1

Filed 4/7/21

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN MATTHEW STEWART,

Defendant and Appellant.

 A157857

 (Napa County Super. Ct. No.

 19CR000855)

Steven Matthew Stewart was placed on probation after pleading no 

contest to one count of assault by means likely to result in great bodily injury. 

He contends the trial court abused its discretion in imposing a probation 

condition requiring him to refrain from using marijuana, a condition 

appellant sees as unrelated to his offense or future criminality. He further 

contends his period of probation must be reduced from three years to two 

years in accordance with a statutory amendment enacted while this appeal 

was pending. We agree that appellant is entitled to this reduction in the 

length of his probation period and otherwise affirm the judgment.

BACKGROUND

Napa County Police Officer Colton Adams testified at the preliminary 

hearing that on March 25, 2019, he was dispatched to an unrelated incident 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this 

opinion is certified for publication with the exception of parts I. Discussion, 

I.A., and I.B.
2

and flagged down by J.R., who told him she had just been assaulted by her 

ex-boyfriend, identified as appellant. J.R.’s hands were “fidgety,” she “wasn’t 

able to stop moving” and she “seemed hysterical” and appeared to have been 

crying. She said she and appellant had been arguing and appellant 

threatened to “bash her face in using his head,” then as the argument 

continued, he “headbutted her in the face.” Adams did not notice visible 

injuries, but J.R. reported that she felt pain. Adams did not have an opinion 

whether J.R. was high on methamphetamine.1

A witness told Adams that as appellant and J.R. were arguing, 

appellant threatened to “beat her down,” then attempted to punch her in the 

face with his left hand, missed the punch, and immediately headbutted her in 

the face. Another witness saw appellant suddenly headbutt J.R. as appellant

and J.R. were arguing. 

Appellant told Adams that he and J.R. were currently dating and had a 

five-year-old daughter together. He denied any physical altercation, saying 

the argument was all verbal. Appellant told Adams he and J.R. had been 

arguing for the past few days and, on the day of the incident, J.R. threatened 

to “put him in jail, because he needed to go to a program.” He said he wanted 

her to go to a program with him. Adams testified that appellant was 

cooperative and calm. 

Appellant was initially charged on March 27, 2019, with one count of 

felony making criminal threats (Pen. Code, § 422)2 and one count of 

misdemeanor battery (domestic violence) (§ 243, subd. (e)(1)), with an 

1 As described in the probation report, the police report related 

appellant having said J.R. was “high on methamphetamine.” 

2 Further statutory references are to the Penal Code unless otherwise 

indicated.
3

allegation that appellant had a prior conviction for which he served a prison 

term (§ 667.5, subd. (b).) Following a preliminary hearing, appellant was 

held to answer, an information was filed stating the same charges, and 

appellant pled not guilty and denied the special allegations. Subsequently, 

an amended information added a third count of felony assault by means 

likely to cause great bodily injury (§ 245, subd. (a)). Pursuant to a negotiated 

agreement, appellant pled no contest to the third count and the others were 

dismissed with a Harvey3 waiver. On July 15, 2019, in accordance with the 

agreement, appellant was placed on probation for three years. The court 

imposed the terms and conditions recommended by the probation 

department, with a few modifications not relevant here. 

This appeal followed.4

DISCUSSION

I.

At sentencing, defense counsel objected to imposition of the marijuana 

condition, arguing there was no indication drugs or alcohol were involved in 

the offense. On appeal, appellant contends the trial court abused its 

discretion in imposing this condition because it addresses conduct that is not 

illegal and is not reasonably related either to the offense or to future 

criminality. Two questions are presented: whether appellant can maintain 

this challenge to the probation condition after waiving his right to appeal as 

3 People v. Harvey (1979) 25 Cal.3d 754.

4 Appellant filed a notice of appeal on the day he was sentenced, July 

15, 2019, but did not request a certificate of probable cause. In December, he 

filed a motion in this court for permission to request a late certificate of 

probable cause, which we granted over respondent’s opposition. Appellant 

filed an amended notice of appeal and request for a certificate of probable 

cause in the trial court on January 2, 2020, and the trial court granted the 

certificate of probable cause the same day. 
4

part of his plea bargain and, if so, whether the condition was properly 

imposed.

A.

The plea form appellant signed on June 14, 2019, included a section 

entitled “Plea Bargain,” which stated, “The following promises have been 

made to me as a condition of my plea(s) . . . ,” followed by a handwritten list 

of terms. Among these handwritten terms was “waive appeal.” Appellant 

initialed this section of the plea form.5 He argues, however, that this general 

waiver of appeal was not knowing and intelligent as to the marijuana 

condition because the plea bargain did not expressly contemplate the court 

imposing this condition. Respondent disagrees.

“To be enforceable, a defendant’s waiver of the right to appeal must be 

knowing, intelligent, and voluntary.” (People v. Panizzon (1996) 13 Cal.4th 

68, 80 (Panizzon).) A “ ‘general waiver’ ”—one that “is nonspecific, e.g., ‘I 

waive my appeal rights’ or ‘I waive my right to appeal any ruling in this 

case’ ” (id. at p. 85, fn. 11)—“ordinarily includes error occurring before but not 

after the waiver because the defendant could not knowingly and intelligently 

waive the right to appeal any unforeseen or unknown future error. (In re 

Uriah R. (1999) 70 Cal.App.4th 1152, 1157.) Thus, a waiver of appeal rights 

does not apply to ‘ “possible future error” [that] is outside the defendant’s 

contemplation and knowledge at the time the waiver is made.’ ([Panizzon], at 

p. 85; see also People v. Sherrick (1993) 19 Cal.App.4th 657, 659; People v. 

Vargas (1993) 13 Cal.App.4th 1653, 1662.)” (People v. Mumm (2002) 98 

Cal.App.4th 812, 815.)

