Filed 11/ 16 /21 P. v. Peterson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

SEAN PETERSON,

Defendant and Appellant. B3 0 8499

(Los Angeles County

Super. Ct. No. SA101383 )

APPEAL from orders of the Superior Court of Los Angeles

County, Lauren Weis Birnstein , Judge. A ffirmed in part and

reversed in part ; remanded for further proceedings.

David R

. Greifinger , 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, Paul R. Roadarmel, Jr. and Allison H. Chung,

Deputy Attorn eys General, for Plaintiff and Respondent.2 A jury found Sean William Peterson guilty of making and

attempting to make criminal threats and misdemeanor

brandishing a deadly weapon, with true findings on hate crime

allegations. Peterson appeals, claiming t he evidence was

insufficient to support his conviction for attempted criminal

threats, the court committed instructional error, and his

probationary term s must be reduced in light of Assembly Bill

No. 1950 (2019

– 2020 Reg. Sess.) ( Assembly Bill 1950). The latter

contention has merit, and we therefore reverse the probationary

terms and remand for further proceedings. We otherwise affirm

the judgment of conviction.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

In September 2019, 55

- year

- old appe llant Peterson, who is

W hite, was homeless and living at Palms Park in Los Angeles.

Fourteen

- year

- old Osman H. and 10

- year

- old Noor J., who

were both of Somali descent , attended an Islamic boarding school

in Northridge. On the afternoon of September 13, 20 1 9, three of

their teachers, including Halil Kizkin, took Osman, Noor, and a

group of 17 other s tudents to Palm s Park for recreational

activit ies

. At the park

, Osman played basketball and soccer, and then

he and some other boys sat at a pi cnic table eating snacks.

Peterson was at a barbeque about 36 feet away, and began to

cook hot dogs. Osman and the other students did not say or do

anything to Peterson. However, Peterson screamed “nigger” at

the boys. He angrily yelled that he was goi ng to choke them and

hang them. Then he said he would kill Osman . Osman was

scared. When another student went to get a drink of water,

Peterson said he would “call his gang.” Peterson was using a3

straight

- bladed k nife to coo k the hot dogs, but pulled a second,

curved knife from his bag while yelling at the boys. He

approached within 10 feet of them, holding the knife level with

his head, in a manner such that it would thrust forward as he

walked and said

, “I’m gonna kill you.” As he approached, the

boys all walked backwards to get away from him. When asked

why, Osman testified, “I didn’t want him to kill me.” He believed

that Peterson was going to kill him and was scared

. Noor was also in the picnic area

, sitting on a picnic table

bench with a different gro up of boys . He had been playing soccer,

and had stopped to have snacks . He observed Peterson from a

distance of approximately 25 feet. Peterson was yelling and

screaming. He pointed a knife at Noor and the other boys , a nd

said “Nigga.” Peterson yelled, “kick rocks,” “I’m going to sue your

kid and hang them

, ” ( sic .) and “I’m going to cut all of you if you

come up to my face.” Noor was scared; Peterson “was coming

closer, and then my friends, we just [ r a n ] away because we

thought he was going to run and try killing us.” 1 He was also

afraid Peterson would stab Kizkin with the knife

. Osman, Noor, and two other boys

— Abdi J.

, and Zack riye H.

— ran to Kizkin

. They told him a man had been screaming at

them. Al l of them looked scared. All four boys pointed out

Peterson , who was at the barbecue area 73 feet away

.

1 Noor told an officer who spoke to him at the park

, “I saw

[Peterson] and I just walked away.” He also stated at trial that

he left when Peterson used the racial epithet because this made

him angry, and he did not like “staying in places that people get

me mad.”4 Peterson approached to within six feet of where Kizkin was

standing; the boys stood behind Kizkin. Peterson held the curved

knife parallel to his head and slightly thrust it forward

. He

screamed angrily at Kizkin, who did not understand his mumbled

words. Kizkin told Peterson to calm down

. Peterson lowered the

knife but continued to scream. He then wen t to the barbecue

area where he removed his shirt , still screaming. He dropped the

knife on the grass. Kizkin told the boys not to go to the side of

the park where Peterson was , and they complied

. Meanwhile, a bystander called police. When a police

helic opter flew over head , Peterson yell ed, “I’m not scared of the

police. [Fuck] the police.” Approximately ten minutes after the

confrontation with Kizkin, Peterson left the park.

