Filed 10/27/21 P. v. Martinez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

MICHAEL JAMES MARTINEZ,

Defendant and Appellant.

F081805

(Super. Ct. No. F19907765)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Heather Jones, 

Judge.

Rex Adam Williams, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung 

Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P. J., Detjen, J. and Franson, J.
2.

INTRODUCTION

In 2020, appellant Michael James Martinez pleaded no contest to carrying a 

concealed firearm in a vehicle (Pen. Code, § 25400, subd. (a)(1);1 count 1) and he 

pleaded no contest to misdemeanor driving under the influence of alcohol (DUI) 

(Veh. Code, § 23152, subd. (a); count 3). Appellant admitted (1) he was not the 

registered owner of the firearm, which was loaded or ammunition was readily available 

(§ 25400, subds. (c)(6)(A) & (B)); (2) he had a prior DUI conviction; and (3) his bloodalcohol level for the current offense was 0.28 percent.

The trial court suspended imposition of judgment and sentence for three years, and 

appellant was placed on formal probation under various terms and conditions. Appellant 

was ordered to serve 223 days in custody, with credit for time served. In relevant part, 

the court imposed certain fees under former section 1203.1b and former section 987.8.

Appellant raises two issues. First, based on the passage of Assembly Bill 

No. 1950 (2019–2020 Reg. Sess.) (Assembly Bill 1950), he contends his three-year 

probationary term must be reduced to two years. Second, based on the passage of 

Assembly Bill No. 1869 (2019–2020 Reg. Sess.) (Assembly Bill 1869), he asserts the 

fees mentioned above must be stricken. We agree with his arguments. We will reduce

the term of probation to two years, and will strike these fees. We otherwise affirm.

BACKGROUND

Because the issues on appeal relate to sentencing, we omit any facts supporting 

appellant’s change of plea.2 During the change of plea hearing, the prosecution offered 

appellant no initial state prison (NISP) if appellant would admit the charges in counts 1 

and 3, and the special allegations summarized above. Appellant accepted and he entered 

1 All future statutory references are to the Penal Code unless otherwise noted.

2 During the sentencing hearing, the parties stipulated that the police reports would 

provide a sufficient factual basis to support the change of plea. The court found a factual 

basis for the plea. 
3.

his change of plea. In exchange, the prosecution dismissed the following counts and 

allegations:

(1) Felony carrying a loaded firearm in public (§ 25850, subd. (a); count 2); 

(2) Misdemeanor DUI with a blood-alcohol level of 0.08 percent or higher 

(Veh. Code, § 23152, subd. (b); count 4); 

(3) Driving with a suspended license for a prior DUI conviction (Veh. Code, 

§ 14601.2, subd. (a); count 5); and 

(4) Misdemeanor driving without a license (Veh. Code, § 12500, subd. (a); 

count 6). 

At sentencing on September 25, 2020, the trial court confirmed that the 

prosecution’s offer was NISP. The court imposed three years of formal felony probation. 

DISCUSSION

I. Based On Assembly Bill 1950, We Reduce Appellant’s Term Of Probation 

From Three Years To Two Years

On January 1, 2021, Assembly Bill 1950 took effect and reduced the maximum 

probationary term to two years for most felony offenses. (Stats. 2020, ch. 328, § 2; 

§ 1203.1, subds. (a), (m); People v. Quinn (2021) 59 Cal.App.5th 874, 879 (Quinn).) 

There is an exception to the new two-year limitation for certain felonies, but that 

exception does not apply here. (See § 1203.1, subd. (m).)

The parties agree that appellant should receive a retroactive benefit from 

Assembly Bill 1950 because his case is not yet final on appeal. Appellate courts have 

already determined that Assembly Bill 1950 should apply retroactively to cases not yet 

final on appeal, and respondent does not contest those holdings. We agree with the 

parties that Assembly Bill 1950 retroactively applies to appellant. (See Quinn, supra,

59 Cal.App.5th at p. 883; People v. Sims (2021) 59 Cal.App.5th 943, 958 (Sims); People 

v. Stewart (2021) 62 Cal.App.5th 1065, 1073‒1074.) Accordingly, the length of 
4.

appellant’s felony probation may no longer exceed two years. (§ 1203.1, subd. (a).) The 

issue before us is the remedy.

