People v. Gaines CA2/3 ( 2022 )


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  • Filed 3/29/22 P. v. Gaines CA2/3
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
    not been certified for publication or ordered published for purposes of rule 8.1115(a).
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION THREE
    THE PEOPLE,                                                   B313834
    Plaintiff and Respondent,                              Los Angeles County
    Super. Ct. No. TA141619
    v.
    DILLON MITCHEL GAINES,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, Carol J. Najera, Judge. Affirmed.
    William Paul Melcher, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Rob Bonta, Attorney General, Lance E. Winters, Chief
    Assistant Attorney General, Susan Sullivan Pithey, Assistant
    Attorney General, Zee Rodriguez and Michael C. Keller, Deputy
    Attorneys General, for Plaintiff and Respondent.
    INTRODUCTION
    In March 2017, defendant Dillon Mitchel Gaines pled no
    contest to a violation of Penal Code section 261.5, subdivision (c).1
    The trial court suspended the imposition of sentence and placed
    defendant on probation for five years—the maximum term of
    probation authorized under former section 1203.1,
    subdivision (a).2 The court revoked and reinstated probation
    several times. In November 2019, the court summarily revoked
    defendant’s probation for the final time and at the probation
    violation hearing conducted in July 2021, the court terminated
    probation and imposed a sentence of 16 months to be served in
    county jail.
    Defendant argues the court lacked jurisdiction to terminate
    probation and impose a sentence in July 2021. Specifically, he
    argues that Assembly Bill No. 19503 (2019–2020 Reg. Sess.)
    (AB 1950), a legislative enactment that lowered the maximum
    term of probation for most felony offenders from five years to two
    years and which became effective in January 2021, retroactively
    and automatically modified his probation term to two years.
    Defendant posits that his term of probation, as modified by
    AB 1950, should be deemed to have ended in March 2019,
    effectively nullifying his subsequent violation of probation and all
    related court proceedings and orders.
    AB 1950, and the shortened probationary period it
    established, is not applicable here. Taking into account the
    1   All undesignated statutory references are to the Penal Code.
    2   (Stats. 2010, ch. 178, § 75, operative Jan. 1, 2012.)
    3   (Stats. 2020, ch. 328, § 2, effective Jan. 1, 2021.)
    2
    periods during which defendant’s probation was revoked—and
    the term of probation was tolled—defendant was only on
    probation for 245 days before the court terminated probation and
    imposed a sentence. And the court retained jurisdiction to
    adjudicate the probation violation between November 2019 and
    July 2021 while his probation was revoked. We therefore affirm
    the judgment.
    FACTS AND PROCEDURAL BACKGROUND
    On October 28, 2016, the People filed a felony complaint
    charging defendant with unlawful sexual intercourse in violation
    of section 261.5, subdivision (c). On March 16, 2017, defendant
    pled no contest to the single count. After finding a factual basis
    for defendant’s plea, the court accepted the plea, suspended the
    imposition of sentence, and placed defendant on formal probation
    for a period of five years. The court also imposed a number of
    conditions of probation including, as pertinent here, 30 days
    community service with the Department of Transportation
    (CalTrans) and completion of an HIV/AIDS test. The court set a
    hearing on April 26, 2017, at which time defendant was to
    provide proof of enrollment and proof of HIV/AIDS testing.
    On June 15, 2017, the court summarily revoked defendant’s