Officers arrived and spoke with Kizkin and the children.

Their interactions w ith the children were captured on body

- worn

video cameras, and played by the defense at trial . Osman found

the curved knife in the grass and brought it to an officer. Officers

recovered it and a second knife with a straight blade that was on

a picnic table. They were unable to find Peterson in the park.

Peterson was arrested a few days later. After waiving his

Miranda rights

, 2 he told the interviewing detective that he had

b een cooking hot dogs, and was using a knife to cut them up.

Approximately 15 Black children who had been playing soccer

came into the picnic area and bothered him by looking at him

. They did not come close to him, but he thought they were going to

rob hi m because he was wearing an expensive Omega watch that

he had found in a dumpster. He perceived their actions as ru d e.

He told an adult present at the park that the children were

2 Miranda v. Arizona (1966) 384 U.S. 436.5

bothering him, and to keep them away f ro m him. He admitted

having the knif

e when he addressed the children and Kizkin , but

claimed he held it at his side

. He denied threatening the children

or using the “ n

- word

. ” He had consumed two 24

- ounce contain er s

of malt liquor before the incident, and admitted he “ might have

said some things.” When the detective advised Peterson of the

charges against him, Peterson stated that he wanted the children

charged with harassment and attempted robbery.

The parties sti pulated that Peterson had no neo

- Nazi or

swastika tattoos , and that the defense did not rece i ve the body

worn video footage until after the preliminary hearing. The

defense did not present other evidence.

2. Procedure

The jury convicted Peterson of ma king criminal threats

against Osman (Pen. Code, § 422, subd. (a)); 3 attempted criminal

threat against Noor , a lesser included offense of making a

criminal threat (§§ 664, 422, subd. (a) ); and misdemeanor

exhibiting a deadly weapon, a knife (§ 417, subd. ( a)(1)). 4 It found

the criminal threats offenses were hate crimes, that is, Peterson

committed the m in whole or in part because of bias based on

actual or perceived race or ethnicity . (§ 422.75, subd

. (a). ) The

trial court suspended imposition of sentence on the criminal

threats counts and placed Peterson on formal probation for five

years, with a variety of probation conditions, including that he

3 All further undesignated statutory references are to the

Penal Code.

4 At the close of the People’s case, the trial court granted the

defense motion for judgment of acquittal pursuant to section

1118.1 on count 2, criminal threat against Zackriye H.6

spend 384 days in jail with credit for 384 days served. The court

likewise suspended imposition of sentence on the misdemeanor

count and, as to that count, placed Peterson on formal probation

for three years. Because Peterson did not have the ability to pay,

the court suspended imposition of the applicable fees an d fines.

Peterson filed a timely notice of appeal.

DISCUSSION

1. Peterson’s challenges to the attempted criminal threats

conviction

Peterson contends that his conviction for making a n

attempted criminal threat against Noor cannot stand for two

reasons: the evidence was insufficient to show h e made a credible

threat with an immediate prospect of execution; and the trial

court failed to instruct that the threat had to have been sufficient

to cause a reasonable person to be in sustained fear.

a. Applicable legal principles

Section 422 “prohibits ‘willfully threaten[ing ] to commit a

crime which will result in death or great bodily injury to another

person, with the specific intent that the statement . . . is to be

taken as a threat . . . which, on its face and under the

circumstances in which it is made, is so unequivoca l,

unconditional, immediate, and specific as to convey to the person

threatened, a gravity of purpose and an immediate prospect of

execution of the threat, and thereby causes that person

reasonably to be in sustained fear for his or her own safety or for

h is or her immediate family’s safety.’ ” ( People v. Chandler

(2014) 60 Cal.4th 508, 511 ( Chandler ). ) Sustained fear is that

which “ ‘extends beyond what is momentary, fleeting, or

transitory.’ ” (

People v. Wilson (2015) 234 Cal.App.4th 193, 201;

