People v. Tridente

1

THE PEOPLE, Plaintiff and Respondent, v. LUIGI TRIDENTE, Defendant and Appellant.

E079254

California Court of Appeals, Fourth District, Second Division

July 11, 2023

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No FVI19002457). Kawika Smith, Judge.

Matthew C. Tymann, by appointment of the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

FIELDS J.

I. INTRODUCTION

In 2019, defendant and appellant Luigi Tridente pleaded no contest to attempted forcible rape (Pen. Code, §§ 664, subd. (a), 261, subd. (a)(2))^[1] and admitted that he suffered a prior conviction qualifying as a strike offense (§ 667, subd. (b), (d)(2), (e)(1), 1170.12, subds. (b)(2), (c)(1)) in exchange for three years probation. In June 2022, the trial court found that defendant violated the terms of his probation based upon conduct that occurred in January and May of 2022, revoked defendant's probation, executed a previously suspended sentence, and ordered defendant committed to the state prison for eight years.

Defendant appeals from the order revoking his probation and executing the previously suspended sentence, arguing that the trial court lacked jurisdiction to revoke probation. According to defendant, Assembly Bill No. 1950 (2019-2020 Reg. Sess.; Stats. 2020, ch. 328, § 2) (Assembly Bill 1950) retroactively applies to his case to reduce his term of probation to two years and, as a result, the trial court was not authorized to revoke his probation after he had already served the maximum term permitted by law. The People concede that Assembly Bill 1950 applies retroactively to defendant's case. However, the People contend that reversal is not required because this case falls within a statutory exception to the two-year limitation set forth in the statute. Alternatively, the People contend that even if no statutory exception applies, the proper remedy is to remand the matter for resentencing, at which time the parties may withdraw or renegotiate their plea because (1) the original order granting probation was itself unauthorized, and (2) renegotiation of the plea would conform to our Supreme Court's holding in People v. Stamps (2020) 9 Cal.5th 685 (Stamps).

We agree with the parties that Assembly Bill 1950 applies retroactively to this case. We further agree with defendant that the retroactive application of Assembly Bill 1950 operates to reduce defendant's term of probation to two years because no statutory exception applies and, as a result, the trial court's order revoking probation was in excess of its jurisdiction. With respect to the People's requested disposition, we conclude that we are without appellate jurisdiction to review any claims of error with respect to the original order granting probation and also conclude that the remedy provided in Stamps is not available under the specific circumstances of this case. Accordingly, we reverse the judgment with directions to (1) vacate the order revoking probation and executing the previously suspended sentence, and (2) enter new orders modifying defendant's term of probation to two years and terminating his probation.

II. FACTS &PROCEDURAL HISTORY

Defendant was charged with attempted forcible rape (count 1; §§ 664, subd. (a), 261, subd. (a)(2)) and attempting to dissuade a witness (count 2; § 136.1, subd. (a)(2)), arising out of an incident that occurred in September 2019. The information also alleged that defendant had suffered a prior conviction qualifying as a strike offense. (§§ 667, subds. (b), (d)(2), (e)(1), 1170.12, subds. (b)(2), (c)(1)).

In November 2019, defendant entered into a negotiated plea agreement with the People in which he agreed to plead no contest to count 1 and admit as true the allegation that he had suffered a prior conviction qualifying as a strike offense. Pursuant to the plea agreement, the trial court dismissed count 2; sentenced defendant to an eight-year prison term on count 1; and suspended execution of the sentence pending completion of three years of formal probation. Defendant's probationary term began on November 22, 2019.

On January 1, 2021, Assembly Bill 1950 became effective. (Stats. 2020, ch. 328, § 2.) As relevant here, Assembly Bill 1950 added section 1203.1 to the Penal Code, providing that the maximum term of probation for most felony offenses would be limited to two years. (§ 1203.1, subd. (a).)

