Opinion
C091939
05-14-2021
The PEOPLE, Plaintiff and Respondent, v. Jeffrey LORD, Sr., Defendant and Appellant.
C. Athena Roussos, Sacramento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman, R. Todd Marshall and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of part I of the Discussion.
C. Athena Roussos, Sacramento, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman, R. Todd Marshall and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Robie, Acting P. J. A jury found defendant Jeffrey Thomas Lord, Sr., guilty of making criminal threats and obstructing an executive officer by threat or violence. The trial court placed him on probation for five years. He appeals, arguing there is insufficient evidence to support his conviction for making criminal threats because the threat did not cause the victim sustained fear. He further seeks to have his case remanded for resentencing in light of the new two-year limit on terms of probation for certain felonies. We affirm the conviction and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
On April 25, 2018, at approximately 10:00 p.m., Susanville Police Officer Michael Hoover was on patrol when he received notice of a passenger fleeing on foot from a traffic stop. The passenger was known to be defendant's son. Officer Hoover drove toward the site of the traffic stop and, knowing defendant lived close by, parked in a parking lot near defendant's house. Officer Hoover then walked to an alley next to defendant's house, looking for defendant's son. Officer Hoover heard defendant shout from his backyard, "Get out of here or I'll fucking shoot you." Officer Hoover identified himself, saying he was with the Susanville Police Department. Defendant responded, "I don't care, I'll shoot you." The conversation continued for a few more seconds, along the same lines. Officer Hoover testified he was "concern[ed]" by the threat because he knew defendant owned guns.
The classification of Officer Hoover's mental state as "concerned" was in response to the language used by the prosecutor at trial:
"Q: This statement, did this cause any concern for you?
A: Yes, it did."
Around this same time, Lassen County Sheriff's Deputy Michelle Lingenfelter was on patrol nearby and noticed Officer Hoover. She stopped to ask if he needed assistance and heard defendant say from his backyard something like, "[I]f you don't leave around my backyard, I'm going to shoot you." Lassen County Sheriff's Deputy Chad Falchetta also arrived, but did not hear defendant's threats. Defendant returned inside his house and Officer Hoover and Deputy Lingenfelter met Deputy Falchetta in the nearby parking lot. Three minutes after defendant shouted at Officer Hoover, they heard the sound of a pump-action shotgun racking several times. Officer Hoover yelled, "shotgun" and they took cover behind a dumpster in the alley. Officer Hoover testified he took cover because he thought there would be "a gun fight." Officer Hoover and the deputies could not see anyone in defendant's backyard; they saw debris someone could hide behind. Officer Hoover used his flashlight to see the back door of the house, but could only see a metal security screen door. Because the light reflected off it, he could not see whether the main door was open or closed. Officer Hoover and the deputies remained behind the dumpster for less than five minutes. They checked the area with flashlights again to be sure it was safe, then returned to their patrol cars "quickly."
Officer Hoover returned to the station and called the Susanville Police Chief. Then, he began preparing a search warrant for defendant's house. When asked why he did not immediately search the house or arrest defendant, Officer Hoover explained that there were several factors to consider, including that he was one of only two officers on duty that night. Upon a search of defendant's home, an unloaded pump-action shotgun was found in a case in defendant's living room.
A jury found defendant guilty of making criminal threats and obstructing an executive officer by threat or violence. The court placed defendant on probation for five years.
DISCUSSION
See footnote *, ante .
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II
Amendment To Penal Code Section 1203.1 Applies Retroactively
Defendant asserts he is entitled to resentencing pursuant to changes made to Penal Code section 1203.1 by Assembly Bill No. 1950 (Stats. 2020, ch. 328, § 2), effective January 1, 2021. Defendant argues the law applies retroactively under In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 because the bill is ameliorative in nature and the Legislature did not "clearly signal its intent to make the amendment prospective." ( People v. Sims (2021) 59 Cal.App.5th 943, 961-963, 273 Cal.Rptr.3d 792.) The People concede and we agree. Estrada delineated an exception to the general presumption against retroactivity, creating a presumption for retroactivity when a new law ameliorates a criminal penalty. The presumption is based on the understanding an ameliorative change reflects the Legislature's determination that "its former penalty was too severe and that a lighter punishment is proper." ( In re Estrada, supra , 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.) ( Id . at p. 748, 48 Cal.Rptr. 172, 408 P.2d 948.)
Defendant asserts, and the People concede, Assembly Bill No. 1950 is ameliorative in nature, as it limits the length of time a criminal defendant can be subject to probation. Our Supreme Court has not yet spoken on whether Estrada applies to Assembly Bill No. 1950, though other Courts of Appeal have found that it does. ( People v. Quinn (2021) 59 Cal.App.5th 874, 273 Cal.Rptr.3d 770 ; People v. Sims, supra , 59 Cal.App.5th at p. 943.) We agree. "[W]here the amendatory statute mitigates punishment and there is no savings clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." ( In re Estrada, supra , 63 Cal.2d at p. 748, 48 Cal.Rptr. 172, 408 P.2d 948.) With certain exceptions, the new law limits the term of probation for a felony conviction to two years. While probation is not considered punishment in the same way incarceration is, it is clear probation is " ‘a form of punishment.’ " ( Fetters v. County of Los Angeles (2016) 243 Cal.App.4th 825, 837, 196 Cal.Rptr.3d 848.) Indeed, "it is a sanction that imposes significant restrictions on the civil liberties of a defendant." ( People v. Davis (2016) 246 Cal.App.4th 127, 140, fn. 6, 200 Cal.Rptr.3d 642.) Thus, the amendment to Penal Code section 1203.1 made by Assembly Bill No. 1950 decreases the possible punishment for felony offenses and is an ameliorative change that should be applied retroactively under Estrada .
Further, the language of the bill does not contain a savings clause or other indication it should be applied prospectively only. Indeed, the legislative history suggests the opposite. As Division One of the Fourth District Court of Appeal noted in summarizing the relevant committee reports, "the legislative history for Assembly Bill No. 1950 suggests the Legislature harbored strong concerns that probationers -- including probationers whose cases are pending on appeal -- face unwarranted risks of incarceration due to the lengths of their probation terms." ( People v. Sims, supra , 59 Cal.App.5th at p. 961, 273 Cal.Rptr.3d 792.) Because there is no contrary indication in the language of the bill or the legislative history, the presumption of retroactivity applies under Estrada .
We conclude Assembly Bill No. 1950 applies retroactively under Estrada because it ameliorates a criminal penalty and the Legislature has not indicated a contrary intent. Because defendant's case was pending on appeal at the time Assembly Bill No. 1950 took effect, his case is not yet final and defendant is entitled to resentencing to reduce his term of probation. The parties agree we must remand defendant's case and we shall do so.
DISPOSITION
The judgment is affirmed as to defendant's conviction and reversed as to defendant's sentence. The case is remanded for resentencing consistent with the amendment to Penal Code section 1203.1.
We concur:
Duarte, J.
Hoch, J.