Opinion
C092219
07-30-2021
THE PEOPLE, Plaintiff and Respondent, v. CODY FAGG, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 18FE009424
BLEASE, Acting P. J.
Defendant Cody Fagg was granted five years of formal probation after a jury found him guilty of attempted first degree burglary and possession of a false identification card. He contends his probation term must be reduced to two years pursuant to newly enacted Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950). We agree.
BACKGROUND
The facts underlying defendant's convictions are not relevant to the issue he raises on appeal. Briefly summarized, early one morning in May 2018 the victim awoke to the sound of something being cut and saw defendant standing outside her open bedroom window; the window screen had a foot-long cut in it, which was not there when the victim went to sleep. A short time later, defendant was seen in another homeowner's enclosed backyard. Defendant was later apprehended carrying a folding pocket knife and an identification card that showed him years older than his real age, which was designed to allow him to purchase alcohol while under age.
In December 2018, defendant was charged with attempted first degree residential burglary (Pen. Code, §§ 664, 459-count one), loitering (§ 647, subd. (h)-count two), and possession of a false identification card (§ 470b-count three). In January 2020, a jury found defendant guilty of counts one and three, and not guilty of count two.
Undesignated statutory references are to the Penal Code.
In February 2020, the trial court granted defendant formal probation for five years with various terms and conditions, including serving 365 days in county jail. Defendant timely appealed.
DISCUSSION
Defendant challenges his five-year probation term, arguing it is no longer valid under Assembly Bill 1950, which lowered the allowable term of probation in section 1203.1. He argues the newly enacted legislation applies retroactively to his case under In re Estrada (1965) 63 Cal.2d 740 (Estrada) because it is not yet final on appeal. The People concur, and we agree.
When defendant was sentenced, section 1203.1 specified that the maximum term of probation for a felony offense could be “for a period of time not exceeding the maximum possible term of the sentence.” (Former § 1203.1, subd. (a).) If the maximum possible term of the sentence was five years or less, the period of probation could not exceed five years. (Ibid.)
Assembly Bill 1950, which went into effect January 1, 2021 (Stats. 2020, ch. 328, §§ 1-2), changed the length of probation under section 1203.1 for felony cases to a maximum of two years. (§ 1203.1, subd. (a).) The two-year limit for felony cases does not apply to certain offenses not applicable here. (§ 1203.1, subd. (m).)
Because the new law mitigates punishment and there is no savings clause, we conclude Assembly Bill 1950 operates retroactively under Estrada. (See Estrada, supra, 63 Cal.2d at p. 748 [when a criminal statute is amended after the criminal act but before final judgment, it applies retroactively if it mitigates the applicable punishment]; People v. Sims (2021) 59 Cal.App.5th 943, 955-964 [finding Assem. Bill 1950 is “an ameliorative change... that is subject to the Estrada presumption of retroactivity. The Legislature did not include a savings clause or other clear indication that the two-year limitation applies on a prospective-only basis”]; People v. Quinn (2021) 59 Cal.App.5th 874, 879-885 [same].) Accordingly, defendant is entitled to seek a reduced probation term on remand under Assembly Bill 1950.
DISPOSITION
Defendant's convictions are affirmed, and his sentence is reversed. Upon remand, the court is ordered to resentence defendant to no more than two years of probation.
WE CONCUR: HULL, J., KRAUSE, J.