Filed 6/25/21 P. v. White CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074045
v. (Super.Ct.No. FVI18002935)
ANTHONY WHITE, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Joel S. Agron,
Judge. Affirmed as modified.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, and Arlene A. Sevidal and
Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted Anthony White, Jr., of three resisting arrest misdemeanors. The
court sentenced him to three years’ probation. White appeals, arguing that under recently
enacted Assembly Bill No. 1950 (2019-2020 Reg. Session) (Stats. 2020, ch. 328, § 1)
(Assembly Bill 1950) his probation should be reduced to one year. The People agree and
so do we.
I
FACTS
Because they are irrelevant to the issue on appeal, we do not summarize the facts
underlying White’s convictions. On October 28, 2019, a jury found White guilty on three
misdemeanor counts of resisting arrest. (Pen. Code, § 148, subd. (a)(1), unlabeled
statutory citations refer to this code.) The trial court placed White on three years’
probation. On November 5, 2019, White timely appealed.
Assembly Bill 1950 went into effect on January 1, 2021, while White’s appeal was
pending.
II
ANALYSIS
White argues Assembly Bill 1950 applies to him and requires we reduce his
sentence from three years’ probation to one. The People agree, but argue remand is
necessary to allow the trial court to fully resentence White. We agree White is entitled to
the ameliorative benefits of Assembly Bill 1950. We also agree with White that the
appropriate remedy is to reduce his probation term without remanding.
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Assembly Bill 1950 went into effect on January 1, 2021, and amended
section 1203a to limit the probation period for any misdemeanor violation to one year.
(§ 1203a.) This limitation applies to the entire sentence and not to each individual
conviction. (Fayad v. Superior Court (1957) 153 Cal.App.2d 79, 84 [“multiple sentences
directed to run consecutively are to be regarded as a single ‘sentence of imprisonment’
for the purpose of applying the provisions of Penal Code, section 1203a, and the court is
without authority to impose a series of separate and consecutive periods of probation.”].)
“When an amendatory statute either lessens the punishment for a crime
or . . . ‘ “vests in the trial court discretion to impose either the same penalty as under the
former law or a lesser penalty,” ’ it is reasonable for courts to infer, absent evidence to
the contrary and as a matter of statutory construction, that the Legislature intended the
amendatory statute to retroactively apply to the fullest extent constitutionally
permissible—that is, to all cases not final when the statute becomes effective.”
(People v. Garcia (2018) 28 Cal.App.5th 961, 972, italics omitted.) Two other courts
have recently found that this presumption of retroactivity applies to Assembly Bill 1950,
and therefore probationers whose cases were not final at the time Assembly Bill 1950
went into effect are entitled to its ameliorative effects. (See People v. Sims (2021) 59
Cal.App.5th 943, 956-958 (Sims); People v. Quinn (2021) 59 Cal.App.5th 874, 879-885
(Quinn).)
We find these cases persuasive, and because White’s conviction was not final as of
the effective date of this change, he is entitled to the ameliorative benefits of Assembly
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Bill 1950. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [“ ‘[F]or the purpose of
determining retroactive application of an amendment to a criminal statute, a judgment is
not final until the time for petitioning for a writ of certiorari in the United States Supreme
Court has passed.’ ”].) Moreover, the People concede he is entitled to such retroactive
application.
The only remaining issue is the exact remedy to which White is entitled. White
argues we can and should reduce his probation period from three years to one. The
People argue we must remand to allow the trial court to resentence White. The parties
point to two published opinions—Quinn and Sims—that took opposite approaches. Sims
remanded, while Quinn didn’t. However, neither explained their reasoning for their
chosen disposition in any detail, nor have we identified any other published opinions
addressing this issue directly. Nevertheless the People argue the Sims approach is the
correct one because “Merely striking any portion of the probationary term that exceeds
two years deprives the superior court and the parties of a necessary determination of the
status of the probationer at the time it was terminated.” In addition, the People argue
“[r]emand permits the trial court to adjust, modify, or strike probation terms, so that they
can be complied with before termination of probation or removed from consideration
when courts subsequently assess whether probation was terminated successfully.”
We are unpersuaded that remand is necessary. White argues, correctly, that the
People’s argument conflates reduction of the sentence with termination of probation.
Reducing White’s probation period would not deprive the trial court of its authority to
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determine whether White successfully completed probation or whether a violation during
the proper probationary period justifies revocation or tolling. Nor would it limit the
Peoples’ ability to contest termination, as the trial court retains jurisdiction to modify or
terminate probation. (§ 1203.3, subd. (a); Quinn, supra, 59 Cal.App.5th at pp. 884-885 &
fn. 6.)
Accordingly, we conclude the proper remedy is to reduce White’s probationary
term without remand.
III
DISPOSITION
The order granting probation is modified and reduced to one year. The trial court
is directed to correct the minute order to reflect the imposition of a one-year term of
formal probation, and to notify probation of the change to defendant’s probationary term.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
MILLER
Acting P. J.
FIELDS
J.
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