People v. Cano

• Decision Date: 29 March 2022
• Docket Number: B312333
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JOSE RAMON CANO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent, v. JOSE RAMON CANO, Defendant and Appellant.

B312333

California Court of Appeals, Second District, Third Division

March 29, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA459925, 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.

LAVIN J.

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.

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 Code^[2]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 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 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 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.)

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) [not...