People v. Kaye CA4/3

Filed 5/4/21 P. v. Kaye CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G058606

v. (Super. Ct. No. 17CF1977)

BRYAN EDWARD KAYE, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Richard J. Oberholzer, Judge. (Retired judge of the Kern County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed and remanded with directions. Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Natasha Cortina and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent. * * *

Appellant Bryan Edward Kaye was charged with two felony counts related to threatening a public official, with an allegation Kaye previously had been convicted of a serious strike felony. After the trial court reduced the felony counts to misdemeanors, Kaye pleaded no contest to the charges. The court placed Kaye on five years informal probation on condition Kaye serve six months in custody or perform community service. The court set a revocation hearing when Kaye failed to report for community service. At the hearing, Kaye orally moved for a continuance to secure new counsel, claiming his lawyer had not told him about his community service option. The trial court denied Kaye’s request and allowed him to either represent himself or proceed with his attorney. After proceeding with counsel, the court found Kaye had willfully violated probation, remanded him to fulfill his jail confinement condition, and reinstated Kaye’s other original probation terms. Kaye contends the trial court violated his Sixth Amendment right to counsel when it denied his continuance request and challenges the sufficiency of the evidence to support the court’s finding he willfully violated probation. Kaye also asserts newly enacted Assembly Bill No. 1950 (2019-2020 Reg. Sess.); (Assem. Bill 1950), amending Penal Code section 1203.1, subdivision (a), applies retroactively to reduce his probation term to one year. The Attorney General agrees the new law applies retroactively but argues the prosecutor should be entitled to withdraw from Kaye’s plea on remand. We retroactively apply Assem. Bill 1950 and conclude Kaye has completed his probation. We reject Kaye’s remaining contentions and remand with instructions to discharge Kaye from probation. We affirm the judgment in all other aspects. I FACTS AND PROCEDURAL HISTORY In 2017, the Orange County District Attorney’s Office charged Kaye with felony counts of threatening a public official and related parties (Penal Code, § 76, subd.