Opinion
E075550
11-30-2021
THE PEOPLE, Plaintiff and Respondent, v. LEONTAE G. JENKINS, Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Britton B. Lacy and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB17001613. Ronald M. Christianson, Judge. Affirmed as modified.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Britton B. Lacy and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER ACTING P. J.
Following the search of a vehicle in which defendant and appellant Leontae G. Jenkins was a passenger, an officer located a gun in defendant's sweater. A jury convicted defendant of one count of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 2). Defendant was placed on probation for a period of three years on various terms and conditions. On appeal, defendant contends (1) the trial court erred in denying his suppression motion, and (2) under Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950) his maximum period of probation must be reduced to two years. We agree that defendant's probationary term must be reduced to two years but reject his remaining contention.
All future statutory references are to the Penal Code unless otherwise stated.
The jury found defendant not guilty of another count of possession of a firearm by a felon which occurred on a different date as alleged in count 1.
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the suppression hearing.
Following a preliminary hearing, a first amended information was filed on April 8, 2019, charging defendant with one count of possession of a firearm by a felon (§ 29800, subd. (a)(1); count 1) and unlawful possession of ammunition (§ 30305, subd. (a)(1); count 2).
Defendant subsequently filed a motion to suppress, arguing the search of the vehicle in which he was an occupant was in violation of his Fourth Amendment rights and beyond the scope of any consent or legal authority. The People opposed the motion.
A hearing on the motion was held on April 24, 2019. At that time, Officer Jose Vazquez, who had approximately 14 years of experience as an officer, testified that as he was patrolling an area in the city of Ontario on February 23, 2018, at around 1:08 p.m., he observed a gold-colored Toyota Camry swerve approximately three times in violation of Vehicle Code section 22107. Officer Vazquez drove behind the vehicle, and prior to activating his patrol vehicle's overhead lights and sirens, he observed the front passenger, later identified as defendant, turn his head around multiple times to look back at the officer. He also observed defendant moving around, removing a sweater, and with his left hand place it directly behind the driver's seat. Officer Vazquez believed defendant's actions were "furtive movements" and consistent with someone trying to "conceal possible narcotics." There were no other cars in the vicinity or between the officer's police vehicle and the gold-colored Camry to obstruct his view.
Officer Vazquez pulled the vehicle over and made contact with the female driver. As the driver rolled down her window, the officer smelled a strong odor of marijuana emitting from the vehicle. There were two occupants in the vehicle: defendant and the female driver. Officer Vazquez obtained the driver's license of the driver and the vehicle registration. And as he was waiting for the driver to obtain her proof of insurance, the officer asked the driver to step out of the vehicle to determine what was causing her to swerve. Officer Vazquez also asked the driver for her consent to search the vehicle. The driver gave her consent to search the vehicle. Before the officer began the search, the driver told the officer that everything in the vehicle belonged to her except defendant's sweater. The officer asked defendant if anything other than his sweater was in the car and he replied in the negative.
Once the officer received consent to search the vehicle, the officer removed defendant and searched the car. During the search of the vehicle, Officer Vazquez found a semiautomatic handgun with a round in the chamber, marijuana, and a set of vehicle keys inside the sweater defendant had placed behind the driver's seat. The sweater was in plain view, sitting on top of a black duffle bag. Officer Vazquez explained that he had begun his "systematic search" of the vehicle starting in the front seat and then moving behind the driver's seat. When he went to move defendant's sweater to search the bag underneath the sweater, he felt a hard object that he immediately recognized as a firearm. Officer Vazquez then detained defendant, advised him that he was detained, and placed handcuffs on him for officer safety reasons. The officer acknowledged that he did not ask defendant permission to move or search his sweater.
The amount of marijuana was a legal amount.
Following argument, the trial court took the motion to suppress under submission to review the parties' motions and conduct further research.
On April 29, 2019, the trial court denied defendant's suppression motion. The court found there was probable cause to search the vehicle, including the sweater, based on the swerving, defendant's actions, and the smell of marijuana. The court determined that the driver's consent did not cover defendant's sweater because both the driver and defendant had stated the sweater belonged to defendant before the search. The court declined to rule on the issue whether the officer's touching or picking up of the sweater constituted a search.