People v. Fierro (2010) 180 Cal.App.4th 1342, 1348

– 1349.)7 A defendant may be guilty of making an attempted

criminal threat if he or she, acting with the requisite intent,

makes a sufficient threat that is received by the threatened

person, but the person either does not understand the threat or it

does not actually cause sustained fear. ( Chandler

, supra

, 60

Cal.4th at p. 515.) To prove attempted criminal threat, the

defendant must have undertaken a direct but ineffectua l act

toward completion of the crime. ( Id. at p. 516.) He or she must

have had the specific intent that the threat be taken as such,

under circumstances sufficient to convey a gravity of purpose and

an immediate prospect of execution, so as to cause the victim to

be in sustained fear. ( I bid .) And

— to avoid penalizing speech in

potential violation of the First Amendment

— the People must

prove not only that the defendant had the subjective intent to

threaten, but also that the threat was objectively threatening, i.e.,

“that the intended threat under the circumstances was sufficient

to cause a reasonable person to be in sustained fear.” ( Id. at

pp. 511, 518, 524

– 525

. )

b. Sufficiency of th e evidence

To determine whether the evidence was sufficient to

sustain a criminal conviction, “ ‘ “we review the entire record in

the light most favorable to the judgment to determine whether it

contains substantial evidence

— that is, evidence that is

reaso nable, credible, and of solid value

— from which a reasonable

trier of fact could find the defendant guilty beyond a reasonable

doubt.” [Citation.]’ ” ( People v. McCurdy (2014) 59 Cal.4th 1063,

1104; People v. Vargas (2020) 9 Cal.5th 793, 820.) We presume in

support of the judgment the existence of every fact the trier of

fact could reasonably deduce from the evidence. ( People v.

Baker (2021) 10 Cal.5th 1044, 1103 .) Reversal is unwarranted8

unless it appears “ ‘ “ ‘ that upon no hypothesis whatever is there

sufficient substantial evidence to support’ ” ’ ” the verdict.

( People v. Penunuri (2018) 5 Cal.5th 126, 142.)

Peterson contends the evidence was insufficient to support

his conviction for making an attempted cr iminal threat to Noor

because “Noor did not testify to hearing any credible threat or

attempted threat with an immediate prospect of execution.”

We disagree. Noor testified that Peterson, from a distance

of approximately 25 feet, pointed a knife at him an d the other

boys; yelled and screamed; called the boys a racial epithet; and

said “kick rocks,” “I’m going to sue your kid and hang them

, ” and

“I’m go ing to cut all of you if you come up to my face.” Peterson

argues that the racial epithet

, “while regrettable,” was not a

threat; “kick rocks” was “pure nonsense” ; and the threat to cut

the boys was conditional because the y “never came up to

appellant’s face.”

We agree that “kick rocks” was not an understandable

threat. But the jury could rea sonably conclude Peterson’s other

statements were. “A threat is an ‘ “expression of an intent to

inflict evil, injury, or damage on another.” ’ [Citation.]” ( In re

M.S. (1995) 10 Cal.4th 698, 710.) A threat is sufficiently specific

where it threatens g reat bodily injury. ( People v. Wilson (2010)

186 Cal.App.4th 789, 806.) Peterson’s threats to cut and hang

the boys certainly threatened physical injury.

Contrary to Peterson’s argument, t he fact he used the word

“if” in regard to his threat to cut the boys does not require a

contrary conclusion. T he “reference to an ‘unconditional’ threa t

in section 422 is not absolute.” ( People v. Bolin (1998) 18 Cal.4th

297, 339 ; People v. Hamlin (2009) 170 Cal.App.4th 141 2

, 1433 ;

People v. Brooks (1994) 26 Cal.App.4th 142, 149.) “ ‘Most threats9

are conditional ; they are designed to accomplish something; the

threatener hopes that they will accomplish it, so that he won’t

have to carry out the threats .’ ” ( People v. Bolin

, at p. 33 9

. )

Section 422’s use of the word “so

, ” preceding “unequivocal,

unconditional

, immediate, and speci fic,” indicates “ ‘ “that

unequivocality, unconditionality, immediacy and specificity are

not absolutely mandated, but must be sufficiently present in the

threat and surrounding circumstances to convey gravity of

purpose and immediate prospect of execution to the victim.’

