Filed 3/29/22 P. v. Cano 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B312333
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA459925
v.
JOSE RAMON CANO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Renee Korn, Judge. Affirmed as modified.
Aurora Elizabeth Bewicke, 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, Noah P. Hill and Kathy S. Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In October 2017, defendant Jose Ramon Cano was placed
on probation for five years—the maximum term of probation
authorized under former Penal Code section 1203.1,
subdivision (a).1 In April 2020, the trial court summarily revoked
his probation for the second time. Before the violation hearing
could be conducted in April 2021, the Legislature passed
Assembly Bill No. 1950 (2019–2020 Reg. Sess.) (AB 1950), which
limited the maximum probation term for most felonies to two
years. Defendant claimed AB 1950 retroactively shorted his
probation term to two years, thereby absolving him of the alleged
probation violation that occurred more than two years after
probation had originally been imposed. The court disagreed and
revoked and reinstated probation and ordered that defendant
serve 364 days in jail, with probation to terminate upon his
release from custody.
On appeal, defendant argues the court erred by revoking
his probation for conduct that took place more than two years
after he was first placed on probation. Specifically, he argues that
AB 1950, which became effective in January 2021, retroactively
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 October 2019, effectively nullifying his
subsequent violation of probation and all related court
proceedings and orders. Defendant also argues that the court
erred by imposing a probation supervision fee.
1 (Stats. 2010, ch. 178, § 75, operative Jan. 1, 2012.)
2
AB 1950, and the shortened probationary period it
established, is not applicable here. Taking into account the
periods during which defendant’s probation was revoked—and
the probationary term was tolled—defendant was only on
probation for 433 days before the court sentenced him for his
second probation violation in April 2021. While the court formally
revoked defendant’s probation and reinstated it on the condition
that he serve an additional 364 days in jail, the court gave him
custody credits of 149 days. Thus, defendant was only on
probation for a total of 648 days in this case—well short of
AB 1950’s two-year cap. And the court retained jurisdiction to
adjudicate the probation violation between April 2020 and April
2021 while his probation was revoked. We agree with the parties,
however, that the probation supervision fee imposed by the court
is unenforceable. We therefore modify the judgment by vacating
the probation supervision fee. As modified, the judgment is
affirmed.
BACKGROUND
On October 18, 2017, the People filed an information
charging defendant with two violations of Penal Code2
section 211. On the same day, the People amended the
information to add a third count charging a violation of
section 245, subdivision (a)(4), felony assault as a non-strike
offense. Defendant pled no contest to the third count. The court
accepted the plea, suspended the imposition of sentence, and
placed defendant on formal probation for a term of five years. The
court also ordered defendant to serve 364 days in jail, awarded
2 All undesignated statutory references are to the Penal Code.
3
custody credits, and imposed assessments, fines, and fees
including a probation supervision fee under former section
1203.1b.3
On July 3, 2018, or 258 days after defendant was placed on
probation, the court summarily revoked defendant’s probation.
On October 22, 2019, defendant admitted violating probation and
the court ordered his probation reinstated on the same terms and
conditions but it extended probation to October 18, 2023.
The court summarily revoked defendant’s probation for a
second time on April 14, 2020, 175 days after probation was
reinstated in October 2019. At a probation violation setting
hearing in February 2021, defendant requested that the court
deem his probation terminated as of October 2019 pursuant to
AB 1950, applied retroactively. At a subsequent probation
violation setting hearing in March 2021, defendant argued that
his most recent violation of probation occurred more than two
years after probation was imposed and therefore the court lacked
jurisdiction to penalize defendant for the violation.4 The court
rejected defendant’s interpretation of AB 1950, finding instead
that with respect to a violation of probation that occurred before
the enactment of AB 1950, the court had jurisdiction to conduct a
violation hearing and impose consequences on a case-by-case
basis.
On April 23, 2021, after the court denied the request to
dismiss the matter under AB 1950, defendant admitted violating
probation for failing to report and being arrested in
3 That section has since been repealed. (Stats. 2020, ch. 92, § 47.)
4Apparently, defendant failed to report to probation as ordered and
was arrested for shoplifting.
4
February 2021. The court formally revoked defendant’s probation
and reinstated it on the condition that he serve an additional 364
days in jail. The court gave defendant custody credits of 149 days
(75 days actual, 74 days good time/work time) and stated that
probation would be terminated upon the completion of jail time.
Defendant appeals.5
DISCUSSION
Defendant argues that AB 1950 retroactively terminated
his probation term such that it ended in October 2019. Although
we agree that AB 1950 should be applied retroactively because
defendant’s judgment is not final, he is not entitled to relief
under this law. We agree with the parties, however, that the
probation supervision fee imposed by the court under former
section 1203.1b is unauthorized and must be vacated.
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.)
In construing section 1203.1, subdivision (a), as modified by
AB 1950, we seek “ ‘ “to ascertain the intent of the enacting
legislative body so that we may adopt the construction that best
5 Defendant requested and received a certificate of probable cause.
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effectuates the purpose of the law.” ’ ” (City of Santa Monica v.
