Filed 3/29/22 P. v. Gaines CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B313834
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA141619
v.
DILLON MITCHEL GAINES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Carol J. Najera, Judge. Affirmed.
William Paul Melcher, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Zee Rodriguez and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In March 2017, defendant Dillon Mitchel Gaines pled no
contest to a violation of Penal Code section 261.5, subdivision (c).1
The trial court suspended the imposition of sentence and placed
defendant on probation for five years—the maximum term of
probation authorized under former section 1203.1,
subdivision (a).2 The court revoked and reinstated probation
several times. In November 2019, the court summarily revoked
defendant’s probation for the final time and at the probation
violation hearing conducted in July 2021, the court terminated
probation and imposed a sentence of 16 months to be served in
county jail.
Defendant argues the court lacked jurisdiction to terminate
probation and impose a sentence in July 2021. Specifically, he
argues that Assembly Bill No. 19503 (2019–2020 Reg. Sess.)
(AB 1950), a legislative enactment that lowered the maximum
term of probation for most felony offenders from five years to two
years and which became effective in January 2021, retroactively
and automatically modified his probation term to two years.
Defendant posits that his term of probation, as modified by
AB 1950, should be deemed to have ended in March 2019,
effectively nullifying his subsequent violation of probation and all
related court proceedings and orders.
AB 1950, and the shortened probationary period it
established, is not applicable here. Taking into account the
1 All undesignated statutory references are to the Penal Code.
2 (Stats. 2010, ch. 178, § 75, operative Jan. 1, 2012.)
3 (Stats. 2020, ch. 328, § 2, effective Jan. 1, 2021.)
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periods during which defendant’s probation was revoked—and
the term of probation was tolled—defendant was only on
probation for 245 days before the court terminated probation and
imposed a sentence. And the court retained jurisdiction to
adjudicate the probation violation between November 2019 and
July 2021 while his probation was revoked. We therefore affirm
the judgment.
FACTS AND PROCEDURAL BACKGROUND
On October 28, 2016, the People filed a felony complaint
charging defendant with unlawful sexual intercourse in violation
of section 261.5, subdivision (c). On March 16, 2017, defendant
pled no contest to the single count. After finding a factual basis
for defendant’s plea, the court accepted the plea, suspended the
imposition of sentence, and placed defendant on formal probation
for a period of five years. The court also imposed a number of
conditions of probation including, as pertinent here, 30 days
community service with the Department of Transportation
(CalTrans) and completion of an HIV/AIDS test. The court set a
hearing on April 26, 2017, at which time defendant was to
provide proof of enrollment and proof of HIV/AIDS testing.
On June 15, 2017, the court summarily revoked defendant’s
probation for the first time after he failed to appear for the
scheduled hearing to provide proof of completion of service hours
and proof of HIV/AIDS testing. In September 2018, defendant
appeared in court and admitted, and the court found, a probation
violation based on defendant’s failure to complete the required
community service hours. The court gave defendant an additional
six months in which to complete his service hours with CalTrans.
The court later converted the community service condition of
probation from 30 days of service with CalTrans to 60 days of
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community service and scheduled a probation violation hearing
setting for March 21, 2019. Defendant did not appear at the
March 21, 2019 hearing and a bench warrant was issued. The
bench warrant was later recalled but reissued in May 2019.
On June 10, 2019, defendant appeared in court and again
admitted that he failed to complete community service hours. The
court formally revoked and then reinstated probation on the
same terms and conditions but converted the community service
condition to 30 days jail time.
On November 18, 2019, the court summarily revoked
defendant’s probation again after the probation department
reported that defendant failed to report. No further proceedings
occurred until July 2021, at which time the court held a
probation violation hearing, noting that this was the third
violation and defendant had been absconding from probation for
one year and nine months. Defendant objected, stating that
under AB 1950, his term of probation had automatically expired
in March 2019, two years after probation was initially imposed
and well before his most recent probation violation. The court
acknowledged that AB 1950 shortened the maximum term of
probation for most felony offenders to two years. But the court
also noted that defendant’s probation had been revoked in
November 2019, well before the effective date of AB 1950. The
court concluded that AB 1950 did not apply, terminated
probation, and imposed the low term of 16 months to be served in
county jail.
Defendant timely appeals from the judgment.
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DISCUSSION
Defendant challenges on jurisdictional grounds the court’s
order terminating probation and imposing a sentence.
Specifically, defendant contends that AB 1950 retroactively
modified his five-year term of probation such that it ended after
two years, on March 16, 2019. Thus, according to defendant, the
subsequent court proceedings in which his probation was
summarily revoked and in which the court terminated probation
and imposed a sentence are effectively nullified. We disagree.
1. Standard of Review
We review a probation revocation order for an abuse of
discretion. (People v. Rodriguez (1990) 51 Cal.3d 437, 447;
People v. Butcher (2016) 247 Cal.App.4th 310, 312; see § 1203.2,
subd. (a).) The court’s factual findings are reviewed for
substantial evidence. (People v. Superior Court (Jones) (1998) 18
Cal.4th 667, 681; Butcher, at p. 312.) We review issues of law,
including statutory construction, de novo. (People v. Brackins
(2019) 37 Cal.App.5th 56, 65.)