[Citation.] ” (

Id. at p p

. 339

– 340 ; § 422, subd. (a); In re Ryan D.

(2002) 100 Cal.App.4th 854, 861 ; People v. Brooks

, at p. 149

. )

Thus, “a threat subject to an apparent condition may violate

section 422.” (

People v. Dias (1997) 52 Cal.App.4th 46, 48.)

Whether the communication was sufficiently unequivocal,

immediate, and specific requires consideration of the totality of

the circumstances

, including the defendant’s mannerisms, affect

a nd actions involved in making the threat

. ( People v. Solis (2001)

90 Cal.App.4th 1002, 1013; People v. Choi (2021) 59 Cal.App.5th

753, 761

– 762; People v. Martinez (1997) 53 Cal.App.4th 1212,

121 8

, 1220 [meaning of a threat “must be gleaned from the words

and all of the surrounding circumstances.”]. ) “ ‘[I]t is the

circumstances under which the threat is made that give meaning

to the actual words used. Even an ambiguous statement may be

a basis for a violation of section 422.’ ” ( People v. Hamlin

, supra

,

170 Cal.App.4th at p. 1433 .)

Many courts have concluded that statements involving

conditional language we re nonetheless threats within the

meaning of section 422. (See, e.g., People v. Butler (2000) 85

Cal.App.4th 745, 749, 754 [statement that victim needed to mind

her own business or she was going to get hurt violated section10

422]; People v. Melhado (1998) 60 Cal.App.4th 1529, 1536

– 1538

[reasonable juror could conclude that defendant’s threat, “I’m

going to blow you away if you don’t bring my car back. I’m going

home and I’m going to bring a grenade” met all section 422’s

elements]; People v. Dias

, supra

, 52 Cal.App.4th at pp. 48, 5 3 [a

threat subject to an apparent condition may nonetheless be

culpable under section 422]; People v. Stanfield (1995) 32

Cal.App.4th 1152, 1155, 1162 [threat to have lawyer killed if he

did not join defendant’s political party was a threat under section

422]; People v. Brooks

, supra

, 26 Cal.App.4th at pp. 144

– 14 5

[defendant put gun to victim’s head and said, “ ‘If you go to court

and testify, I ’ ll kill you’ ” was a threat under section 422] .)

Here, Peterson was a 55

- year

- old adult man. Noor was 10

years old. Peterson is White; Noor is Black. Peterson was

holding a knife and pointing it at Noor and the boys as he yelled

at them. He expressly threatened to cut and hang the boys, clear

expressions o f the intent to inflict physical harm upon them. His

statement was not ambiguous. He was actually in possession of a

knife

, showing he had the ability to immediately make good on

his threat. While his use of the racial epithet was not, by itself, a

thre at, in context it significantly added to the threatening import

of his statements. In light of the foregoing authorities, we

discern no evidentiary insufficiency.

c

. Instructional error

In a criminal case, even absent a request, the trial court

must instruct the jury on the general principles of law relevant to

the issues raised by the evidence and necessary for the jury's

understanding of the case. ( People v. Molano (2019) 7 Cal.5th

620

, 667.) We review claims of instructional error de novo.

( People v. Rivera (2019) 7 Cal.5th 306, 326; People v. Mitchell11

(2019) 7 Cal.5th 561, 579.) We consider the challenged

instruction in the context of the trial record and the instructions

as a whol e to determine whether there is a reasonable likelihood

the jury applied it in an impermissible or unconstitutional

manner. (

People v

. Rivera

, at p. 326 .)

In Chandler

, the defendant was charged with multiple

counts of making criminal threats in violation of section 422. The

trial court instructed with the standard versions of CALCRIM

No. 1300 (regarding criminal threat) and CALCRIM No. 46 0

(regarding attempt). ( Chandler

, supra

, 60 Cal.4th at p. 513.)

