People v. Haney CA5

Filed 11/18/21 P. v. Haney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F081735 Plaintiff and Respondent, (Super. Ct. No. DF014703A) v.

KEVIN ANDREW HANEY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. David Wolf, Judge. Rex Adam Williams, under appointment by the Court of Appeal, Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Peña, Acting P. J., Meehan, J. and Snauffer, J.

Defendant Kevin Andrew Haney pled no contest to felony possession of marijuana in a prison in violation of Penal Code section 4573.6.1 His plea agreement included a term that permitted him to appeal the question of whether possession of less than 28.5 grams of marijuana (not in the form of concentrated cannabis) in prison remained a crime in light of the changes in the law effected by the Control, Regulate and Tax Adult Use of Marijuana Act (Proposition 64). He now appeals contending that Proposition 64 decriminalized the offense for which he was convicted. The People disagree. While defendant’s appeal was pending, the Governor signed Assembly Bill Nos. 1869 (Assembly Bill 1869) and 1950 (Assembly Bill 1950) (2019–2020 Reg. Sess.). We afforded the parties an opportunity to submit supplemental briefing regarding the impact of Assembly Bill 1950 on defendant’s three-year term of probation and the impact of Assembly Bill 1869 on the imposed probation supervision costs. The parties agree that defendant’s term of probation must be reduced to two years and the costs imposed for probation supervision are unenforceable and uncollectable. We affirm defendant’s conviction, reduce his term of probation to two years, strike the condition of his probation requiring him to pay the cost of his probation supervision, and remand to the trial court for the limited purpose of determining whether the term of probation was a material term of the plea agreement. PROCEDURAL SUMMARY On October 18, 2019, the Kern County District Attorney filed a complaint charging defendant with felony possession of marijuana in a state prison (§ 4573.6, subd. (a); count 1). The complaint further alleged that defendant had suffered a prior felony “strike” conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(j), 1170.12, subds. (a)–(d)) and had served a prior prison term (§ 667.5, subd. (b)).