Filed 1/3/22 P. v. Harrison 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080490
Plaintiff and Respondent,
(Super. Ct. No. F19903443)
v.
JAMES EDWARD HARRISON III, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Glenda S.
Allen-Hill, Judge.
Karriem Baker, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Timothy L.
O’Hair, and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Peña, J. and DeSantos, J.
Defendant James Edward Harrison III pled no contest to carrying a concealed
firearm in a vehicle in Fresno County Superior Court case No. F19903443 (court of
appeal case No. F080490) and no contest to false imprisonment by violence in Fresno
County Superior Court case No. F19907354 (court of appeal case No. F080492). In case
No. F080492, defendant’s counsel filed a Wende1 brief, i.e., one that asserted no claims
but sought an independent examination of the record to determine if there are any
arguable issues;2 in case No. F080490, defendant contends that his term of probation
must be modified to two years pursuant to Penal Code section 1203.1, 3 subdivision (a), as
amended by Assembly Bill No. 1950 (2019−2020 Reg. Sess.) (Assembly Bill 1950), and
argues that the fees imposed pursuant to former section 1203.1b must be vacated as
required by Assembly Bill No. 1869 (2019−2020 Reg. Sess.) (Assembly Bill 1869). The
People agree that defendant is entitled to the benefit of Assembly Bill 1869 and
Assembly Bill 1950, but contend that the matter must be remanded to the trial court to
modify the term of probation to a period not to exceed two years. We modify
defendant’s term of probation to two years and vacate the portion of the order imposing
fees pursuant to former section 1203.1b. As modified, we affirm.
PROCEDURAL SUMMARY
On May 29, 2019, the Fresno County District Attorney filed a complaint in case
No. F19903443, charging defendant with carrying a concealed firearm as a vehicle
occupant (§ 25400, subd. (a)(3); count 1), and carrying a loaded firearm in public
(§ 25850, subd. (a); count 2).
1 People v. Wende (1979) 25 Cal.3d. 436.
2 We notified defendant that he was permitted to submit a letter to supplement the
Wende brief with any grounds he would like the court to consider. Defendant filed no
response.
3 All further statutory references are to the Penal Code.
2.
On October 30, 2019, the Fresno County District Attorney filed a complaint in
case No. F19907354, charging defendant with spousal battery causing corporal injury
(§ 273.5, subd. (a); count 1), false imprisonment by violence (§ 236; count 2), dissuading
a witness (§ 136.1, subd. (b)(1); count 3), and misdemeanor vandalism (§ 594,
subd. (a)(2); count 4). The complaint further alleged that at the time of the offenses,
defendant was released from custody on his own recognizance in case No. F19903443
(§ 120221).
On November 21, 2019, pursuant to a negotiated plea agreement, defendant pled
no contest to count 1 of case No. F19903443 and count 2 of case No. F19907354. In
exchange, the remaining counts and allegations were dismissed on the prosecutor’s
motion, two other misdemeanor matters were dismissed on the prosecutor’s motion, and
the court indicated it would sentence defendant to no initial state prison, releasing him on
the date of sentencing. The duration of the term of probation was not a negotiated term
of the plea agreement.
On December 20, 2019, the trial court suspended imposition of sentence for
three years and granted defendant three years of formal probation. The court ordered
defendant to serve 125 days in custody as a term of probation in case No. F19903443 and
104 days in custody in case No. F19907354, and awarded defendant credit for time
served in both cases. The terms of probation also included completion of community
service hours by June 30, 2022, and completion of a batterer’s treatment program.
On December 23, 2019, defendant filed a notice of appeal.
3.
FACTUAL BASIS4
Case No. F19903443
On May 26, 2019, at approximately 2:36 a.m., officers stopped a vehicle for a
traffic violation. Defendant was seated in the rear passenger seat of that vehicle.
Officers noticed a firearm in the pocket behind the passenger seat. They ordered
defendant and two other men to exit the vehicle. Officers then recovered a loaded
.22-caliber revolver from the vehicle.
Case No. F19907354
Defendant and confidential victim (C.V.) were involved in a dating relationship
which ended on August 30, 2019.
On October 16, 2019, at approximately 3:30 p.m., while C.V. was at work, she
received a video call from defendant. When she answered the call, she saw that
defendant was inside of her apartment and was damaging her television and laptop. C.V.
called 911, left work, and drove to her apartment. Defendant was not at the apartment
when officers arrived.
On the same date at approximately 6:00 p.m., defendant returned to C.V.’s
apartment with two men that C.V. did not know. Defendant pushed C.V. to the ground.
The two unknown men restrained C.V.’s legs while defendant held her wrists. Defendant
took C.V.’s cell phone. C.V. screamed and neighbors “ ‘took notice.’ ” Defendant and
the two unknown men walked out of C.V.’s apartment and drove away.
4 The parties stipulated that if the court reviewed “the crime reports in each case, [it]
would find a factual basis” for defendant’s plea. Our summary of the facts is therefore
drawn from the probation officer’s report.
4.