Defendant was subsequently convicted of one count of possession of a firearm by a felon (§ 29800, subd. (a)(1)) and placed on probation for a period of three years. This appeal followed.
DISCUSSION
A. MOTION TO SUPPRESS
Defendant contends the trial court erroneously denied his motion to suppress the search of his sweater because Officer Vazquez lacked probable cause to search the vehicle and the sweater. The People agree that the officer did not have probable cause to search the car, but that the moving of defendant's sweater was within the scope of the driver's consent to search and because the officer immediately recognized the firearm by touch, he had probable cause to search the sweater.
1. Standard of Review
" 'The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." '" (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1224, italics omitted (Robey).) "Accordingly, the burden of proving the justification for the warrantless search or seizure lies squarely with the prosecution." (People v. Johnson (2006) 38 Cal.4th 717, 723.)
If there is a legitimate reason for a search or seizure, an officer's subjective motivation is generally irrelevant. (Kentucky v. King (2011) 563 U.S. 452, 464 [the high court's cases" 'have repeatedly rejected' a subjective approach, asking only whether 'the circumstances, viewed objectively, justify the action' "]; Whren v. United States (1996) 517 U.S. 806, 811-813; People v. Lomax (2010) 49 Cal.4th 530, 564.) "The reasons for looking to objective factors, rather than subjective intent, are clear. Legal tests based on reasonableness are generally objective, and this Court has long taken the view that 'evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.'" (Kentucky v. King, at p. 464.)
" 'In reviewing a trial court's ruling on a motion to suppress evidence, we defer to that court's factual findings, express or implied, if they are supported by substantial evidence. [Citation.] We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment.'" (Robey, supra, 56 Cal.4th at p. 1223.) "Thus, while we ultimately exercise our independent judgment to determine the constitutional propriety of a search or seizure, we do so within the context of historical facts determined by the trial court. 'As the finder of fact . . . the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable.' [Citation.]" (People v. Tully (2012) 54 Cal.4th 952, 979 (Tully).)
2. Detention
"Under Terry v. Ohio (1968) 392 U.S. 1, 19, the judicial inquiry into the reasonableness of a detention is a dual one-whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Detention, not questioning, is the evil at which Terry's second prong is aimed. [Citation.]" (People v. Brown (1998) 62 Cal.App.4th 493, 496 (Brown).)
A law enforcement officer may detain a motorist for a brief investigation when the totality of the circumstances provide the officer with reasonable suspicion that the motorist has violated the law. (Navarette v. California (2014) 572 U.S. 393, 396; see People v. Wells (2006) 38 Cal.4th 1078, 1082 ["[A]n officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law."].) But the detention cannot be prolonged beyond the time period necessary to address the violation. (People v. Gallardo (2005) 130 Cal.App.4th 234, 238 (Gallardo).) There is no hard-and-fast rule as to the amount of time that is reasonable. (Ibid.) It depends on the circumstances of each case. (Ibid.)
"[I]nvestigative activities beyond the original purpose of a traffic stop, including warrant checks, are permissible as long as they do not prolong the stop beyond the time it would otherwise take." (Brown, supra, 62 Cal.App.4th at p. 498; Gallardo, supra, 130 Cal.App.4th at p. 238.) "Questioning during the routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure." (Brown, at p. 499.) "An officer's inquiries into matters unrelated to the justification for the traffic stop . . . do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop." (Arizona v. Johnson (2009) 555 U.S. 323, 333.)
In addition, the" 'police do not need to have a reasonable suspicion in order to . . . request identification, '" from a "passenger who has been detained during a lawful car stop." (People v. Vibanco (2007) 151 Cal.App.4th 1, 14.) Moreover, police officers may "order a passenger or passengers either to get out of the car or to remain in the car during a lawful traffic stop if the officers deem it necessary for officer safety." (Id. at p. 11.)
Here, it is not disputed that Officer Vazquez stopped the car in which defendant was a passenger on reasonable suspicion due to the driver swerving approximately three times in violation of Vehicle Code section 22107. Officer Vazquez thus had reasonable suspicion to detain the driver. Furthermore, the facts here do not indicate that the detention was unreasonably prolonged. During oral argument, defense counsel suggested that the traffic stop was a "ruse" to search defendant's sweater. However, there is no indication this was a pretext stop; defendant does not argue that the driver was not swerving and was not subject to a stop for the Vehicle Code violation.
