Filed 5/16/22 P. v. Maljanian CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E076461
v. (Super.Ct.No. 16CR057094)
JAMES EDWARD MALJANIAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bridgid M.
McCann, Judge. Affirmed as modified.
James Edward Maljanian, in pro. per.; Richard Jay Moller, under appointment by
the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charlese C. Ragland, Assistant Attorney General,
Arlene A. Sevidal and Robin Urbanski, Deputy Attorneys General, for Plaintiff and
Respondent.
1 FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On January 29, 2019, a first amended information charged defendant and appellant
James Edward Maljanian with one count of car theft under Vehicle Code section 10851,
subdivision (a) (count 1). After a jury trial, on February 6, 2019, defendant was found
guilty of car theft.
On July 30, 2019, the trial court sentenced defendant to the upper term of three
years and suspended the sentence upon successful completion of probation. The court
imposed numerous conditions, including 365 days in jail, where defendant was eligible
for the county jail weekend/work release program. The court also imposed (1) a $300
restitution fine under Penal Code1 section 1202.4; (2) a $300 fine, suspended unless
probation is revoked, under Penal Code section 1202.45; (3) a $40 court operations fee
under Penal Code section 1465.8; and (4) a $30 conviction fee under Government Code
section 70373. The court also ordered defendant to pay $727 for a presentence report,
and $29 a month for mandatory supervision.2 Thereafter, the trial court granted
1 All statutory references are to the Penal Code unless otherwise specified.
2 In footnote 3of his opening brief, defendant contends that section 1465.9, as amended on July 1, 2021, renders the presentence report fee under section 1203.1b and the mandatory supervision fee under section 1203.1b unenforceable. We agree. However, in the appeal from defendant’s underlying case we already modified the judgment “to strike the $727 presentencing report fee and the $29 a month probation supervision fee.” (People v. Maljanian (Sept. 10, 2021, E073573) [nonpub. opn.]), 2021 WL 4129476, at *10, as modified on denial of reh’g (Oct. 7, 2021), review filed (Nov. 5, 2021).)
2 defendant seven days of actual credit and “any conduct credit,” and ordered him to report
to the Glen Helen Rehabilitation Center by August 16, 2019.
On September 27, 2019, after a hearing, the trial court ordered restitution of
$6,000 to the victim with a 15 percent administrative fee, and payments of $30 every
month starting October 30, 2019. After defendant appealed, on September 19, 2021, we
affirmed defendant’s conviction in People v. Maljanian, supra, E073573.
On January 31, 2020, the trial court denied defendant’s motion under People v.
Marsden (1970) 2 Cal.3rd 118 (Marsden) and Faretta v. California (1975) 422 U.S. 806
(Faretta). On February 14, 2020, the court denied a hearing on defendant’s Marsden
motion.
On February 20, 2020, the probation department filed a petition to revoke
defendant’s probation. The petition alleged that defendant had failed to cooperate with
probation by not allowing visits and searches, by failing to submit to GPS monitoring, by
having no contact with the DMV, and by failing to report to probation.
On September 4, 2020, conflict panel counsel was relieved as defendant’s counsel
and private counsel, James Glick, appeared for defendant.
On October 9, 2020, the court ordered defendant to provide his last tax return, a
bank statement to assist in completing an assets form, and proof that defendant had
applied for a job every day between that day through November 6, 2020.
On November 6, 2020, the trial court granted defense counsel, Glick, leave to
withdraw as counsel. Defendant explained that he had not filed a tax return in the past
three years and did not have any bank accounts. Defendant, however, stated that he had
3 job applications. The court ordered defendant to obtain documents or statements from
people who supported him or allowed him to stay rent-free in order for defendant to fill
out the asset form.
