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Filed 3/10/22 P. v. Petty CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES LAKIE PETTY IV,

Defendant and Appellant.

 A163677

 (Napa County

 Super. Ct. No. 21CR000462)

Defendant James Lakie Petty IV appeals from a postconviction order 

denying his request for a reduction of his probation period. Petty’s appellate 

counsel has filed a brief raising no legal issues and asking this court to 

independently review the record pursuant to People v. Wende (1979) 

25 Cal.3d 436 (Wende). Counsel informed Petty of his right to file a 

supplemental brief, and he has not filed one. Upon our Wende review, we 

conclude there are no arguable appellate issues requiring further briefing 

and affirm. 

BACKGROUND

On March 12, 2021, the Napa County District Attorney filed a criminal 

complaint charging Petty with being a felon in possession of a firearm (Pen. 

Code,1 § 29800, subd. (a)(1)) (count 1); possessing a loaded firearm not 

1 Further undesignated statutory references are to the Penal Code. 
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registered to the person (§ 25850, subd. (c)(6)) (count 2); possessing a 

concealed firearm in a vehicle (§ 25400, subd. (a)(1)) (count 3); possessing a 

loaded firearm in a public place (§ 25850, subd. (a)) (count 4); being a felon in 

possession of ammunition (§ 30305, subd. (a)) (count 5); driving under the 

influence of alcohol (Veh. Code, § 23152, subd. (a)) (count 6); and driving 

without a license (id., § 12500, subd. (a)) (count 7). 

On March 24, pursuant to a plea agreement, Petty pleaded no contest 

to the charges in counts 1 and 6, in exchange for the dismissal of the 

remaining counts and his placement on probation for three years, subject to 

certain terms and conditions. The court found Petty knowingly, intelligently, 

and voluntarily waived his rights and accepted the plea. 

On April 22, the court granted Petty three years’ probation, conditioned 

on him serving 120 days in county jail, with 85 days of credit for time served, 

among other probation conditions. The court also imposed various fines, 

assessments, and fees. 

On July 30, the Probation Department filed a petition to revoke Petty’s 

probation, alleging he violated several terms of probation. On August 10, the 

court revoked and reinstated probation and modified its conditions to include 

requirements that he complete an alcohol and drug treatment assessment

and an outpatient or residential treatment program, and serve ten days in a 

community work program.

On August 16, the Probation Department filed a motion to transfer 

Petty’s case to Solano County. A hearing on that motion was held on 

October 7, which began with defense counsel orally requesting “that the court 

reduce Petty’s probation term as to the felony conviction in count 1 to two

years,” pursuant to Assembly Bill No. 1950 (AB 1950). AB 1950 took effect 

on January 1, 2021 and amended sections 1203a and 1203.1 to limit the 
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maximum term of probation 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.) Defense counsel, however, 

requested that the court “leave probation as to the misdemeanor count [Veh. 

Code, § 23152, subd. (a)] as it is currently set, three years,” because it was for 

an offense that AB 1950’s one-year probation limitation did not apply to. 

(§ 1203a, subd. (b); Veh. Code, § 23600, subd. (b)(1).)

The court asked Petty’s counsel if he wished to brief the issue, but 

counsel declined. It turned to the probation department’s motion to transfer, 

to which the parties stated they had no objections.

The court granted the motion to transfer, but denied the request to 

modify his probation term as to count 1. The court was “unaware of any 

authority . . . to reduce probation on the felony to two years while keeping 

probation on the misdemeanor at three years.” It also denied the request in 

light of the fact that the three-year probation term was negotiated pursuant 

to a plea agreement. Because the agreement was entered into after AB 

1950’s effective date, the court presumed the parties contemplated it in their

negotiations. 

On October 8, Petty filed a notice of appeal from the order denying his

motion to modify the probation term and on October 20, obtained a certificate 

of probable cause. 

DISCUSSION

Preliminarily, we note that whether the protections afforded by Wende 

or its federal constitutional counterpart, Anders v. California (1967) 386 U.S. 

738 (Anders), apply to an appeal from a postconviction order, such as the 

order appealed from here, remains an open question. Our Supreme Court 

has not spoken. The Anders/Wende procedures address appointed counsel’s 
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representation of an indigent criminal defendant in the first appeal as a 

matter of right, and courts have been reluctant to expand their application to 

other proceedings or appeals. (See People v. Serrano (2012) 211 Cal.App.4th 

496, 500–501, 503 [Anders/Wende review not available to defendant facing 

deportation and challenging postjudgment motion to vacate judgment]; 

Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536–537 [Anders/Wende 

review not required in conservatorship proceedings]; People v. Thurman

(2007) 157 Cal.App.4th 36, 44–45, 47 [Anders/Wende not applicable in 

postconviction motions for a new trial]; In re Sade C. (1996) 13 Cal.4th 952, 

981–984 [Anders review not required in cases affecting parental rights]; 

Pennsylvania v. Finley (1987) 481 U.S. 551, 555, 557 [Anders review not 

available in postconviction proceedings].) 