3. Search of Vehicle
Initially, we note that Fourth Amendment rights are personal and may not be vicariously asserted. (Rakas v. Illinois (1978) 439 U.S. 128, 133-134.) "A warrantless search may be based on the consent of a person, other than the accused, who has control over the area searched. '[T]he defendant may challenge the validity of the consent insofar as the search infringed his own expectations of privacy under the Fourth Amendment.' [Citation.] The 'capacity to claim the protection of the Fourth Amendment depends . . . upon whether the person . . . has a legitimate expectation of privacy in the invaded place.' (Rakas v. Illinois[, at p.] 143.) A defendant has the burden to establish a legitimate expectation of privacy in the place searched." (People v. Rivera (2007) 41 Cal.4th 304, 308, fn. 1.)
"A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." (Rakas v. Illinois, supra, 439 U.S. at p. 134.) In United States v. Salvucci (1980) 448 U.S. 83, the court "declined to use possession of a seized good as a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area searched." (Id. at p. 91.) A vehicle passenger with no possessory interest in the car therefore generally has no basis for a"' "Fourth Amendment challenge to a search of the car." '" (United States v. Pulliam (9th Cir. 2005) 405 F.3d 782, 786.)
Defendant does not assert any possessory interest in the car searched. As a passenger in a car in which he had no possessory interest, defendant had no expectation of privacy that would permit him to challenge the legality of the search of the car.
In any event, we address defendant's arguments as they pertain to the search of his sweater located in the vehicle. As previously noted, warrantless searches"' "are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions."' [Citations.] 'The burden is on the People to establish an exception applies.' [Citation.]" (People v. Ovieda (2019) 7 Cal.5th 1034, 1041.)
One exception to the Fourth Amendment's warrant requirement is the automobile exception. "Under the automobile exception, police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found. [Citations.] Such a search 'is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.'" (People v. Evans (2011) 200 Cal.App.4th 735, 753 (Evans), quoting United States v. Ross (1982) 456 U.S. 798, 809 (Ross).)
"The scope of a warrantless search based on probable cause [under the automobile exception] is no narrower-and no broader-than the scope of a search authorized by a warrant supported by probable cause. Only the prior approval of the magistrate is waived; the search otherwise is as the magistrate could authorize." (Ross, supra, 456 U.S. at p. 823; see Evans, supra, 200 Cal.App.4th at p. 753.) Thus, police "may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant . . . ." (Ross, at p. 800; see Evans, at p. 753.)
Because the parties agree the officer did not have probable cause to search the vehicle based on the odor of marijuana, and we accept the People's concession, we will not address the legal landscape on what constitutes probable cause to search in the context of the automobile exception to the Fourth Amendment's warrant requirement with the passage of Proposition 64 which legalized marijuana for personal use. (See generally People v. Fews (2018) 27 Cal.App.5th 553, 562 [relying on People v. Strasburg (2007) 148 Cal.App.4th 1052 & People v. Waxler (2014) 224 Cal.App.4th 712, court held the odor of marijuana provides probable cause to search vehicle]; compare People v. Lee (2019) 40 Cal.App.5th 853, 866 [possession of legal amounts of marijuana on a person did not provide inference that the car contained contraband]; People v. Shumake (2019) 45 Cal.App.5th Supp.1, 6-8 [possession of 1.14 grams of marijuana in a closed plastic tube found in the center console was legal]; People v. McGee (2020) 53 Cal.App.5th 796, 803 ["mere presence of a legal amount of marijuana, without more, cannot establish probable cause"]; People v. Johnson (2020) 50 Cal.App.5th 620, 634 [court held "the odor of marijuana alone no longer provides an inference that a car contains contraband because individuals over the age of 21 can now lawfully possess and transport up to 28.5 grams of marijuana"]; People v. Hall (2020) 57 Cal.App.5th 946, 948 ["the lawful possession of marijuana in a vehicle does not provide probable cause to search the vehicle"].)