On November 24, 2020, the trial court stated that it was unacceptable that there
were eight months when defendant had no supervision and had stopped attending his
weekend work/release program, perhaps related to COVID. And, as of November 18,
defendant was “not even trying to remain in substantial compliance.” If defendant agreed
to admit to a violation of probation, the court offered to reinstate defendant on the
original terms with the understanding that defendant would comply with all terms,
including GPS monitoring. The court stated that defendant had the choice between
admitting the violation or “he is in prison” after a hearing. The court was not going to
negotiate.
At the hearing, the court denied defendant’s request to have his GPS taken off.
The court stated that it was not imposing additional penalties and would simply reinstate
defendant on probation. Defendant stated that he did not believe he was in violation of
his probation, but was concerned about what would happen at a hearing, so he admitted
violating probation.
Thereafter, the trial court reinstated defendant’s probation, as promised, but
extended it to November 24, 2022. The court eventually awarded defendant 119 actual
days. Moreover, the court stated that defendant was required to complete the probation
condition of serving 365 days in jail on work release.
4 The court denied defendant’s request to grant custody credit for time spent on
GPS, unless the jail decided to give him credit. Additionally, the court ordered defendant
to provide proof of where and how he was living and eating, and to provide at least 10
job applications—requesting less than $25 per hour—on December 11, 2020.
On December 11, 2020, the trial court declined to find that defendant violated
probation again. Defendant provided some documents about his income, but the court
stated that defendant had still failed to provide “sufficient information to understand that
[defendant] has no income to be able to pay restitution.” Thereafter the court modified
the restitution order to require defendant to pay $100 per month, instead of $30 per
month, starting February 9, 2021. The court did “not believe that that’s an inappropriate
amount to order.” The court stated that defendant could ask for a hearing on the matter if
he could provide information to modify that amount, or he could appeal. The court stated
that defendant was required to show “proof of income and expenditures. That includes
exactly how much you get every month and how much you pay out every month, for
what and for what you get.”
On January 7, 2021, the trial court declined to alter defendant’s terms of probation,
except the court ordered that defendant was no longer responsible for the cost of GPS
monitoring. The court again tentatively denied defendant’s request to award him custody
credit for the time spent on GPS. The court reserved that issue until the next hearing to
find out whether probation or the sheriff’s department had ordered defendant to wear a
GPS ankle-monitor bracelet.
5 Moreover, the trial court denied defendant’s request to modify several other
conditions of probation, including no contact with the police, the DMV, or the victim;
offsetting the restitution amount owed to the victim with money the victim owed
defendant; a finding of indigency with respect to the fees associated with the weekend
work/release program; and for a one-week extension to report to work/release. The court
explained that these conditions did not prevent defendant from suing the victim.
At the January 7, 2021, hearing defendant complained that the court improperly
extended probation to two years, until November 22, 2022. The court ordered a
transcript to review the matter.
On January 25, 2021, defendant filed a notice of appeal challenging the
modifications to probation and the validity of his plea. With respect to defendant’s plea
of violating his probation, the trial court denied his request for a certificate of probable
cause.
On February 11, 2021, defendant withdrew his Marsden and Faretta motions.
The court denied defendant’s request for custody credit for time spent on GPS. The court
also ordered defendant’s GPS monitor to be removed.
On February 25, 2021, the trial court denied defendant’s Faretta motion because
the form did not indicate that defendant could follow instructions or that his waiver was
voluntary. The court also denied defendant’s Marsden motion after a hearing.
The court stated defendant could have understood that he was admitting a
probation violation predicated on the idea that his probation was not going to be
6 extended. The court, therefore, offered defendant a chance to withdraw his plea.
Defendant declined the offer.
Thereafter, the trial court acknowledged that the new law limited defendant’s
probation term to two years, but ruled that the law did not conflict with the court
extending defendant’s probation for two years after he admitted to a probation violation.
The court again declined to change any probation terms.
That same day, February 25, 2021, defendant filed another notice of appeal
challenging the court orders of that date and February 11, 2021. The trial court
consolidated this appeal with the previous appeal filed on January 25, 2021, and ordered
additional transcripts to be prepared.
