Filed 11/18/21 P. v. Haney CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081735
Plaintiff and Respondent,
(Super. Ct. No. DF014703A)
v.
KEVIN ANDREW HANEY, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. David Wolf,
Judge.
Rex Adam Williams, under appointment by the Court of Appeal, Defendant and
Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine
Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Peña, Acting P. J., Meehan, J. and Snauffer, J.
Defendant Kevin Andrew Haney pled no contest to felony possession of marijuana
in a prison in violation of Penal Code section 4573.6.1 His plea agreement included a
term that permitted him to appeal the question of whether possession of less than 28.5
grams of marijuana (not in the form of concentrated cannabis) in prison remained a crime
in light of the changes in the law effected by the Control, Regulate and Tax Adult Use of
Marijuana Act (Proposition 64). He now appeals contending that Proposition 64
decriminalized the offense for which he was convicted. The People disagree.
While defendant’s appeal was pending, the Governor signed Assembly Bill
Nos. 1869 (Assembly Bill 1869) and 1950 (Assembly Bill 1950) (2019–2020 Reg. Sess.).
We afforded the parties an opportunity to submit supplemental briefing regarding the
impact of Assembly Bill 1950 on defendant’s three-year term of probation and the impact
of Assembly Bill 1869 on the imposed probation supervision costs. The parties agree
that defendant’s term of probation must be reduced to two years and the costs imposed
for probation supervision are unenforceable and uncollectable. We affirm defendant’s
conviction, reduce his term of probation to two years, strike the condition of his probation
requiring him to pay the cost of his probation supervision, and remand to the trial court
for the limited purpose of determining whether the term of probation was a material term
of the plea agreement.
PROCEDURAL SUMMARY
On October 18, 2019, the Kern County District Attorney filed a complaint
charging defendant with felony possession of marijuana in a state prison (§ 4573.6,
subd. (a); count 1). The complaint further alleged that defendant had suffered a prior
felony “strike” conviction within the meaning of the “Three Strikes” law (§§ 667,
subds. (b)–(j), 1170.12, subds. (a)–(d)) and had served a prior prison term (§ 667.5,
subd. (b)).
1 All further statutory references are to the Penal Code.
2.
On January 9, 2020, pursuant to a negotiated plea agreement, defendant pled no
contest to count 1 and admitted the prior strike conviction. In exchange, the plea
agreement required dismissal of the prior prison term allegation and a term of four years,
suspended pending completion of felony probation. The duration of probation was not
negotiated in the plea agreement, but the plea agreement did specify that the maximum
term of probation was five years. The plea agreement also provided that defendant could
appeal the conviction on Proposition 64 grounds.
On the same date, on defendant’s motion, the trial court struck the prior strike
conviction allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497.
On September 3, 2020, the trial court suspended imposition of sentence and
granted defendant probation for a term of three years. The court further ordered
defendant to pay various costs, fines, and fees, including the cost of probation supervision
in the amount of $40 per month.
On September 8, 2020, defendant filed a notice of appeal.
FACTUAL SUMMARY
Defendant possessed marijuana while in custody in a state prison.
DISCUSSION
A. Possession of Marijuana in Prison
Until recently, California Courts of Appeal were split on the issue of whether
possession of less than 28.5 grams of marijuana in prison remained a crime after
Proposition 64 became effective. Our Supreme Court has resolved that split.
“[P]ossession of cannabis in prison remains a violation of Penal Code section 4573.6.”
(People v. Raybon (2021) 11 Cal.5th 1056, 1060.) We are bound by our Supreme
Court’s holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
For that reason, we affirm defendant’s conviction.
3.
B. Assembly Bill 1950
1. Applicability
Effective January 1, 2021, Assembly Bill 1950 amended section 1203.1
(Stats. 2020, ch. 328, § 2) to limit the maximum probation term a trial court is authorized
to impose for most felony offenses to two years. (§ 1203.1, subds. (a) & (m).) “[T]he …
limitation[s] on … probation set forth in Assembly Bill … 1950 [are] ameliorative
change[s] to the criminal law that [are] subject to the [In re] Estrada [(1965) 63 Cal.2d
740] presumption of retroactivity.” (People v. Sims (2021) 59 Cal.App.5th 943, 964;
accord, People v. Quinn (2021) 59 Cal.App.5th 874, 883–885.) Therefore, the
amendment to section 1203.1 applies to all cases not final on Assembly Bill 1950’s
effective date. (Estrada, at p. 742.)
As the parties agree, defendant’s case was not final on January 1, 2021, and he
was sentenced to a term of felony probation exceeding two years for a crime of
conviction that is not a violent felony exempted from the two-year limit on felony
probation. (§§ 1203.1, subd. (m), 667.5, subd. (c).)2 We agree. Defendant is entitled to
the benefit of Assembly Bill 1950.
