People v. Xiong CA3

Filed 5/11/21 P. v. Xiong CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C091311

Plaintiff and Respondent, (Super. Ct. No. 19CF05141)

v.

LONG XIONG,

Defendant and Appellant.

Defendant Long Xiong pleaded no contest to one count of distributing more than 28.5 grams of marijuana or more than 4 grams in concentrated cannabis into or out of the State of California. Defendant contends that the trial court erred in imposing certain mandatory fines and fees without holding an evidentiary hearing to determine his ability to pay them. In supplemental briefing, defendant argues he is entitled to seek a reduction of his three-year probation term under recently enacted Assembly Bill No. 1950 (2019- 2020 Reg. Sess.) (Stats. 2020, ch. 328, § 2). Effective January 1, 2021, Assembly Bill

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No. 1950 amended Penal Code section 1203.11 to limit the maximum probation term a trial court is authorized to impose for most felony offenses to two years. Defendant asserts Assembly Bill No. 1950’s limitation on the maximum duration of felony probation terms constitutes an ameliorative change to the criminal law that applies retroactively to cases that were not reduced to final judgment as of the new law’s effective date. We conclude that the term of defendant’s probation must be reduced to two years under the recent statutory amendment. In all other respects, the judgment is affirmed. PROCEDURAL BACKGROUND Pursuant to a negotiated plea agreement based on charges that he illegally transported, cultivated, and possessed cannabis for sale, defendant pleaded no contest to one count of distributing more than 28.5 grams of marijuana or more than 4 grams in concentrated cannabis into or out of the State of California. (Health & Saf. Code, § 11360, subd. (a)(3)(D).) In exchange, two remaining counts were dismissed. The trial court suspended imposition of sentence and ordered three years of formal probation with a required 90 days in jail. The court ordered defendant to pay a conviction assessment of $30 (Gov. Code, § 70373), a court operations assessment of $40 (§ 1465.8), a $25 criminal justice administration fee (§ 1463.07), and a restitution fine of $300 (§ 1202.4, subd. (b)), with an additional $300 probation revocation fine, which was stayed pending successful completion of probation (§ 1202.44). The trial court found that defendant did not have the ability to pay a criminal laboratory fee, a drug program fee, a presentence investigative report fee, probation supervision fees, or public defender fees. Defendant filed a timely notice of appeal.