Filed 1/3/22 P. v. Harrison 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES EDWARD HARRISON III,

Defendant and Appellant.

F080490

(Super. Ct. No. F19903443)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Glenda S. 

Allen-Hill, Judge.

Karriem Baker, 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, Julie A. Hokans, Timothy L. 

O’Hair, and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Hill, P. J., Peña, J. and DeSantos, J.
2.

Defendant James Edward Harrison III pled no contest to carrying a concealed 

firearm in a vehicle in Fresno County Superior Court case No. F19903443 (court of 

appeal case No. F080490) and no contest to false imprisonment by violence in Fresno 

County Superior Court case No. F19907354 (court of appeal case No. F080492). In case 

No. F080492, defendant’s counsel filed a Wende1 brief, i.e., one that asserted no claims 

but sought an independent examination of the record to determine if there are any 

arguable issues;

2

in case No. F080490, defendant contends that his term of probation 

must be modified to two years pursuant to Penal Code section 1203.1,3subdivision (a), as 

amended by Assembly Bill No. 1950 (2019−2020 Reg. Sess.) (Assembly Bill 1950), and 

argues that the fees imposed pursuant to former section 1203.1b must be vacated as 

required by Assembly Bill No. 1869 (2019−2020 Reg. Sess.) (Assembly Bill 1869). The 

People agree that defendant is entitled to the benefit of Assembly Bill 1869 and 

Assembly Bill 1950, but contend that the matter must be remanded to the trial court to 

modify the term of probation to a period not to exceed two years. We modify 

defendant’s term of probation to two years and vacate the portion of the order imposing 

fees pursuant to former section 1203.1b. As modified, we affirm.

PROCEDURAL SUMMARY

On May 29, 2019, the Fresno County District Attorney filed a complaint in case 

No. F19903443, charging defendant with carrying a concealed firearm as a vehicle 

occupant (§ 25400, subd. (a)(3); count 1), and carrying a loaded firearm in public 

(§ 25850, subd. (a); count 2).

1 People v. Wende (1979) 25 Cal.3d. 436.

2 We notified defendant that he was permitted to submit a letter to supplement the 

Wende brief with any grounds he would like the court to consider. Defendant filed no 

response.

3 All further statutory references are to the Penal Code.
3.

On October 30, 2019, the Fresno County District Attorney filed a complaint in 

case No. F19907354, charging defendant with spousal battery causing corporal injury 

(§ 273.5, subd. (a); count 1), false imprisonment by violence (§ 236; count 2), dissuading 

a witness (§ 136.1, subd. (b)(1); count 3), and misdemeanor vandalism (§ 594, 

subd. (a)(2); count 4). The complaint further alleged that at the time of the offenses, 

defendant was released from custody on his own recognizance in case No. F19903443 

(§ 120221).

On November 21, 2019, pursuant to a negotiated plea agreement, defendant pled 

no contest to count 1 of case No. F19903443 and count 2 of case No. F19907354. In 

exchange, the remaining counts and allegations were dismissed on the prosecutor’s 

motion, two other misdemeanor matters were dismissed on the prosecutor’s motion, and 

the court indicated it would sentence defendant to no initial state prison, releasing him on 

the date of sentencing. The duration of the term of probation was not a negotiated term 

of the plea agreement.

On December 20, 2019, the trial court suspended imposition of sentence for 

three years and granted defendant three years of formal probation. The court ordered 

defendant to serve 125 days in custody as a term of probation in case No. F19903443 and 

104 days in custody in case No. F19907354, and awarded defendant credit for time 

served in both cases. The terms of probation also included completion of community 

service hours by June 30, 2022, and completion of a batterer’s treatment program.

On December 23, 2019, defendant filed a notice of appeal.
4.

FACTUAL BASIS4

Case No. F19903443

On May 26, 2019, at approximately 2:36 a.m., officers stopped a vehicle for a 

traffic violation. Defendant was seated in the rear passenger seat of that vehicle. 

Officers noticed a firearm in the pocket behind the passenger seat. They ordered 

defendant and two other men to exit the vehicle. Officers then recovered a loaded

.22-caliber revolver from the vehicle.

Case No. F19907354

Defendant and confidential victim (C.V.) were involved in a dating relationship 

which ended on August 30, 2019.