2. Remedy
The parties disagree on the appropriate remedy—defendant contends we should
modify his term of probation; the People contend we should remand the matter to the trial
court to modify the terms of probation and permit the People to withdraw from the plea
agreement or the trial court to rescind its approval for the agreement and return the
parties to the status quo ante. We modify the term of probation to two years consistent
with Assembly Bill 1950. However, because we cannot determine from the record
whether the five-year maximum term of probation was a material term of the parties
2 Possession of marijuana in a prison (§ 4573.6) is not a violent felony offense
excluded from section 1203.1, subdivision (a)’s two-year limit on duration of felony
probation by section 1203.1, subdivision (m).
4.
negotiation of the plea agreement or of the trial court’s acceptance of the plea agreement,
we must remand for the trial court to make that determination. If so, the People and the
trial court must be afforded the opportunity to withdraw approval of the plea in light of
the modification to the term of probation.
In People v. Stamps (2020) 9 Cal.5th 685 (Stamps), our Supreme Court concluded
that a defendant was entitled to the benefit of an ameliorative change in the law—
specifically, pursuant to Senate Bill No. 1393 (2017–2018 Reg. Sess.), he was entitled to
have the matter remanded for the trial court to exercise its discretion to strike a serious
felony conviction enhancement in the interest of justice. (Stamps, supra, 9 Cal.5th at
p. 699.) However, because the serious felony conviction enhancement was imposed as
part of a negotiated stipulated sentence, if the trial court exercised its discretion to strike
the enhancement, the People and the trial court were permitted to withdraw approval for
the plea agreement. (Stamps, at pp. 707–708.) The defendant was not permitted “ ‘ “to
whittle down the sentence ‘but otherwise leave the plea bargain intact ….’ ” ’ ” (Id. at
p. 706.)
The Stamps court made clear, however, that the situation would have been
different if the defendant had stood convicted “as a result of trial or an open plea of guilty
as charged ….” (Stamps, supra, 9 Cal.5th at p. 700; People v. Hernandez (2020) 55
Cal.App.5th 942, 952–953 (review granted Jan. 27, 2021, S265739).) “ ‘[T]he process of
plea negotiation “contemplates an agreement negotiated by the People and the defendant
and approved by the court. [Citations.] … Judicial approval is an essential condition
precedent to the effectiveness of the ‘bargain’ worked out by the defense and prosecution.
[Citations.]” ’ ” (Hernandez, at p. 948.) However, when a defendant enters an open plea
to all counts, “there is no requirement that the People consent” or the court approve the
plea. (People v. Vessell (1995) 36 Cal.App.4th 285, 296.) Where a defendant enters an
open plea, the sentence can be modified because it is not imposed pursuant to a
negotiated plea agreement and is therefore not inconsistent with a negotiated plea
5.
agreement. (See Stamps, at p. 700, quoting § 1192.5 [“ ‘Where the plea is accepted by
the prosecuting attorney in open court and is approved by the court, the defendant …
cannot be sentenced on the plea to a punishment more severe than that specified in the
plea and the court may not proceed as to the plea other than as specified in the plea.’ ”].)
Here, defendant entered a plea of no contest in exchange for dismissal of the prior
strike conviction allegation and a four-year term of imprisonment, suspended pending the
successful completion of his term of probation. The duration of the term of probation
was not negotiated except that a maximum term of five years was specified. However,
neither did defendant enter into an open plea for which no judicial approval was required.
For the plea agreement to have been accepted, the trial court had to approve the terms of
the plea agreement. (People v. Hernandez, supra, 55 Cal.App.5th at p. 948.) If the plea
agreement had specified a maximum term of probation of two years, the trial court may
not have accepted the plea (and the People may not have offered the plea on such terms).
We therefore must remand the matter for the trial court to determine whether the
maximum duration of probation was a material term of the plea agreement or the court’s
acceptance of the plea agreement. If so, the People and the trial court must be afforded
an opportunity to withdraw approval for the plea.
C. Assembly Bill 1869
Operative July 1, 2021, Assembly Bill 1869 eliminated many fines, fees, and
assessments that courts have imposed under a variety of statutes, including former
section 1203.1b, which previously allowed collection of costs for probation supervision.
(Stats. 2020, ch. 92, §§ 2, 11, 47, 62.) The parties agree that the unpaid balance on the
trial court’s order requiring defendant to pay the costs for his probation supervision is
now unenforceable and uncollectable. We strike the portion of the order requiring
defendant to pay costs of probation supervision imposed pursuant to former section
1203.1b.
6.
DISPOSITION
Defendant’s term of probation is modified to two years and the portion of the
judgment requiring defendant to pay costs of probation supervision is stricken. The
matter is remanded for the limited purpose of permitting the trial court to determine
whether the duration of the term of probation was a material term of the plea agreement
or of its acceptance of the plea agreement. If so, the trial court and the People shall be
afforded an opportunity to withdraw from the plea agreement.
7.