DAs and courts skirting the new law: 1yr/2 yr probation max

DAs love to talk about “accountability” for violating the law but then when a new law comes out that is favorable to our clients, they ask us to have our clients agree to violate it.

Meanwhile trial courts hate when the legislature removes their power over defendants and so they’re also not following the law or apparently failing to understand how it should work.

Case in point: DAs in multiple counties are trying to get around AB 1950. AB 1950 changed the max term of misdemeanor and felony probation to 1 yrs/2 yrs for many, but not all, crimes. DAs are trying to get folks to stipulate to 5 year probation as part of a plea bargain, saying they won’t offer a deal unless client agrees. that is illegal under the new law. Technically a court cannot give effect to that deal because a court cannot accept an unauthorized plea bargain. (See cites below.) As a practical matter, a court may accept it. I don’t think a defendant wouldn’t get anywhere if he took the deal then appealed the unlawful probation term because best case scenario is undoing the plea. Worst case scenario he invited the error by agreeing. So if a DA says well if you don’t agree to an illegal deal he can’t have CTS or probation, I’m not sure what can be done other than going up the chain of command and putting it on the record as unethical and coercive. These are cases about stipulating to an unauthorized sentence:

In re Williams (2000) 83 Cal.App.4th 936, 944, 100 Cal.Rptr.2d 144[“A plea bargain that purports to authorize the court to exercise a power it does not have is unlawful and may not be enforced”].) “Even if a defendant, the prosecutor and the court agree on a sentence, the court cannot give effect to it if it is not authorized by law. [Citation.] Thus, this is not the kind of situation which would entitle defendant to specific performance of the plea bargain [citations].” (People v. Jackson (1981) 121 Cal.App.3d 862, 869, 176 Cal.Rptr. 166; accord, People v. Harvey (1980) 112 Cal.App.3d 132, 139, 169 Cal.Rptr. 153 [“in computing one’s sentence under a plea bargain, even though agreed to by the parties, the court may not give effect to an enhancement unauthorized”.].)

Meanwhile, courts are flipping their shit for folks currently on probation past the 2 years who are, for example, in custody on a probation violation that occurred past the 2 year period or who, for example, haven’t yet filled out paperwork for restitution collection or had restitution affixed.

I do not think the court has the authority to do ANYTHING other than terminate probation if someone is outside the two years. I see this as no different from the court ordering something as a condition of probation after probation is terminated or arresting someone for a probation. violation when he is no longer on probation. Regardless of if the person is technically on probation because the court has not ruled on the AB 1950 motion to terminate, the probationary period is expired by law. The court has no discretion over whether granting or denying the motion to terminate so the court can’t put a pin in the motion to make any kind of restitution order or anything else. People v. Waters 241 Cal App 4th 822 addresses the court having no authority to order restitution once probation has expired. It has some good language for the basic jurisdictional principles that ought to apply here.

For folks so obsessed with following the law gotta wonder about their inability to see that they cherry pick which laws to follow.

Published by Jenny Brandt

About Me: sociology, african american studies, chicano/a studies, critical race studies, and criminal law scholar. public school kid from kindergarten-J.D. Former public defender. I am a post-conviction guru. Appeals. Sentencing. Withdraw Pleas. Habeas. Published author in the Criminal Law Bulletin and California Defender. "I do it for the joy it brings, because I'm a joyful girl, because the world owes me nothing, and we owe each other the world." Why I started JJC: My PD buddy suggested it. What and who JJC is inspired by: public defenders I have worked for, with, and next to. my clients who have battled things no one should and are still here. innocence and guilt and everything in between. My coworkers, who fight just as hard as the PDs I love, for many of the same reasons. My husband who was once voted "most Christ like" (every Jewish girl's dream). My Corgi who loves everyone. The constitution. Tabloids. My mom, for giving me a voice. My dad, for teaching me what to say. My brother, for teaching me how to say it.

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