Opinion
C087550
06-08-2021
THE PEOPLE, Plaintiff and Respondent, v. SHANIQUA SHONTA BRADY, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 17FE020760
HULL, Acting P. J.Pursuant to a plea agreement, defendant pleaded no contest to one count of felony vandalism and one count of misdemeanor battery. On June 29, 2018, the trial court placed defendant on probation for five years and ordered her to serve 270 days, the balance of which she was to serve in private home detention. The trial court also imposed various probation terms, including electronics search conditions under Penal Code section 1546 (statutory section references that follow are to the Penal Code unless otherwise stated).
In her initial briefing, defendant challenges the electronics search conditions, claiming they both fail the test in People v. Lent (1975) 15 Cal.3d 481 (Lent), and are unconstitutionally overbroad. In supplemental briefing, defendant raises Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950) (Stats. 2020, ch. 328, §§ 1-2), which, with exceptions not relevant here, reduced the maximum term for felony probation to two years and the maximum term for misdemeanor probation to one year. Defendant asserts that Assembly Bill 1950 applies retroactively to her case, and that, under the law as amended, her probation term should be modified to the new maximum term for a felony, two years, and terminated because she has served more than two years on probation.
We shall reduce defendant's term of probation to two years. We need not address defendant's contentions addressed to the electronics search conditions as they have been rendered moot.
Facts and History of the Proceedings
Defendant and her former boyfriend had a baby daughter together. The victim here was the former boyfriend's new girlfriend, with whom he lived. In December 2016, having acquired the victim's contact information, defendant sent text messages to the victim threatening her.
On an evening in April 2017, defendant's former boyfriend told the victim he was supposed to meet defendant for a custody exchange. There was a knock at the door and defendant's former boyfriend answered it. When he opened the door, defendant barged in, went directly to the victim, and hit her on the right side of her face with a closed fist. The victim fell back towards the wall and onto the ground. Defendant got on top of the victim and tried to hit her. The victim kicked at defendant and then defendant's former boyfriend pulled defendant off the victim. Defendant's former boyfriend told defendant to leave the house. As she was leaving the apartment complex, defendant went to the victim's car and pounded on it. Later, the victim observed a number of scratches on her car, and realized defendant had keyed the car in a number of places. The victim obtained an estimate to repair her car, and it was in the range of $4,000.
In a felony complaint deemed an information, defendant was charged with first degree residential burglary (§ 459; count one), assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count two), and felony vandalism (§ 594, subd. (a); count three).
On June 15, 2018, defendant pleaded no contest to one count of felony vandalism (§ 594, subd. (a)) and one count of misdemeanor battery (§ 242) as a “reasonably related” charge to the assault charged in count two. Defendant was to receive five years formal probation with 270 days in custody, which the parties agreed could be satisfied in private home detention in Solano County.
On June 29, 2018, the trial court placed defendant on formal probation for five years and ordered her to serve 270 days. There was no objection to defendant serving the balance of her term in private home detention. The trial court also imposed electronics search conditions over defendant's written and oral objections. Defendant requested probation be transferred from Sacramento County to Solano County. The trial court advised defendant to submit her request to the Probation Department. No further record information establishes whether probation was transferred to Solano County. The court dismissed the remaining count in the interest of justice at the prosecutor's request.
Discussion
I
Assembly Bill 1950
While this appeal was pending, Assembly Bill 1950 went into effect. With exceptions not at issue here, that bill changed the maximum term of probation under section 1203.1 for felony cases to two years and under section 1203a in misdemeanor cases to one year.
With regard to felony probation, at the time of the charged offenses and defendant's sentencing, section 1203.1, subdivision (a), provided, in part: “The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence, except as hereinafter set forth, and upon those terms and conditions as it shall determine. The court, or judge thereof, in the order granting probation and as a condition thereof, may imprison the defendant in a county jail for a period not exceeding the maximum time fixed by law in the case. [¶] However, 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.” (§ 1203.1, former subd. (a).)
Following the enactment of Assembly Bill 1950 (Stats. 2020, ch. 328, § 2), that subdivision reads, in part: “The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding two years, and upon those terms and conditions as it shall determine.” (Italics added.) Section 1203.1, subdivision (m), provides that the two-year probation limit in subdivision (a) does not apply to certain offenses not at issue here.