On October 16, 2019, at approximately 3:30 p.m., while C.V. was at work, she 

received a video call from defendant. When she answered the call, she saw that 

defendant was inside of her apartment and was damaging her television and laptop. C.V.

called 911, left work, and drove to her apartment. Defendant was not at the apartment 

when officers arrived.

On the same date at approximately 6:00 p.m., defendant returned to C.V.’s 

apartment with two men that C.V. did not know. Defendant pushed C.V. to the ground. 

The two unknown men restrained C.V.’s legs while defendant held her wrists. Defendant 

took C.V.’s cell phone. C.V. screamed and neighbors “ ‘took notice.’ ” Defendant and 

the two unknown men walked out of C.V.’s apartment and drove away.

4 The parties stipulated that if the court reviewed “the crime reports in each case, [it] 

would find a factual basis” for defendant’s plea. Our summary of the facts is therefore 

drawn from the probation officer’s report.
5.

DISCUSSION

A. Assembly Bill 1950

1. Applicability

Effective January 1, 2021, Assembly Bill 1950 amended sections 1203a and 

1203.1 to limit the maximum term of probation a trial court is authorized to impose 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.) “[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, 963–964; accord, People v. Quinn (2021) 59 Cal.App.5th 874, 883–885.) Therefore, 

the amendments to sections 1203a and 1203.1 apply to all cases not final on Assembly 

Bill 1950’s effective date. (In re Estrada, at p. 742.)

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

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).)5 We agree. Defendant is entitled to 

the benefit of Assembly Bill 1950.

2. Remedy

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

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

court to modify the term of probation to a period not to exceed two years and allow the 

5 Carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(3)) and false 

imprisonment by violence (§ 236) are not violent felony offenses excluded from 

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

section 1203.1, subdivision (m).
6.

parties to bring any motions to withdraw from the plea agreement. We modify the term 

of probation to two years consistent with Assembly Bill 1950.

The People contend that on remand it may be appropriate for the trial court or the 

People to be permitted to withdraw approval for the plea agreement. We disagree.

In People v. 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.) (Senate Bill 1393), 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. (People v. Stamps (2020) 9 Cal.5th 685, 699

(Stamps).) 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.)

Here, the duration of defendant’s probation was not a negotiated part of the plea 

agreement. Consequently, modification of the duration of his probation is not 

inconsistent with any term of the plea agreement. Therefore, the People and the trial 

court need not be afforded an opportunity to withdraw approval of the plea in light of the 

required modification to the duration of defendant’s probation. (See Stamps, supra,

9 Cal.5th 685, 700.)

The People further contend that the matter should be remanded to the trial court to 

allow the “trial court to adjust, modify, or strike probation terms, so that they can be 

complied with before termination of probation ....” The People note that some later 

determinations—like expungement of prior convictions pursuant to section 1203.4, 

subdivision (a)—require a finding of whether defendant successfully completed 

probation. Defendant was granted probation on December 20, 2019. Because of the 
7.

change in the law brought about by Assembly Bill 1950, defendant’s term of probation 

may continue only until December 20, 2021. Remand for the trial court to modify the 

terms of probation would not afford the trial court any meaningful discretion. Further, no 

purpose is served in remanding the matter for a determination of successful completion of 

probation. A court hearing any later motions that require successful completion of 

probation can make any such required determinations.

B. Wende Review

As noted above, defendant’s counsel filed a Wende brief in case No. F080492. In 

the brief, defendant’s counsel represented that appellant was advised he could file his 

own brief with this court. We informed defendant of the same. To date, defendant has 

filed no supplemental brief.

1. Assembly Bill No. 1869

The trial court imposed a probation report and supervision fee pursuant to former

section 1203.1b. Effective July 1, 2021, Assembly Bill 1869 eliminated many fines, fees, 

and assessments that courts have imposed under a variety of statutes, including former 

section 1203.1b. (Stats. 2020, ch. 92, §§ 2, 11, 47, 62.) The parties agree, as do we, that 

the unpaid balance on the trial court’s order requiring defendant probation report and 

supervision fees is now unenforceable and uncollectable. (§ 1465.9, subd. (a).) We 

vacate that portion of the judgment.

After independent review of the record, we find that no other reasonably arguable 

factual or legal issues exist.

DISPOSITION

Defendant’s term of probation is modified to two years. The portion of the order 

granting probation that imposed fees pursuant to section 1203.1b is vacated. As 

modified, we affirm. The trial court is directed to issue a minute order reflecting the 

modifications and forward a copy to the appropriate entities.