On May 9, 2022, the probation department filed a petition to revoke defendant's probation, alleging that defendant engaged in conduct in violation of the terms of his probation in January and May 2022. On June 22, the trial court held a contested violation of probation hearing, found that defendant had violated the terms of his probation, revoked defendant's probation, and imposed his eight-year prison sentence. Defendant appeals from the order revoking his probation and executing the previously suspended sentence.

III. DISCUSSION

A. Issues Presented and Standard of Review

On appeal, defendant claims that the retroactive application of section 1203.1, subdivision (a), to his case renders the trial court's order revoking probation an order in excess of its jurisdiction. The People counter that (1) the order granting probation was itself unauthorized; (2) defendant's case falls within a statutory exception to the two-year limitation on probation terms; (3) defendant should be estopped from disputing the existence of a statutory exception to the limitation on probation terms; and (4) even in the event reversal of the order revoking probation is necessary, the appropriate remedy is to remand for resentencing with instructions to permit the People to withdraw from and renegotiate any plea.

The claims raised by the parties involve only questions of law, which are subject to either independent or de novo review. (People v. Sallee (2023) 88 Cal.App.5th 330, 336 [" 'The proper interpretation of a statute is a question of law we review de novo.' "], review granted Apr. 26, 2023, S278690; People v. Mendoza (2015) 241 Cal.App.4th 764, 773 [Whether a trial court acts in excess of jurisdiction in making a probation order is a question of law.]; People v. Paredes (2008) 160 Cal.App.4th 496, 507 [Interpretation of a plea agreement is governed by the same de novo standard of review applicable to interpretation of contracts.]; People v. Miller (2012) 202 Cal.App.4th 1450, 1456 [Where the facts are not in dispute, the appellate court reviews the application of the estoppel doctrine de novo as a question of law.].) Likewise, with respect to the appropriate disposition, this court is authorized to remand the matter to the trial court with instructions to conduct further proceedings as may be just under the circumstances. (§ 1260.)

B. Review of the Order Granting Probation Is Beyond Our Appellate Jurisdiction in This Appeal

Before reaching the merits of defendant's claim on appeal, we address the People's contention that we should set aside the order approving the no contest plea and restore the parties to the status quo prior to approval of the plea on the basis that the trial court's grant of probation constituted an unauthorized sentence.^[2] Despite the People's characterization of the issue as sentencing error, they have not identified any issue with the sentence actually imposed by the trial court. Instead, the act that the People challenge is the trial court's order suspending execution of an otherwise valid sentence in order to grant probation. Thus, their claim must properly be viewed as a request to review the propriety of the order granting probation. As we explain, we are without appellate jurisdiction in this appeal to review such a claim.

Under Section 1238, subdivision (d), the People are required to seek appellate review of an order granting probation by filing a writ of mandate or prohibition within 60 days after probation is granted. As this court has previously recognized, section 1238, subdivision (d), represents the People's "only avenue of review" of an order granting probation because "[t]he Legislature intends that such issues be resolved with all possible speed; . . . in the interests of justice a defendant should not be compelled to wait to discover that his probation was invalidly granted and that he must go to prison until after he has duly served at least a substantial amount of the required time on probation." (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1222; see People v. Douglas (1999) 20 Cal.4th 85, 93 ["[I]f the People seek, in substance, reversal of the probation order, the appeal is barred by subdivision (d)[;] however[,] they may attempt to label the order appealed from."].)

In this case, the order granting probation was entered on November 22, 2019. Thus, the time to seek appellate review of this order has clearly lapsed, leaving us without appellate jurisdiction to review the merits of the claim. (In re Antilia (2009) 176 Cal.App.4th 622, 630 ["A time limit prescribed by the Legislature for filing a petition for writ of mandate is jurisdictional."]; People v. Superior Court (Brent) (1992) 2 Cal.App.4th 675, 683 ["Where a statute sets forth a specific time limit within which a writ petition must be filed, the failure to file a petition within that time limit has been held to be jurisdictional."].)

The fact that defendant has appealed from the order revoking his probation and executing his previously suspended sentence does not confer appellate jurisdiction to review alleged errors in the order granting probation."' "Our jurisdiction on appeal...