2. Analysis
When AB 1950 took effect on January 1, 2021, it amended
section 1203.1 to limit the length of probation for most felony
convictions to less than two years.4 (§ 1203.1, subd. (a).) Although
the Legislature did not address retroactivity, several recent
decisions have concluded that this statute should be applied
retroactively in all nonfinal cases under In re Estrada (1965) 63
4There are several exceptions to the two-year cap, but none is
applicable here. (§ 1203.1, subd. (l).)
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Cal.2d 740, 745 [holding that an amendatory statute lessening
punishment is presumed to apply in all cases not yet reduced to
final judgment as of the amendatory statute’s effective date]. (See
People v. Butler (2022) 75 Cal.App.5th 216 (Butler); People v.
Greeley (2021) 70 Cal.App.5th 609, 627; People v. Czirban (2021)
67 Cal.App.5th 1073, 1095; People v. Schulz (2021) 66
Cal.App.5th 887, 895; People v. Gonsalves (2021) 66 Cal.App.5th
1, 12; People v. Lord (2021) 64 Cal.App.5th 241, 245–246;
People v. Sims (2021) 59 Cal.App.5th 943, 955–964; People v.
Quinn (2021) 59 Cal.App.5th 874, 879–885; see also People v.
Burton (2020) 58 Cal.App.5th Supp. 1; cf. People v. Faial (2022)
75 Cal.App.5th 738 [holding AB 1950 does not apply retroactively
when a defendant’s probation had been revoked and sentence
imposed or executed before AB 1950’s effective date]; Kuhnel v.
Appellate Division of Superior Court (2022) 75 Cal.App.5th 726
(Kuhnel) [noting AB 1950 neither displaces tolling provision in
section 1203.2, subdivision (a), nor invalidates a valid revocation
of probation occurring prior to January 1, 2021].)
Defendant asserts that the retroactive application of
AB 1950 requires us to conclude that his probation term ended on
March 16, 2019, two years after it was imposed. But defendant
ignores the fact that his probation had been revoked for most of
that two-year period.
When probation is revoked by the court, it tolls the running
of the probationary period. (§ 1203.2, subd. (a) [“The revocation,
summary or otherwise, shall serve to toll the running of the
period of supervision.”].) And citing People v. Leiva (2013) 56
Cal.4th 498, 514–515, the Attorney General explains that the
tolling provision of section 1203.2 is designed to preserve the trial
court’s authority to hold a formal probation violation hearing at a
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time after probation would have expired when the violation is
alleged to have occurred during the probationary period. AB 1950
did not modify section 1203.2. And we agree with our colleagues
in Division Three of the First District that, retroactive
application of AB 1950 notwithstanding, a valid revocation of
probation during the original term of probation preserves a
court’s jurisdiction to adjudicate an alleged probation violation
that occurred within the reduced probationary period provided by
AB 1950. (See Kuhnel, supra, 75 Cal.App.5th 726 [noting
AB 1950 did not alter section 1203.2, subdivision (a), which
provides that revocation of probation tolls running of
probationary period until formal violation hearing is held].)
Moreover, the Legislature recognized the manner in which the
tolling provision applies: “A two-year period of supervision would
likely provide a length of time that would be sufficient for a
probationer to complete any counseling or treatment that is
directed by a sentencing court. To the extent that a probationer is
not complying with the treatment or counseling directed by the
court during a probationary period, the court can revoke the
defendant’s probation until the defendant is back in compliance.
The period while probation is revoked tolls the running of time
towards the end point of the probationary period. That tolling
process would effectively extend the probationary period for
individuals that are not in compliance with the conditions of their
probation.” (Assem. Com. on Public Safety, Analysis of Assem.
Bill No. 1950 (2019–2020 Reg. Sess.) as amended May 6, 2020,
p. 7.)
Here, as noted, the court imposed the initial probation term
on March 16, 2017, and summarily revoked defendant’s probation
91 days later, on June 15, 2017. The court did not reinstate
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probation until June 10, 2019.5 The term of probation then ran
from June 10, 2019 until November 18, 2019, when the court
summarily revoked probation after the probation department
reported that defendant deserted probation. During that period,
defendant was on probation for an additional 154 days, for a total
of 245 days on probation.
Until recently, no published opinion had considered how
AB 1950 would apply retroactively where a defendant is found in
violation of probation and sentenced after AB 1950 took effect for
a probation violation that occurred more than two years after he
was first placed on probation.6 In Butler, however, the reviewing
court held that under those circumstances the trial court lacked
jurisdiction to revoke the defendant’s probation because AB 1950
applied retroactively. But in Butler, unlike in our case, the
Attorney General conceded that the trial court had lost
jurisdiction over the defendant by the time it terminated
probation and imposed a sentence. More importantly, in Butler,
the defendant had “already served more than the maximum term
of probation allowed because he served two years and three
months of probation.” (Butler, supra, 75 Cal.App.5th 216.) Here,
however, because of tolling, defendant had not served the
5Although defendant suggests that the court reinstated probation on
September 24, 2018, the record does not support that contention.
During that proceeding, the court expressly told defendant, “Your
probation is going to remain revoked.”
6 In People v. Faial, supra, 75 Cal.App.5th 738, the defendant violated
probation more than two years after probation was originally imposed,
but probation was revoked and sentence executed before AB 1950’s
effective date.
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maximum two-year term of probation under AB 1950 when the
court revoked his probation and imposed a sentence in July 2021.
In sum, considering tolling, defendant had not been on
probation for even one year when the court terminated probation
and imposed a sentence. Accordingly, the two-year limit on
probationary terms effected by AB 1950 does not come into play
in the present case.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
LIPNER, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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