Another exception to the Fourth Amendment's warrant requirement "is a search that is conducted pursuant to consent." (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219; see Florida v. Jimeno (1991) 500 U.S. 248, 251 (Jimeno); People v. Superior Court (Chapman) (2012) 204 Cal.App.4th 1004, 1012.) An officer does not need reasonable suspicion to request consent to search, unless the requesting consent unduly prolonged the detention. (Gallardo, supra, 130 Cal.App.4th at pp. 238-239; Brown, supra, 62 Cal.App.4th at p. 499.) An officer is permitted to ask for consent to search, like the mere questioning of a detainee. (Brown, at pp. 499-500.) "While the traffic detainee is under no obligation to answer unrelated questions, the Constitution does not prohibit law enforcement officers from asking. [Citations.]" (Id. at p. 499; accord, Florida v. Bostick (1991) 501 U.S. 429, 435, 439-440 [police may approach a person in a public place and ask potentially incriminating questions and request permission to search without implicating the Fourth Amendment, so long as a reasonable person would understand he or she could refuse to cooperate].) The person is, "of course, free to decline consent." (Gallardo, at p. 239.)
Gallardo, supra, 130 Cal.App.4th 234 is instructive. In Gallardo, a deputy sheriff stopped the defendant for driving a truck with a smashed taillight. (Id. at p. 236.) The deputy told the defendant the reason for the stop and inspected his license and registration. (Ibid.) Then the deputy asked the defendant "if there was anything illegal in the car, like weapons or drugs." (Id. at p. 237.) The defendant said there was not, and the deputy asked for permission to search. The defendant agreed and stepped out of the car. (Ibid.) The search revealed drugs and paraphernalia. (Ibid.)
The defendant appealed the denial of his suppression motion, arguing, among other things, "before requesting consent to search, the police must have an articulable suspicion of wrongdoing." (Gallardo, supra, 130 Cal.App.4th at p. 238.) Relying on Brown, supra, 62 Cal.App.4th 493, the appellate court rejected this argument, concluding an officer may request consent to search so long as requesting consent does not unduly prolong the traffic stop. (Gallardo, at pp. 238-239.)
" 'The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of "objective" reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect? [Citations.]'" (People v. Crenshaw (1992) 9 Cal.App.4th 1403, 1408.) "A consensual search may not legally exceed the scope of the consent supporting it." (Ibid.)" 'Whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of [the] circumstances. [Citation.] Unless clearly erroneous, we uphold the trial court's determination.'" (Tully, supra, 54 Cal.4th at pp. 983-984.)
"[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." (United States v. Matlock (1974) 415 U.S. 164, 171.) To determine whether an individual has authority to consent to search for third persons, courts look at whether there is evidence of "mutual use of the property . . . so that it is reasonable to recognize that . . . [the third persons have] assumed the risk that one of their numbers might permit the common area to be searched." (Id. at p. 171, fn. 7.) Thus, "objects left in an area of common use or control may be within the scope of the consent given by a third party for a search of the common area. [Citation.]" (People v. Clark (1993) 5 Cal.4th 950, 979, fn. omitted (Clark), overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421.)
The owner of a vehicle can consent to a search of a vehicle by police even though the vehicle contains property belonging to other passengers. (Clark, supra, 5 Cal.4th at p. 979 [third party's consent to search vehicle included search of defendant's clothes, which were lying on seat of vehicle].) When an owner consents to a search of his or her vehicle, the owner has consented to a search of all items that would reasonably fall within the scope of his or her consent. (Jimeno, supra, 500 U.S. at p. 251.) An owner's consent to search, however, does not include a search of belongings of passengers if the officer had prior knowledge that these items were the property of third parties. (See People v. Stage (1970) 7 Cal.App.3d 681, 683 (Stage) [search of a jacket discovered during a car search was illegal, particularly when the officer knew the jacket belonged to the defendant rather than the owner of the car who consented to the search].)