The jury convicted Chandler of the lesser i ncluded offense of

attempted criminal threat on two counts. ( Ibid. ) On appeal, he

argued that the trial court should have instructed that the crime

of attempted criminal threat requires a finding that the intended

threat reasonably could have caused sust ained fear under the

circumstances. (

Ibid. ) Our Supreme Court agreed. It held that

to “avoid substantial First Amendment concerns associated with

criminalizing speech,” the offense of attempted criminal threat

requires proof the defendant “ had a subject ive intent to threaten

and that the intended threat under the circumstances was

sufficient to cause a reasonable person to be in sustained fear.”

( Id. at p. 525.) Accordingly, when a defendant is charged with

attempted criminal threat, “the jury must be instructed that the

offense requires not only that the defendant have an intent to

threaten but also that the intended threat be sufficient under the

circumstances t o cause a reasonable person to be in sustained

fear.” ( Ibid. )

Chandler did not determine whether the instructions given

were insufficient, instead reasoning that, “whether or not the

instructions adequately conveyed this element of the offense,12

reversal is not warranted because any error was harmless beyond

a reasonable doubt.” ( Chandler

, supra

, 60 Cal.4th at p. 525.)

The court explained: “ Upon reviewing the rec ord, we conclude

that no reasonable juror could have failed to find defendant’s

threats sufficient under the circumstances to cause a reasonable

person to be in sustained fear. Neither the prosecution nor the

defense ever suggested that defendant could be convicted of

attempted criminal threat based solely on his subjective intent to

threaten. Nor does the evidence suggest that the jury convicted

defendant on that basis, since defendant expressly threatened to

kill both victims. Moreover, the defense the ory at trial did not

contest the reasonableness of the victims’ fear. Instead,

defendant argued that there was reasonable doubt as to whether

he made any of the alleged threats and that the threats, if made,

did not cause actual or sustained fear.” ( Ibid

. )

Here, as in Chandler

, the court instructed with the

standard versions of CALCRIM No s

. 1300 5 and 460

. 6 The parties

5 In pertinent part, that instruction stated that to prove

Peterson was guilt y of making a criminal threat against Noor,

“the People must prove that: [¶] 1. The defendant willful l y threatened to unlawfully kill or unlawfully cause great bodily

injury to Noor J.; [¶] 2. The defendant made the threat orally;

[¶] 3. The defenda nt intended that his statement be understood

as a threat; [¶] 4. The threat was so clear, immediate,

unconditional and specific that it communicated to Noor J. a

serious intention and the immediate prospect that the threat

would be carried out; [¶] 5. The threat actually caused Noor J. to

be in sustained fear for his own safety; [¶] AND [¶] 6. Noor J.’s

fear was reasonable under the circumstances.”

6 CALCRIM No. 460 stated: “To prove that the defendant is

guilty of attempted criminal threat, the Pe ople must prove that:13

agree that the court should have given an additional portion of

CALCRIM No. 46 0

, as suggested in the current Bench Notes, to

comply with Chandler. 7 The People argue the omission was

harmless beyond a reasonable doubt. ( Chandler

, supra

, 60

Cal.4th at p. 525; see People v. Merritt (2017) 2 Cal.5th 819, 8 31 .)

Peterson argues the opposite.

Assuming the court’s instructional omission was error, it

was harmless. As in Chandler

, no party suggested that Peterson

could be convicted based solely on his subjective intent to

threaten the boys. As in Chandler

, Pe terson expressly

threatened physical harm to the victim. And as in Chandler

, t he

defense did not contend that the threats, if made, were

insufficient to cause a reasonable person to be in sustained fear.

Instead, counsel briefly argued that there was ins ufficient

evidence the boys were actually scared. The main thrust of the

defense theory was that, because of a flawed police investigation,

the prosecution failed to prove that Noor personally heard any

threat. The officer who interviewed the boys was st ill in training,

did not interview the students separately, did not prevent them

[¶] 1. The defendant took a direct but ineffective step toward

committing criminal threat; [¶] AND [¶] 2. The defendant

intended to commit criminal threat.” After providing information

on what constituted a direct step, the ins truction concluded: “To

decide whether the defendant intended to commit criminal

threat, please refer to the separate instructions (Instruction

1300) that I have given you on that crime.”

