Filed 1/3/22 P. v. Gibson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE ,

Plaintiff and Respondent,

v.

BRITTNEY JDAWN GIBSON,

Defendant and Appellant.

F080170

(Super. Ct. No. CRF47483)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Tuolumne County. Kevin M. 

Seibert, Judge.

Jared G. Coleman for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. 

Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and 

Respondent.

-ooOoo-

* Before Poochigian, Acting P. J., Peña, J. and Meehan, J.
2.

Defendant Brittney Jdawn Gibson pled guilty to felony possession of marijuana in 

a state prison in violation of Penal Code section 4573.6.1 She later petitioned for 

resentencing or dismissal of her conviction pursuant to section 11361.8 of the Health and 

Safety Code, added by the Control, Regulate and Tax Adult Use of Marijuana Act 

(Proposition 64), contending that the offense had been decriminalized because she 

possessed less than 28.5 grams of marijuana not in the form of concentrated cannabis. 

The trial court recognized that California Courts of Appeal were split on the issue. The 

trial court concluded that Proposition 64 did not decriminalize possession of cannabis at a 

correctional institution. Defendant contends that was error. Our Supreme Court recently 

resolved the prior split among the California Courts of Appeal, concluding that 

“possession of cannabis in prison remains a violation of ... section 4573.6.” (People v. 

Raybon (2021) 11 Cal.5th 1056, 1060.) 

While defendant’s appeal was pending, the Governor signed Assembly Bill 

No. 1950 (2019–2020 Reg. Sess.) (Assembly Bill 1950). We afforded the parties an 

opportunity to submit supplemental briefing regarding the impact of Assembly Bill 1950 

on defendant’s five-year term of probation. The parties agree that defendant is entitled to 

the benefit of Assembly Bill 1950, but they disagree on the appropriate remedy. We 

vacate the order granting defendant probation and remand the matter to permit the trial 

court and the People an opportunity to withdraw from the plea agreement or accede to a 

lesser term of probation.

PROCEDURAL SUMMARY

On June 26, 2015, the Tuolumne County District Attorney filed a complaint, later 

deemed an information, charging defendant with felony possession of contraband in 

prison (§ 4573.6, subd. (a); count 1), unlawful taking or driving of a vehicle (Veh. Code, 

1 All further statutory references are to the Penal Code unless otherwise stated.
3.

§ 10851, subd. (a); count 2), child abuse (§ 273a, subd. (a); count 3), and receiving a 

stolen motor vehicle (§ 496d, subd. (a); count 4). 

On January 4, 2016, pursuant to a plea agreement, defendant pled guilty to count 1 

in exchange for dismissal of counts 2 through 4 and a grant of five years of felony 

probation with no early termination. On May 16, 2016, the trial court imposed the 

negotiated sentence. 

On February 28, 2018, defendant’s probation was revoked. Probation was then 

reinstated with a termination date of December 8, 2022. 

On August 19, 2019, defendant filed a petition for resentencing under Health and 

Safety Code section 11361.8, subdivision (b). On September 30, 2019, the trial court 

denied defendant’s petition. 

On October 4, 2019, defendant filed a notice of appeal. 

FACTUAL SUMMARY

On June 13, 2015, defendant drove to the entrance gate at the Department of 

Corrections and Rehabilitation, Sierra Conservation Center. Her child sat in a car seat in 

the backseat of the vehicle. The gate entrance officer directed defendant to roll down her 

window. When she did so, the gate entrance officer smelled “a strong odor of marijuana 

emanating from the vehicle.” Defendant gave consent for officers to search her vehicle. 

They discovered 2.221 grams of marijuana beneath the harness padding of the child’s car 

seat and marijuana wrapped into a brown cigar paper in defendant’s purse. 

DISCUSSION

Proposition 64 and Section 4573.6

Until recently, California Courts of Appeal were split on the issue of whether 

possession of less than 28.5 grams of marijuana in prison remained a crime after 

Proposition 64 became effective. Our Supreme Court resolved that split. “[P]ossession 

of cannabis in prison remains a violation of ... section 4573.6.” (People v. Raybon 

(2021) 11 Cal.5th 1056, 1060.) We are bound by our Supreme Court’s holding. (Auto 
4.

Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Defendant’s petition 

was therefore properly denied on the merits. 

