Filed 5 / 4 / 21 P. v. Kaye CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. BRYAN EDWARD KAYE, Defendant and Appellant. G 058606
(Super. Ct. No. 17CF1977 )

O P I N I O N

Appeal from a n order of the Superior Court of Orange County, Richard J.
Oberholzer , Judge. (Retired judge of the Kern County Super. Ct. assig ned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed and remanded with
directions

. Susan S. Bauguess , 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, Natasha Cortina and
Melissa Mandel , Deputy Attorney s General, for Plaintiff and Respondent.
* * *2 A ppellant Bryan Edward Kaye was charged with two felony counts related

to threaten ing a public official, with an allegation Kaye previously had been convicted of

a serious strike felony. After the trial court reduced the felony counts to misdemeanor s, Kaye pleaded no contest to the charges . T he court placed Kaye on five years informal probation on condition Kaye serve six months in custody or perform community service. The court set a revocation hearing when Kaye failed to report for community service

.

At the hearing, Kaye orally moved for a continuance to secure new counsel, claiming his lawyer had not told him about his community service option . The trial court denied Kaye ’ s request and allowed him to either represent himself or proceed with his attorney

. A fter proceeding with counsel , the court found Kaye had willfully violated probation , remanded him to fulfill his jail confinement condition , and reinstated Kaye ’ s other original probation terms

.

Kaye c ontend s the trial court violated his Sixth Amendment right to
counsel when it denied his continuance request and challenges the sufficiency of the
evidence to support the court ’ s finding he willfully violated probation. Kaye also asserts newly enacted Assembly Bill No. 1950 (2019

- 2020 Reg. Sess.) ; (Assem. Bill 1950) , amending Penal Code section 1203.1, subdivision (a), applies retroactively to reduce his probation term to one year. The Attorney General agrees the new law applies

retroact ively but argues the prosecutor should be entitled to withdraw from Kaye ’ s plea
on remand

. We retroactively appl y Assem. Bill 1950 and conclude Kaye has completed
his probation. W e reject Kaye ’ s remaining contentions and remand with instructions to
dis cha rge Kaye from probation

. We affirm the judgment in all other aspects

. I
F ACTS AND P ROCEDURAL H ISTORY In 2017, t he Orange County District Attorney ’ s Office charged Kaye with felony counts of threaten ing a public official and related parties ( Penal Code, § 76 , subd.3

( a ) (1); a ll further undesignated statutory r eferences are to the Penal Code) , and
threaten ing to commit a crime that would result in death or great bodily injury to the official. (§ 422.) The complaint also alleged Kaye previously had been convicted of a serious strike felony

. (§§ 667, subds. (a)(1), (d) & (e)(1)), 1170.12, subds. (b) & (c)(1).)

I n June 2018, the trial court reduced the felony counts to misdemeanors and dismissed the prior conviction allegation. Kaye then pleaded no contest to the
misdemeanor charges . Specifically, with his retained counsel ’ s approval, Kaye signed a
Tahl 1 plea form memorializing his “ plea to [the] court

. ” The court placed Kaye on informal probation for five years, conditioned on Kaye rec eiving mental health services
and serving 180 days in custody , with authorization to apply for “ home confinement ” as an alternative

.

After Kaye failed to qualify for home confinement , the trial court modified Kaye ’ s probation terms so he could perform 90 days of community service in lieu of being jail ed

. The court ordered Kaye to file proof he complet ed community service by the end of July 2019.

Kaye failed to file proof he complet ed his community service by the deadline. Instead, hi s lawyer requested a six

- month continuance , ex p lai n ing Kaye had been in a car accident. The court denied the request and summarily revoked Kaye ’ s probation. It issued a bench warrant and Kaye posted a bond the following day

. On the day scheduled for Kay e ’ s arraignment for violating probation , his counsel request ed a continuance because Kaye ’ s brother

- in

- law had just died . The court granted the request , but advis ed there would be no more continuances and ordered Kaye to be in court at his

next scheduled hearing

.

On the continued arraignment date, September 6, 2019, Kaye ’ s counsel initially called the trial court clerk and advised Kaye would not be present because of

1 In re Tahl (1969) 1 Cal.3d 1224

health reasons. After the court ordered Kaye ’ s bail bond forfeited, Kaye bela tedly appeared and the court reinstated the bond. Through his counsel , Kaye denied violating probation and the court scheduled an evidentiary hearing 12 days later, on September 18

.

At the hearing, Kaye oral ly request ed a 30 to 45 day continuance to hi re new counsel. Kaye claim ed his retained counsel had failed to inform him about the trial

court ’ s community service probation condition and therefore had a conflict of interest in representing Kaye . T he court denied Kaye ’ s repeated continuance request s and, after asking Kaye several time s if he wished to represent himself or have his lawyer continue to represent him , the following exchange ensued:

“ [ KAYE ] : If I relieve [my counsel] today, I ’ m asking for a continuance.

