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Legislation Shortening Probation Necessitates Retroactive Nullification of Revocation—C.A.
By a MetNews Staff Writer
The Court of Appeal for this district, in a 2-1 decision, declared yesterday that a probation-revocation, though lawful when ordered, was retroactively invalidated by legislation that later went into effect shortening the permissible length of probations.
In so holding, the majority sided with the position taken by Div. One of this district in a case in which the California Supreme Court has granted review.
San Diego Superior Court Judge Albert T. Harutunian III authored the majority opinion, in which Justice Elizabeth A. Grimes joined. Presiding Justice Maria E. Stratton dissented.
The opinions not certified for publication,
The appellant, Casey Hernandez, was sentenced on Feb. 9, 2018, to three years probation. On Sept. 24, 2020—more than four months before probation was to end—Los Angeles Superior Court Judge Lee W. Tsao revoked probation based on Hernandez’s violation of the conditions.
On Jan. 1, 2021, Assembly Bill 1950 went into effect, reducing the maximum term of probation for most felonies, including those with which Hernandez was charged.
Supreme Court Decision
In his opinion reversing the order revoking probation, Harutunian pointed to the California Supreme Court’s 1965 opinion in In re Estrada which says that sentencing legislation with an ameliorative effective is presumed to apply retroactively to cases that are not yet final. He wrote:
“In our view, the analysis is straight-forward. Estrada compels us to apply Assembly Bill 1950 retroactively to non-final cases. The present case was not final when Assembly Bill 1950 went into effect (there was a probation revocation pending), and the pursuit of this appeal maintained its non-final posture. The wording and intent of Assembly Bill 1950 is to reduce felony probation periods to two years for non-final cases. That means Appellant is entitled to have his case reviewed by us utilizing the revised two-year probation period mandated by Assembly Bill 1950. Under the revised statute, his probation expired in February of 2020….Appellant’s conduct after the two-year deadline cannot be the basis for revoking the probation that we must now view as having expired in February of 2020.”
He went on to say:
“That the summary revocation of probation was lawful at the time it occurred does not compel the conclusion that it was not subject to invalidation as a result of a change in the law before the case became final. In recent years we have seen many convictions and sentencing enhancements that were entirely lawful at the time imposed, which were set aside because Estrada compels us to view the case through the lens of the law as modified by the legislature. Assembly Bill 1950 compels a similar result in this case.”
The same view, Harutunian noted, was expressed in People v. Canedos. Presiding Justice Frances Rothschild wrote the opinion, filed April 13.
“We find its reasoning persuasive,” the visiting jurist remarked.
The state’s high court granted review on June 29.
Stratton’s Dissent
In her dissent, Stratton pointed out that “when the trial court revoked appellant’s probation, it acted lawfully,” remarking:
“Appellant’s argument gains traction only if we apply Assembly Bill 1950 to reach back and invalidate valid revocations that occurred before the law’s effective date. I decline to do so. Although the holding of In re Estrada operates to shorten probationary terms as of January 1, 2021, I find this statute’s particular retroactivity does not extend to invalidating lawful orders issued before it took effect.”
She added that AB 1950 “includes no language whatsoever addressing the issue of whether it was intended to reach back to invalidate revocations that were lawful when adjudicated.”
Tsao sentenced Hernandez to 180 days in jail, but he was released after one day. In a footnote, Harutunian rejected the contention of the Attorney General’s Office that the appeal should be dismissed as moot, declaring that an appeal will benefit the defendant by removing the “stigma of criminality.”
The case is People v. Hernandez, B310557.
Copyright 2022, Metropolitan News Company