People v. White CA4/2

• Court: California Court of Appeal
• Decided: June 25, 2021
• Docket: E074045
• Status: Unpublished

Opinion

Filed 6/25/21 P. v. White CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E074045

v. (Super.Ct.No. FVI18002935)

ANTHONY WHITE, JR., OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Joel S. Agron,

Judge. Affirmed as modified.

Kevin Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Senior Assistant Attorney General, and Arlene A. Sevidal and

Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

1 A jury convicted Anthony White, Jr., of three resisting arrest misdemeanors. The

court sentenced him to three years’ probation. White appeals, arguing that under recently

enacted Assembly Bill No. 1950 (2019-2020 Reg. Session) (Stats. 2020, ch. 328, § 1)

(Assembly Bill 1950) his probation should be reduced to one year. The People agree and

so do we.

I

FACTS

Because they are irrelevant to the issue on appeal, we do not summarize the facts

underlying White’s convictions. On October 28, 2019, a jury found White guilty on three

misdemeanor counts of resisting arrest. (Pen. Code, § 148, subd. (a)(1), unlabeled

statutory citations refer to this code.) The trial court placed White on three years’

probation. On November 5, 2019, White timely appealed.

Assembly Bill 1950 went into effect on January 1, 2021, while White’s appeal was

pending.

II

ANALYSIS

White argues Assembly Bill 1950 applies to him and requires we reduce his

sentence from three years’ probation to one. The People agree, but argue remand is

necessary to allow the trial court to fully resentence White. We agree White is entitled to

the ameliorative benefits of Assembly Bill 1950. We also agree with White that the

appropriate remedy is to reduce his probation term without remanding.

2 Assembly Bill 1950 went into effect on January 1, 2021, and amended

section 1203a to limit the probation period for any misdemeanor violation to one year.

(§ 1203a.) This limitation applies to the entire sentence and not to each individual

conviction. (Fayad v. Superior Court (1957) 153 Cal.App.2d 79, 84 [“multiple sentences

directed to run consecutively are to be regarded as a single ‘sentence of imprisonment’

for the purpose of applying the provisions of Penal Code, section 1203a, and the court is

without authority to impose a series of separate and consecutive periods of probation.”].)

“When an amendatory statute either lessens the punishment for a crime

or . . . ‘ “vests in the trial court discretion to impose either the same penalty as under the

former law or a lesser penalty,” ’ it is reasonable for courts to infer, absent evidence to

the contrary and as a matter of statutory construction, that the Legislature intended the

amendatory statute to retroactively apply to the fullest extent constitutionally

permissible—that is, to all cases not final when the statute becomes effective.”

(People v. Garcia (2018) 28 Cal.App.5th 961, 972, italics omitted.) Two other courts

have recently found that this presumption of retroactivity applies to Assembly Bill 1950,

and therefore probationers whose cases were not final at the time Assembly Bill 1950

went into effect are entitled to its ameliorative effects. (See People v. Sims (2021) 59

Cal.App.5th 943, 956-958 (Sims); People v. Quinn (2021) 59 Cal.App.5th 874, 879-885

(Quinn).)

We find these cases persuasive, and because White’s conviction was not final as of

the effective date of this change, he is entitled to the ameliorative benefits of Assembly

3 Bill 1950. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [“ ‘[F]or the purpose of

determining retroactive application of an amendment to a criminal statute, a judgment is

not final until the time for petitioning for a writ of certiorari in the United States Supreme

Court has passed.’ ”].) Moreover, the People concede he is entitled to such retroactive

application.

The only remaining issue is the exact remedy to which White is entitled. White

argues we can and should reduce his probation period from three years to one. The

People argue we must remand to allow the trial court to resentence White. The parties

point to two published opinions—Quinn and Sims—that took opposite approaches. Sims

remanded, while Quinn didn’t. However, neither explained their reasoning for their

chosen disposition in any detail, nor have we identified any other published opinions

addressing this issue directly. Nevertheless the People argue the Sims approach is the

correct one because “Merely striking any portion of the probationary term that exceeds

two years deprives the superior court and the parties of a necessary determination of the

status of the probationer at the time it was terminated.” In addition, the People argue

“[r]emand permits the trial court to adjust, modify, or strike probation terms, so that they

can be complied with before termination of probation or removed from consideration

when courts subsequently assess whether probation was terminated successfully.”

We are unpersuaded that remand is necessary. White argues, correctly, that the

People’s argument conflates reduction of the sentence with termination of probation.

Reducing White’s probation period would not deprive the trial court of its authority to

4 determine whether White successfully completed probation or whether a violation during

the proper probationary period justifies revocation or tolling. Nor would it limit the

Peoples’ ability to contest termination, as the trial court retains jurisdiction to modify or

terminate probation. (§ 1203.3, subd. (a); Quinn, supra, 59 Cal.App.5th at pp. 884-885 &

fn. 6.)

Accordingly, we conclude the proper remedy is to reduce White’s probationary

term without remand.

III

DISPOSITION

The order granting probation is modified and reduced to one year. The trial court

is directed to correct the minute order to reflect the imposition of a one-year term of

formal probation, and to notify probation of the change to defendant’s probationary term.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH J. We concur:

MILLER Acting P. J.

FIELDS J.