San Francisco Criminal Lawyer BlogDUI probationary period is not shortened by AB 1950
People v. Schulz (Cal. Ct. App., July 20, 2021, No. F080978) 2021 WL 3047264, at *2–8
Summary: Schulz appealed claiming that the trial court abused its discretion when it declined to reduce his felony convictions for driving under the influence of alcohol to misdemeanors pursuant to Penal Code section 17, subdivision (b).1 He also claims that under the Estrada presumption, he is entitled to relief under Assembly Bill No. 1950 (2019–2020 Reg. Sess.) which amended section 1203.1, subdivision (a), to limit probation for felony offenses to no more than two years, subject to certain exceptions. (Stats. 2020, ch. 328, § 2.)
The court ordered the parties to file supplemental letter briefs pursuant to Government Code section 68081, addressing whether, assuming Assembly Bill No. 1950 applies retroactively, defendant’s convictions for violation of Vehicle Code section 23153, subdivisions (a) and (b), qualify for a reduction in the probationary period under section 1203.1, subdivision (a), given that subdivision (m) of section 1203.1, which was added by Assembly Bill No. 1950, excludes “an offense that includes specific probation lengths within its provisions.” (See Veh. Code, § 23600, subd. (b)(1) [“If any person is convicted of a violation of Section 23152 or 23153 and is granted probation, the terms and conditions of probation shall include … a period of probation not less than three nor more than five years ….”].
Schulz concedes that “in felony cases, Vehicle Code section 23600, subdivision (b) mandates a period of probation of ‘not less than three’ years.” However, he claims that the exclusion under section 1203.1, subdivision (m)(1), applies only to those offenses that are both a violent felony under section 667.5, subdivision (c), and include a “specific probation length[ ] within its provisions.” (§ 1203.1, subd. (m)(1).)
The court rejected Schulz’s claim that he is entitled to a reduction in his probationary period. Although under Estrada, Assembly Bill No. 1950 applies retroactively to cases not yet final on review, his convictions for violating Vehicle Code section 23153 preclude him from relief under subdivision (a) of section 1203.1. The court affirmed the judgment.
Discretion to charge a violation of section 23153 as a misdemeanor or a felony
For first time offenders, like Schulz, violation of section 23153 is punishable as either a misdemeanor or a felony (Veh. Code, § 23554), and the trial court has the discretion to reduce a felony to a misdemeanor (§ 17, subd. (b)). “Factors relevant to the trial court’s decision include ‘ “the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, [and] his traits of character as evidenced by his behavior and demeanor at the trial.” ’ (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978 (Alvarez).) Courts may also consider the sentencing objectives set forth in California Rules of Court, rule 4.410. (Alvarez, at p. 978.) Those include protecting society, punishing the defendant, deterring crime, encouraging the defendant to lead a law-abiding life, and preventing the defendant from committing new crimes. (Cal. Rules of Court, rule 4.410(a).) The trial court’s discretion under Penal Code section 17, subdivision (b) is broad, and it will not be disturbed on appeal unless it is clearly shown the decision was irrational or arbitrary. (Alvarez, at p. 977.) Absent such a showing, we presume the trial court acted to achieve legitimate sentencing objectives. (Ibid.)” (People v. Dryden (2021) 60 Cal.App.5th 1007, 1027–1028; accord, People v. Lee (2017) 16 Cal.App.5th 861, 866–867.)
In this case, the trial court recognized its discretion to reduce defendant’s felony convictions to misdemeanors under section 17, subdivision (b), but declined to do so. The court explained:
“To prove an abuse of discretion, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ (Alvarez, supra, 14 Cal.4th at pp. 977–978.) To meet this burden, the defendant must ‘affirmatively demonstrate that the trial court misunderstood its sentencing discretion.’ (People v. Davis (1996) 50 Cal.App.4th 168, 172.)” (People v. Lee, supra, 16 Cal.App.5th at p. 866; accord, People v. Gollardo (2017) 17 Cal.App.5th 547, 562.)
Here, the court recognized that defendant was a first time offender and that he took responsibility for his actions. However, defendant also had a high blood-alcohol level and crossed over into the oncoming traffic lane on a blind curve, resulting in a head-on collision. The record supports the court’s decision to deny defendant’s motion.
Assembly Bill No. 1950
As amended by Assembly Bill No. 1950, subdivision (a) of section 1203.1 provides, “The court, or judge thereof, in the
order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding two years, and upon those terms and conditions as it shall determine. The court, or judge thereof, in the order granting probation and as a condition thereof, may imprison the defendant in a county jail for a period not exceeding the maximum time fixed by law in the case….” (Italics added.) However, Assembly Bill No. 1950 also added subdivision (m) to section 1203.1, which provides:
“The two-year probation limit in subdivision (a) shall not apply to:
“(1) An offense listed in subdivision (c) of Section 667.5 and an offense that includes specific probation lengths within its provisions. For these offenses, the court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence and under conditions as it shall determine. All other provisions of subdivision (a) shall apply.
“(2) A felony conviction for paragraph (3) of subdivision (b) of Section 487, Section 503, and Section 532a, if the total value of the property taken exceeds $25,000. For these offenses, the court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding three years, and upon those terms and conditions as it shall determine. All other provisions of subdivision (a) shall apply.” (Assem. Bill No. 1950, Stats. 2020, ch. 328, § 2, pp. 4–5, italics added.)