5 Appellant also initialed a printed section of the form stating, “I 

understand I have the right to appeal the judgment of the court by filing a 

notice of appeal . . . .” 
5

People v. Patton (2019) 41 Cal.App.5th 934, 940–941 (Patton), held that 

a defendant’s waiver of the right to appeal did not bar his challenge to a 

later-imposed condition of probation that was not referenced in the plea 

agreement. Respondent distinguishes Patton as involving a specific waiver: 

The defendant agreed to waive his right to appeal “any sentence stipulated 

herein,” which Patton construed as applying to “the specifics of the stipulated 

sentence specified in his plea agreement” and “not encompass[ing] provisions 

(such as particular conditions of probation) that were to be determined in 

future proceedings.” (Id. at pp. 942–943.) 

Respondent correctly notes that Patton referred to the waiver in that 

case as “limited” in scope, whereas the waiver in the present case is general. 

But that distinction begs the question: As stated above, a general waiver of 

the right to appeal does “not include error occurring after the waiver” that is 

not “within defendant’s contemplation and knowledge at the time the waiver 

was made.”6 (People v. Vargas, supra, 13 Cal.App.4th at pp. 1653, 1662.) 

Appellant maintains that is the situation here.

6 Appellant expends considerable effort anticipating respondent’s 

reliance on People v. Espinoza (2018) 22 Cal.App.5th 794, which held that a 

certificate of probable cause was required for an appeal challenging a 

probation condition where the defendant’s plea bargain included a waiver of 

the right to appeal “the judgment and rulings of the court.” The court 

reached this conclusion because it viewed the challenge to a condition of 

probation as in substance a challenge to the appellate waiver and, therefore, 

to the validity of the plea. As Espinoza summarized its holding, “when a 

defendant waives the right to appeal as part of a plea agreement, and the 

waiver’s terms encompass the issue the defendant wishes to raise, the 

defendant must obtain a certificate of probable cause to avoid dismissal of the 

appeal. With a certificate of probable cause in hand, the defendant may 

argue that the waiver is not enforceable as to the issue raised, whether 

because the waiver was not knowing and intelligent or for some other reason. 
6

Respondent argues the marijuana condition was not an unforeseen or 

unknown error outside the scope of the appeals waiver because the plea 

agreement clearly contemplated appellant would be placed on probation with 

conditions, and several references in the agreement indicate the parties 

contemplated the waiver would apply to future error with respect to 

“conditions prohibiting the use of certain substances.” 

The plea form specified that the following promises had been made as 

part of the plea bargain: “C.T.S. at sentencing, 3 yrs. Formal prob., 52 wks. 

Bat. Prog., no early term. of prob., search & test clause, all 1203.097 terms, 

no early termination of probation, waive appeal, no 17(b) @ sentencing, 

restitution (if any).” The agreement thus specified that appellant would be 

placed on probation for three years and expressly stated several conditions to 

be imposed: A batterer’s program, a search clause, a substance testing 

clause, and “all 1203.097 terms.” Section 1203.097 requires certain terms of

probation for domestic violence offenses. One of these is that the defendant 

complete a batterer’s program (§ 1203.097, subd. (a)(6)), and respondent 

notes that one of the components the batterer’s program must include is a 

“requirement that the defendant attend group sessions free of chemical 

influence.” (§ 1203.097, subd. (c)(1)(E).) Additionally, respondent maintains 

appellant’s express agreement to a “search & test” clause put him on notice 

that he would be prohibited from possessing and using certain substances. In 

And if the reviewing court determines that the waiver is not enforceable, it 

will reach the merits of the defendant’s underlying claim.” (Id. at p. 803.) 

Appellant takes issue with the Espinoza court’s view that a challenge 

to a probation condition imposed after a plea amounts to a challenge to the 

plea itself. That view is not directly at issue here, as appellant did obtain a 

certificate of probable cause. For this reason, and because respondent does 

not rely on Espinoza, we do not find it necessary to address appellant’s 

argument that the case was wrongly decided.
7

respondent’s view, appellant would have understood a standard test clause 

could include alcohol, illegal drugs and marijuana and, therefore, “[t]hese 

specified terms were not outside of appellant’s contemplation at the time the 

waiver was made.” 

We are not convinced. “The right of appeal should not be considered 

waived or abandoned except where the record clearly establishes it.” (People 

v. Vargas, supra, 13 Cal.App.4th at p. 1662.) Appellant’s plea bargain 

expressly referred to the section 1203.097 probation terms for domestic 

violence offenders, but the term respondent relies upon as relevant to 

substance abuse mandates only that the defendant attend a batterer’s 

program that requires attendance at group sessions free of chemical 

influence. This term does not imply a general prohibition against all use of 

“chemical substances,” much less all use of marijuana. And while the 

specification in the agreement that appellant would be subject to search and 

test conditions may reasonably be construed as implicitly acknowledging he 

would be prohibited from possessing and using illegal substances, the same is 

not necessarily true for legally possessed substances such as alcohol and 

marijuana as allowed under Health and Safety Code section 11362.1.

In Patton, the court explained that the fact the defendant knew at the 

time of his plea that “some unspecified ‘reasonable’ restrictions or 

requirements could be imposed as a condition of his probation does not mean 

he was agreeing to accept anything the court decided to include, regardless of 

how unreasonable he thought it was.” (Patton, supra, 41 Cal.App.5th at 

p. 940.) Similarly, although appellant’s appellate waiver was broader than 

the one in Patton, we cannot find it was “ ‘knowing, intelligent, and 

voluntary’ ” with respect to a later-imposed condition of probation that was 

not among the specific terms of probation referenced in the plea bargain. 
8

(Panizzon, supra, 13 Cal.4th at pp. 80, 85.) Accordingly, we conclude 

appellant’s waiver does not prevent him from challenging imposition of the 

marijuana condition.

B.

Appellant argues the trial court abused its discretion in imposing the 

probation condition prohibiting him from possessing or using marijuana.

“ ‘The primary goal of probation is to ensure “[t]he safety of the 

public . . . through the enforcement of court-ordered conditions of probation.” 