“ THE COURT: That will be denied because you ’ ve known about this case for some time and you ’ ve known about the date today for some time. You don ’ t have an attorney. You haven ’ t contacted any other attorney.

“ [ KAYE ] : Yes, I have.

“ THE COURT: Where is he or she?

“ [ KAYE ] : It was very short notice from

– what ’ s today? The 18th

– from the 6th to the 18[ th ]. ”

F ollowing more discussion between the trial court and Kaye , hi s counsel asserted to Kaye: “ I told you about the [community service]. ” Eventually, after a recess for Kaye and his attorney to confer , counsel advised he was “ going to proceed with the hearing , ” and called Kaye to testify.

After hearing the evidence, the trial court found Kaye willfully violated his probation terms . The court vacated its earlier authoriz ation for Kaye to perform community service , ordered Kaye to serve 180 days in custody, and reinstated Kaye ’ s original probation terms

.5 II
D ISCUSSION
A

. Reduction of Probation Duration Under Assem

. Bill 1950

After Kaye appealed the trial court ’ s September 2019 probation revocation finding , he filed a supplemental brief to argue newly enacted Assem

. Bill 1950 applied retroactively to reduce his probation period to one year . Because Kaye had been on probation m ore than a year, he argued the trial court should be instructed to immediately

“ discharge him from probation

. ” The Attorney General agrees Assem

. Bill 1950 applies retroactively to this case , but disagrees on “ the proper [remand] remedy , ” arguing the prosecutor should be entitled to have the court “ vacate [Kaye ’ s] plea , ” if the parties and the court do not agree on new probation terms for Kaye.

Outside of exceptions not applicable here, Assem

. Bill 1950 , signed by the Governor in September 2020 ( 2019

- 2020 Reg. Sess .), reduced the maximum probation period for misdemeanor conviction to one year (§ 1203 a [ one

- year general limit ].) We
agree with the parties Assem

. Bill 1950 applies retroactively to this case because its

enactment amended a statute t o lessen punishment. ( In re Estrada (1965) 63 Cal.2d 740,
745 [ “ the Legislature amend[ing] a statute so as to lessen [] punishment ” ] ; People v.
Burton (2020) 58 Cal.App.5th Supp. 1, 14

- 16 [ conclud ing Estrada applies to nonfinal
misdemeanor probation case s ] .)

We agree with Kaye applying Assem

. Bill 1950 to the circumstances in this

case results in the termination of his probation

. R etroactive appl ication of newly amended section 1203a, subdivision (a), requires a reduction of Kaye ’ s initi al five

- year probation period to one year. Kaye ’ s probation began i n June 2018 , when the trial court originally placed him on probation. Consequently, one year of Kaye ’ s probation retroactively lapsed by June 2019 , and the trial court no longer has jurisdiction to modify Kaye ’ s probation. (§ 1203.3; In re Barber (2017) 15 C al.App. 5th 368, 372 [ “ once6

probation expires, a court loses jurisdiction to make an order revoking or modifying ” probation ].)
Because the trial court ’ s jurisdiction lapsed, we n eed not consider the Attorney General ’ s contention the prosecutor should be entitled to rescind Kaye ’ s no contest plea on remand based on the holding in People v. Stamps (2020) 9 Cal.5th 685 ( Stamps )

. Notwithstanding, we note in passing the trial court did not base its probation grant in this case on a plea bargain between Kaye and the prosecution , which was the central factual premise in Stamps

. ( Stamps , supra, 9 Cal.5th at p. 707 [ “‘ the prosecutor is entitled to the same remedy as the defendant

— withdrawal of assent to the plea agreement ’ ” ].) The court instead granted probation under its own sentencing authority. In sum, we apply Assem. Bill 1950 retroactively and conclude Kaye ha s completed probation

. B. Kaye ’ s Remaining Contentions Are Without Merit

1. Sufficient Evidence Supported the Court’s Finding We address Kaye ’ s challenge to the trial court ’ s finding he violated his probation because that finding impacts his ability to have his misdemeanor conviction
dismissed under section 1203.4. A trial court can revoke probation “‘ if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation. ” ( People v. Rodriguez (1990) 51 Cal.3d 437, 440 [quoting § 1203.2, subd

. (a)] ; see i d . at p. 439 [violation must be shown by a preponderance of the eviden ce] .) We review for substantial evidence, giving

“‘ great deference to the trial court , ’” and resolv ing “‘ all conflicting evidence ’” and “‘ all
inferences and intendments in favor of ’” its decision