DISCUSSION
A. Assembly Bill 1950
1. Applicability
Effective January 1, 2021, Assembly Bill 1950 amended sections 1203a and
1203.1 to limit the maximum term of probation a trial court is authorized to impose for
most felony offenses to two years and most misdemeanor offenses to one year.
(§§ 1203a, subd. (a), 1203.1, subds. (a) & (m), as amended by Stats. 2020, ch. 328,
§§ 1, 2.) “[T]he … limitation[s] on … probation set forth in Assembly Bill … 1950 [are]
ameliorative change[s] to the criminal law that [are] subject to the [In re] Estrada [(1965)
63 Cal.2d 740] presumption of retroactivity.” (People v. Sims (2021) 59 Cal.App.5th
943, 963–964; accord, People v. Quinn (2021) 59 Cal.App.5th 874, 883–885.) Therefore,
the amendments to sections 1203a and 1203.1 apply to all cases not final on Assembly
Bill 1950’s effective date. (In re Estrada, at p. 742.)
As the parties agree, defendant’s case was not final on January 1, 2021, and he
was sentenced to a term of felony probation exceeding two years for a crime of
conviction that is not a violent felony exempted from the two-year limit on felony
probation. (§§ 1203.1, subd. (m), 667.5, subd. (c).)5 We agree. Defendant is entitled to
the benefit of Assembly Bill 1950.
2. Remedy
The parties disagree on the appropriate remedy—defendant contends we should
modify his term of probation; the People contend we should remand the matter to the trial
court to modify the term of probation to a period not to exceed two years and allow the
5 Carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(3)) and false
imprisonment by violence (§ 236) are not violent felony offenses excluded from
section 1203.1, subdivision (a)’s two-year limit on duration of felony probation by
section 1203.1, subdivision (m).
5.
parties to bring any motions to withdraw from the plea agreement. We modify the term
of probation to two years consistent with Assembly Bill 1950.
The People contend that on remand it may be appropriate for the trial court or the
People to be permitted to withdraw approval for the plea agreement. We disagree.
In People v. Stamps, our Supreme Court concluded that a defendant was entitled to
the benefit of an ameliorative change in the law—specifically, pursuant to Senate Bill
No. 1393 (2017–2018 Reg. Sess.) (Senate Bill 1393), he was entitled to have the matter
remanded for the trial court to exercise its discretion to strike a serious felony conviction
enhancement in the interest of justice. (People v. Stamps (2020) 9 Cal.5th 685, 699
(Stamps).) However, because the serious felony conviction enhancement was imposed as
part of a negotiated stipulated sentence, if the trial court exercised its discretion to strike
the enhancement, the People and the trial court were permitted to withdraw approval for
the plea agreement. (Stamps, at pp. 707–708.) The defendant was not permitted “ ‘ “to
whittle down the sentence ‘but otherwise leave the plea bargain intact ….’ ” ’ ” (Id. at
p. 706.)
Here, the duration of defendant’s probation was not a negotiated part of the plea
agreement. Consequently, modification of the duration of his probation is not
inconsistent with any term of the plea agreement. Therefore, the People and the trial
court need not be afforded an opportunity to withdraw approval of the plea in light of the
required modification to the duration of defendant’s probation. (See Stamps, supra,
9 Cal.5th 685, 700.)
The People further contend that the matter should be remanded to the trial court to
allow the “trial court to adjust, modify, or strike probation terms, so that they can be
complied with before termination of probation ….” The People note that some later
determinations—like expungement of prior convictions pursuant to section 1203.4,
subdivision (a)—require a finding of whether defendant successfully completed
probation. Defendant was granted probation on December 20, 2019. Because of the
6.
change in the law brought about by Assembly Bill 1950, defendant’s term of probation
may continue only until December 20, 2021. Remand for the trial court to modify the
terms of probation would not afford the trial court any meaningful discretion. Further, no
purpose is served in remanding the matter for a determination of successful completion of
probation. A court hearing any later motions that require successful completion of
probation can make any such required determinations.
B. Wende Review
As noted above, defendant’s counsel filed a Wende brief in case No. F080492. In
the brief, defendant’s counsel represented that appellant was advised he could file his
own brief with this court. We informed defendant of the same. To date, defendant has
filed no supplemental brief.
1. Assembly Bill No. 1869
The trial court imposed a probation report and supervision fee pursuant to former
section 1203.1b. Effective July 1, 2021, Assembly Bill 1869 eliminated many fines, fees,
and assessments that courts have imposed under a variety of statutes, including former
section 1203.1b. (Stats. 2020, ch. 92, §§ 2, 11, 47, 62.) The parties agree, as do we, that
the unpaid balance on the trial court’s order requiring defendant probation report and
supervision fees is now unenforceable and uncollectable. (§ 1465.9, subd. (a).) We
vacate that portion of the judgment.
After independent review of the record, we find that no other reasonably arguable
factual or legal issues exist.
DISPOSITION
Defendant’s term of probation is modified to two years. The portion of the order
granting probation that imposed fees pursuant to section 1203.1b is vacated. As
modified, we affirm. The trial court is directed to issue a minute order reflecting the
modifications and forward a copy to the appropriate entities.
7.