(Pen. Code, § 1202.7.)’ (People v. Carbajal (1995) 10 Cal.4th 1114, 1120

(Carbajal).) Accordingly, the Legislature has empowered the court, in 

making a probation determination, to impose any ‘reasonable conditions, as it 

may determine are fitting and proper to the end that justice may be done, 

that amends may be made to society for the breach of the law, for any injury 

done to any person resulting from that breach, and generally and specifically 

for the reformation and rehabilitation of the probationer. . . .’ (Pen. Code, 

§ 1203.1, subd. (j).)” (People v. Olguin (2008) 45 Cal.4th 375, 379 (Olguin).)

“Generally, ‘[a] condition of probation will not be held invalid unless it 

“(1) has no relationship to the crime of which the offender was convicted, (2) 

relates to conduct which is not in itself criminal, and (3) requires or forbids 

conduct which is not reasonably related to future criminality . . . .”

[Citation.]’ ([People v.] Lent [(1975)] 15 Cal.3d [481,] 486.) This test is 

conjunctive—all three prongs must be satisfied before a reviewing court will 

invalidate a probation term. (Id. at p. 486, fn. 1; see also People v. 

Balestra (1999) 76 Cal.App.4th 57, 68–69 (Balestra).) As such, even if a 

condition of probation has no relationship to the crime of which a defendant 

was convicted and involves conduct that is not itself criminal, the condition is 

valid as long as the condition is reasonably related to preventing future 
9

criminality. (See Carbajal, supra, 10 Cal.4th at 1121.)” (Olguin, supra, 45 

Cal.4th at pp. 379–380.)

Appellant argues the marijuana condition is invalid because it has no 

relationship to his offense, relates to conduct that is not in itself criminal,

and is not reasonably related to future criminality. The first two points are 

not at issue: As respondent agrees, it does not appear that appellant was 

under the influence of any controlled substance at the time of the assault or 

that marijuana or other drugs were otherwise involved in the offense, and 

adult possession and use of up to 28.5 grams of marijuana is legal, subject to 

various conditions. (§ 11362.1.) 

The question is whether the condition is reasonably related to future 

criminality. Appellant argues it is not, as he has no history of use or abuse of 

marijuana and there is “no indication that marijuana use would trigger 

alcohol use or affect his mental health.” Respondent maintains the condition 

was reasonably imposed based on appellant’s history of using other drugs and 

the risk of marijuana inhibiting his mental health treatment by interfering 

with medication appellant was taking for bipolar disorder. 

According to the probation officer’s presentence report, appellant, 42 

years of age, reported that he drank alcohol heavily from ages 22 to 30 and 

sustained four convictions for driving under the influence (DUI). The 

probation report lists three such convictions, for offenses in 1994, 1998, and 

2006.

7 Appellant reported that he was currently consuming alcohol only once 

a month and it is “no longer a problem.” He reported past use of 

7 The report additionally lists, under “DMV Record,” five convictions for 

driving while driving privilege has been suspended or revoked for a DUI 

conviction. (Veh. Code, § 14601.2, subd. (a).) Several of these are for more 

recent offense dates—2015, 2016, and 2017—and the report states that 

appellant’s driver’s license is “suspended/revoked.” 
10

hallucinogens, “mushrooms” once a month from age 16 to 24, and “acid” 

“every couple of months” from age 20 to 26. He had never engaged in 

substance abuse treatment. His criminal history includes a conviction for

unauthorized possession of a controlled substance (Health & Saf. Code, 

§ 11377, subd. (a)) in 2015. 

In addition, appellant’s history includes convictions for assault with a 

deadly weapon (§ 245, subd. (a)) in 2004; resisting a peace officer in 2016 

(§ 148.1, subd. (a)) and in 1995 (§ 148.10 [resulting in death or serious bodily 

injury]); and driving in a willful or wanton manner while evading a pursuing 

peace officer (Veh. Code, § 2800.2, subd. (a)) in 2001 and 2017. 

Appellant was diagnosed with bipolar disorder in 2003, for which he 

takes medication. He has been hospitalized approximately five times and 

used to attend monthly therapy but had not seen a therapist in two years. 

The probation officer stated, “Abstention and testing are recommended to 

encourage a sober lifestyle. If he cannot maintain sobriety on his own while 

on probation, he should complete an alcohol and drug assessment in his 

county of residence and engage in the recommended level of treatment. 

Considering the defendant suffers from bipolar and takes prescription 

medication, ‘street’ drugs and/or alcohol may negatively interfere with his 

medication and can cause a disruption in his mental health regiment [sic]. It 

is recommended the defendant continue with mental health services.” 

The marijuana condition was one of several addressing potential 

substance use. Appellant was prohibited from using, consuming, or 

possessing “any marijuana or illegal drugs or substances, including 

nonprescribed controlled substances, unless specifically authorized by the 

court,” from possessing drug paraphernalia, and from drinking or possessing 

alcoholic beverages or being in places where alcohol is sold as the primary 
11

income of the business. He was required to submit to a blood, breath, or 

urine test if requested by law enforcement or a probation officer, and to 

submit to search and seizure by a probation officer or law enforcement at any 

time, with or without a warrant or reasonable suspicion.8

The court stated, “With regard to 20 and 21 [the marijuana and alcohol 

conditions], the defendant’s criminal history reflects a drug and alcohol 

abuse. And then when you combine that with the mental health issues 

described in the report, I think that very much supports the abstain from 

marijuana.”

Appellant argues any relationship between marijuana use or possession 

and prevention of future criminality is merely hypothetical, noting that no 

evidence was offered to support the probation officer’s opinion that use of 

“ ‘street drugs’ ” might interfere with appellant’s medication for bipolar 

disorder and arguing that a mental health issue does not have any 

relationship to potential future criminality. Appellant points to In re Ricardo 

P. (2019) 7 Cal.5th 1113, 1121 (Ricardo P.), which confirmed that “Lent’s

third prong requires more than just an abstract or hypothetical relationship 

between the probation condition and preventing future criminality.” 

