People v. Gomez CA5 ( 2021 )

Filed 10/18/21 P. v. Gomez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F079850
Plaintiff and Respondent,
(Super. Ct. No. F17907259)
v.
ANGELINA GOMEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.
Tyrone Sandoval, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Melissa
Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Peña, Acting P. J., Meehan, J. and DeSantos, J.
Appellant Angelina Gomez was convicted, following a jury trial, of assault with a
deadly weapon, to wit, a vehicle (Pen. Code,1 § 245, subd. (a)(1)) and leaving the scene
of an accident resulting in injury (Veh. Code, § 20001, subd. (a)). The trial court placed
appellant on three years of formal probation.
On appeal, appellant contends her term of probation must be modified to two years
pursuant to section 1203.1, subdivision (a), as amended by Assembly Bill No. 1950
(2019−2020 Reg. Sess.) (Assembly Bill 1950). Respondent agrees appellant is entitled to
relief pursuant to Assembly Bill 1950. We modify appellant’s term of probation to
two years. As modified, we affirm.
RELEVANT PROCEDURAL BACKGROUND
Because they are irrelevant to the issue on appeal, we do not summarize the facts
underlying appellant’s convictions.
Appellant was sentenced on November 13, 2019. The court found that unusual
circumstances justified a grant of probation and suspended imposition of a three-year
prison term. The court ordered three years of formal probation with 91 days in custody
and 60 days on the adult work program. The court ordered various terms and conditions
of probation including successful completion of an anger management program,
prohibition of driving a motor vehicle (Veh. Code, § 13351.5), enrollment in any mental
health services as directed by probation, and writing an apology letter to both the victim
and another individual involved with the circumstances of the case.
The court set a probation review hearing and advised appellant she would be
expected to present the court with progress reports from her anger management class and
the adult work program, as well as the letters she was to write.
1 All further undesignated statutory references are to the Penal Code.
2.
DISCUSSION
Assembly Bill 1950 went into effect on January 1, 2021, while this appeal was
pending. It amended section 1203.1 to limit the probation period for most felony
violations to two years. (§ 1203.1.) The parties agree Assembly Bill 1950 applies to
appellant, as do we.
“[T]he … limitation[s] on … probation set forth in Assembly Bill [] 1950 [are]
ameliorative change[s] to the criminal law that [are] subject to the [In re] Estrada [(1965)
63 Cal.2d 740] presumption of retroactivity.” (People v. Sims (2021) 59 Cal.App.5th
943, 963–964; accord, People v. Quinn (2021) 59 Cal.App.5th 874, 883–885.) Therefore,
the amendment to section 1203.1 applies to all cases not final on Assembly Bill 1950’s
effective date. (In re Estrada, at p. 742.)
Appellant’s case was not final as of January 1, 2021, and she was sentenced to a
term of felony probation exceeding two years for an offense that is not exempt from the
two-year limit on felony probation. (§§ 1203.1, subd. (m), 667.5, subd. (c).) We
therefore accept respondent’s concession that Assembly Bill 1950 applies to appellant.
The parties disagree on the appropriate remedy. Appellant argues we can and
should reduce her probation period from three years to two years. Respondent argues we
should remand for the trial court to reduce appellant’s probationary term and “make any
necessary adjustment to the terms and conditions.” (Unnecessary capitalization omitted.)
We agree with appellant.
Respondent reasons that our reducing appellant’s probationary term “deprives the
superior court and the parties of a necessary determination of the status of the probation
at the time it was terminated.” Respondent suggests without much explanation that our
reducing the probationary term would interfere with any potential dismissal proceedings
conducted pursuant to section 1203.4.2 Respondent states that remand would allow the
2 Section 1203.4 allows a probationer to move the court to set aside a guilty verdict
and dismiss the information against the defendant, resulting in release from all penalties
3.
trial court to “adjust, modify, or strike probation terms, so that they can be complied with
before termination of probation or removed from consideration of whether the probation
terminated successfully” and “determine the date probation terminated or will terminate
under the new law, and whether conditions remained unmet.” Respondent further
contends remand is necessary because this court “cannot determine from the appellate
record whether a probation-tolling revocation is underway, whether the probationer has
outstanding community service hours, failed a recent drug test, expressly agreed to an
extension of probation to achieve a goal or complete a program, was making scheduled
restitution payments, or made the most of probation early on and deserves to be
successfully discharged without term modifications.”
We are not persuaded by respondent’s reasoning. Respondent appears to be
conflating reduction of the probationary term with termination of probation. Reducing
appellant’s probation will not deprive the trial court of its authority to determine whether
appellant successfully completed probation, or whether appellant has met the
requirements necessitating dismissal under section 1203.4 in the event appellant applies
for such relief, or whether a violation during the proper probationary period justifies
revocation or tolling. Nor would it limit respondent’s ability to contest termination, as
the trial court retains jurisdiction to modify or terminate probation. (§ 1203.3, subd. (a);
see People v. Quinn, supra, 59 Cal.App.5th at pp. 879–885 & fn. 6 [modifying the term
of probation without remanding for resentencing].)
As such, we agree with appellant that the proper remedy is for this court to reduce
the term of probation.
and disabilities resulting from the offense with certain exceptions. If the probationer has
successfully completed probation, relief under this section is mandatory, but a court may
also provide discretionary relief in the interests of justice. The probationer also must not
be serving a sentence for, on probation for, or charged with the commission of any other
offense.
4.
DISPOSITION
Appellant’s probation is reduced to a term of two years. The trial court is directed
to issue an amended minute order reflecting this modification, and to notify the probation
department of the change to appellant’s term of probation. The judgment is affirmed in
all other respects.
5.