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AB 1950, limiting the length of probation to 2 years (PC 1203.1), applies retroactively to all cases not yet final on appeal

People v. Greeley (Cal. Ct. App., Oct. 19, 2021, No. H047281) 2021 WL 4889494, at *1

Summary: Greeley was convicted by jury trial of first degree burglary (Pen. Code, § 460, subd. (a)).1 The trial court suspended imposition of sentence, placed defendant on probation for three years, and imposed various fines and fees, and restitution. On appeal, Greeley claimed that the three-year term of probation is now unauthorized; and the court should strike the criminal justice administration fee and the probation supervision fee. The court of appeal agreed that the term of probation should be reduced to two years and that the unpaid portions of the criminal justice administration and probation supervision fees should be stricken. The court reversed the judgment and remand with instructions.

Fines and Fees

Greeley  argues that imposition of court assessments and the restitution fine without an ability-to-pay hearing violated her state and federal constitutional rights. Greeley also argues that the criminal justice administration fee and probation supervision fee are no longer authorized and should be stricken based on the passage of Assembly Bill No. 1869 (2019-2020 Reg. Sess.) (Assembly Bill 1869). The Attorney General agrees that these two fees are no longer authorized, but contends that there is no need to strike them because “the fees automatically become uncollectable starting July 1, 2021, without the involvement of the courts.

Assembly Bill 1869

The Attorney General agrees that the probation supervision fee and criminal justice administration fee imposed in this case are no longer authorized, but contends that the fees need not be stricken and the fees “automatically become uncollectable starting July 1, 2021, without the involvement of the courts.”

The Court disagrees with the Attorney General’s analysis because that the plain language of Assembly Bill 1869 authorizes this court to strike the fees from the judgment.

On September 18, 2020, the Governor signed Assembly Bill 1869. Effective July 1, 2021, Assembly Bill 1869 “eliminate[d] the range of administrative fees that agencies and courts are authorized to impose to fund elements of the criminal legal system and … eliminate[d] all outstanding debt incurred as a result of the imposition of [identified] administrative fees.” (Stats. 2020, ch. 92, § 2.)

Assembly Bill 1869 rescinded the authority to impose and collect 23 different administrative fees, including the probation supervision fee and the criminal justice administration fee. It added section 1465.9 to the Penal Code, and section 6111 to the Government Code. (Stats. 2020, ch. 92, §§ 11, 62.) Section 1465.9, subdivision (a) provides, “On and after July 1, 2021, the balance of any court-imposed costs pursuant to [s]ection 987.4, subdivision (a) of [s]ection 987.5, [s]ections 987.8, 1203, 1203.1e, 1203.016, 1203.018, 1203.1b, 1208.2, 1210.15, 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.”3 (Stats. 2020, ch. 92, § 62.)

Government Code section 6111 provides, “On and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to [Government Code] [s]ection 27712, subdivision (c) or (f) of [Government Code] [s]ection 29550, and [Government Code] [s]ections 29550.1, 29550.2, and 29550.3, as those sections read on June 30, 2021, is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.” (Stats. 2020, ch. 92, § 11.)

By its plain terms the ameliorative changes of Assembly Bill 1869 apply retroactively to make any unpaid portion of the named assessments, as they existed on June 30, 2021, “unenforceable and uncollectible” as of July 1, 2021. (Stats. 2020, ch. 92, §§ 11, 62.) The plain language of Government Code section 6111 and section 1465.9 also mandates, vacation of a portion of a judgment for the purpose of striking the now-unauthorized assessments—here, the unpaid balance of the probation supervision and criminal justice administration fees. After declaring that the identified fees are now “unenforceable and uncollectible,” the  statutes then state, “and any portion of a judgment imposing those costs shall be vacated.” (Gov. Code, § 6111, subd. (a); § 1465.9, subd. (a)) Significantly, “[t]he Legislature also used the conjunctive ‘and’ which must be given effect under traditional statutory interpretation rules.” (In re Carr (1998) 65 Cal.App.4th 1525, 1536, 77 Cal.Rptr.2d 500.)  The unpaid balance of the identified fees is no longer enforceable and collectible and the statute also mandates that any portion of a judgment imposing those fees be vacated. Based on the plain language of the statute, the unpaid balance of the probation supervision and criminal justice administration fees must be vacated.

Maximum Term of Probation

Greeley also contends that her probation term should be reduced to two years because a three-year term of probation is no longer authorized. The Attorney General agrees that defendant is entitled to a remand for a reduction of the probation term.

Assembly Bill No. 1950 (2019-2020 Reg. Sess.), which took effect on January 1, 2021 (Stats. 2020, ch. 328, § 2), amended section 1203.1 to limit to two years the length of a probationary period for a felony conviction. (§ 1203.1.) This amendment is retroactive to all nonfinal cases. (People v. Sims (2021) 59 Cal.App.5th 943, 273 Cal.Rptr.3d 792; People v. Quinn (2021) 59 Cal.App.5th 874, 273 Cal.Rptr.3d 770; People v. Burton (2020) 58 Cal.App.5th Supp. 1, 272 Cal.Rptr.3d 797). Greeley’s  case is not yet final. Remand  is appropriate for the trial court to apply the amended statute.

Disposition

The probation order is reversed. On remand, the trial court is directed to amend the probation order to vacate the portion of the court operations fee and the probation supervision fee that remained unpaid as of July 1, 2021, and to reduce the term of probation to two years.

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