Ricardo P. held that while there need not be a “ ‘nexus between the 

probation condition and the defendant’s underlying offense or prior 

offenses,’ ” there must be a “degree of proportionality between the burden 

imposed by a probation condition and the legitimate interests served by the 

condition.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) The electronic device 

search in that case did not satisfy this requirement because nothing in the 

record indicated the minor had ever used an electronic device or social media

8 Defense counsel objected to both the marijuana and alcohol 

conditions, but only the marijuana condition is challenged on this appeal.
12

in connection with criminal conduct, the trial court imposed the condition 

based on indications the minor had previously used marijuana and a 

“generalization” that minors typically brag about their drug use on social 

media, and the “sweeping probation condition requiring Ricardo to submit all 

of his electronic devices and passwords to search at any time . . . significantly 

burdens privacy interests.” (Id. at pp. 1122–1123.)

The marijuana condition does not similarly implicate a fundamental 

interest, and its relationship to future criminality is supported by 

considerably more than the generalization relied on in Ricardo P. Although 

there is no evidence appellant was under the influence of drugs or alcohol at 

the time of the offense, his history includes both alcohol and drug abuse, 

albeit not specifically marijuana. His comments to Officer Adams that J.R.

threatened to “put him in jail, because he needed to go to a program” and that 

he wanted her to go to a program with him, suggest a contemporaneous issue 

with substance abuse. Appellant does not challenge the no-alcohol probation 

condition. Cases have recognized a connection between alcohol and drugs 

with respect to probation conditions, upholding alcohol prohibitions in cases 

where the defendant’s offense related to drug use because of alcohol’s similar 

effects in impairing judgment and the ability to control behavior. (People v. 

Smith (1983) 145 Cal.App.3d 1032, 1034–1035 [commenting on similarity of 

effects of alcohol to effects of marijuana and other drugs, including “lessening 

of internalized self-control”]; People v. Lindsay (1992) 10 Cal.App.4th 1642, 

1645 [impairment of judgment due to alcohol consumption could reduce drug 

addict’s willpower to refrain from drug use]; People v. Beal (1997) 60 

Cal.App.4th 84, 87 (Beal) [alcohol use related to future criminality where 

defendant has history of substance abuse]; People v. Malago (2017) 

8 Cal.App.5th 1301, 1308 [avoiding alcohol would increase defendant’s ability 
13

to avoid drug use].) Despite the legalization of recreational use of marijuana, 

it remains a controlled substance, classified as a hallucinogen. (Health & 

Saf. Code, § 11054, subd. (d)(13).) 

Appellant’s present offense reflects impaired judgment and loss of selfcontrol, as do some of his past offenses. It is neither unduly speculative nor 

unreasonable to view the use of substances that tend to impair judgment and 

ability to control behavior—whether alcohol or marijuana—as increasing the 

risk of future commission of offenses of this type. Nor is it unreasonable to 

view use of such substances as potentially interfering with the efficacy of 

appellant’s mental health treatment, whether by adverse interaction with the

prescribed medication for his bipolar disorder or by undermining his

compliance with taking that medication. According to the probation report, 

based on a validated actuarial risk assessment tool for domestic violence 

offenders, appellant was considered to be at “high” risk to commit future 

domestic violence.9 The court did not abuse its discretion in imposing the 

marijuana condition as one measure to reduce the risk of future offense, in 

accordance with the probation department’s recommendation for 

“[a]bstention and testing . . . to encourage a sober lifestyle.” 

Appellant’s reliance upon People v Kiddoo (1990) 225 Cal.App.3d 922

(Kiddoo) (overruled on other grounds by People v. Welch (1993) 5 Cal.4th 228, 

237) is unavailing. Appellant likens his case to Kiddoo, which invalidated a 

probation condition prohibiting alcohol (id. at p. 927), and distinguishes it 

from Beal, supra, 60 Cal.App.4th at page 85, which upheld such a condition. 

Kiddoo found “no factual indication in the record that the proscribed 

behavior, in the defendant’s case, is reasonably related to future criminal 

9 According to the probation report, a score of 7 or higher places an 

offender in the highest of 7 risk categories; appellant’s score was 8.
14

behavior” because there was no indication alcohol was related to his offense

of possession of methamphetamine, despite the facts that the 33-year-old 

defendant had used marijuana, methamphetamine, amphetamine, cocaine,

and alcohol since age 14; said he was a social drinker and used 

methamphetamine sporadically; and had a prior conviction for possession of 

marijuana at age 22. (Kiddoo, at pp. 927–928.) 

The defendant in Beal, who pled guilty to methamphetamine 

possession and possession for sale, characterized herself as a social drinker

and did not consider alcohol use a problem but admitted having become 

involved with methamphetamine at age 26, smoking marijuana and cocaine 

in her late 20s and experimenting with LSD, was selling methamphetamine 

to support her drug habit at the time of her arrest, and told the probation 

officer she “suffered from ‘chemical dependency.’ ” (Beal, supra, 60 

Cal.App.4th at p. 86.) Rejecting the defendant’s reliance upon Kiddoo, the 

Beal court stated: “Although an argument can be made that Kiddoo is 

factually distinguishable from this case (see People v. Lindsay, [supra,] 10 

Cal.App.4th [at p.] 1644), we disagree with the fundamental assumptions 

in Kiddoo that alcohol and drug abuse are not reasonably related, and that 

alcohol use is unrelated to future criminality where the defendant has a 

history of substance abuse.” (Beal, at pp. 86–87, fn. omitted.) The same 

court reaffirmed this view, disagreeing with Kiddoo, in Balestra, supra, 76 

Cal.App.4th at pages 68–69, and People v. Malago, supra, 8 Cal.App.5th at 

page 1308, and we agree. In light of appellant’s history of alcohol and drug 

abuse, mental health issues and commission of a domestic violence offense 

reflecting inability to control his emotions and conduct, the marijuana 

condition is reasonably related to future criminality and not disproportionate.
15

II.

As earlier indicated, in accordance with his plea agreement, appellant

was placed on probation for a period of three years. At the time, the trial 

court had discretion to order probation “for a period of time not exceeding the 

maximum possible term of the sentence” or, where the maximum possible 

term was five years or less, for a maximum of five years. (Former § 1203.1, 

subd. (a).) While this appeal was pending, the Legislature enacted Assembly 

Bill No. 1950 (Assembly Bill 1950), amending section 1203.1, subdivision (a), 

to limit felony probation to a maximum term of two years, absent 

circumstances not applicable here. (Stats. 2020, ch. 328, § 2, eff. Jan. 1, 

2021.) The legislation is silent as to retroactivity, but appellant argues it is 

ameliorative and therefore applies to his case pursuant to the reasoning of 

In re Estrada (1965) 63 Cal.2d 740 (Estrada).10 

A.

