People v. Espinoza CA6

Filed 10/25/22 P. v. Espinoza CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048940 (Monterey County Plaintiff and Respondent, Super. Ct. No. 19CR005138)

v.

ADAN ESPINOZA,

Defendant and Appellant.

MEMORANDUM OPINION We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, Title 8, Standard 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.) Defendant appeals from an order terminating probation and imposing a jail sentence that was deemed served based on presentence custody credits. Defendant was charged with felony resisting or deterring an executive officer (Pen. Code, § 69) in 2018 in Santa Clara County Superior Court. (The facts underlying the offense are not relevant to the issues on appeal.) Defendant pleaded no contest to the charge, imposition of sentence was suspended, and the trial court placed him on probation for three years in November 2018. Among the fines and fees imposed at that time was a $259.50 criminal justice administration fee. We accept the People’s concession that any unpaid balance of the criminal justice administration fee must be vacated. (Gov. Code, § 6111.)

Defendant’s probation was transferred to Monterey County in 2019. More than two years into defendant’s term of probation, a notice of violation was filed in December 2020 alleging defendant committed elder abuse (Pen. Code, § 368, subd. (c)). Probation was summarily revoked and the matter was continued for a probation violation hearing. Assembly Bill No. 1950 (Stats. 2020, ch. 328 [limiting the duration of probation in most felony cases to two years]) took effect on January 1, 2021, after defendant’s probation had been revoked but before resolution of the violation. Defendant moved to discharge probation based on Assembly Bill No. 1950. The trial court denied the motion, terminated probation and sentenced defendant to 292 days in jail (deemed served based on presentence custody credits). The court also ordered defendant to pay the previously suspended probation revocation fine. (Pen. Code, § 1202.44.) Assembly Bill No. 1950 amended Penal Code section 1203.1, subdivision (a) to provide that the maximum duration of probation in most felony cases is two years. (Stats. 2020, ch. 328, § 2.) “Appellate courts are so far unanimous in holding that Assembly Bill [No.] 1950 applies retroactively to defendants who were serving a term of probation when the legislation became effective on January 1, 2021; in such cases, the courts have acted to reduce the length of their probation terms.” (People v. Faial (2022) 75 Cal.App.5th 738, 743 [collecting cases], review granted May 18, 2022, S273840; accord People v. Czirban (2021) 67 Cal.App.5th 1073, 1095.) But Courts of Appeal are not uniform in applying the ameliorative change to individuals like defendant—whose probation was revoked after more than two years of supervision but before the January 1, 2021, effective date of the new law. (Compare Faial, at pp. 746-747 [no retroactivity] with People v. Canedos (2022) 77 Cal.App.5th 469, 476 (Canedos) [retroactive], review granted June 29, 2022, S274244.) The defendant in Canedos was convicted of a felony in 2016 and placed on probation with execution of sentence suspended. (Canedos, supra, 77 Cal.App.5th at p. 474, rev. granted.) Probation was terminated when Canedos was convicted of a new 2