Filed 5/18/22 P. v. Parraorozco CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on

opinions not certified for publication or ordered published, except as specified by rule

8.1115(b). This opinion has not been certified for publication or ordered published for

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE

,

Plaintiff and Respondent

,

v.

Y E SENIA PARRAOROZCO

,

Defendant and Appellant. B313635

(Los Angeles County

Super. Ct. No.

BA466008 )

APPEAL from order s of the Superior Court of Los Angeles

County, Ray G. Jurado, Judge . Reversed and remanded with

directions

.

Brad J. Poore , under appointment by the Court of Appeal,

for Defendant and Appellant.

Rob Bonta , Attorney General, Lance E. Winters, Chief

Assista nt Attorney General, Susan Sullivan Pithey, Senior

Assistant Attorney General, Noah P. Hill , Supervising Deputy

Attorney General, and Kathy S. Pomerantz, Deputy Attorney

General, for Plaintiff and Respondent.2 D efendant Yesenia Parra o rozco (defendant) entered a

negotiated plea and was placed on formal felony probation for

three years in 2018

. Just over two years later

, in 2021, the trial

court revoked and reinstated defendant’s probation

— rejecting

her argument that her probation had already terminated

pursuant to recently enacted Assembly Bill No. 1950 (2019

- 2020

Reg. Sess.) (AB 1950) , which limit s felony probation to a

maximum term of two years. (Stats. 2020, ch. 328, § 2, eff. Jan.

1, 2021.) The Attorney General concedes defendant is entitled to

retroactive application of AB 1950, but we are asked to decide

whether the prosecution must be afforded an opportunity to

withdraw from the ple a agreement.

I. BACKG ROUND

An information filed by the Los Angeles County District

At torney’s Office in 2018 charged defendant with one count of

robbery in violation of Penal Code section 211. 1 At a hearing in

December 2018, the prosecution amended the information to add

a second c harge: assault likely to cause great bodily injury in

violation of section 245, subdivision (a)(4). Defendant pled no

contest to the assault charge and the trial court dismissed the

robbery count. The trial court sentenced defendant to three years

in prison, suspended execution of the sentence, and plac ed her on

formal probation for three years

. As we shall discuss in more detail, the Legislature

subsequently enacted AB 1950, which amend s section 1203.1 to

limit the term of probation for most felonies to a maximum of two

1 Undesignated statutory references that follow are to the

Penal Code.3

years. (Stats. 2020, ch. 328, § 2

. ) AB 1950 took effect on January

1, 2021. On January 20, 2021

, the prosecution moved to revoke

defendant’s probation based on her violation of Vehicle Code

section 10851, subdivision (a) (unlawfully taking a vehicle , which

occurred a couple days earli er )

.

At defendant’s probation violation hearing in February

2021, defense counsel orally moved the trial court to find

probation had terminated as a result of AB 1950. The trial court

invited def

ense counsel to brief the issue but indicated it did not

be lieve defendant should benefit from AB 1950 because “[h]er

conviction was final way before January 1[, 2021],” when the bill

took effect. Defendant admitted the probation violation subject to

her objection that probation had expired. The trial court revo ked

and reinstated probation.

Defendant later submitted a “BRIEF EXPLAINING WHY

PROBATION HAS EXPIRED PURSUANT TO PENAL CODE

SECTION 1203.1, AND MOTION TO TERMINATE

JURISDICTION,” which the trial court considered at a hearing

in April 2021. The trial cou rt acknowledged it is “well settled”

that AB 1950 has retroactive effect as to cases not yet final as of

its effective date , but the court reiterated its view “that

[defendant’s] case was already final when the new law came into

effect and, therefore, retroactivity does not apply.”

Defendant noticed an appeal from the trial court’s denial of

her motion to terminate probation and requested a certificate of

prob able cause. The trial court granted the requested certificate.

II. DISCUSSION

Defendant and the Attorney General agree AB 1950 applies

retroactively and the trial court erred in concluding defendant’s4

conviction was final before AB 1950 took effect

. T h at is correct

,

and the trial court accordingly lacked jurisdiction to revoke

probation after two years. The parties disagree, however, about

AB 1950’s implications for their original plea agreement

, and

they are not alone: t here is a split of authority in the Courts of

Appeal concerning whether the Legislature intended (1) that plea

agreements impacted by AB 1950 should remain otherwise intact

or (2) that the prosecution and trial court should have the

opportunity to withdraw their approval on remand

. Following

the weight of authority to consider the issue thus far, we hold no

opportunity to withdraw from the plea agreement is required.

A. The Trial Court Lacked Jurisdiction to Revoke

Defendant’s Probation

When defendant was placed on probation in December

2018, former section 1203.1, subdivision (a) provided the term of

felony probation generally could not exceed the maximum

possible term of the sentence and, in cases where the maximum

possible term of the sentence was less t han five years, the term of

probation could not exceed five years. ( Stats. 2010, ch. 178, § 75 .)