“Generally, statutes are presumed to apply only prospectively. ([People 

v. Superior Court (Lara) (2018)] 4 Cal.5th [299,] 307.) However, this 

presumption is a canon of statutory interpretation rather than a 

constitutional mandate. (Ibid.) Accordingly, ‘the Legislature can ordinarily 

enact laws that apply retroactively, either explicitly or by implication.’ (Ibid.) 

10 Appellant first raised this claim in a petition for rehearing after we 

filed an opinion affirming his conviction, arguing rehearing was required to 

preserve his constitutional right to effective assistance of counsel and 

forestall a petition for writ of habeas corpus based on ineffective assistance of 

counsel. Assembly Bill 1950 was signed by the Governor on September 30, 

2020, the day after appellant’s attorney filed the reply brief on this appeal. 

Counsel did not seek leave of court to file a supplemental brief arguing 

appellant was entitled to the shortened period of probation. (Cal. Rules of 

Court, rule 8.200(a)(4).) We granted rehearing to permit consideration of this 

claim.
16

Courts look to the Legislature’s intent in order to determine if a law is meant 

to apply retroactively. (Ibid.)” (People v. Frahs (2020) 9 Cal.5th 618, 627 

(Frahs).)

Estrada held that “amendatory statutes that lessen the punishment for 

criminal conduct are ordinarily intended to apply retroactively.” (Frahs, 

supra, 9 Cal.5th at p. 627.) The Estrada court reasoned that “ ‘[w]hen the 

Legislature amends a statute so as to lessen the punishment it has obviously 

expressly determined that its former penalty was too severe and that a 

lighter punishment is proper as punishment for the commission of the 

prohibited act. It 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 constitutionally could 

apply.’ ” (Frahs, at pp. 627–628.) “ ‘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.” ’ ” (Id. at p. 628, quoting People v. 

Nasalga (1996) 12 Cal.4th 784, 792.) 

Respondent argues Estrada does not apply to Assembly Bill 1950 

because probation is not punishment. Several recent cases have rejected this 

view. (People v. Sims (2021) 59 Cal.App.5th 943 (Sims); People v. Quinn 

(2021) 59 Cal.App.5th 874 (Quinn); People v. Burton (2020) 58 Cal.App.5th 

Supp. 1 (Burton) [Assem. Bill 1950 limitation on duration of misdemeanor 

probation].) As explained in those opinions, while probation is viewed as “ ‘an 

act of clemency in lieu of punishment’ ” and primarily “rehabilitative in 

nature” (People v. Moran (2016) 1 Cal.5th 398, 402), probation “can be 

invasive, time-consuming, and restrictive for a probationer” (Sims, at p. 959), 

who may be subjected to numerous conditions, including restrictions on 
17

activities and associations that would otherwise be lawful and requirements 

such as drug and/or alcohol testing, meetings with probation officers, and 

submission to warrantless searches and seizures. The probationer “ ‘is in 

constructive custody—he is under restraint’ [citations]” and “ ‘there is no 

question it is a sanction that imposes significant restrictions on the civil 

liberties of a defendant.’ [Citations].)” (Ibid.) The California Supreme Court 

recognized in People v. Edwards (1976) 18 Cal.3d 796, 801, that “the 

traditional view that a grant of probation is a privileged act of grace or 

clemency has been discredited in favor of the modern view that such a grant 

should be deemed an alternative form of punishment in those cases when it 

can be used as a correctional tool.” And People v. Delgado (2006) 140 

Cal.App.4th 1157, 1170, viewed probation as punishment in holding that 

retroactive application of a law imposing mandatory probation conditions, 

including a minimum term, increased punishment in violation of ex post facto 

principles. (See also, People v. Williams (1988) 200 Cal.App.3d Supp. 1 

[retroactive application of law extending maximum length of probation period

unconstitutionally increased punishment].) 

By limiting the maximum duration of probation, Assembly Bill 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.” (Sims, supra, 59

Cal.App.5th 959.) Shortening the length of probation terms is also 

ameliorative in that it reduces the “potential for the [probationer] to be 

incarcerated due to a violation.” (Burton, supra, 58 Cal.App.5th at 

p. Supp. 15.) Probation violations—which may be based on conduct not 

amounting to a new crime and need only be proven by a preponderance of the 

evidence—often result in incarceration. (Sims, at p. 960.) The longer the 
18

period of probation, the more likely the probationer will be found in violation 

of a probation condition. Conversely, by limiting the duration of probation, 

Assembly Bill 1950 ameliorates possible punishment for probationers as a 

class by “ensur[ing] that at least some probationers who otherwise would 

have been imprisoned for probation violations will remain violation free and 

avoid incarceration.” (Sims, at p. 960.)

This view of Assembly Bill 1950 is in keeping with the California 

Supreme Court’s application of the Estrada principle to legislation that 

makes reduced punishment possible, as well as that which directly reduces 

technical punishment. Lara, supra, 4 Cal.5th 299, applied Estrada in its 

analysis of Proposition 57, which eliminated prosecutors’ discretion to charge 

juveniles in adult court, instead requiring a transfer hearing for the juvenile 

court to determine whether the matter should be heard in juvenile or adult 

court. Although “Proposition 57 does not reduce the punishment for a crime,” 

Lara held Estrada’s “rationale” applied because “[t]he possibility of being 

treated as a juvenile in juvenile court—where rehabilitation is the goal—

rather than being tried and sentenced as an adult can result in dramatically 

different and more lenient treatment.” (Lara, at p. 303.) The “possible” 

reduction of punishment was also the focus in Frahs, supra, 9 Cal.5th 618, 

which found retroactive a statute creating a pretrial diversion program for

certain defendants with mental health disorders. Likening the case to Lara,

the court stated that the statute “provides a possible ameliorating benefit for 

a class of persons—namely, certain defendants with mental disorders—by 

offering an opportunity for diversion and ultimately the dismissal of charges.” 

