision from the Appellate Division of the Los
Angeles Superior Court giving retroactive application to Assembly Bill
No. 1950’s one-year limitation on misdemeanor probation terms. The Burton
court found that “[t]he longer the length of probation, the greater the
encroachment on a probationer’s interest in living free from government
intrusion.” (Id. at p. 15.) It also found that “[t]he longer a person is on
probation, the potential for the person to be incarcerated due to a violation
increases accordingly.” (Ibid.) For both reasons, the court determined the
one-year limitation for misdemeanor probation was an ameliorative change
21
for purposes of Estrada. (Id. at p. 16.) Although the Burton decision
concerned the retroactivity of the law’s one-year limitation on misdemeanor
probation terms, its logic applies equally to the law’s two-year limitation on
felony probation terms. The Burton decision, while not binding on us,
bolsters our conclusion that the Estrada presumption of retroactivity applies
to the felony probation limitation contained in Assembly Bill No. 1950.
Our conclusion finds further support in People v. Quinn (Jan. 11, 2021,
A156932) __ Cal.App.5th __ [2021 Cal.App.Lexis 27] (Quinn), an opinion
issued the same day oral argument took place in this case. In Quinn, our
colleagues in Division Four of the First District Court of Appeal concluded, as
we do here, that the Estrada presumption of retroactivity applies to the two-
year felony probation limitation in Assembly Bill No. 1950. (Id. at pp. *3–12.)
The Quinn decision cited extensively from the Burton decision and noted that
its reasoning was “persuasive.” (Id. at pp. *9–11.) We agree.9
Although we have determined that Assembly Bill No. 1950’s limitation
on felony probation terms is an ameliorative change under Estrada, that fact
alone does not dictate whether the law applies retroactively. “Because the
Estrada rule reflects a presumption about legislative intent, rather than a
constitutional command, the Legislature … may choose to modify, limit, or
entirely forbid the retroactive application of ameliorative criminal-law
amendments if it so chooses.” (Conley, supra, 63 Cal.4th at p. 656.) If the
Legislature wishes to do so, it must “clearly signal[] its intent to make the
9 The Quinn court added that even if the Estrada presumption of
retroactivity does not apply to the two-year felony probation limitation in
Assembly Bill No. 1950, it is very clear from extrinsic sources that the
Legislature intended the two-year felony probation limitation to apply
retroactively. (Quinn, supra, at pp. *11–13.) Given our determination that
the Estrada presumption of retroactivity applies, we do not reach this issue.
22
amendment prospective, by the inclusion of either an express saving clause or
its equivalent.” (People v. Nasalga (1996) 12 Cal.4th 784, 793.)
Assembly Bill No. 1950 does not contain a savings clause evincing a
clear intent to overcome the Estrada presumption of retroactivity. “Nor do
we perceive in the legislative history a clear indication that the Legislature
did not intend for the statute to apply retroactively.” (Frahs, supra, 9 Cal.5th
at p. 635.) On the contrary, the legislative history for Assembly Bill No. 1950
suggests the Legislature harbored strong concerns that probationers—
including probationers whose cases are pending on appeal—face unwarranted
risks of incarceration due to the lengths of their probation terms.
For instance, the Assembly and Senate Committees on Public Safety
quoted the following statement from Assembly Bill No. 1950’s author in their
bill reports: “ ‘[A] large portion of people violate probation and end up
incarcerated as a result…. 20 percent of prison admissions in California are
the result of supervised probation violations, accounting for the estimated
$2 billion spent annually by the state to incarcerate people for supervision
violations. Eight percent of people incarcerated in a California prison are
behind bars for supervised probation violations. Most violations are
“technical” and minor in nature, such as missing a drug rehab appointment
or socializing with a friend who has a criminal record. [¶] “Probation -
originally meant to reduce recidivism–has instead become a pipeline for
reentry into the carceral system…. A shorter term of probation, allowing for
an increased emphasis on services, should lead to improved outcomes for both
people on misdemeanor and felony probation while reducing the number of
people on probation returning to incarceration.” (Assem. Com. on Public
Safety, Rep. on Assem. Bill No. 1950 (2019–2020 Reg. Sess.) as amended
May 6, 2020 (hereafter, Assembly Public Safety Report), p. 3; Sen. Com. on
23
Public Safety, Rep. on Assem. Bill No. 1950 (2019–2020 Reg. Sess.), as
amended June 10, 2020, p. 4 (hereafter, Senate Public Safety Report); see
also Assem. Com. on Appropriations, Rep. on Assem. Bill No. 1950 (2019–
2020 Reg. Sess.) as amended May 21, 2020, p. 1 [defendants “on probation for
extended periods of time are less likely to be successful because even minor or
technical violations of the law may result in a violation of probation”].)