Appellant contends this court should reduce the term of probation without 

remanding the matter. In contrast, respondent asserts we should remand this matter to the 

trial court with directions to impose a probation term of not more than two years, and to 

allow the parties to bring whatever “motions they deem appropriate.” 

According to respondent, merely striking any probationary term that exceeds two 

years “deprives the superior court and the parties of a necessary determination of the 

status of the probation at the time it was terminated.” Respondent notes that a 

probationer may seek expungement following completion of probation. Respondent 

claims a remand permits the trial court to make any necessary modifications to the 

probationary terms. Respondent also contends that the remedy employed in Sims, supra,

59 Cal.App.5th 943, remanding the case and directing the trial court to terminate 

probation consistent with Assembly Bill 1950, is “preferable” to this court reducing the 

term of probation without remand. Finally, respondent argues that the terms of the plea 

agreement have been altered so that either the People or the trial court should have an 

opportunity to rescind the deal. Respondent cites People v. Stamps (2020) 9 Cal.5th 685

(Stamps). According to respondent, this change in law impacted the trial court’s 

discretion in fashioning the terms of probation. 

We agree with appellant that a remand is not necessary, and we reject respondent’s 

arguments. Because probationary terms were not negotiated as part of the plea 

agreement, including the length of any probationary period, we need not remand to 

permit the People or the trial court the opportunity to withdraw approval of the plea in 

light of the modification to the length of probation. Instead, we will order modification 

of the term of probation to two years consistent with Assembly Bill 1950.

In Stamps, the parties entered into a negotiated plea with a specified prison term, 

which included a prior serious felony enhancement. (Stamps, supra, 9 Cal.5th at p. 693; 
5.

§ 667, subd. (a).) After the defendant entered his plea, the Legislature passed Senate Bill 

No. 1393 (2017–2018 Reg. Sess.) (Senate Bill 1393), which granted the trial court 

discretion to strike the prior serious felony enhancement in the furtherance of justice. 

(Stamps, at p. 692.) The defendant appealed, seeking remand to allow the trial court to 

strike the enhancement from the agreed-upon sentence but otherwise keeping the plea 

bargain intact. (Id. at p. 700.) The California Supreme Court concluded that Senate 

Bill 1393 applied retroactively but rejected the defendant’s argument that, on remand, the 

trial court could dismiss the five-year prior serious felony enhancement while otherwise 

maintaining the plea agreement. (Stamps, at pp. 693–699, 700.) Because the parties 

entered into a plea agreement for a specified prison term based on the prior serious felony 

enhancement, the trial court could not unilaterally modify the terms absent the 

prosecution’s agreement. (Id. at pp. 700–704.) Relying on the stipulated nature of the 

sentence, the high court explained that “ ‘Senate Bill No. 1393 does not entitle defendants 

who negotiated stipulated sentences “to whittle down the sentence ‘but otherwise leave 

the plea bargain intact.’ ” ’ ” (Id. at p. 706.) That would fundamentally alter the terms of 

the agreement, depriving the People of the benefit of their bargain. (Id. at p. 703.)

In this matter the concerns in Stamps are absent. The parties did not reach a 

stipulated sentence. Instead, the prosecution offered appellant NISP for which appellant 

would admit to certain charges while other charges would be dismissed. Although the 

parties agreed to NISP, they otherwise left sentencing to the discretion of the trial court. 

At the time appellant was sentenced, former section 1203.1 permitted the court to grant 

felony probation “for a period of time not exceeding the maximum possible term of the 

sentence.” (Former § 1203.1, subd. (a).) The court had discretion to impose a 

probationary term “not over five years” if the maximum possible sentence was five years 

or less. (Ibid.) 

Here, appellant’s maximum possible prison sentence for violating section 25400 in 

count 1 (carrying a concealed firearm in a vehicle) was three years based on the special 
6.

allegation that he was not the registered owner of the firearm, and the firearm was loaded 

or ammunition was readily available. (§§ 25400, subds. (c)(6)(A) & (B), 1170, 

subd. (h)(1).) As such, the court could have imposed felony probation for up to five 

years. (Former § 1203.1, subd. (a).) Instead, the court imposed three years of probation. 

Under these circumstances, reducing the length of felony probation to two years is 

not inconsistent with the parties’ plea agreement. The length of the imposed felony 

probation remains within the range of possible outcomes agreed to by the parties. Thus,

reducing the length of probation while preserving the plea deal “does not deprive the 

People of the benefit of their bargain, or grant [appellant] a bounty to which he is not 

entitled, or require the trial court to unilaterally restructure the terms of the plea deal.” 

(People v. Henderson (2021) 67 Cal.App.5th 785, 789 [concluding remand not warranted 

after a prior prison term enhancement was struck following a plea agreement].) A 

remand is unnecessary because the parties’ plea agreement only contemplated NISP, and 

the agreement clearly permitted the sentencing court to exercise its discretion under a 

range of possible outcomes.

Respondent’s additional concerns are without merit. Appellant was granted 

probation on September 25, 2020. If we reduce the term to two years, appellant’s term of 

probation will continue until 2022. Modifying the length of probation will not result in 

its immediate termination.

In Sims, the opinion which respondent asks us to follow, the Fourth District Court 

of Appeal, Division One, remanded the matter for resentencing after concluding its 

probationer was entitled to seek a reduced probation term under Assembly Bill 1950. 

(Sims, supra, 59 Cal.App.5th at p. 964.) The Sims court, however, did not explain why a 

remand was necessary for this issue. (Ibid.) We note that the First District Court of 

Appeal, Division Four, in Quinn reached the opposite conclusion and modified the term 

of probation without remanding the matter. (Quinn, supra, 59 Cal.App.5th at p. 885.)
7.

We would typically remand a matter to the trial court for resentencing in light of 

changed circumstances. (See People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a 

sentence is stricken on review, remand for a full resentencing as to all counts is 

appropriate].) However, in this situation, the trial court is statutorily authorized to 

modify the terms and conditions of probation at any time before probation terminates, 

and the parties may also move the court for such an order. (§§ 1203.2, subd. (b)(1), 

1203.3, subd. (a).) Nothing herein precludes appellant from moving the trial court to 

modify the conditions of his probation in light of the reduced term of probation. (Quinn, 

supra, 59 Cal.App.5th at p. 885, fn. 6.) Because the trial court retains jurisdiction to 

modify the terms and conditions of probation, there is no need to remand for 

resentencing. Instead, we will modify the order granting probation by reducing the term 

to two years.

II. Based On Assembly Bill 1869, We Strike The Fees Imposed Under Former 

Section 987.8 and Former Section 1203.1b

Effective July 1, 2021, Assembly Bill 1869 eliminated many fees, fines and 

assessments that a sentencing court could previously impose under a range of statutes. 

This includes elimination of a legal assistance fee (former § 987.8, subd. (b)) and 

elimination of a probation supervision fee3(former § 1203.1b, subd. (a)). (People v. 

Clark (2021) 67 Cal.App.5th 248, 259 (Clark).) Under Assembly Bill 1869, these fees 

3 Under former section 1203.1b, a probation officer could request reimbursement 

for the “reasonable cost of any probation supervision, conditional sentence, or term of 

mandatory supervision, of conducting any preplea investigation and preparing any 

preplea report pursuant to Section 1203.7, of conducting any presentence investigation 

and preparing any presentence report made pursuant to Section 1203, and of processing a 

jurisdictional transfer pursuant to Section 1203.9 or of processing a request for interstate 

compact supervision pursuant to Sections 11175 to 11179, inclusive, whichever applies.” 

(Former § 1203.1b, subd. (a).)
8.

became “unenforceable and uncollectible” as of July 1, 2021, and “any portion of a 

judgment imposing those costs shall be vacated.” (Former § 1465.9, subd. (a).)4 

When sentenced in this matter, the trial court imposed upon appellant, in relevant 

part, an annual $360 probation supervision fee, and a one-time fee of $296 for 

presentence investigation and a report. These fees were imposed pursuant to former 

section 1203.1b. The court also imposed a $102 legal assistance fee pursuant to former 

section 987.8. 

Appellant argues he is entitled to retroactive application of Assembly Bill 1869, 

and these fees should be stricken. In contrast, respondent asserts that such a remedy is 

inconsistent with the plain meaning of Assembly Bill 1869. Respondent contends these 

fees and costs will “automatically become uncollectable starting July 1, 2021,” and this 

court need not become involved. Respondent also takes the position that Assembly 

Bill 1869 does not apply retroactively to the extent appellant is seeking retroactive 

application prior to July 1, 2021. 

A recent opinion has resolved the parties’ dispute. In Clark, the First District 

Court of Appeal, Division Four, concluded that, after July 1, 2021, the plain language of 

section 1465.9, subdivision (a), means a defendant is statutorily entitled to have any such 

fees vacated even though they are no longer collectible. “The language of the statute is 

mandatory (i.e., ‘shall be vacated’).” (Clark, supra, 67 Cal.App.5th at p. 259.) The 

Clark court noted that “[p]erhaps the Legislature provided for this additional form of 

4 Following Assembly Bill 1869, the Legislature enacted Assembly Bill No. 177 

(2021–2022 Reg. Sess.), which the Governor approved on September 23, 2021. In part, 

Assembly Bill No. 177 amends section 1465.9, subdivision (a), to read as follows: “The 

balance of any court-imposed costs pursuant to Section 987.4, subdivision (a) of Section 

987.5, Sections 987.8, 1203, 1203.1e, 1203.016, 1203.018, 1203.1b, 1208.2, 1210.15, 

1463.07, 3010.8, 4024.2, and 6266, as those sections read on June 30, 2021, shall be 

unenforceable and uncollectible and any portion of a judgment imposing those costs shall 

be vacated.”
9.

relief because it understood that even uncollectible debts can burden an individual or 

family, but regardless of its purpose, the import of this provision is clear.” (Id. at p. 260.)

The Clark court also determined that, after July 1, 2021, it did not need to address 

the question of retroactivity to resolve the case. (Clark, supra, 67 Cal.App.5th at p. 260.) 

Instead, Assembly Bill 1869 “requires that we vacate that portion of the judgment against 

[the defendant] that imposes a monthly fee for probation supervision.” (Clark, at p. 260.) 

In relevant part, the appellate court conditionally vacated the judgment with directions for 

the trial court to modify it by striking any unpaid balance of the imposed probation 

supervision fee. The matter was remanded for the trial court to correct the applicable 

minute order and abstract of judgment. (Id. at p. 261.)

We find Clark to be well-reasoned and we will follow it. Based on Clark, we need 

not further comment on the parties’ disputed points regarding retroactivity. Instead, 

appellant is statutorily entitled to have these fees vacated even though they are no longer 

collectible after July 1, 2021. (§ 1465.9, subd. (a); Clark, supra, 67 Cal.App.5th at 

p. 259.) Accordingly, we will strike any unpaid balance of the fees which were imposed 

in this matter under former section 987.8 and former section 1203.1b.

DISPOSITION

We modify the order granting probation by reducing the term to two years. We 

strike any unpaid balance of the fees imposed under former section 987.8 and former 

section 1203.1b. We direct the trial court to amend the minute order to reflect the 

imposition of a two-year term of formal probation and to reflect the striking of these fees. 

The court shall notify the appropriate authorities of the change to appellant’s 

probationary term. In all other respects, the judgment is affirmed.