(Frahs, at p. 624; People v. Francis (1969) 71 Cal.2d 66 [amendment allowing 

trial court to exercise sentencing discretion more favorably for individual 

defendants applied retroactively].) 
19

We agree with the Sims, Quinn, and Burton courts that Assembly Bill

1950 ameliorates punishment within the meaning of Estrada. Although the 

Legislature could have chosen to limit or forbid the retroactive application of 

the amendment (People v. Conley, (2016) 63 Cal.4th 646, 656), it did not do 

so. Assembly Bill 1950 contains no express requirement that it be applied 

only prospectively, and, like the Sims, Quinn, and Burton courts, we see no 

indication of such intent in the legislative history.

To the contrary, the legislative history demonstrates that the 

amendment was motivated by concerns that apply to current probationers as 

much as future ones. As extensively detailed in the Sims, Quinn, and Burton 

opinions, the legislative analyses of Assembly Bill 1950 reflect concern with 

the social and financial costs of the existing probation system—in particular, 

with probation as “a pipeline for re-entry into the carceral system” due to the 

large number of people incarcerated for violations of probation, most of which 

are “ ‘technical’ and minor in nature.” (Assem. Floor Analysis, 3d reading of 

Assem. Bill 1950 (2019-2020 Reg. Sess.) as amended May 21, 2020, p. 1.)11 

11 According to the bill’s author, “California’s adult supervised 

probation population is around 548,000—the largest of any state in the 

nation, more than twice the size of the state’s prison population, almost four 

times larger than its jail population and about six times larger than its parole 

population. [¶] A 2018 Justice Center of the Council of State Governments 

study (<https://csgjusticecenter.org/publications/confined-costly/?state=CA 

#primary> [as of Apr. 7, 2021]) found that a large portion of people violate 

probation and end up incarcerated as a result. The study revealed that 20% 

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 
20

The legislative analyses further address the apparent absence of need for 

longer probation periods with regard to rehabilitation. “Research 

(https://calbudgetcenter.org/resources/sentencing-in-californiamoving-towarda-smarter-more-cost-effective-approach/) by the California Budget & Policy 

Center shows that probation services, such as mental healthcare and 

addiction treatment, are most effective during the first 18 months of 

supervision. Research also indicates that providing increased supervision 

and services earlier reduces an individual’s likelihood to recidivate.” (Assem. 

Floor Analysis, 3d reading of Assem. Bill 1950 (2019-2020 Reg. Sess.) as 

amended June 10, 2020, p. 1.) 

It is apparent that the Legislature determined the rehabilitative 

purpose of probation could best be met, and deleterious effects of the 

probation system minimized, by shortening the maximum duration of 

probation. As stated by the Sims court, “[w]hile 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 presumption. (See People v. Carrasco (1981) 118 

Cal.App.3d 936, 945 [‘A cardinal principle of statutory construction is that 

criminal record.” (Assem. Floor Analysis, 3d reading of Assem. Bill 1950 

(2019-2020 Reg. Sess.) as amended May 21, 2020, p. 1.) Additionally, the 

Prison Policy Institute has found that “like incarceration, probation affects 

already marginalized populations in troubling ways. Black Americans make 

up 13% of the U.S. adult population, but 30% of those under community 

supervision.” Additionally, probation fees are an enormous burden on the 

poor. (Sen. Com. on Public Safety, Rep. on Assem. Bill 1950 (2019-2020 Reg. 

Sess.) as amended June 10, 2020, p. 4.)
21

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.” (Sims, supra, 59 Cal.App.5th at pp. 962–963.)

B.

This case presents one issue not addressed in Sims, Quinn, or Burton. 

While appellant asks us to order that his term of probation be reduced to two 

years, respondent maintains we cannot do so because the prosecution must 

be given an opportunity to either agree to this new term or withdraw from 

the plea agreement pursuant to which probation was imposed. Respondent’s 

argument is based on the rule that a court lacks authority to unilaterally 

modify a plea bargain after it has been accepted. (People v. Stamps (2020) 9 

Cal.5th 685, 700–702.)

Stamps held that Senate Bill No. 1393 (Senate Bill 1393), amending 

section 667, subdivision (a), to give trial courts discretion to strike the fiveyear prior serious felony conviction enhancement, applied to the defendant’s 

case retroactively because the judgment was not yet final. (Stamps, supra, 9 

Cal.5th at p. 699.) The Supreme Court held the case should be remanded for 

the trial court to exercise its discretion, but rejected the defendant’s 

argument that the trial court should consider striking the enhancement while 

otherwise leaving his plea bargain intact. (Stamps, at p. 700.) “ ‘ “ ‘A plea 

agreement is, in essence, a contract between the defendant and the 

prosecutor to which the court consents to be bound.’ [Citations.] Should the 

court consider the plea bargain to be unacceptable, its remedy is to reject it, 

not to violate it, directly or indirectly. [Citation.] Once the court has 

accepted the terms of the negotiated plea, ‘[it] lacks jurisdiction to alter the 
22

terms of a plea bargain so that it becomes more favorable to a defendant 

unless, of course, the parties agree.’ ” ’ ” (Id. at p. 701, quoting People v. 

Cunningham (1996) 49 Cal.App.4th 1044, 1047.) Accordingly, Stamps held 

the proper remedy was remand to allow the defendant to seek relief under 

Senate Bill 1393. If the trial court declined to exercise its discretion to strike 

the enhancement, the prior sentence would stand. If the court was inclined 

to exercise its discretion, the prosecution could agree to modify the plea 

bargain, but if it did not so agree, the prosecutor could withdraw from the 

agreement. The court could also withdraw its prior approval of the plea 

agreement. (Stamps, at pp. 707–708.)