Assembly Bill No. 1950 also amended section 1203a to provide that probation in misdemeanor cases may not exceed a period of one year (§ 1203a, subd. (a)), except for “any offense that includes specific probation lengths within its provisions” (id., subd. (b)). (Assem. Bill No. 1950, ch. 328, § 1, p. 1.)
Issues: 1. whether Assembly Bill No. 1950 applies retroactively to cases not yet final on appeal under the Estrada presumption;
2.whether, by virtue of the specific probationary period set forth in Vehicle Code section 23600, subdivision (b)(1) and the limitation in section 1203.1, subdivision (m)(1), defendant is excluded from relief under section 1203.1, subdivision (a).
The court concluded that Assembly Bill No. 1950 applies retroactively, but defendant is not eligible for relief because his convictions fall within the exception set forth in subdivision (m)(1).
Estrada Presumption Applies
The People maintain that Assembly Bill No. 1950 is not retroactive because the Estrada presumption applies to punishment and probation is not punishment. This position has been uniformly rejected by courts considering the matter. (People v. Lord (2021) 64 Cal.App.5th 241, 245, 278 Cal.Rptr.3d 642) (Lord); People v. Stewart (2021) 62 Cal.App.5th 1065, 1072–1073, 277 Cal.Rptr.3d 247, review granted June 30, 2021, S268787 (Stewart); People v. Sims (2021) 59 Cal.App.5th 943, 960–961, 273 Cal.Rptr.3d 792 (Sims); People v. Quinn (2021) 59 Cal.App.5th 874, 882–883, 273 Cal.Rptr.3d 770 (Quinn); People v. Burton (2020 58 Cal.App.5th Supp. 1, 14–16, 272 Cal.Rptr.3d 797 (Burton).)
In Burton, the court explained,
“[A] ‘[g]rant of probation is, of course, qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither “punishment” nor a criminal “judgment” [citation]. Instead, courts deem probation an act of clemency in lieu of punishment [citations], and its primary purpose is rehabilitative in nature.’ ‘But, although probation is not considered ‘punishment’ for specified purposes, the presumption of legislative intent in Estrada is not confined to only situations when jail and prison sentences are directly decreased due to new laws. A court may presume an intent to broadly apply laws even when they ‘merely [make] a reduced punishment possible.’ (People v. Frahs, supra, 9 Cal.5th at p. 629 [264 Cal.Rptr.3d 292, 466 P.3d 844].) The Legislature in this instance clearly contemplated that reducing the amount of time probation can last was significantly beneficial to persons on probation, and that concomitantly, being on probation for longer than a year was detrimental ‘rather than being rehabilitative.’ As previously noted, ‘a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible’ (People v. Conley [(2016)] 63 Cal.4th [646,] 657 [203 Cal.Rptr.3d 622, 373 P.3d 435]), not solely to changes that reduce ‘punishment’ as defined in contexts different than assessing whether Estrada is applicable.” (Burton, supra, 58 Cal.App.5th Supp. at pp. 15–16, 272 Cal.Rptr.3d 797.)
Recent California Supreme Court decisions make clear that the Estrada presumption applies broadly to ameliorating benefits that flow from a change in the law (People v. Esquivel (2021) 11 Cal.5th 671, 674–675, 279 Cal.Rptr.3d 659, 487 P.3d 974; Gentile, supra, 10 Cal.5th at p. 852, 272 Cal.Rptr.3d 814, 477 P.3d 539; Frahs, supra, 9 Cal.5th at pp. 631–632, 264 Cal.Rptr.3d 292, 466 P.3d 844) and the court has stated that the primary focus is “whether a change in law is ameliorative” (Esquivel, supra, at pp. 675–676, 279 Cal.Rptr.3d 659, 487 P.3d 974).
Exclusion Under Subdivision (m)(1) of Section 1203.1
As a matter of first impression, the court considered whether Schulz is entitled to relief under subdivision (a) of section 1203.1 or whether his convictions instead fall within the exclusion under subdivision (m)(1) of the statute.
Schulz was convicted of violating subdivisions (a) and (b) of Vehicle Code section 23153, which provide, “[i]t is unlawful for a person, while under the influence of any alcoholic beverage, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver” (id., subd. (a)), and “[i]t is unlawful for a person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver” (id., subd. (b)).
Vehicle Code section 23600, subdivision (b)(1), states, “If any person is convicted of a violation of Section 23152 or 23153 and is granted probation, the terms and conditions of probation shall include, but not be limited to, the following: (1) Notwithstanding Section 1203a of the Penal Code, a period of probation not less than three nor more than five years; provided, however, that if the maximum sentence provided for the offense may exceed five years in the state prison, the period during which the sentence may be suspended and terms of probation enforced may be for a longer period than three years but may not exceed the maximum time for which sentence of imprisonment may be pronounced.”
Subdivision (m)(1) of section 1203.1, added by Assembly Bill No. 1950, provides, in relevant part, “The two-year probation limit in subdivision (a) shall not apply to: [¶] … [a]n offense listed in subdivision (c) of Section 667.5 and an offense that includes specific probation lengths within its provisions…..” (Italics added.) The parties’ dispute whether this exclusion from relief applies to those offenses that are listed in section 667.5, subdivision (c), and also include specific probation lengths, as defendant claims, or whether the exclusion applies to those offenses listed in section 667.5, subdivision (c), and to any offenses that include specific probation lengths, as the People claim.
The committee report on the third and final amended version states, in relevant part, “This bill provides that the two-year probation limit does not apply to offenses defined by law as violent felonies, or to an offense that includes a specific probation term within its provisions.” (Sen. