Filed 3/29/22 P. v. Gaines CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has 

not been certified for publication or ordered published for purposes of rule 8.1115(a). 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DILLON MITCHEL GAINES,

Defendant and Appellant.

B313834

Los Angeles County

Super. Ct. No. TA141619

APPEAL from a judgment of the Superior Court of Los

Angeles County, Carol J. Najera, Judge. Affirmed.

William Paul Melcher, 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, Zee Rodriguez and Michael C. Keller, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

In March 2017, defendant Dillon Mitchel Gaines pled no 

contest to a violation of Penal Code section 261.5, subdivision (c).1

The trial court suspended the imposition of sentence and placed 

defendant on probation for five years—the maximum term of 

probation authorized under former section 1203.1, 

subdivision (a).2 The court revoked and reinstated probation 

several times. In November 2019, the court summarily revoked 

defendant’s probation for the final time and at the probation 

violation hearing conducted in July 2021, the court terminated 

probation and imposed a sentence of 16 months to be served in 

county jail.

Defendant argues the court lacked jurisdiction to terminate 

probation and impose a sentence in July 2021. Specifically, he 

argues that Assembly Bill No. 19503 (2019–2020 Reg. Sess.) 

(AB 1950), a legislative enactment that lowered the maximum 

term of probation for most felony offenders from five years to two 

years and which became effective in January 2021, retroactively 

and automatically 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 March 2019, 

effectively nullifying his subsequent violation of probation and all 

related court proceedings and orders.

AB 1950, and the shortened probationary period it 

established, is not applicable here. Taking into account the 

1 All undesignated statutory references are to the Penal Code.

2 (Stats. 2010, ch. 178, § 75, operative Jan. 1, 2012.)

3 (Stats. 2020, ch. 328, § 2, effective Jan. 1, 2021.)
3

periods during which defendant’s probation was revoked—and 

the term of probation was tolled—defendant was only on 

probation for 245 days before the court terminated probation and 

imposed a sentence. And the court retained jurisdiction to 

adjudicate the probation violation between November 2019 and 

July 2021 while his probation was revoked. We therefore affirm 

the judgment. 

FACTS AND PROCEDURAL BACKGROUND

On October 28, 2016, the People filed a felony complaint 

charging defendant with unlawful sexual intercourse in violation 

of section 261.5, subdivision (c). On March 16, 2017, defendant 

pled no contest to the single count. After finding a factual basis 

for defendant’s plea, the court accepted the plea, suspended the 

imposition of sentence, and placed defendant on formal probation 

for a period of five years. The court also imposed a number of 

conditions of probation including, as pertinent here, 30 days 

community service with the Department of Transportation 

(CalTrans) and completion of an HIV/AIDS test. The court set a

hearing on April 26, 2017, at which time defendant was to 

provide proof of enrollment and proof of HIV/AIDS testing.

On June 15, 2017, the court summarily revoked defendant’s 

probation for the first time after he failed to appear for the

scheduled hearing to provide proof of completion of service hours 

and proof of HIV/AIDS testing. In September 2018, defendant 

appeared in court and admitted, and the court found, a probation 

violation based on defendant’s failure to complete the required 

community service hours. The court gave defendant an additional 

six months in which to complete his service hours with CalTrans.

The court later converted the community service condition of 

probation from 30 days of service with CalTrans to 60 days of 
4

community service and scheduled a probation violation hearing 

setting for March 21, 2019. Defendant did not appear at the 

March 21, 2019 hearing and a bench warrant was issued. The 

bench warrant was later recalled but reissued in May 2019.

On June 10, 2019, defendant appeared in court and again 

admitted that he failed to complete community service hours. The 

court formally revoked and then reinstated probation on the 

same terms and conditions but converted the community service 

condition to 30 days jail time.

On November 18, 2019, the court summarily revoked

defendant’s probation again after the probation department 

reported that defendant failed to report. No further proceedings 

occurred until July 2021, at which time the court held a 

probation violation hearing, noting that this was the third 

violation and defendant had been absconding from probation for 

one year and nine months. Defendant objected, stating that 

under AB 1950, his term of probation had automatically expired

in March 2019, two years after probation was initially imposed 

and well before his most recent probation violation. The court 

acknowledged that AB 1950 shortened the maximum term of 

probation for most felony offenders to two years. But the court 

also noted that defendant’s probation had been revoked in 

November 2019, well before the effective date of AB 1950. The 

court concluded that AB 1950 did not apply, terminated 

probation, and imposed the low term of 16 months to be served in

county jail.

Defendant timely appeals from the judgment.
5

DISCUSSION

Defendant challenges on jurisdictional grounds the court’s 

order terminating probation and imposing a sentence. 

Specifically, defendant contends that AB 1950 retroactively

modified his five-year term of probation such that it ended after 

two years, on March 16, 2019. Thus, according to defendant, the

subsequent court proceedings in which his probation was 

summarily revoked and in which the court terminated probation 

and imposed a sentence are effectively nullified. We disagree.

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.)

2. Analysis

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.

4 (§ 1203.1, subd. (a).) Although 

the Legislature did not address retroactivity, several recent

decisions have concluded that this statute should be applied 

retroactively in all nonfinal cases under In re Estrada (1965) 63 

4 There are several exceptions to the two-year cap, but none is 

applicable here. (§ 1203.1, subd. (l).)
6

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 

imposed or executed before AB 1950’s effective date]; Kuhnel v. 

Appellate Division of Superior Court (2022) 75 Cal.App.5th 726 

(Kuhnel) [noting AB 1950 neither displaces tolling provision in 

section 1203.2, subdivision (a), nor invalidates a valid revocation 

of probation occurring prior to January 1, 2021].)

Defendant asserts that the retroactive application of 

AB 1950 requires us to conclude that his probation term ended on 

March 16, 2019, two years after it was imposed. But defendant 

ignores the fact that his probation had been revoked for most of 

that two-year period.

When probation is revoked by the court, it tolls the running 

of the probationary period. (§ 1203.2, subd. (a) [“The revocation, 

summary or otherwise, shall serve to toll the running of the 

period of supervision.”].) And citing People v. Leiva (2013) 56 

Cal.4th 498, 514–515, the Attorney General explains that the

tolling provision of section 1203.2 is designed to preserve the trial 

court’s authority to hold a formal probation violation hearing at a 
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time after probation would have expired when the violation is

alleged to have occurred during the probationary period. AB 1950 

did not modify section 1203.2. And we agree with our colleagues 

in Division Three of the First District that, retroactive 

application of AB 1950 notwithstanding, a valid revocation of 

probation during the original term of probation preserves a 

court’s jurisdiction to adjudicate an alleged probation violation 

that occurred within the reduced probationary period provided by 

AB 1950. (See Kuhnel, supra, 75 Cal.App.5th 726 [noting 

AB 1950 did not alter section 1203.2, subdivision (a), which 

provides that revocation of probation tolls running of 

probationary period until formal violation hearing is held].) 

Moreover, the Legislature recognized the manner in which the 

tolling provision applies: “A two-year period of supervision would 

likely provide a length of time that would be sufficient for a 

probationer to complete any counseling or treatment that is 

directed by a sentencing court. To the extent that a probationer is 

not complying with the treatment or counseling directed by the 

court during a probationary period, the court can revoke the 

defendant’s probation until the defendant is back in compliance. 

The period while probation is revoked tolls the running of time 

towards the end point of the probationary period. That tolling 

process would effectively extend the probationary period for 

individuals that are not in compliance with the conditions of their 

probation.” (Assem. Com. on Public Safety, Analysis of Assem. 

Bill No. 1950 (2019–2020 Reg. Sess.) as amended May 6, 2020, 

p. 7.) 

Here, as noted, the court imposed the initial probation term 

on March 16, 2017, and summarily revoked defendant’s probation 

91 days later, on June 15, 2017. The court did not reinstate 
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probation until June 10, 2019.

5 The term of probation then ran 

from June 10, 2019 until November 18, 2019, when the court 

summarily revoked probation after the probation department 

reported that defendant deserted probation. During that period, 

defendant was on probation for an additional 154 days, for a total 

of 245 days on probation.

Until recently, no published opinion had considered how 

AB 1950 would apply retroactively where a defendant is found in 

violation of probation and sentenced after AB 1950 took effect for 

a probation violation that occurred more than two years after he 

was first placed on probation.6 In Butler, however, the reviewing 

court held that under those circumstances the trial court lacked 

jurisdiction to revoke the defendant’s probation because AB 1950 

applied retroactively. But in Butler, unlike in our case, the 

Attorney General conceded that the trial court had lost 

jurisdiction over the defendant by the time it terminated 

probation and imposed a sentence. More importantly, in Butler, 

the defendant had “already served more than the maximum term 

of probation allowed because he served two years and three 

months of probation.” (Butler, supra, 75 Cal.App.5th 216.) Here, 

however, because of tolling, defendant had not served the 

5 Although defendant suggests that the court reinstated probation on 

September 24, 2018, the record does not support that contention.

During that proceeding, the court expressly told defendant, “Your 

probation is going to remain revoked.”

6 In People v. Faial, supra, 75 Cal.App.5th738, the defendant violated 

probation more than two years after probation was originally imposed, 

but probation was revoked and sentence executed before AB 1950’s 

effective date.
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maximum two-year term of probation under AB 1950 when the 

court revoked his probation and imposed a sentence in July 2021.

In sum, considering tolling, defendant had not been on 

probation for even one year when the court terminated probation 

and imposed a sentence. Accordingly, the two-year limit on 

probationary terms effected by AB 1950 does not come into play 

in the present case.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

LIPNER, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.