People v. Emery CA3

Filed 1/19/22 P. v. Emery CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Amador) ----

THE PEOPLE, C093813

Plaintiff and Respondent, (Super. Ct. No. 18CR2762904)

v.

GREG DANIEL EMERY,

Defendant and Appellant.

Pursuant to a plea resulting in a conviction for conspiracy to possess controlled substances in prison, the trial court imposed a five-year term of probation on defendant Greg Daniel Emery. On appeal the parties agree that the two-year limit on probation terms under Assembly Bill No. 1950 (2019-2020 Reg. Sess.) applies retroactively to defendant. (Stats. 2020, ch. 328, § 2, eff. Jan. 1, 2021.) But they disagree as to the proper remedy. Defendant asks us to order the term of his probation be reduced to two years without remanding, while the People request a remand and an opportunity to reconsider the plea agreement. We will modify the judgment to limit defendant’s probation term to two years.

1

FACTUAL AND PROCEDURAL BACKGROUND The underlying facts are not pertinent to the issue on appeal. We summarize them briefly here. Defendant was involved in a scheme whereby contraband, including controlled substances, were attached to a prison van to be transported into the prison facility for collection by an inmate. He was charged with one count of conspiracy to possess controlled substances in prison with enhancement allegations that defendant had prior felony convictions and had served a prior prison term. Defendant pled guilty to the charged offense and admitted one prior strike as part of a conditional plea. Pursuant to the terms of the conditional plea agreement, sentencing was continued for one year, at which point defendant would be sentenced to either eight years in prison or placed on probation for five years, depending on whether he violated the law or engaged in any prison misconduct during that period.1 Before sentencing, the Legislature enacted Assembly Bill No. 1950, which amended Penal Code section 1203.1 to limit probation terms to two years except in certain circumstances that do not apply to defendant. Nevertheless, at the sentencing hearing conducted after Assembly Bill No. 1950 became effective, the trial court sentenced defendant to a five-year probation term pursuant to the plea agreement. Defendant timely appealed. DISCUSSION Defendant asserts that the trial court erred in refusing to limit his probationary term to two years in compliance with a recent legislative enactment and contends that the proper remedy is for this court to reduce the term of his probation. The People do not dispute that defendant’s probation term should be reduced pursuant to the principle