B. FACTUAL HISTORY
The statement of facts is taken from our unpublished opinion:
“The victim collects classic cars and sells classic car parts on the internet; he is not
a professional car dealer. In 2011, the victim purchased three vehicles from Daniel
Shimiaei. One of the vehicles was a 1969 Jaguar XKE (the Jaguar). The victim
estimated the Jaguar was worth $12,000 to $25,000. The victim stored the Jaguar in a
hangar at the El Monte airport. The victim knew defendant because defendant was also a
tenant at the El Monte airport.
“On August 29, 2011, the victim borrowed $25,000 from defendant. The written
terms of the loan required the victim to pay defendant a fee of $1,950 and for the loan to
be repaid by September 28, 2011. The writing also reflected the loan was secured by
7 titles to two Jaguars. In the writing, no identifying information was given for the Jaguars,
such as models or license plate numbers.
“By the end of September 2011, the victim had failed to repay the loan. On
November 3, 2011, the victim and defendant agreed to extend the loan to November 27,
2011. The written extension agreement reflects a change of one of the two Jaguar titles,
from a ‘72 coupe v12’ to a ‘69 conv. Jag,’ i.e., the Jaguar. The title that the victim gave
to defendant for the Jaguar was unsigned. Shimiaei initially forgot to sign the title when
he sold the Jaguar to the victim, which temporarily left the victim with an unsigned title.
On October 28, 2011, Shimiaei signed the title for the Jaguar. The victim did not register
the Jaguar in his name because he planned to use the Jaguar for parts. The title for the
Jaguar that the victim gave to defendant, on November 3, 2011, was the unsigned title
from Shimiaei; however, by that date, Shimiaei had already signed the title. Thus, there
were two separate versions of the title in existence at the same time—one that was signed
by Shimiaei, and one that was unsigned. Defendant held the version from Shimiaei that
was unsigned. The victim gave defendant an unsigned car title to show good faith, not to
allow defendant to register the Jaguar in defendant’s name.
“The victim failed to repay the entire loan balance by November 27, 2011, but
continued making payments to defendant in 2012. On January 9, 2013, defendant and the
victim entered into a third written agreement (the 2013 agreement), which reflected the
victim had repaid defendant $21,900 and that the victim would pay defendant more
interest. Another term of the 2013 agreement read, ‘3) Final payment of $1000 to be
done by February-27-2013. [¶] Title for [the Jaguar] transfer at time of final monies
8 paid, realeasing [sic] liability from [defendant].’ The victim was unhappy with the terms
of the 2013 agreement. However, the victim signed the 2013 agreement because it is
‘very hard to deal with [defendant] and his way of doing business. [Defendant] just has
an approach that left [the victim] against the ball.’ The victim signed the 2013 agreement
‘under a lot of stress and duress.’
“On January 22, 2013, the victim paid defendant another $1,000, for a total
repayment of $22,900; and that was the last payment the victim gave to defendant, which
meant the principal and interest were not fully repaid. The victim never told defendant he
could have the Jaguar. The victim explained, ‘It would be ludicrous to give him a car
when I had already paid $24,000 [sic].’
“Defendant told Shimiaei that the victim owed defendant money. Defendant
contacted Shimiaei more than 10 times with ‘lots of late evening phone calls,’ asking
Shimiaei to author a document reflecting defendant owned the Jaguar. Shimiaei said he
‘would not do that because that was not the case and that would be illegal.’ Defendant
threatened to tell various law enforcement agencies that Shimiaei was ‘involved with
dealing with stolen cars or cars that were in bad transactions.’ Shimiaei ‘eventually
started getting calls from various different departments of law enforcement regarding
this.’