With regard to misdemeanor probation, at the time of the charged offenses and defendant's sentencing, section 1203a read: “In all counties and cities and counties the courts therein, having jurisdiction to impose punishment in misdemeanor cases, shall have the power to refer cases, demand reports and to do and require all things necessary to carry out the purposes of Section 1203 of this code insofar as they are in their nature applicable to misdemeanors. Any such court shall have power to suspend the imposing or the execution of the sentence, and to make and enforce the terms of probation for a period not to exceed three years; provided, that when the maximum sentence provided by law exceeds three years imprisonment, the period during which sentence may be suspended and terms of probation enforced may be for a longer period than three years, but in such instance, not to exceed the maximum time for which sentence of imprisonment might be pronounced.” (Former § 1203a.)
Following the enactment of Assembly Bill 1950 (Stats. 2020, ch. 328, § 1), section 1203a now provides: “(a) In all counties and cities and counties, the courts therein, having jurisdiction to impose punishment in misdemeanor cases, may refer cases, demand reports, and to do and require anything necessary to carry out the purposes of Section 1203, insofar as that section applies to misdemeanors. The court may suspend the imposition or execution of the sentence and make and enforce the terms of probation for a period not to exceed one year. [¶] (b) The one-year probation limit in subdivision (a) shall not apply to any offense that includes specific probation lengths within its provisions.” (Italics added.)
As defendant asserts, her convictions for felony vandalism (§ 594, subd. (a)) and misdemeanor battery (§ 242) do not fall within the exceptions to the foregoing provisions. (See §§ 1203.1, subd. (m) [setting forth the exceptions to the two-year probation limit in subd. (a)], 1203a, subd. (b) [one-year probation limit in subd. (a) shall not apply to any offense that includes specific probation lengths within its provisions].)
In supplemental briefing, defendant asserts that, following the passage of Assembly Bill 1950, her term of felony probation must be modified from five years to two years and her misdemeanor probation must be modified to one year. Defendant asserts that the ameliorative benefits of Assembly Bill 1950 apply retroactively under the rule in In re Estrada (1965) 63 Cal.2d 740 (Estrada).)
A penal statute generally does not apply retroactively unless the legislation expressly states its retroactive effect or if there is “a clear and compelling implication” that the Legislature intended such a result. (People v. Hayes (1989) 49 Cal.3d 1260, 1274; see § 3.) Assembly Bill 1950 does not contain a statement regarding retroactivity.
There is an exception to this general rule for statutes reducing criminal punishment which, absent a legislative statement to the contrary, apply retroactively to all cases that were not final when the legislation takes effect. (See Estrada, supra, 63 Cal.2d at p. 744.) “Our Supreme Court recently summarized the principles articulated in Estrada... : ‘ “[A]n amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute's effective date” [citations], unless the enacting body “clearly signals its intent to make the amendment prospective, by the inclusion of either an express saving clause or its equivalent” [citations]. This rule rests on an inference that when the Legislature has reduced the punishment for an offense, it has determined the “former penalty was too severe” [citation] and therefore “must have intended that the new statute imposing the new lighter penalty... should apply to every case to which it constitutionally could apply.”' ” (People v. Martinez (2019) 31 Cal.App.5th 719, 724-725, citing People v. DeHoyos (2018) 4 Cal.5th 594, 600, People v. Floyd (2003) 31 Cal.4th 179, 184, People v. Nasalga (1996) 12 Cal.4th 784, 793 (plur. opn.) & Estrada, at pp. 744, 745, 747.)
The Attorney General agrees Assembly Bill 1950 applies retroactively to defendant's case. We agree with the parties, and with other courts that have addressed this issue, and conclude that Assembly Bill 1950 applies retroactively to defendant's case. (See Estrada, supra, 63 Cal.2d at p. 748; People v. Stewart (2021) 62 Cal.App.5th 1065; People v. Sims (2021) 59 Cal.App.5th 943; People v. Quinn (2021) 59 Cal.App.5th 874.)