Assembly Bill 1950

A. Applicability

Effective January 1, 2021, Assembly Bill 1950 amended section 1203.1 

(Stats. 2020, ch. 328, § 2) to limit the maximum probation term a trial court is authorized 

to impose for most felony offenses to two years. (§ 1203.1, subds. (a) & (m).) “[T]he ... 

limitation[s] on ... probation set forth in Assembly Bill ... 1950 [are] ameliorative 

change[s] to the criminal law that [are] subject to the [In re] Estrada [(1965) 63 Cal.2d 

740] presumption of retroactivity.” (People v. Sims (2021) 59 Cal.App.5th 943, 964; 

accord, People v. Quinn (2021) 59 Cal.App.5th 874, 883–885.) Therefore, the 

amendment to section 1203.1 applies to all cases not final on Assembly Bill 1950’s 

effective date. (Estrada, at p. 742.) 

As the parties agree, defendant’s case was not final on January 1, 2021, and she 

was sentenced to a term of felony probation exceeding two years for a crime of 

conviction that is not a violent felony exempted from the two-year limit on felony 

probation. (§§ 1203.1, subd. (m), 667.5, subd. (c).)2 We agree. Defendant is entitled to 

the benefit of Assembly Bill 1950. 

B. Remedy 

The parties disagree on the appropriate remedy—defendant contends we should 

modify her term of probation; the People contend we should remand the matter to the 

trial court to modify the term of probation and permit the People to withdraw from the 

plea agreement or the trial court to rescind its approval for the agreement and return the 

parties to the status quo ante. Because defendant’s term of probation is inconsistent with 

2 Possession of marijuana in a prison (§ 4573.6) is not a violent felony offense 

excluded from section 1203.1, subdivision (a)’s two-year limit on duration of felony 

probation by section 1203.1, subdivision (m).
5.

Assembly Bill 1950, we vacate the order granting defendant probation. However, 

because a five-year term of probation was a negotiated term of the plea agreement, we 

cannot simply reduce the term of probation; we must remand for the People and the trial 

court to be afforded the opportunity to withdraw approval of the plea in light of the 

modification to the term of probation.

In People v. Stamps (2020) 9 Cal.5th 685 (Stamps), our Supreme Court concluded 

that a defendant was entitled to the benefit of an ameliorative change in the law—

specifically, pursuant to Senate Bill No. 1393 (2017–2018 Reg. Sess.), he was entitled to 

have the matter remanded for the trial court to exercise its discretion to strike a serious 

felony conviction enhancement in the interest of justice. (Stamps, supra, 9 Cal.5th at 

p. 699.) However, because the serious felony conviction enhancement was imposed as 

part of a negotiated stipulated sentence, if the trial court exercised its discretion to strike 

the enhancement, the People and the trial court were permitted to withdraw approval for 

the plea agreement. (Stamps, at pp. 707–708.) The defendant was not permitted “ ‘ “to 

whittle down the sentence ‘but otherwise leave the plea bargain intact ....’ ” ’ ” (Id. at 

p. 706.) 

The Stamps court made clear, however, that the situation would have been 

different if the defendant had stood convicted “as a result of trial or an open plea of guilty 

as charged ....” (Stamps, supra, 9 Cal.5th at p. 700.) “[T]he process of plea negotiation 

‘contemplates an agreement negotiated by the People and the defendant and approved by 

the court. [Citations.] ... Judicial approval is an essential condition precedent to the 

effectiveness of the “bargain” worked out by the defense and prosecution. [Citations.]’ ” 

(People v. Segura (2008) 44 Cal.4th 921, 929–930.) However, when a defendant enters 

an open plea to all counts, “there is no requirement that the People consent” or the court 

approve the plea. (People v. Vessell (1995) 36 Cal.App.4th 285, 296.) Where a 

defendant enters an open plea, the sentence can be modified because it is not imposed 

pursuant to a negotiated plea agreement and is therefore not inconsistent with a 
6.

negotiated plea agreement. (See Stamps, at p. 700, quoting § 1192.5 [“Where the plea is 

accepted by the prosecuting attorney in open court and is approved by the court, the 

defendant ... cannot be sentenced on the plea to a punishment more severe than that 

specified in the plea and the court may not proceed as to the plea other than as specified 

in the plea.”].) (Italics added.)

Here, pursuant to a negotiated plea agreement, defendant pled guilty on count 1 in 

exchange for dismissal of counts 2 through 4 and a grant of probation for five years with 

no option for early termination. The duration of the term of probation was clearly a 

significant, negotiated term of the plea agreement. We therefore must vacate the fiveyear term of probation and remand the matter for the People and the trial court to be 

afforded an opportunity to withdraw approval for the plea agreement or accede to a term 

of probation not to exceed two years.

DISPOSITION

The order granting defendant a five-year term of probation is vacated. The matter 

is remanded to the trial court. On remand, the People and the trial court shall be afforded 

an opportunity to withdraw approval for the plea or accede to a term of probation not to 

exceed two years as required by Assembly Bill 1950.