“Defendant summoned the police to one of the victim’s hangars at the El Monte
airport. On May 14, 2013, the police arrived ‘in full swat outfits with their guns drawn,
storming the place.’ The police asked the victim for the titles to the vehicles in the
hangar. The Jaguar was not one of the vehicles the police asked about; the Jaguar was in
9 a different hangar at the airport. Approximately one month later, the victim contacted the
police ‘regarding the accusation of [defendant] regarding the Jaguar.’ The victim showed
the police his purchase agreement, his loan agreement with defendant, and evidence that
the victim had repaid ‘90 percent of the loan.’ The victim agreed to show the police the
Jaguar and have the VIN verified. The police came to the victim’s hangar three or four
more times to investigate the Jaguar; the time period for those visits is unclear.
“In 2015, the victim rented 40-foot shipping containers at a storage facility in
Chino from Merlin Smit. The Jaguar was placed in one of the shipping containers. On
February 21, 2016, defendant called Smit. Defendant told Smit that defendant’s Jaguar
was in one of the victim’s shipping containers and asked Smit to help defendant ‘get his
car out of there.’ Smit agreed to meet defendant at the storage facility to help defendant
remove the Jaguar. That same day, Smit met defendant at the storage facility. The
victim had left one or two of the doors to the shipping container unlocked. Smit opened
the container, defendant identified the Jaguar, and Smit helped defendant push the Jaguar
out of the shipping container. Smit towed the Jaguar just outside the storage facility gate.
“Defendant called Joe Young and asked Young to tow the Jaguar because it was
not drivable. At approximately midnight, Young met defendant at the Chino storage
facility. Young towed the Jaguar to one of Young’s storage spaces in Pasadena.
Defendant told Young that defendant owned the Jaguar. On February 22, 2016, the
victim reported the Jaguar stolen.
“Young tried to help defendant sell the Jaguar. Young contacted Jon Pollock, who
specialized in classic Jaguars. Within a week of the Jaguar being towed to Pasadena,
10 Pollock came to look at the Jaguar. Prior to Pollock’s arrival, defendant removed the
VIN tag from the Jaguar. The VIN tag had been located under the hood, on the passenger
side, on the bottom rail. It is not typical to remove a VIN tag when selling a car. A
classic car has more value when the VIN tag is attached because, when it is not attached,
there is an implication that the vehicle is stolen. Young asked defendant why he removed
the VIN tag. Defendant replied, ‘Because there was problems with the title.’ Pollock
was considering purchasing the Jaguar. After looking at the Jaguar, Pollock asked
defendant for the VIN tag. Defendant told Pollock, ‘That doesn’t come with the car.’
“In August 2016, a friend of Young and defendant ‘ran the VIN tag for
[defendant].’ At that point, Young contacted law enforcement and said Young was in
possession of a stolen vehicle. Young spoke to Chino Police Detective Girasek. Young
met Girasek at the storage facility. Girasek needed to identify the Jaguar but was unable
to locate a VIN tag on the Jaguar. Young called Pollock who explained where a hidden
VIN could be found on the Jaguar. Girasek found the hidden VIN and contacted the
victim, who retrieved the Jaguar.
“Luis Hernandez was an investigator for the DMV. Hernandez explained that a
lien can be filed against a vehicle. The lien is filed with the DMV and provides notice
that the vehicle will be sold if the money owed is not paid. Hernandez further explained
that a vehicle can be transferred from one person to another by the prior owner of the
vehicle either signing title over to the new owner, or, if the title is lost, by signing an
‘application for title with a transfer. But in all cases, they have to sign off the vehicle.’
Signing off means signing ‘a document under penalty of perjury indicating that they are
11 releasing their interest in the vehicle, and they’re intending to transfer it to the new
owner.’
“When there is a dispute over vehicle ownership, the DMV will ‘advise the parties
to go to civil court, [and] have a judge rule on who should be awarded the vehicle. Once
that judgment is given, the certified judgment would then be sent to the [DMV’s]
Involuntary Transfer Section . . . and then revert the title to reflect what the order of the
Court was.’ ” (People v. Maljanian, supra, E073573, at *1-3.)