    probation for the first time after he failed to appear for the
    scheduled hearing to provide proof of completion of service hours
    and proof of HIV/AIDS testing. In September 2018, defendant
    appeared in court and admitted, and the court found, a probation
    violation based on defendant’s failure to complete the required
    community service hours. The court gave defendant an additional
    six months in which to complete his service hours with CalTrans.
    The court later converted the community service condition of
    probation from 30 days of service with CalTrans to 60 days of
    3
    community service and scheduled a probation violation hearing
    setting for March 21, 2019. Defendant did not appear at the
    March 21, 2019 hearing and a bench warrant was issued. The
    bench warrant was later recalled but reissued in May 2019.
    On June 10, 2019, defendant appeared in court and again
    admitted that he failed to complete community service hours. The
    court formally revoked and then reinstated probation on the
    same terms and conditions but converted the community service
    condition to 30 days jail time.
    On November 18, 2019, the court summarily revoked
    defendant’s probation again after the probation department
    reported that defendant failed to report. No further proceedings
    occurred until July 2021, at which time the court held a
    probation violation hearing, noting that this was the third
    violation and defendant had been absconding from probation for
    one year and nine months. Defendant objected, stating that
    under AB 1950, his term of probation had automatically expired
    in March 2019, two years after probation was initially imposed
    and well before his most recent probation violation. The court
    acknowledged that AB 1950 shortened the maximum term of
    probation for most felony offenders to two years. But the court
    also noted that defendant’s probation had been revoked in
    November 2019, well before the effective date of AB 1950. The
    court concluded that AB 1950 did not apply, terminated
    probation, and imposed the low term of 16 months to be served in
    county jail.
    Defendant timely appeals from the judgment.
    4
    DISCUSSION
    Defendant challenges on jurisdictional grounds the court’s
    order terminating probation and imposing a sentence.
    Specifically, defendant contends that AB 1950 retroactively
    modified his five-year term of probation such that it ended after
    two years, on March 16, 2019. Thus, according to defendant, the
    subsequent court proceedings in which his probation was
    summarily revoked and in which the court terminated probation
    and imposed a sentence are effectively nullified. We disagree.
    1.    Standard of Review
    We review a probation revocation order for an abuse of
    discretion. (People v. Rodriguez (1990) 
    51 Cal.3d 437
    , 447;
    People v. Butcher (2016) 
    247 Cal.App.4th 310
    , 312; see § 1203.2,
    subd. (a).) The court’s factual findings are reviewed for
    substantial evidence. (People v. Superior Court (Jones) (1998) 
    18 Cal.4th 667
    , 681; Butcher, at p. 312.) We review issues of law,
    including statutory construction, de novo. (People v. Brackins
    (2019) 
    37 Cal.App.5th 56
    , 65.)
    2.    Analysis
    When AB 1950 took effect on January 1, 2021, it amended
    section 1203.1 to limit the length of probation for most felony
    convictions to less than two years.4 (§ 1203.1, subd. (a).) Although
    the Legislature did not address retroactivity, several recent
    decisions have concluded that this statute should be applied
    retroactively in all nonfinal cases under In re Estrada (1965) 63
    4There are several exceptions to the two-year cap, but none is
    applicable here. (§ 1203.1, subd. (l).)
    