Effective January 1, 2021, AB 1950 amended section 1203.1,

subdivision (a) to limit the probation term for felony offenses to

two years, except in circumstan ces not present here. (§ 1203.1,

subd. (a) [“ 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 ”]; § 1203.1, subd. ( l ) [listing

exceptions to two

- year probation limit].)5 In In re Estrada (1965) 63 Cal.2d 740 ( Estrada )

, our

Supreme Court held that where an amendatory statu te reduces

the punishment for a prohibited act, “[i]t is an inevitable

inference that the Legislature must have intended that the new

statute imposing the new lighter penalty now deemed to be

sufficient should apply to every case to which it constitutional ly

could apply .” ( Id. at 745.) “‘ Estrada stands for the proposition

that, “ where the amendatory statute mitigates punishment and

there is no saving[s] clause, the rule is that the amendment will

operate retroactively so that the lighter punishment is imposed. ”’

[Citations.] ” ( People v. Frahs (2020) 9 Cal.5th 618, 628.)

Published opinions considering the effect of AB 1950’s two

year felony probation limitation overwhelmingly hold the

limitation is retroactive to defendants whose convict ions are not

final pursuant to the rule in Estrada

. (See, e.g., People v. Butler

(2022) 75 Cal.App.5th 216 ( Butler ); People v. Scarano (2022 ) 74

Cal.App.5th 993 ( Scarano ); People v. Lord (2021) 64 Cal.App.5th

241, 246; People v. Stewart (2021) 62 Cal.App. 5th 1065, 1074,

review granted June 30, 2021, S268787

, cause transferred April

20, 2022 ( Stewart ) ; People v. Sims (2021) 59 Cal.App.5th 943,

955

- 964.) That is our conclusion too.

Here, the trial court acknowledged the Estrada inference

applies to AB 1950

, but found it did not assist defendant because

her conviction was final prior to AB 1950’s effective date. O ur

Supreme Court recently rejected the view that “[t]he relevant

cutoff point under Estrada ” is the point at which a probation

order becomes final. ( People v. McKenzie (2020) 9 Cal.5th 40, 46.)

Instead, a defendant who does not appeal from an order granting

probation may take ad vantage of ameliorative statutory

amendments that take effect prior to a later appeal

. ( See i d. at6

50

- 51 [case not yet final where a defendant is placed on probation

with imposition of sentence suspended and the defendant may

still obtain direct review of order revoking probation and

imposing sentence ]; see also People v. Esquivel (2021) 11 Cal.5th

671

, 673

, 678 [case not final where a defendant is placed on

probation with execution of sentence suspended and the

defendant may still obtain direct review of order revoking

probation and causing the sentence to take effect ] .) We therefore

accept the Attorney General’s concession that the trial court

erred in finding AB 1950 does not apply to defendant.

B. The Trial Court and Prosecution Are Not Entitled to

Withdraw f

rom the Plea Agreement

Although precedent overwhelmingly establishes AB 1950 is

retroactive to defendants whose convictions are not final

, a split

has emerged as to the effect of its retroactive application in cases

involving negotiated pleas

. (See generally People v. Stamps

(2020) 9 Cal.5th 685, 700 [“ The Estrada rule on ly answers the

question of whether an amended statute should be applied

retroactively. It does not answer the question of how that statute

should be applied ”].) One approach, adopted by the Third

District Court of Appeal in Scarano

, holds that a reviewin g court

must remand “ to allow the trial court and the prosecution the

opportunity to withdraw from the original plea agreement .”

( Scarano

, supra

, 74 Cal.App.5th at 1000 .) The contrary

approach, adopted by this District in Butler

, the First District

Court of Appeal in Stewart

, and the Fifth District Court of Appeal

in People v. Flores (2022) 77 Cal.App.5th 420 ( Flores ) holds that

the Legislature did not intend for the prosecution or the trial

court to be permitted to withdraw their approval from a plea7

agreement modified by AB 1950. ( Id. at 442; Butler

, supra

, 75

Cal.App.5th at 2 21

- 222 ; Stewart

, supra

, 62 Cal.App.5th at 1079

. )

Our Supreme Court has granted review in a case that will

presumably and definitively resolve the split in authority.

( People v. Prudholme (Aug. 26, 2021, E076007) [nonpub. opn.],

review granted Nov

. 10, 2021

, S271057.) Accordingly, for now

, it

suffices to observe that we believe the Butler

, Flores

, and Stewart

courts’ approaches to be more persuasive and we reach the same

conclusion reached in those cases. 2

2 The Attorney General raises one additional issue in favor of

the view that the trial court should have a role in applying AB

1950. The Attorney General suggests that “[m]erely striking” the

third year of probation “deprives the superior cou rt and the

parties of a necessary determination of the status of probation at

the time it was terminated.” This is necessary, the Attorney

General argues, because it determines defendant’s entitlement to

expungement as a matter of right. (See § 1203.4, s ubd. (a)

[expungement available as a matter of right when a defendant

has fulfilled conditions of probation for the entire period of

probation or received early, favorable discharge; trial court may

otherwise grant expungement “ in its discretion and the in terests

of justice ”].) Because defendant’s probation has already

terminated, however, remand would not afford the trial court any

meaningful discretion beyond that already provided under

section 1203.4, subdivision (a). The trial court may exercise that

discretion if and when defendant seeks relief under section

1203.4.8 DISPOSITION

Defendant’s three

- year probation term is reduced to two

years in accordance with AB 1950 and the trial court is directed

to amend its records to reflect the reduction. The trial court’s

February 19, 2021, order revoking and reinstating probation is

reversed

.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR , J.

KIM, J.