DISCUSSION
A. WENDE APPEAL
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel initially filed a brief under the authority of People v. Wende
(1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a
statement of the case, a summary of the facts, and potential arguable issues, and
requested this court to undertake a review of the entire record. Pursuant to Anders,
counsel identified the following issues to assist the court in its search of the record for
error:
“A. Did The Court Properly Extend [defendant]’s Probation For Two Years
After He Admitted To A Violation Of Probation[?]”3
“B. Did The Court Properly Deny [defendant]’s Marsden and Faretta
Motions?”
3 We asked for additional briefing on this issue and will address it post.
12 “C. Was [defendant] Properly Advised When He Waived A Hearing Under
People v. Vickers (1972) 8 Cal.3rd 451?”
“D. Were There Sufficient Changed Circumstances To Justify Increasing
[defendant]’s Restitution Payment From $30 Monthly To $100 Monthly[?]”
We offered defendant an opportunity to file a personal supplemental brief. On
October 21, 2021, defendant filed a 28-page typewritten supplemental brief, and on
October 28, 2021, defendant filed a one-page letter “clarification of Wende.” In
defendant’s supplement brief, defendant appears to be arguing that his underlying
conviction should be reversed. For example, defendant argues that “there is a witness to
the signing of the Contract #3 that was not able to testify during the trial because he was
hospitalized for 4 months; but he is still willing to testify today. The best option would
be to dismiss the whole case . . . in recognition that Justice was Miscarried in the False
charges; or to allow a Retrial to correct the lies in the marred-trial that was rushed
through with Evidence blocked.” Defendant then goes on to provide, in detail, the
alleged facts of the underlying case. However, as discussed ante, defendant already
appealed from the underlying conviction of vehicle theft. And on September 10, 2021,
this court issued an unpublished opinion in People v. Maljanian, supra, E073573,
wherein we affirmed the conviction.
In his supplemental brief, defendant also appears to argue that the trial court erred
in awarding monthly payments “when there is much proof of ZERO income, due
precisely because of this unjust prosecution.” As provided ante, however, the trial court
generously gave defendant numerous opportunities to provide the court with his
13 accounting—on how much he earned, his expenses, or statements from friends and/or
family members indicating that they were providing monetary support and/or shelter to
defendant. When defendant failed to provide any documentation, the trial court properly
increased defendant’s monthly payments. The court did provide defendant with an
opportunity to reduce the payments if he could provide the court with proper
documentation.
Additionally, it appears that defendant is challenging the length of his probation
after he admitted to violating his probation. We will address this issue post.
Even if defendant’s arguments have merit, defendant waived this issue because
when the court offered defendant a chance to withdraw his plea, defendant declined the
offer.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error and find no error, except as
discussed post.
B. ADDITIONAL ISSUES ON APPEAL
After reviewing the Wende brief, defendant’s personal brief, and the record, we
found two potential issues we deemed may be arguable as error. Therefore, on January
12, 2022, on our own motion, we vacated the submission of this matter and asked for
briefing as follows:
“Appellant’s counsel has filed a brief under authority of People v. Wende (1979) 25
Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d
493], asking this court to undertake a review of the entire record. We have undertaken
14 this examination and now request the parties to brief the following issues: (1) Under
Assembly Bill No. 1950, effective January 1, 2021 (Stats. 2020, ch. 328, § 2), did the trial
court properly extend defendant’s probation for two years after defendant admitted to a
probation violation? (2) Under new Penal Code section 1465.9, should the following be
vacated: presentence report fees under Penal Code section 1203.1b; mandatory
supervision fees under Penal Code section 1203.1b; fees processing arrests and citations
under Government Code sections 29550.1, 20550.2, and 29550.3; fees administering
home detention programs under Penal Code section 1203.016; electronic monitoring
program fees under Penal Code sections 1203.018, 1201.15, and 3010.8; work furlough
program fees under Penal Code section 6266; and work release program fees under Penal
Code section 4024.2?”
