People v. Stewart CA1/2

Filed 6/8/22 P. v. Stewart CA1/2 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A157857 v. STEVEN MATTHEW STEWART, (Napa County Super. Ct. No. 19CR000855) Defendant and Appellant.

This case returned to us from the California Supreme Court with directions to vacate our prior opinion and reconsider the matter in light of recent legislation. As we will explain, external events have rendered the appeal moot and we now order it dismissed. BACKGROUND Steven Matthew Stewart was placed on probation after pleading no contest to one count of assault by means likely to result in great bodily injury. He challenged the imposition of a probation condition requiring him to refrain from using marijuana as unrelated to his offense or future criminality, and we affirmed in an unpublished opinion. (People v. Stewart (A157857, Nov. 12, 2020 [nonpub. opn.].) While the appeal was pending, the Legislature enacted Assembly Bill No. 1950 (Assembly Bill 1950), amending Penal Code section 1203.1, subdivision (a), to limit felony probation to a 1

maximum term of two years, absent circumstances not applicable here. (Stats. 2020, ch. 328, § 2, eff. Jan. 1, 2021.) Stewart petitioned for rehearing, seeking the benefit of the amended statute. We granted Stewart’s petition for rehearing and issued an opinion April 7, 2021, modifying the probation order to specify that he was granted probation for a period of two years. In so doing, we rejected the Attorney General’s arguments that (1) Assembly Bill 1950 does not apply retroactively and (2) if it does, the case would have to be remanded to give the prosecution an opportunity to either agree to the new term, or withdraw from the plea agreement pursuant to which probation was imposed. This remedy was required by People v. Stamps (2020) 9 Cal.5th 685 (Stamps) in the context of retroactive application of Senate Bill No. 1393, which amended Penal Code section 13851 to remove a prohibition against trial courts striking prior serious felony convictions for purposes of enhancement under section 667. (Stats. 2018, ch. 1013, § 2.) After we issued our opinion, the Attorney General filed a petition for rehearing, arguing Assembly Bill 1950 did not apply to this case for a reason not raised in the Attorney General’s opposition to Stewart’s petition for rehearing—that Assembly Bill 1950 contains an exception for offenses involving a domestic violence victim. We denied rehearing. The Attorney General then petitioned for review by the California Supreme Court. The petition asked the Supreme Court to grant review and defer briefing pending resolution of People v. Hernandez (2020) 55 Cal.App.5th 942, review granted January 27, 2021, S265739 (Hernandez), a case that followed Stamps in the context of retroactive application of Senate Bill No. 136 (2019-2020 Reg. Sess.), which limited prior prison term