While agreeing Assembly Bill 1950 applies to defendant's case, the Attorney General asserts “there remains a question of remedy” and that we should remand for further sentencing proceedings. Among other things, the Attorney General asserts “it is unclear which probationary period the trial court assigned to [defendant's] felony conviction and which was assigned to [her] misdemeanor conviction.” The Attorney General also contends remand is the appropriate remedy because it would allow the trial court to adjust, modify, or strike probation terms, so that they can be complied with before termination of probation or removed from consideration of whether probation terminated successfully. The Attorney General points out that the status of probation at termination is relevant if a defendant seeks expungement pursuant to section 1203.4. Finally, the Attorney General raises cases addressed to circumstances where defendants' availment of changes in the law to be applied retroactively may implicate a requirement that the People be afforded the opportunity to withdraw from the plea agreement. (See, e.g., People v. Stamps (2020) 9 Cal.5th 685, 692 [discussing Senate Bill No. 1393 (2017-2018 Reg. Sess.), amending §§ 667 & 1385, authorizing trial courts to strike § 667, subd. (a), prior serious felony enhancements in the interest of justice]; People v. Hernandez (2020) 55 Cal.App.5th 942, review granted Jan. 27, 2021, S265739 [discussing Senate Bill No. 136 (2019-2020 Reg. Sess.), amending § 667.5, subd. (b), to limit prior prison term enhancements to certain sexually violent offenses].)
Section 1203.4, subdivision (a)(1), provides, in pertinent part: “In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any other case in which a court, in its discretion and the interests of justice, determines that a defendant should be granted the relief available under this section, the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; or, if he or she has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code.”
Under the circumstances of this case, we conclude the Attorney General's contentions are irrelevant and/or lacking in merit. Defendant was placed on probation on June 29, 2018. The new one-year maximum misdemeanor probation term ended on June 29, 2019. (§ 1203a, subd. (a), as amended by Stats. 2020, ch. 328, § 1.) The new two-year maximum felony probation term ended on June 29, 2020. (§ 1203.1, subd. (a), as amended by Stats. 2020, ch. 328, § 2.) By the time this opinion is filed, defendant will likely have completed three years of probation. Under sections 1203.1 and 1203a, as amended by Assembly Bill 1950, she could not be ordered to serve any additional period of probation. Because, under the circumstances of this case, no useful purpose could be served by remand, the Attorney General's arguments for remand are without merit. We shall modify the order placing defendant on probation, reducing the term of probation from five years to two years, representing the maximum permissible term of felony probation under the facts of this case.
II
The Electronics Search Conditions
In her original briefing, defendant raised challenges to the electronics search conditions, asserting that they failed the test in Lent, supra, 15 Cal.3d 481, and that they were unconstitutionally overbroad. In a footnote in her supplemental opening brief, defendant “notes that reducing [her] probationary period under [Assembly Bill 1950] would presumably moot the contention now on appeal that the trial court improperly imposed electronic search conditions as a term of her five-year probationary period imposed on June 29, 2018 [citations], because the new maximum two-year probationary period would have expired, and this Court would not be able ‘to grant appellant any effective relief.' ” The Attorney General does not respond to this contention. We agree with defendant.
“ ‘As a general rule, an appellate court only decides actual controversies. It is not the function of the appellate court to render opinions “ ‘ “ ‘upon moot questions or abstract propositions, or... declare principles or rules of law which cannot affect the matter in issue in the case before it.' ”' ”' ” (People v. Gregerson (2011) 202 Cal.App.4th 306, 321, quoting People v. Rish (2008) 163 Cal.App.4th 1370, 1380.) An issue “ ‘ “becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.”' ” (Gregerson, at p. 321, quoting Rish, at p. 1380.) We are modifying the order of probation, reducing the term of probation from five years to two years. Defendant has already served more than two years on probation and, going forward, she will not be subject to the probation conditions, including the electronics search conditions. Thus, the validity of the conditions is moot. Neither defendant nor the Attorney General urge us to decide this issue based on an exception to the mootness doctrine. (See Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-480 [discussing three exceptions to mootness doctrine].) In any event, we decline to do so.
Disposition
The order placing defendant on probation is modified to reduce the term of probation from five years to two years. The trial court is directed to correct the minute order to reflect the imposition of a two-year term of formal probation, and to notify the appropriate Department of Probation of the change to defendant's probationary term. In all other respects, the judgment is affirmed.
WE CONCUR: MAURO, J.RENNER, J.