Here, there is no dispute that the driver gave consent to search the vehicle, and defendant does not dispute that the driver as the owner of the vehicle had the authority to consent to a search of the vehicle. In addition, as previously noted, the facts do not suggest the detention was unreasonably prolonged, and defendant does not argue otherwise. Further, nothing in the record suggests that the driver's consent was compelled or involuntary. Since the driver did not place any limitations on where Officer Vazquez could search, her consent to the search of her vehicle would include all containers found in the vehicle, including the bag underneath defendant's sweater. (See People v. Williams (1980) 114 Cal.App.3d 67, 74 ["[a]uthorization to search an automobile must be deemed to include the automobile in its entirety, unless the defendant expressly states otherwise"].) Although Officer Vazquez was aware the sweater belonged to defendant prior to the search of the sweater, once the officer touched or moved the sweater in order to search the bag underneath it, the officer felt a hard object that he immediately recognized as a firearm. At that point, the officer had probable cause to believe the vehicle contained evidence of criminal activity and to conduct a search of the sweater. Such a search was not unreasonable because the facts here" 'would justify the issuance of a warrant, even though a warrant has not actually been obtained.'" (Evans, supra, 200 Cal.App.4th at p. 753.)
Defendant argues his case is similar to Stage, supra, 7 Cal.App.3d 681, where the court held an owner's consent to search does not include a search of the belongings of passengers, if the officer had prior knowledge that those items belonged to a third party.
Stage is distinguishable. In that case, an officer found contraband, which included a marijuana cigarette and some pills in the pocket of a jacket, that he knew belonged to the defendant, and not the car owner who provided consent to search the car. (Id. at pp. 682-684.) However, the court in Stage held, in part, that the evidence should have been suppressed because the officer had no probable cause to search the car or the jacket. (Id. at pp. 683-684.) Moreover, the Stage court did not make any findings concerning the moving or touching of objects to search contents of a car which belonged to the consenting owner.
Here, in contrast, moving the sweater was within the scope of the driver's consent to search the car, and there was probable cause to search the sweater once the officer moved the sweater to search the bag and immediately felt that it contained a firearm. Unlike the contraband seized in Stage, it was immediately obvious to the officer that a firearm was located in the sweater once he touched the sweater to execute the vehicle search. The justification for the search here was the driver's consent. The driver gave consent to search her vehicle, including her belongings contained in her car, such as her bag located underneath defendant's sweater. The officer thus could touch or move the sweater to search the bag under it.
Defendant also relies on People v. Cruz (1964) 61 Cal.2d 861 (Cruz), but that case is also distinguishable. In Cruz, a tenant and a guest of an apartment where the defendant was temporarily staying gave officers consent to "look around" the apartment. (Id. at pp. 864, 866.) The apartment had a" 'conglomeration of goods'" that belonged to several people, including the defendant. (Id. at p. 867.) An officer searched through boxes and suitcases, and he opened the defendant's suitcase and discovered that it contained contraband. (Id. at p. 864.) Only after the search of the suitcase did the officer ask who the suitcase belonged to and discovered it was the defendant's. (Ibid.)
The California Supreme Court concluded the search of the defendant's suitcase was illegal, holding that the officer had a duty to inquire as to what suitcases belonged to the defendant or other persons because "the general consent given by [one of the co-tenants to] 'look around' did not authorize [the officer] to open and search suitcases and boxes that he had been informed were the property of third persons." (Cruz, supra, 61 Cal.2d at p. 866.) The court explained that," 'as to any particular suitcase before [the officer] opened it, [the officer] should have said, "Is this yours? Can I look into it?" or, "Does this belong to the [defendant] . . . or somebody else?" '" (Id. at p. 867.) Thus, pursuant to Cruz, an officer has a duty to make further inquiries when the officer is informed and placed on notice that particular items, such as suitcases, belong to third parties. (Ibid.)
In contrast to Cruz, supra, 61 Cal.2d 861, the officer here did inquire about who the sweater belonged to prior to the search, and the consent that the driver gave was not a general consent to "look around." Once the officer touched or moved the sweater and felt it contained a firearm, he had probable cause to search the sweater regardless of defendant's claims of ownership. (See Minnesota v. Dickerson (1993) 508 U.S. 366, 370-371, 374-375 [the United States Supreme Court essentially agreed with the notion of "plain feel" or plain "touch" justifying search and seizure of the object in question]; see also Estes v. Rowland (1993) 14 Cal.App.4th 508, 529.)