7 As set forth in the Bench Notes to CALCRIM No. 46 0 , that

additio nal portion would have provided: “3. The intended

criminal threat was sufficient under the circumstances to cause a

reasonable person to be in sustained fear.”14

from talking among themselves, and asked leading questions. As

shown in the body

- worn video, when the officers arrived, all the

boys gathered around and chimed in with their thoughts.

Counsel argued that consequently, “we don’t know who said what

or if anybody said anything. We don’t know. And the kids don’t

know if they really heard it or they heard somebody else say it.”

C ounsel argued the jury should credit Peterson’s statements that

he did not make the threats or brandish the knife.

Peterson argues that this case is more analogous to People

v. Jackson (2009) 178 Cal.App.4th 590. There, the owners of a

house told the def

endant, an acquaintance of a tenant who was

vacating the premises, that he had to leave the property. After

he packed up his things and went to the front yard, he threatened

to “ ‘ blow [the owners’] heads off ’ ” with an AK

- 47 or “ ‘ chop [their]

heads off. ’ ” (

Id. at pp. 594

– 595.) The homeowners called police

while defendant continued “ ‘ranting and raving.’ ” ( Id. at p. 594.)

The jury acquitted the defendant of making criminal threats, but

found him guilty of the lesser offense of attempted criminal

th reats. (

Id. at p. 595.) As in Chandler and the instant matter,

the trial court had instructed with CALCRIM No. 1300, and on

general principles of attempt. ( Id. at pp. 598

– 599.) Presaging

Chandler

, the appellate court found an element of attempted

crimi nal threat is that the threat could reasonably cause the

victim to be in sustained fear, and the trial court’s failure to so

instruct was reversible error. ( Id. at pp. 593, 598

– 599.) The

court reasoned that the jury must have found the defendant

made the “ ‘blow

- your

- head

- off’ ” statements and intended them

to be taken as threats, but concluded either that the victims did

not suffer sustained fear or that their fear was unreasonable

under the circumstances. As to the latter possibility, the jury15

might ha ve concluded that since the victims “were safely inside

the house with a telephone to call the police while defendant sat

out front, or since defendant’s threats were so outlandish, that

defendant’s statements could not reasonably have cause d the

victims t o suffer sustained fear,” a scenario that was legally

insufficient to support the conviction. ( Id. at p. 600.)

Peterson argues that as in Jackson

, his jury might not have

believed a reasonable person would have suffered fear under the

circumstances, because the statements Noor testified to were

“mostly gibberish” and were not “immediate threats.” But we

find Jackson distinguishable for the same reasons that Chandler

did. The Supreme Court there explained that, in contrast to the

situa tion in Jackson

— where the victims were safely inside the

house with a phone to call the police, and defendant’s threats

were outlandish

— in Chandler the two victims “testified that

defendant, a neighbor, made explicit threats that he was going to

kill each of them, and defendant made the threats while face

- to

face with the victims (and, in [one victim’s] case, while swinging a

golf club) on the street where the victims lived.” ( Chandler

,

supra

, 60 Cal.4th at p. 526.) Similarly, here, Noor was not in a

plac e of safety when Peterson made the threats; he was in a

public park and face

- to

- face with Peterson . Moreover, unlike in

Jackson

, where the defendant did not actually have a weapon at

the time he made the threats, here Peterson was actually

pointing a knif

e at Noor. And, given that fact, Peterson’s threat

to cut the boys cannot be considered outlandish. As Chandler

reasoned: “defendant’s threats were sufficient under the

circumstances to cause a reasonable person to be in sustained

fea r

— indeed, defendant did not argue otherwise at trial

— and no16

reasonable juror could have concluded otherwise.” ( Id. at p. 526.)

Any instructional error was harmless beyond a reasonable doubt.

2. Assembly Bill 1950

As noted ante

, the trial court placed Peterson on probation

for a five

- year term on the criminal threats offenses, and a t hree

year term on the misdemeanor offense of exhibiting a deadly

weapon. When Peterson was sentenced, these terms were

permissible. Former s ection 1203.1, subdivision (a), provided

t hat a court could suspend sentence on a felony conviction and

impose a probationary period not exceeding the maximum

possible term for the offense, or five years. Former s ection 1203a

similarly provided that a probationary term on a misdemeanor

could not exceed three years.