A different conclusion was reached in People v. France (2020) 58 

Cal.App.5th 714 (France) (review granted Feb. 24, 2021, S266771), which 

found retroactive Senate Bill No. 136 (Senate Bill 136), amending section 

667.5, subdivision (b), to limit its one-year prior prison term enhancement to 

prior prison terms for sexually violent offenses. (See also People v. Andahi

(Mar. 19, 2021, C090707) ___ Cal.App.5th ___, 2021 WL 1049820.) Prior to 

amendment, the statute required courts to impose the enhancement for each 

prior prison term, although courts could exercise their discretion to strike the 

enhancement pursuant to section 1385. (France, at p. 718.) Since the 

defendant’s prior prison term enhancement was not for a sexually violent 

offense and his conviction was not final, he was entitled to relief. (Id. at pp. 

718–721.) But, unlike Stamps, France found it appropriate to modify the 

judgment by striking the one-year enhancement despite the sentence having 

been imposed pursuant to a plea bargain. (France, at pp. 727–730.) 

For the France majority, the critical factor distinguishing Stamps was 

that Senate Bill 1393, at issue in Stamps, gave the trial court discretion to 

strike an enhancement while Senate Bill 136 “reduc[ed] sentences directly by 
23

significantly narrowing the scope of an enhancement.” (France, supra, 58 

Cal.App.5th at p. 728.) Under Senate Bill 1393, “it is ultimately a trial court 

that chooses whether an enhancement is eliminated—meaning that [the 

change in law] directly implicates the prohibition on a trial court’s ability to 

unilaterally modify an agreed-upon sentence.” (France, at p. 728.) In Senate 

Bill 136, by contrast, “the Legislature itself has mandated the striking of 

affected prison priors by making the enhancement portion of France’s 

sentence illegal.” (France, at pp. 728–729.) 

Additionally, while Stamps found that applying Senate Bill 1393 to 

plea-bargained sentences but otherwise preserving the plea agreement would 

have been contrary to the purpose of the legislation, France concluded the 

opposite was true for Senate Bill 136. Prior to Senate Bill 1393, trial courts 

generally had discretion to strike sentence enhancements pursuant to section 

1385, but section 667, subdivision (a), prohibited exercising that discretion 

with respect to serious felony conviction enhancements. Senate Bill 1393 

eliminated that prohibition in order to create uniformity in sentencing 

discretion. Stamps explained that because courts do not have discretion to 

strike enhancements that are part of an approved plea bargain, allowing a 

court to modify a plea bargain involving a serious felony conviction 

enhancement would undermine the goal of uniformity by elevating these 

enhancements over others. (Stamps, supra, 9 Cal.5th at pp. 702, 704; France, 

supra, 58 Cal.App.5th at p. 729.) France concluded that preventing 

application of Senate Bill 136 to plea-bargained sentences “would thwart or 

delay the full achievement of the Legislature’s intent to reduce the expense 

and ineffectiveness of enhanced prison sentences based on prior prison terms, 

especially given that pleas of guilty or no contest ‘represent the vast majority 
24

of felony and misdemeanor dispositions in criminal cases.’ ” (France, at 

p. 728, quoting In re Chavez (2003) 30 Cal.4th 643, 654, fn. 5.)

Respondent urges us to adopt the reasoning of Justice Pollak’s dissent 

in France, which concluded the majority misapplied Stamps. Justice Pollak 

focused on the absence of indication in Senate Bill 136 that the Legislature 

“intended ‘to change well-settled law that a court lacks discretion to modify a 

plea agreement unless the parties agree to the modification.’ ” (France, 

supra, 58 Cal.App.5th at p. 734 (dis. opn. of Pollak, J.), quoting Stamps, 

supra, 9 Cal.5th at p. 702.) Rejecting the majority’s reliance on the fact that 

Senate Bill 136 mandated striking the defendant’s enhancement, Justice 

Pollak stated that “the reduction of the agreed four-year term to three years 

without the prosecutor’s consent would be no less unilateral than if striking 

the enhancement had been within the court’s discretion. It was not the fact 

that striking the enhancement in Stamps was discretionary that would have 

rendered automatic reduction of the sentence unilateral and impermissible; 

that outcome was precluded because the prosecution, which had agreed to a 

nine-year sentence, had not agreed to any lesser sentence.” (France, at 

p. 734.) Justice Pollak’s view is consistent with several recent cases 

addressing Senate Bill 136. (People v. Hernandez (2020) 55 Cal.App.5th 942

(Hernandez), review granted Jan. 27, 2021, S265739; People v. Griffin (2020) 

57 Cal.App.5th 1088, review granted Feb. 17, 2021, S266521; People v. 

Joaquin (2020) 58 Cal.App.5th 173, review granted Feb. 24, 2021, S266594.) 

As applied to the issues in the present case, we find the analysis of the 

France majority more persuasive. As the majority explained, Stamps 

addressed a situation in which the new law gave the trial court discretion to 

strike an enhancement but did not require it to do so, thus placing directly in 

the trial court’s hands the decision whether to alter a term of the plea 
25

bargain. Stamps therefore had no occasion to consider the effect on a plea 

bargain of retroactive application of a law through which the Legislature 

directly affected a plea bargain by rendering one of its terms invalid. Where 

the ameliorative change in law is mandatory, the question is not whether the 

Legislature intended to allow the trial court to alter the terms of a plea 

bargain but whether the Legislature intended to, in effect, do so directly. As 

stated in Doe v. Harris (2013) 57 Cal.4th 64, 70 (Doe), “the Legislature, for 

the public good and in furtherance of public policy, and subject to the 

limitations imposed by the federal and state Constitutions, has the authority 

to modify or invalidate the terms of an agreement.” “[T]he general rule in 

California is that the plea agreement will be ‘ “deemed to incorporate and 

contemplate not only the existing law but the reserve power of the state to 

amend the law or enact additional laws for the public good and in pursuance 

of public policy. . . .” ’ (People v. Gipson (2004) 117 Cal.App.4th 1065, 1070.) 

That the parties enter into a plea agreement thus does not have the effect of 

insulating them from changes in the law that the Legislature has intended to 

apply to them.” (Doe, at p. 66.)

