People v. Gibson CA5

Filed 1/3/22 P. v. Gibson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 , F080170 Plaintiff and Respondent, (Super. Ct. No. CRF47483) v.

BRITTNEY JDAWN GIBSON, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Tuolumne County. Kevin M. Seibert, Judge. Jared G. Coleman for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

Defendant Brittney Jdawn Gibson pled guilty to felony possession of marijuana in a state prison in violation of Penal Code section 4573.6.1 She later petitioned for resentencing or dismissal of her conviction pursuant to section 11361.8 of the Health and Safety Code, added by the Control, Regulate and Tax Adult Use of Marijuana Act (Proposition 64), contending that the offense had been decriminalized because she possessed less than 28.5 grams of marijuana not in the form of concentrated cannabis. The trial court recognized that California Courts of Appeal were split on the issue. The trial court concluded that Proposition 64 did not decriminalize possession of cannabis at a correctional institution. Defendant contends that was error. Our Supreme Court recently resolved the prior split among the California Courts of Appeal, concluding that “possession of cannabis in prison remains a violation of … section 4573.6.” (People v. Raybon (2021) 11 Cal.5th 1056, 1060.) While defendant’s appeal was pending, the Governor signed Assembly Bill No. 1950 (2019–2020 Reg. Sess.) (Assembly Bill 1950). We afforded the parties an opportunity to submit supplemental briefing regarding the impact of Assembly Bill 1950 on defendant’s five-year term of probation. The parties agree that defendant is entitled to the benefit of Assembly Bill 1950, but they disagree on the appropriate remedy. We vacate the order granting defendant probation and remand the matter to permit the trial court and the People an opportunity to withdraw from the plea agreement or accede to a lesser term of probation. PROCEDURAL SUMMARY On June 26, 2015, the Tuolumne County District Attorney filed a complaint, later deemed an information, charging defendant with felony possession of contraband in prison (§ 4573.6, subd. (a); count 1), unlawful taking or driving of a vehicle (Veh. Code,