Effective January 1, 2021, while Peterson’s appeal was still

pending in this court, the Legislature passed Assembly Bill 1950.

That legislation provides that a felony probation term cannot

exceed two years, subject to exceptions not applicable here. (See

People v. Quinn (2021) 59 Cal.App.5th 874, 879; People v. Sims

(2021) 59 Cal.App.5th 943, 955

– 956.) Assembly Bill 1950 also

amended section 2103a to limit the maximum length of a

probation term for most misdemeanor offense s to one year.

( People v. Sims

, at p. 956, fn. 7 ; People v. Quinn

, at p. 882, fn. 4. )

Peterson contends that under In re Estrada (1965) 63

Cal.2d 740, Assembly Bill 1950 applies retroactively to his

sentence and requires reduction of his probation terms

. The

People do not challenge this claim

, and assert that the matter

must be remanded for resentencing in compliance with Assembly

Bill 1950. We agree with the parties.

The courts that have considered the issue have uniformly

found Assembly Bill 1950’s “limitation on the maximum duration17

of felony probation terms constitutes an ameliorative change to

the criminal l a w that applies retroactively to cases that were not

reduc ed to final judgment as of the new law’s effective date.”

( People v. Sims

, supra

, 59 Cal.App.5th at p. 947 ; People v.

Czirban (2021) 67 Cal.App.5th 1073, 1095; People v. Quinn

,

supra

, 59 Cal.App.5th at p. 883 [the ameliorative nature of

Assembly Bill 1950 ’s amendment “ ‘places it squarely within the

spirit of the Estrada rule’ ” and the Legislature clearly intended

that the amendment apply retroactively]; People v. Stewart

(2021) 62 Cal.App.5th 1065, 1073

– 1074, review granted on

another ground, June 30, 20 21, S26 8 7 87 ; People v. Lord (2021) 64

Cal.App.5th 241, 246 [Assembly Bill 1950 “applies retroactively

under Estrada because it ameliorates a criminal penalty and the

Legislature has not indicated a contrary intent.”]; People v.

Schulz (2021) 66 Cal.App.5th 887, 891

– 892, 894

– 895 [agreeing

that Assembly Bill 1950 applies retroactively, but finding it

inapplicable in that case]; People v. Burton (2020) 58 Cal.App.5th

Supp. 1, 14

– 19 .) We agree with the reasoning of these

authorities and conclude Peterson is entitled to the benefit of

Assembly Bill 1950.

The People argue that the appropriate remedy is to remand

to allow the court to reassess Peterson’s probation status within

the context of Assembly Bill 1950. They suggest that merely

striking the portion of the probationary terms that exceed the

new statutory limits deprives the court and the parties “of a

necessary determ ination of the status of the probation at the time

it was terminated,” and might impair Peterson’s ability to obtain

expungement of his conviction, if he w ere to seek that remedy in

the future. It would also deprive the court of the ability to adjust,

mod ify, or strike probation terms as necessary to take into18

account the shortened probationary periods. In his reply brief,

Peterson does not appear to oppose this remedy as an alternative

to modification of the probationary terms by this court

. Accordingly, in line with several other courts, we direct that the

order s of probation be reversed and the matter remanded for

resentencing in accordance with sections 1203.1 and 1203a, as

amended by Assembly Bill 1950. (See People v. Czirban

, supra

,

6 7 Cal.App.5th at pp. 1095, 1097; People v. Sims

, supra

, 59

Cal.App.5th at p. 964; People v. Lord

, supra

, 64 Cal.App.5th at

p. 246.)19 DISPOSITION

The order s of probation are reversed, and the matter is

remanded to the trial court for resentencing with directions to

modify Peterson’s terms of probation in accord ance with section

1203.1, subdivision (a) and 1203a, subdivision (a), as amended by

Assembly Bill 1950. In all other respects, the judgment is

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

EDMON, P. J.

We concur:

LAVIN , J.

M ATTHEWS

, J

. *

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

Chief Justice pursuant to articl e VI, section 6 of the California

Constitution.