The parties complied with our order by filing supplemental briefs.
1. ASSEMBLY BILL NO. 1950 (AB 1950)
Defendant contends that “under Assembly Bill 1950, the trial court erred by
extending [defendant]’s probation for two years from the time he admitted to a probation
violation, rather than tolling the time his probation was revoked.” We agree with
defendant.
In this case, on July 30, 2019, the trial court sentenced defendant to the upper term
of three years and suspended the sentence upon successful of probation. Therefore,
defendant’s three-year probationary period would have ended on July 29, 2022.
15 However, prior to the end of defendant’s probation, on February 20, 2020, the
probation department filed a petition to revoke defendant’s probation and as of that date,
the trial court revoked defendant’s probation.
On November 24, 2020, defendant admitted to violating probation, and the trial
court reinstated probation as promised, but extended defendant’s probationary period by
two years from that date, not when probation was initially ordered, to November 24,
2022.
As such, defendant contends that the maximum the court had authority to extend
defendant’s probation was for two years from July 30, 2019, which is July 29, 2021, plus
278 days when defendant’s probation was revoked.4 Therefore, in the absence of another
probation violation, defendant’s probation should terminate on May 3, 2022, not
November 24, 2022.
AB 1950 amended section 1203.1, subdivision (a). It now provides that the court
“in the order granting probation, may suspend the imposing or the execution of the
sentence and may direct that the suspension may continue for a period of time not
exceeding two years, and upon those terms and conditions as it shall determine.”
(§ 1203.1, subd. (a).)
“Multiple courts have considered whether the amendments of Assembly Bill 1950
apply retroactively to the benefit of a person whose judgment is not yet final on appeal,
4 We take judicial notice that there are 278 days between February 20, 2020 (the date that defendant’s probation was revoked) and November 24, 2020 (the day when defendant’s probation was reinstated). (Evid. Code, § 451, subd. (f).)
16 and they have uniformly held that they do.” (Kuhnel v. Appellate Division of Superior
Court (2022) 75 Cal.App.5th 726, 732 (Kuhnel), italics omitted.) “As [People v. Quinn
(2021) 59 Cal.App.5th 874 (Quinn)] recently explained, although statutes are generally
presumed to apply prospectively, the Legislature may ‘ “ ‘enact laws that apply
retroactively, either explicitly or by implication,’ ” ’ and ‘ “amendatory statutes that
lessen the punishment for criminal conduct are ordinarily intended to apply
retroactively.” ’ [Citation.] This is because ‘[w]hen the Legislature amends a statute so
as to lessen the punishment it has obviously expressly determined that its former penalty
was too severe and that a lighter punishment is proper.’ ” [Citation.] After such a
legislative determination, ‘ “it is safe to assume . . . that it was the legislative design that
the lighter penalty should be imposed in all cases that subsequently reach the courts.” ’ ”
(Id. at p. 732.)
“The court in Quinn concluded the amendments of Assembly Bill 1950 fell within
this rule, rejecting the argument that the Estrada[5] presumption of retroactivity did not
apply because probation is not a form of criminal punishment. [Citation.] Quinn
followed People v. Burton (2020) 58 Cal.App.5th Supp. 1, . . . an opinion of the Los
Angeles County appellate division that applied Assembly Bill 1950 retroactively.
[Citation.] As explained in Burton, ‘[t]he longer the length of probation, the greater the
encroachment on a probationer’s interest in living free from government intrusion,’
5 In re Estrada (1965) 63 Cal.2d 740.
17 whether that intrusion takes the form of probation conditions or a risk of further
incarceration.” (Kuhnel, supra, 75 Cal.App.5th at p. 732.)
“Every appellate case to have considered the retroactivity of Assembly Bill 1950
has agreed with Quinn, and the People do not disagree with their conclusions.” (Kuhnel,
supra, 75 Cal.App.5th at p. 733.)