Gonzalez (2008) 43 Cal.4th 905, 919; People v. Leiva (2013) 56
Cal.4th 498, 506 (Leiva).) “ ‘When interpreting statutes, we begin
with the plain, commonsense meaning of the language used by
the Legislature. [Citation.] If the language is unambiguous, the
plain meaning controls.’ (Voices of the Wetlands v. State Water
Resources Control Bd. (2011) 52 Cal.4th 499, 519.) We consider
first the words of the statute because ‘ “ ‘the statutory language is
generally the most reliable indicator of legislative intent.’ ” ’
(People v. King (2006) 38 Cal.4th 617, 622.) ‘[W]henever possible,
significance must be given to every word [in a statute] in
pursuing the legislative purpose, and the court should avoid a
construction that makes some words surplusage.’ (Agnew v. State
Bd. of Equalization (1999) 21 Cal.4th 310, 330.) However,
section 7 cautions that ‘words and phrases must be construed
according to the context ... .’ (§ 7, subd. (16.)) Accordingly, we
have held that words in a statute ‘ “ ‘should be construed in their
statutory context’ ” ’ (People v. King, supra, 38 Cal.4th at p. 622),
and that ‘we may reject a literal construction that is contrary to
the legislative intent apparent in the statute or that would lead
to absurd results’ (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49
Cal.4th 12, 27), or ‘would result in absurd consequences that the
Legislature could not have intended.’ (In re J.W. (2002) 29
Cal.4th 200, 210.) Additionally, we adhere to ‘the precept “that a
court, when faced with an ambiguous statute that raises serious
constitutional questions, should endeavor to construe the statute
in a manner which avoids any doubt concerning its validity.” ’
(Young v. Haines (1986) 41 Cal.3d 883, 898.)” (Leiva, at pp. 506–
507.)
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2. Violation of Probation and Application of AB 1950
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.6 (§ 1203.1, subd. (a).) Although
the Legislature did not address retroactivity, recent decisions
have concluded that this statute should be applied retroactively
in all nonfinal cases under In re Estrada (1965) 63 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 was 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 as
6There are several exceptions to the two-year cap, but none is
applicable here. (§1203.1, subd. (l).)
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a matter of law on October 18, 2019, two years after it was
imposed. We agree with defendant that the Estrada presumption
of retroactivity applies to AB 1950 because his case is not final.
But as to the question of how AB 1950 should be applied in this
situation, we disagree with defendant that his probation term
ended as a matter of law in October 2019. Specifically, defendant
ignores the fact that his probation had been revoked for most of
the two-year period between October 18, 2017 and October 18,
2019. Indeed, his probation was summarily revoked in July 2018,
and on October 22, 2019—after admitting to violating
probation—his probation was reinstated and his probationary
term was extended to October 18, 2023. Defendant also ignores
the fact that his probation was revoked again between April 14,
2020 and April 22, 2021. That is, defendant does not acknowledge
that the running of the probationary period in his case was tolled
for significant periods of time. Indeed, defendant fails to mention
tolling in his briefs.
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.”]; Leiva, supra, 56 Cal.4th at pp. 505, 514–
515 [tolling provision was enacted to preserve the trial court’s
authority to hold a formal probation violation hearing at a time
after probation would have expired with regard to a violation
alleged to have occurred during the probationary period]; see also
People v. Cookson (1991) 54 Cal.3d 1091, 1095 [“A court may
revoke or modify a term of probation at any time before the
expiration of that term. (§ 1203.3.) This power to modify includes
the power to extend the probationary term.”].) AB 1950 did not
modify the tolling provision set forth in section 1203.2. And we
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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 first probationary
term on October 18, 2017, and summarily revoked defendant’s
probation 258 days later, on July 3, 2018. The court did not
reinstate probation until October 22, 2019. The second
probationary term then ran for an additional 175 days, or until
April 14, 2020, when the court revoked defendant’s probation for
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a second time. Thus, defendant had only been on probation for
about one year and two months when the court terminated
probation and imposed the sentence challenged in this appeal.7
Accordingly, the two-year limit on probationary terms effected by
AB 1950 does not come into play in the present case. And, as we
explained, the court did not lose jurisdiction to adjudicate the
probation violation while defendant’s probation was revoked
between April 14, 2020 and April 22, 2021.
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.8 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. 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
7 To be sure, as part of its sentence the court reinstated defendant’s
probation on the condition that he serve an additional 364 days in jail.
But, as we explained, the court awarded him custody credits of 149
days. Thus, defendant was only on probation for a total of 648 days in
this case—well short of AB 1950’s two-year cap.
8 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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probation.” (Butler, supra, 75 Cal.App.5th at p. 225.) Here,
however, because the period of probation was tolled twice,
defendant had not served the maximum two-year term of
probation under AB 1950 when the court revoked his probation
and sentenced him to jail in April 2021.
3. Probation Supervision Fee
As noted, in October 2017, the court ordered defendant to
pay the costs of probation services under former section 1203.1b.
When the court formally revoked and reinstated defendant’s
probation in April 2021, it stated, “[A]ll fines and community
service are deleted. Anything else remaining is deleted.”
Defendant and the Attorney General agree that it is unclear from
the record whether the court meant to vacate the probation
supervision fee when it deleted the fines and community service.
They also agree, as do we, that the fee is unenforceable.
Effective July 1, 2021, Assembly Bill No. 1869 (2019–2020
Reg. Sess.) eliminated many fines, fees, and assessments that
courts have imposed under a variety of statutes, including former
section 1203.1b, which previously allowed collection of probation
supervision fees. (Stats. 2020, ch. 92, § 47.) Any unpaid portion of
the probation supervision fee ordered pursuant to former section
1203.1b is therefore uncollectable and unenforceable as of July 1,
2021. (§ 1465.9, subd. (a).)
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DISPOSITION
The judgment is modified to vacate the probation
supervision fee. As modified, 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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