. ( People v. Buell (2017)
16 Cal.App.5th 682, 687 ( Buell ) , quoting People v. Kurey (2001) 88 Cal.App.4th 840, 848.) The trial court found Kaye had b een “ aware of what was going on ” and
g ave “ no credibility to Kaye ’ s statement that he did [not ] know of . . . the conditions of7

his probation. ” We are in no position to question the court ’ s credibility determination in rejecting Kaye ’ s claim he had been ignorant about the court ’ s community service
condition. It is undisputed Kaye did not comply wi th his community service and the
reasonable inferences available from the evidence support the court ’ s determination that Kaye ’ s noncompliance was willful. ( Buell , supra, 16 Cal.App.5th at p. 687.) Kaye contends his lawyer ’ s comment to the trial court t he day after the

court ’ s willful violation ruling shows the evidence was insufficient as a matter of law . As Kaye characterizes it , his counsel “ admitted ” to the court that counsel ’ s e

- mail to Kaye advising him of the court ’ s community service probation condit ion “ had not gone through. ” Of course, this is not evidence the court considered at the earlier hearing. But

e ven if we assume counsel ’ s comment can be considered evidence that was properly
before the court for its ruling , we note counsel ’ s next statement in the record was “ [w]e [i.e., Kaye and counsel] did sp eak about [community service]. ” In other words , counsel ’ s statement is not the conclusive admission Kaye purports it to be. I t simply does not prove he was ignorant of the condition allowing him to perform community service. Accordingly, i t does not alter our conclusion substantial evidence supports the court ’ s probation revocation ruling.

2. The Trial Court Did Not Err In Denying Kaye ’ s Continuance Request Finally, Kaye has not shown the trial court ’ s denial of his request to continue the probation revocation hearing was an abuse of discretion and deprived him of
counsel ’ s assistance. “ Continuances in criminal cases may only be granted for good

cause ” ( People v. Snow (2003) 30 Cal.4th 43, 70 , citing § 1050, subd

. (e) ) and, a s questions of both statutory discretion and the constitutional right to counsel, a defendant
who was “‘ unjustifiably dilatory ’” in seeking a continuance cannot show a trial court

err ed in denying the defendant ’ s request to delay the proceedings . ( People v. Courts (1985) 37 Cal.3d 784, 790

- 791 ( Courts ); see People v. Ortiz (1990) 51 Cal.3d 975, 983 [a
defendant ’ s “ right to discharge his retained counsel . . . is not absolute ” and an unt imely8

motion can be denied as a “‘ disruption of the orderly processes of justice ’” unreasonable
under the case circumstances].)

The parties agree Courts , supra, 37 Cal.3d 784 applies to this case. There , the California Supreme Court decided “ whether [a] trial court abused its discretion when it refused to grant a continuance to permit him to be represented by an attorney he retained approximately one week before trial. ” ( Id . at p. 787.) E ight days before trial,
the defendant ’ s appointed “ public defender informed the court that [ the defendant ]
wanted a continuance i n order to hire private counsel. ” ( Ibid .) The defendant’s proposed new counsel appeared and declared his “ willingness to represent ” the defendant if the court granted a continuance . ( Id. at p . 788.) Notwithstanding, the c ourt denied the defendant’s continuance request

.

The high court reversed, concluding “ the trial court ’ s failure to grant a continuance constituted an abuse of discretion in the face of [the defendant] ’ s well

documented desire to be represented by private counsel and counsel ’ s willingness to
undertake that task. ” ( Id . at p. 789.) The Courts majority emphasized the timeliness of
the defendant ’ s continuance request. In examining whether defendant was “‘ un justifiably dilatory, ’” the majority noted a “ sharp[] contrast[] ” between the actual existence of an attorney

- client relationship with proposed counsel at the time of the defendant ’ s continuance request and other cases where there had only been a “ speculat ive ” possibility of such a relationship. ( Id . at p. 791, fn. 3.)

Kaye acknowledges a trial court may deny a continuance request made by

an “ un justifiably dilatory ” defendant , but h e has not shown why the rule does not apply
here. ( People v. Beames (2007) 40 Cal.4th 907, 920 [appellant bears the burden of persuasion].) Kaye first requested a continuance of his probation revocation hearing on the day it was set to be conducted and he has not shown he took any steps to retain new
counsel in the time leading up to the hearing . T he circumstances do not present the same

“ diligent effort . . . before the scheduled [hearing] date

. ” ( Courts , supra , 37 Cal.3d at9

p

. 791.) I n contrast, the record shows Kaye waited until the day of the hearing t o ask for
a continuance

. In other words, Courts does not support Kaye ’ s contention the trial court

err ed in in denying his last

- minute request for more time

. III
D ISPOSITION The matter is remanded with the following instructions: Kaye ’ s probation is

re duced to a one

- year period and deemed completed

. Given the trial court has “ los [t] jurisdiction to make an order revoking or modifying ” probation , ( In re Barber , s upra, 15 C al.App. 5th at p. 372 [ citing section 1203.3 and case law]), Kaye is entitled to a
dis charge per section 1203.3, subdivision (b)(3)

. The judgment is affirmed in all other aspects

.

ARONSON, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.