Because AB 1950 is retroactive, defendant argues that his “probationary term
should have been reduced to two years, and thus, should have ended on July 29, 2021,
absent the time his probation was revoked. Thus, the court erred by extending
[defendant’s] probation by two years after he admitted a violation of probation.”
Defendant argues that under AB 1950, “the court was empowered to extend [defendant’s]
probation beyond two years only for the time that his probation was suspended.”
Although the People agree that AB 1950 applies retroactively, the People argue
that “[t]he distinction with appellant’s case, however, is that his grant of probation was
revoked and reinstated before the effective date of AB 1950. AB 1950 is silent on how to
implement its reduction of the term of probation when a defendant’s probation was
revoked prior to January 1, 2021. (Compare Quinn, supra, 59 Cal.App.5th at pp. 857
[applying AB 1950 to the originally imposed three-year term of probation, as opposed to
a term following revocation of probation.)” The People argue that defendant’s
“admission that he violated the terms and conditions of probation permitted the court to
reinstate probation for a two-year term.” In support of their argument, the People simply
cite to a single case, People v. Sem (2014) 229 Cal.App.4th 1176, 1191-1192 (Sem). The
People’s reliance on Sem, however, is misplaced.
18 In Sem, the issue was “how long a term of probation can be extended to compel
payment of victim restitution from a probationer who was unable to pay $60,422 in full
during her original three-year term of probation.” (Sem, supra, 229 Cal.App.4th at p.
1179.) There, the court noted that “[i]t is well settled that the payment of restitution to a
crime victim may be ordered as a condition of probation. [Citations.] Based on an
alleged probation violation, the trial court may summarily revoke probation in order to
preserve its jurisdiction pending a formal revocation hearing. [Citations.] When a
probation violation is established, the court may modify, revoke, terminate, or reinstate
probation. [Citations.] Felony probation may last up to the maximum possible sentence,
except that where the maximum sentence is five years or less, probation may extend up to
five years. [Citation.] [¶] . . . ‘However, probation shall not be revoked for failure of a
person to make restitution pursuant to Section 1203.04 as a condition of probation unless
the court determines that the defendant has willfully failed to pay and has the ability to
pay. Restitution shall be consistent with the person’s ability to pay.’ ” (Id. at p. 1189.)
The Sem court noted that “[b]ased on an admission that defendant had willfully
failed to pay restitution, the trial court could have revoked probation and, as an
alternative to sentencing defendant to prison, could have reinstated probation ‘for that
period and with those terms and conditions as it could have done immediately following
conviction.’ ” (Sem, supra, 229 Cal.App.4th at p. 1191.) However, instead of exercising
its statutory options, the appellate court noted that “[t]he superior court here has created a
status of perpetual revocation in which a probationer remains obligated to comply with a
probation condition requiring payment of restitution (and other probation conditions) for
19 a substantial time after the maximum probationary period. The practical effect of this
status is a reinstatement of probation on the same terms for an indefinite period.” (Id. at
pp. 1192-1193.)
The appellate court then agreed with the People “that the summary revocation
tolled the probationary period for five months and three days until defendant appeared at
the revocation hearing,” the court, however, rejected “the suggestion that formal
revocation further tolled the probationary period. At that time, with defendant before the
court, the court was obliged to either reinstate probation or sentence defendant to prison.
It was not authorized to postpone its disposition and thereby impose a de facto
reinstatement of probation on the same terms for a period exceeding the statutory
maximum of five years.” (Sem, supra, 229 Cal.App.4th at p. 1193.)
Although the People cited Sem to support its argument as to why AB 1950 “does
not reach back in time to invalidate the court’s actions in any way,” we disagree. Sem’s
narrow holding does not apply to this case. Moreover, the Sem court even noted that
“[b]ased on an admission that defendant had willfully failed to pay restitution, the trial
court could have revoked probation and, as an alternative to sentencing defendant to
prison, could have reinstated probation ‘for that period and with those terms and
conditions as it could have done immediately following conviction.’ ” (Sem, supra, 229
Cal.App.4th at p. 1191, italics added.)