    5 Cal.2d 740
    , 745 [holding that an amendatory statute lessening
    punishment is presumed to apply in all cases not yet reduced to
    final judgment as of the amendatory statute’s effective date]. (See
    People v. Butler (2022) 
    75 Cal.App.5th 216
     (Butler); People v.
    Greeley (2021) 
    70 Cal.App.5th 609
    , 627; People v. Czirban (2021)
    
    67 Cal.App.5th 1073
    , 1095; People v. Schulz (2021) 
    66 Cal.App.5th 887
    , 895; People v. Gonsalves (2021) 
    66 Cal.App.5th 1
    , 12; People v. Lord (2021) 
    64 Cal.App.5th 241
    , 245–246;
    People v. Sims (2021) 
    59 Cal.App.5th 943
    , 955–964; People v.
    Quinn (2021) 
    59 Cal.App.5th 874
    , 879–885; see also People v.
    Burton (2020) 
    58 Cal.App.5th Supp. 1
    ; cf. People v. Faial (2022)
    
    75 Cal.App.5th 738
     [holding AB 1950 does not apply retroactively
    when a defendant’s probation had been revoked and sentence
    imposed or executed before AB 1950’s effective date]; Kuhnel v.
    Appellate Division of Superior Court (2022) 
    75 Cal.App.5th 726
    (Kuhnel) [noting AB 1950 neither displaces tolling provision in
    section 1203.2, subdivision (a), nor invalidates a valid revocation
    of probation occurring prior to January 1, 2021].)
    Defendant asserts that the retroactive application of
    AB 1950 requires us to conclude that his probation term ended on
    March 16, 2019, two years after it was imposed. But defendant
    ignores the fact that his probation had been revoked for most of
    that two-year period.
    When probation is revoked by the court, it tolls the running
    of the probationary period. (§ 1203.2, subd. (a) [“The revocation,
    summary or otherwise, shall serve to toll the running of the
    period of supervision.”].) And citing People v. Leiva (2013) 
    56 Cal.4th 498
    , 514–515, the Attorney General explains that the
    tolling provision of section 1203.2 is designed to preserve the trial
    court’s authority to hold a formal probation violation hearing at a
    6
    time after probation would have expired when the violation is
    alleged to have occurred during the probationary period. AB 1950
    did not modify section 1203.2. And we agree with our colleagues
    in Division Three of the First District that, retroactive
    application of AB 1950 notwithstanding, a valid revocation of
    probation during the original term of probation preserves a
    court’s jurisdiction to adjudicate an alleged probation violation
    that occurred within the reduced probationary period provided by
    AB 1950. (See Kuhnel, supra, 
    75 Cal.App.5th 726
     [noting
    AB 1950 did not alter section 1203.2, subdivision (a), which
    provides that revocation of probation tolls running of
    probationary period until formal violation hearing is held].)
    Moreover, the Legislature recognized the manner in which the
    tolling provision applies: “A two-year period of supervision would
    likely provide a length of time that would be sufficient for a
    probationer to complete any counseling or treatment that is
    directed by a sentencing court. To the extent that a probationer is
    not complying with the treatment or counseling directed by the
    court during a probationary period, the court can revoke the
    defendant’s probation until the defendant is back in compliance.
    The period while probation is revoked tolls the running of time
    towards the end point of the probationary period. That tolling
    process would effectively extend the probationary period for
    individuals that are not in compliance with the conditions of their
    probation.” (Assem. Com. on Public Safety, Analysis of Assem.
    Bill No. 1950 (2019–2020 Reg. Sess.) as amended May 6, 2020,
    p. 7.)
    Here, as noted, the court imposed the initial probation term
    on March 16, 2017, and summarily revoked defendant’s probation
    91 days later, on June 15, 2017. The court did not reinstate
    7
    probation until June 10, 2019.5 The term of probation then ran
    from June 10, 2019 until November 18, 2019, when the court
    summarily revoked probation after the probation department
    reported that defendant deserted probation. During that period,
    defendant was on probation for an additional 154 days, for a total
    of 245 days on probation.
    Until recently, no published opinion had considered how
    AB 1950 would apply retroactively where a defendant is found in
    violation of probation and sentenced after AB 1950 took effect for
    a probation violation that occurred more than two years after he
    was first placed on probation.6 In Butler, however, the reviewing
    court held that under those circumstances the trial court lacked
    jurisdiction to revoke the defendant’s probation because AB 1950
    applied retroactively. But in Butler, unlike in our case, the
    Attorney General conceded that the trial court had lost
    jurisdiction over the defendant by the time it terminated
    probation and imposed a sentence. More importantly, in Butler,
    the defendant had “already served more than the maximum term
    of probation allowed because he served two years and three
    months of probation.” (Butler, supra, 
    75 Cal.App.5th 216
    .) Here,
    however, because of tolling, defendant had not served the
    5Although defendant suggests that the court reinstated probation on
    September 24, 2018, the record does not support that contention.
    During that proceeding, the court expressly told defendant, “Your
    probation is going to remain revoked.”
    6 In People v. Faial, supra, 
    75 Cal.App.5th 738
    , the defendant violated
    probation more than two years after probation was originally imposed,
    but probation was revoked and sentence executed before AB 1950’s
    effective date.
    8
    maximum two-year term of probation under AB 1950 when the
    court revoked his probation and imposed a sentence in July 2021.
    In sum, considering tolling, defendant had not been on
    probation for even one year when the court terminated probation
    and imposed a sentence. Accordingly, the two-year limit on
    probationary terms effected by AB 1950 does not come into play
    in the present case.
    DISPOSITION
    The judgment is affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    LAVIN, J.
    WE CONCUR:
    EDMON, P. J.
    LIPNER, J.*
    * Judge of the Los Angeles Superior Court, assigned by the Chief
    Justice pursuant to article VI, section 6 of the California Constitution.
    9
    

Document Info

Docket Number: B313834

Filed Date: 3/29/2022

Precedential Status: Non-Precedential

Modified Date: 3/29/2022