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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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 h e 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); possessi ng a loaded firearm not

1 Further undesignated statutory references are to the Penal Code.2

registered to the person (§ 258 50, subd. (c)(6)) (count 2); possessi ng a concealed firearm in a vehicle (§ 25400, subd. (a)(1)) (count 3); pos sessi ng a loaded firearm in a public place (§ 25850, subd. (a)) (count 4); being a felon i n possession of ammunition (§ 30305, subd. (a)) (count 5); driving under the
influence of alcohol ( Veh. Code, § 2 3 152, subd. (a)) (count 6); and driving
without a lic ense ( id. , § 12500, subd. (a)) (count 7). On March 24, pursuant to a plea agreement, Petty pleaded no contest to the charges in count s 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 d efense counsel oral ly request ing “that t he court
reduce Petty’s probation term as to the felony conviction in c ount 1 to two

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

. AB 1950 took effect

on January 1, 2021 and amended section s 1203a and 1203.1 to limit the3

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 c ounsel, however, requested that the court “ leave probation a s to the misdemeanor count [Veh. Code, § 23152, subd. (a)] as it is currently set, three year s , ” because it was for
an offense that AB 1950 ’s one

- year probation limit ation d id not apply to

. (§ 1203a, subd. (b) ; Veh. Code, § 2 36 00 , 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

. T he 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

. B ecause 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 o n October 20 , obtained a certificate of probable cause

. DISCUSSION Preliminarily , we note that whether the protections afforded by Wende
or its federal c onstitutional 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 ad dress appointed counsel’s4

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 parent al rights] ; Pennsylvania v. Finley (1987) 481 U.S. 551, 555 , 557 [ Anders review not available in postconviction proceedings].) Moreover, a ppellate courts are not in unison with respect to whether we should exercise our discretion to conduct an independe nt 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 i ndependent ly 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” independent ly 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].)5

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 u pon conduct ing 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. S tatutory 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. S ection 1203, subd ivision ( 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 . (I talics 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 Gro up 20 21 ) § § 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 d id not appear to be a basis for the court to unilaterally modif

y the term of probation that was negotiated as part of a plea agreement

. First, a lthough Petty argued he was entitled to the benefits
of AB 1950 , AB 1950 went into effect before the parties ente red into the plea agreement , and thus the court properly presume d the parties contemplated
the new law i n their negotiations . (See Doe v. Harris (2013) 57 Cal.4th 64,
65 , 75 .)6

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 ex cluded from
AB 1950’s one
- year limit ation and instead subject to a five

- year maximum probation period

. (Veh. Code, § 23600, subd. (b)(1); § 1203a, subd. (b).)
W here 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 autho rized 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 t hem 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 otherwis e 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.7 _________________________ Richman, Acting P. J.

We concur:

_________________________ Miller, J.

_________________________ Mayfield, J. *

People v. Petty ( A 163677 )

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

a ssigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.