We find that touching and moving the sweater was not a search but was done within the scope of the driver's consent to search her vehicle and its contents, such as the bag sitting underneath defendant's sweater. And once the officer touched and moved the sweater in order to search the bag and immediately felt it contained a firearm, the officer had probable cause to search the sweater. The trial court properly denied defendant's motion to suppress evidence.
B. ASSEMBLY BILL 1950
Defendant contends his three-year probation term should be reduced to two years because section 1203.1, subdivision (a), under which he was sentenced to formal probation for a period of three years, has been amended by Assembly Bill 1950, effective January 1, 2021. He also argues the change applies retroactively to his case, which is not yet final, under the principles of retroactivity applicable to ameliorative changes to the criminal law as set forth in In re Estrada (1965) 63 Cal.2d 740 (Estrada). The People agree Assembly Bill 1950 applies retroactively and that defendant's maximum period of probation should be reduced to two years. We agree.
Here, on August 13, 2020, defendant was granted three years of formal probation and sentenced to serve 180 days in county jail with eligibility for a work release program. When defendant was sentenced, former section 1203.1 provided that a trial court may grant felony probation "for a period of time not exceeding the maximum possible term of the sentence." If the "maximum possible term of the sentence is five years or less, then the period of suspension of imposition or execution of sentence may, in the discretion of the court, continue for not over five years." (Former § 1203.1, subd. (a).) The trial court here granted probation for three years.
Effective January 1, 2021, Assembly Bill 1950 amended section 1203.1, subdivision (a), to limit the probation term for felony offenses to two years, except in cases of certain violent felonies. (Stats. 2020, ch. 328, § 2; § 1203.1, subds. (a), (m).)
Based on the recent opinion in People v. Sims (2021) 59 Cal.App.5th 943 (Sims), we conclude the parties are correct regarding the retroactivity of Assembly Bill 1950. As the court stated in that case, "the two-year limitation on felony probation set forth in Assembly Bill No. 1950 is an ameliorative change to the criminal law that is subject to the Estrada presumption of retroactivity," and "[t]herefore . . . the two-year limitation applies retroactively to all cases not reduced to final judgment as of the new law's effective date." (Id. at p. 964; see People v. Quinn (2021) 59 Cal.App.5th 874, 879-885 (Quinn).) Following the reasoning in Sims and Quinn, we conclude that defendant is entitled to the benefit of the change to section 1203.1, subdivision (a).
However, the parties disagree on the question of remedy. Defendant contends that this court should simply order his probation term to be modified to two years, and that there is no need to remand to the trial court for resentencing because the trial court does not need to exercise its discretion to modify the length of probation. The People, however, argue that merely striking the portion of the probationary term that exceeds two years deprives the trial court and the parties of "a necessary determination of the status of the probation." In other words, the People contend the trial court should be allowed to clarify defendant's expungement status, adjust the probation terms so they can be complied with before termination of probation, and determine whether his probation can be terminated successfully. Thus, the People request that we follow the Sims court and remand the matter for resentencing. (See Sims, supra, 59 Cal.App.5th at p. 964 [court remanded matter for defendant to seek a reduced probation term under Assembly Bill 1950].) We decline the People's request in this case.
"The court is not required to make a determination regarding dangerousness, the value of further probationary supervision, or any other consideration. Rather, the Legislature has made that determination. There is no indication in the legislative history that the Legislature was concerned with disruptions to probationary proceedings already in progress." (Quinn, supra, 59 Cal.App.5th at p. 885; see People v. Stewart (2021) 62 Cal.App.5th 1065, 1079, review granted June 30, 2021, S268787.) Hence, as in Quinn, we may simply strike the additional year without need for a remand. Should defendant seek any additional relief, such as record expungement, he may of course file an appropriate motion in the trial court.
Accordingly, we will order defendant's probationary sentence be reduced from three years to two years, as did the Quinn court. (See Quinn, supra, 59 Cal.App.5th at p. 885.)
DISPOSITION
The order granting probation is modified and reduced to two years. In all other respects, the judgment is affirmed.
We concur: SLOUGH J. RAPHAEL J.