Here, because AB 1950 is retroactive, the trial court was permitted to reinstate
probation for only two years (the maximum under the newly revised statute) from the
20 time of defendant’s conviction, not from the time of reinstatement of probation. Our
holding is supported by AB 1950’s legislative history, as discussed by the court in Quinn:
“Quinn also discussed the legislative history of Assembly Bill 1950, which
reflects ‘the Legislature’s concern . . . that lengthy probationary periods do not serve a
rehabilitative function and unfairly lead to reincarceration for technical violations.’
[Citation.] For instance, the author’s statement explained that many probationers
‘ “ ‘violate probation and end up incarcerated as a result,’ ” ’ often for violations that are
technical in nature; that research shows probation services are most effective in the first
18 months, so ‘ “ ‘[a] shorter term of probation, allowing for an increased emphasis on
services, should lead to improved outcomes’ ” ’; and that the bill’s reduced probationary
period was ‘sufficient to fulfill the rehabilitative function of probation.’ [Citation.]
Quinn concluded, ‘the only reasonable inference to draw from’ this legislative history ‘is
that the shorter term of probation “now deemed to be sufficient should apply to every
case to which it constitutionally could apply.’ [Citation.] The alternative is untenable:
that the [L]egislature intended to subject thousands of criminal defendants whose cases
are not yet final to terms of probation determined to be unnecessary for rehabilitation,
arguably discriminatory and likely to result in unfair and unnecessary reincarceration.’ ”
(Kuhnel, supra, 75 Cal.App.5th at p. 733.)
Therefore, based on the above, defendant’s probation terms should have been
reduced to two years by AB 1950, and thus, should have initially ended on July 29, 2021,
absent the time his probation was revoked. There were 278 days between February 20,
2020, and November 24, 2020, when defendant’s probation was revoked. Therefore, the
21 maximum the trial court had authority to extend defendant’s probation was for two years
from July 30, 2019 (July 29, 2021), plus 278 days while probation was revoked. Hence,
in the absence of another violation, defendant’s probation should terminate on May 3,
2022, not November 24, 2022.
2. NEW PENAL CODE SECTION 1465.9
Effective July 1, 2021, Assembly Bill No. 1869 (2019-2020 Reg. Sess.) eliminated
many fines, fees, and assessments that courts have imposed under a variety of statutes,
including former section 1203.1b, which previously allowed collection of probation
supervision fees. (Stats. 2020, ch. 92, § 47.) Any unpaid portion of the probation
supervision fee ordered pursuant to former section 1203.1b is therefore uncollectable and
unenforceable as of July 1, 2021. (§ 1465.9, subd. (a).)
In this case, at the time of sentencing, the trial court imposed fees for the
presentence report and mandatory supervision. In our prior opinion, we applied section
1465.9, and struck the order for defendant to pay $727 for a presentence report and $29 a
month for mandatory supervision. (People v. Maljanian, supra, E073573, at *10.) It is
not clear whether the trial court ordered additional fees at the time of sentencing.
Defendant, however, notes that the record refers to work-release and electronic-
monitoring fees. Both defendant and the People agree that “[t]o the degree either of these
fees was imposed by the court, or any of the other fees referenced in this court’s January
12, 2022 order for supplemental briefing, the plain language of the newly enacted statutes
dictates that any remaining unpaid balance of those fees as of July 1, 2021, is now
22 unenforceable, uncollectible, and the portion of the judgment imposing such costs must
be vacated.” We agree with the parties.
Therefore, we strike all fees that are not unenforceable and uncollectible under
section 1465.9.
DISPOSITION
The terms of defendant’s probation are modified as provided ante; therefore,
defendant’s probation shall be terminated on May 3, 2022, in the absence of a new
violation. Moreover, we hereby strike any unpaid balance for work-release fees and
electronic-monitoring fees. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
FIELDS J.