Moreover, appellate courts are not in unison with respect to whether 

we should exercise our discretion to conduct an independent review of the 

record in an appeal from the denial of postconviction relief if a defendant does 

not respond to an invitation to file a supplemental brief. (Compare People v. 

Cole (2020) 52 Cal.App.5th 1023, 1038–1039 (Cole), review granted Oct. 14, 

2020, S264278 [holding appellate courts are not required to independently

review record when no supplemental brief filed and may dismiss the appeal 

as abandoned]; People v. Scott (2020) 58 Cal.App.5th 1127, 1130–1132, review 

granted Mar. 17, 2021, S266853 [following Cole]; and People v. Figueras

(2021) 61 Cal.App.5th 108, 111–113, review granted May 12, 2021, S267870

[same], with People v. Flores (2020) 54 Cal.App.5th 266, 269, 273–274 

[although not required, a reviewing court “can and should . . . in the interests 

of justice” independently review the record even if defendant did not file a 

supplemental brief]; People v. Gallo (2020) 57 Cal.App.5th 594, 598–599

[following Flores]; People v. Allison (2020) 55 Cal.App.5th 449, 456 [same].) 
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We need not wade into this debate, which is currently pending review by our 

Supreme Court. 

In the absence of Supreme Court authority, we believe it prudent to 

adhere to Wende in this case, where counsel has undertaken to comply with 

Wende requirements. And upon conducting a review of the record here, we

conclude there are no arguable appellate issues requiring further briefing.

Petty’s request to reduce his probation term only as to his felony 

conviction in count 1 was not supported by any authority. Statutory law 

indicates that if a court places a defendant on probation, it will be under a 

single grant for the entire case, regardless of the number of counts. Section

1203, subdivision (b)(3) provides that a trial court shall “determine . . . the 

suitability of probation in the particular case,” and makes no reference to 

suitability as to individual counts within a case. (Italics added.) Also, for 

purposes of applying the maximum periods of probation in sections 1203.1

and 1203a, courts have treated probation for multiple counts as a single 

period, thus precluding the imposition of a series of separate and consecutive 

probation terms. (Couzens, et al., Sentencing Cal. Crimes (The Rutter Group 

2021) §§ 8:15.20, 8:15.50 (Couzens), citing Fayad v. Superior Court (1957) 

153 Cal.App.2d 79, 83–84 (Fayad); People v. Blume (1960) 183 Cal.App.2d 

474, 481–482; People v. Cole (2020) 50 Cal.App.5th 715, 719.) 

Additionally, there did not appear to be a basis for the court to 

unilaterally modify the term of probation that was negotiated as part of a 

plea agreement. First, although Petty argued he was entitled to the benefits 

of AB 1950, AB 1950 went into effect before the parties entered into the plea

agreement, and thus the court properly presumed the parties contemplated

the new law in their negotiations. (See Doe v. Harris (2013) 57 Cal.4th 64, 

65, 75.) 
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Second, and in any event, AB 1950’s amendments did not necessitate 

modification of the agreed-upon probation length. Petty was convicted of 

being a felon in possession of a firearm (§ 29800, subd. (a)(1)), a felony, with a 

two-year maximum period of probation under amended section 1203.1, 

subdivision (a). He also was convicted of driving under the influence of 

alcohol (Veh. Code, § 23152, subd. (a)), a misdemeanor excluded from

AB 1950’s one-year limitation and instead subject to a five-year maximum 

probation period. (Veh. Code, § 23600, subd. (b)(1); § 1203a, subd. (b).) 

Where a defendant is convicted in the same case of multiple offenses with 

various lengths of probation, a court is “permitted to select a term of 

probation for the entire case up to the longest authorized for any single 

conviction, whether the longest term is for a felony or a misdemeanor.”

(Couzens, supra, §§ 8:15.20, 8.15.50 [citing Fayad and similar cases].) 

“Stated differently, defendants convicted of multiple counts, any one of which 

excludes them from AB 1950 and who are subject to the ‘maximum sentence’

period of probation, will have the status of an excluded defendant for the 

entire case, regardless of the number of counts and regardless of whether 

some of the counts are crimes which otherwise would be subject to limited 

terms of probation under AB 1950.” (Couzens, § 8:15.20.) Placing Petty on

three years’ probation thus was authorized.

In sum and in short, there was nothing arguable about the trial court’s 

order denying the request to reduce the probation term. 

DISPOSITION

The order appealed from is affirmed.
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_________________________

Richman, Acting P. J.

We concur:

_________________________

Miller, J.

_________________________

Mayfield, J. *

People v. Petty (A163677)

*Superior Court of Mendocino County, Judge Cindee Mayfield, sitting as 

assigned by the Chief Justice pursuant to article VI, section 6 of the California 

Constitution.