The Assembly Public Safety Report went on to cite a publication
suggesting “ ‘probation can actually increase the probability of future
incarceration—a phenomenon labeled “back-end net-widening[.]” ’ ” (Assem.
Public Safety Rep., supra, at p. 5.) It added that some scholars believe
“ ‘enhanced restrictions and monitoring of probation set probationers up to
fail, with mandatory meetings, home visits, regular drug testing, and
program compliance incompatible with the instability of probationers’
everyday lives. In addition, the enhanced monitoring by probation officers
(and in some cases, law enforcement as well) makes the detection of minor
violations and offenses more likely.’ ” (Ibid.) According to the Assembly
Public Safety Report, “[i]f the fact that an individual is on probation can
increase the likelihood that they will be taken back into custody for a
probation violation that does not necessarily involve new criminal conduct,
then shortening the period of supervision is a potential avenue to decrease
individuals’ involvement in the criminal justice system for minor infractions.”
(Ibid.)
While these legislative materials do not speak directly to the issue of
retroactivity, they suggest the Legislature viewed Assembly Bill No. 1950 as
an ameliorative change to the criminal law that would ensure that many
probationers avoid imprisonment. Presumably, the Legislature was aware
such ameliorative changes apply retroactively under the Estrada
24
presumption. (See People v. Carrasco (1981) 118 Cal.App.3d 936, 945 [“A
cardinal principle of statutory construction is that the Legislature is
presumed to be aware of existing judicial practices and interpretations when
it enacts a statute.”].) There is no indication in the law’s text or legislative
materials that the Legislature intended to alter the default Estrada
presumption. This omission suggests the Legislature had no such intent.
The People do not identify any statutory language or legislative history
supporting their claim that Assembly Bill No. 1950 applies prospectively
only. Instead, they argue that a retroactive application of the law would
unjustly deprive some existing probationers of helpful rehabilitative services
they would otherwise receive if they were permitted to complete their
existing probation terms. This policy argument sheds no light on whether
the Legislature evinced a clear intent to overcome the Estrada presumption
of retroactivity. In any event, Assembly Bill No. 1950’s legislative history
undercuts the People’s policy argument concerning the extent to which
probationers would benefit from more than two years of probation services.
For instance, the Assembly Public Safety Report states “that probation
services, such as mental healthcare and addiction treatment, are most
effective during the first 18 months of supervision,” and concluded “[a] two
year period of supervision would likely provide a length of time that would be
sufficient for a probationer to complete any counseling or treatment that is
directed by a sentencing court.” (Assem. Public Safety Rep., supra, at p. 6;
see Sen. Public Safety Rep., supra, at p. 6 [“The purpose of the bill is to end
wasteful spending[] [and] to focus limited rehabilitative and supervisory
resources on persons in their first 12 to 24 months on probation….”]; Quinn,
supra, at pp. *15–16 [“the amendment of Assembly Bill No. 1950 reflects a
25
categorical determination that a shorter term of probation is sufficient for the
purpose of rehabilitation”].)
The People assert retroactive application of Assembly Bill No. 1950
may harm some current probationers in another way—by preventing them
from successfully completing their existing probation conditions in a timely
manner. This is another policy argument that has little, if any, relevance to
whether the two-year limitation applies retroactively. Regardless, the
logistical problems associated with a two-year probation limitation “do not
provide a sufficient basis to deny defendants the benefit of [the two-year
limitation] altogether.” (Frahs, supra, 9 Cal.5th at p. 636; accord Quinn,
supra, at p. *16 [“There is no indication in the legislative history [of Assembly
Bill No. 1950] that the Legislature was concerned with disruptions to
probationary proceedings already in progress.”].) We are confident that to
the extent current probationers face difficulties timely completing their
probation conditions through no fault of their own, those conditions can be
modified as needed to account for the two-year felony probation limitation our
Legislature has imposed. (§ 1203.3, subd. (a); see People v. Killion (2018) 24
Cal.App.5th 337, 340 [“Generally, a trial court has the authority and
discretion to modify a probation term during the probationary period,
including the power to terminate probation early.”].)
For all these reasons, we conclude the two-year limitation on felony
probation set forth in Assembly Bill No. 1950 is an ameliorative change to the
criminal law that is subject to the Estrada presumption of retroactivity. The
Legislature did not include a savings clause or other clear indication that the
two-year limitation applies on a prospective-only basis. Therefore, we
conclude the two-year limitation applies retroactively to all cases not reduced
to final judgment as of the new law’s effective date. Here, the defendant’s
26
case was pending on direct appeal and thus was not final as of Assembly Bill
No. 1950’s effective date. Accordingly, the defendant is entitled to seek a
reduced probation term on remand under Assembly Bill No. 1950.
IV
DISPOSITION
The judgment is affirmed in part as to the defendant’s conviction and
reversed in part as to the defendant’s sentence. The matter is remanded for
resentencing consistent with this opinion.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
AARON, J.
27