Opinion
H049511
06-06-2023
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN PATRICK JONES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
(Santa Clara County Super. Ct. No. C1920093)
MEMORANDUM OPINION
Grover, Acting P. J.
We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
Defendant appeals from an order imposing a new term of probation following his admission of probation violations. Defendant was charged in Sonoma County Superior Court in 2017 with three counts of second degree burglary (Pen. Code, § 459), one count of grand theft of personal property (Pen. Code, § 487, subd. (a)), and two counts of attempted grand theft of personal property (Pen. Code, §§ 664, 487, subd. (a)). (The facts underlying the offenses are not relevant to the issue on appeal.) After defendant admitted one count of second degree burglary (Pen. Code, § 459) and one count of grand theft of personal property (Pen. Code, § 487, subd. (a)), imposition of sentence was suspended and defendant was placed on probation for three years in September 2017.
Defendant's request to transfer probation supervision to Santa Clara County was granted in 2019. More than two years into the term of probation, defendant's probation officer filed a modification petition alleging defendant had violated probation by driving under the influence (Veh. Code, § 23152, subd. (f)) on two occasions in other counties, and by failing to pay victim restitution. The Vehicle Code violations were alleged to have occurred in April 2020 in Solano County and in San Joaquin County. Probation was summarily revoked and a bench warrant issued after defendant failed to appear for arraignment on the petition in July 2020.
Assembly Bill No. 1950 amended Penal Code section 1203.1, subdivision (a) as of January 1, 2021 to provide that the maximum duration of probation in most felony cases is two years. (Stats. 2020, ch. 328, § 2.) The amendment took effect after defendant's probation had been revoked but before resolution of the alleged violations. After his arrest on the bench warrant in 2021, defendant objected to the trial court's jurisdiction to hear the probation violations based on the amendment to Penal Code section 1203.1. The trial court determined it had jurisdiction. Defendant admitted violating probation based on his arrest for the Vehicle Code violations, and the prosecutor agreed to dismiss the remaining allegation regarding victim restitution. The trial court placed defendant on a new two-year grant of probation, which included a condition that he serve six months in jail.
"Appellate courts are so far unanimous in holding that Assembly Bill [No.] 1950 applies retroactively to defendants who were serving a term of probation when the legislation became effective on January 1, 2021; in such cases, the courts have acted to reduce the length of their probation terms." (People v. Faial (2022) 75 Cal.App.5th 738, 743 [collecting cases], rev. granted May 18, 2022, S273840; accord People v. Czirban (2021) 67 Cal.App.5th 1073, 1095.) But Courts of Appeal are not uniform in applying the ameliorative change to individuals like defendant-whose probation was revoked after more than two years of supervision but before the January 1, 2021 effective date of the new law. (Compare Faial, at pp. 746-747 [no retroactivity] with People v. Canedos (2022) 77 Cal.App.5th 469, 476 (Canedos) [retroactive], rev. granted June 29, 2022, S274244; People v. Butler (2022) 75 Cal.App.5th 216, 219 [retroactive], rev. granted June 1, 2022, S273773.)
The defendant in Canedos was convicted of a felony in 2016 and placed on probation after execution of sentence was suspended. (Canedos, supra, 77 Cal.App.5th at p. 474, rev. granted.) Probation was terminated when Canedos was convicted of a new crime, and Canedos appealed the trial court's aggregate sentence in the new case that included the suspended sentence from the 2016 case. (Ibid.) Assembly Bill No. 1950 went into effect while Canedos's appeal was pending. The Canedos court found the new law applied retroactively to Canedos under In re Estrada (1965) 63 Cal.2d 740 based on the reasoning of People v. Esquivel (2021) 11 Cal.5th 671. (Canedos, at pp. 476-477.) The court concluded that Canedos was entitled to relief because the termination of his probation was not final for Estrada purposes when Assembly Bill No. 1950 became effective. (Canedos, at p. 477.) The Canedos court disagreed with the reasoning of Faial, concluding it was "consistent with [the] stated purposes of [Assembly Bill No. 1950] to apply it retroactively to defendants like Canedos who violated the terms of their probation before the law became effective." (Canedos, at p. 479.)
We are persuaded by the reasoning of Canedos. Because defendant's probation had been summarily revoked without resolution when Assembly Bill No. 1950 became effective, the new law applies retroactively to reduce the length of defendant's probation to two years, which had already passed before the petition alleging violations was filed. As a result of the retroactive application, the trial court had no jurisdiction to revoke and reinstate defendant's probation, and we must reverse that order. We emphasize, however, that nothing in this appeal prevents defendant from being separately prosecuted for the crimes alleged to have occurred in other jurisdictions.
DISPOSITION
The order finding defendant in violation of probation is reversed. The trial court is directed to enter a new order reinstating probation; modifying the term of probation to two years in accordance with Penal Code section 1203.1, subdivision (a) as amended by Assembly Bill No. 1950; and terminating probation nunc pro tunc to September 25, 2019.
WE CONCUR: Lie, J. Bromberg, J.