The Hernandez court, and the dissent in France, dismissed the 

significance of the distinction between a change in law permitting the trial 

court to make a discretionary decision that could alter the terms of a plea 

bargain and a change in law necessarily altering such terms because Stamps 

focused on indicators of legislative intent to alter the rule prohibiting courts 

from unilaterally altering approved plea bargains. (Hernandez, supra, 55 

Cal.App.5th at p. 957; France, supra, 58 Cal.App.5th at p. 734 (dis. opn. of 

Pollak, J.); see France, at p. 729, fn. 6.) But because the Stamps court was 

concerned only with legislation permitting the trial court to make a 

discretionary decision that could alter the terms of a plea bargain, it had no 
26

reason to consider distinctions between such laws and laws that directly 

invalidate a term of a plea bargain. As the France majority noted, the 

contention that “the operative question is not one of discretion, but merely 

whether a legislative change gives a court ‘authority to modify the plea 

agreement by leaving the remnants of the agreed-upon sentence intact 

without securing the parties’ assent to the modification.’ ” “But this 

contention overlooks Doe, which established that plea agreements generally 

incorporate the Legislature’s reserve power to change the law. (Doe, 

supra, 57 Cal.4th at p. 66, 73.) . . . Under Doe, it matters very much whether 

a court makes a discretionary change to a plea bargain (as in Stamps) or the 

Legislature makes a change in the law that necessarily affects the bargain 

(as here).” (France, at p. 729, fn. 6.)

Assembly Bill 1950, like the statute at issue in France, “does not 

involve Stamps’s repeated and carefully phrased concern with the ‘longstanding law that a court cannot unilaterally modify an agreed-upon term by 

striking portions of it under section 1385’ ” but rather “has a direct and 

conclusive effect on the legality of existing sentences pursuant to Estrada.” 

(France, supra, 58 Cal.App.5th at p. 729, italics in France.) 

Moreover, as earlier discussed, Stamps was influenced by the fact that 

allowing the defendant to have his prior serious felony conviction 

enhancement stricken but keep the rest of his plea agreement intact would be 

counter to the goal of the legislation at issue in that case. Applying Assembly 

Bill 1950 to reduce the duration of a plea-bargained grant of probation does 

not present any such problem. On the contrary, allowing the prosecution to 

withdraw from plea deals involving probation terms of more than two years 

would undermine the Legislature’s intent to reduce the number of 

probationers subject to conditions of probation and risk of incarceration for 
27

periods the Legislature deemed unnecessary and deleterious. (See, France, 

supra, 58 Cal.App.5th at pp. 729–730 [“construing Senate Bill 136 to allow 

the People to withdraw from plea deals containing the affected enhancements 

could prevent the Legislature from fully realizing its goals of departing from 

mass incarceration, saving money on prison costs, and keeping families 

together”]; Harris v. Superior Court (2016) 1 Cal.5th 984, 992 [allowing 

prosecution to withdraw from plea agreement and reinstate original charges 

if defendant successfully petitioned for resentencing under Proposition 47 

would undermine proposition’s purpose of reducing number of nonviolent 

offenders in prison].)

Finally, we agree with the France majority’s conclusion that Stamps 

should not be read as holding retroactive ameliorative legislation may be 

applied to plea bargained sentences only if legislative intent for it to do so is 

express. Disagreeing with Hernandez,12 France explained, “Stamps did not 

hold that such express provisions are necessary for a retroactive legislative 

amendment to authorize a trial court to strike an agreed-upon enhancement 

while holding the parties to the remaining terms of the plea agreement,” only 

that “the absence of such provisions ‘undercuts’ the notion that the 

Legislature intended to affect the otherwise applicable and long-standing bar 

on a trial court’s ability to unilaterally modify plea-bargained sentences. 

(Stamps, supra, 9 Cal.5th at p. 704.) As Stamps made clear by also analyzing 

Senate Bill 1393’s purpose, the question of how a statute applies to pleabargained sentences comes down to legislative intent. (See Stamps, at 

12 Hernandez stated that the silence of Senate Bill 136 regarding pleas 

“refutes any suggestion the Legislation intended to create special rules for 

the court to unilaterally modify the plea agreement once the enhancements 

are stricken.” (Hernandez, supra, 55 Cal.App.5th at p. 958.)
28

pp. 701–702.)” (France, supra, 58 Cal.App.5th at pp. 727–728.) Furthermore, 

requiring an express reference to plea bargaining in a statute or its 

legislative history “would mean that any retroactive ameliorative change in a 

criminal law that does not contain such an express reference would entitle 

the prosecution to reopen the plea bargain to add back previously dismissed 

charges or allegations. But as discussed above, the Estrada presumption of 

retroactivity arises only when an ameliorative amendment lacks an express 

retroactivity provision. (Estrada, supra, 63 Cal.2d at pp. 744–745.) In 

essence, then, [requiring an express reference to plea bargains] would create 

a rule that defendants who plead guilty may benefit from the retroactive 

operation of any law whose retroactivity depends on the Estrada presumption 

only if the prosecution assents. Such an approach would drastically 

undermine the Estrada principle that the Legislature intends a lighter 

penalty to apply ‘to every case to which it constitutionally could apply’ 

(Estrada, at p. 745), particularly as defendants who plead guilty represent 

the vast majority of convictions (In re Chavez [(2003)] 30 Cal.4th [643,] 654, 

fn. 5). We see no indication in Stamps that the Supreme Court intended such 

a result.” (France, supra, 58 Cal.App.5th at p. 730.)

DISPOSITION

The probation order is modified by specifying that appellant is granted 

formal probation for a period of two (2) years. In all other respects, the 

judgment is affirmed.
29

_________________________

Kline, P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

People v. Stewart (A157857)
30

Trial Court: Napa County Superior Court

Trial Judge: Hon. Mark S. Boessenecker

Attorney for Appellant: By Appointment of the Court of Appeal

First District Appellate Project

Kaiya R. Pirolo

Attorneys for Respondent: Attorney General of California

Xavier Becerra

Lance E. Winters

Chief Assistant Attorney General

Jeffrey M. Laurence

Senior Assistant Attorney General

Rene A. Chacon

Supervising Deputy Attorney General

Julia Y. Je

Deputy Attorney General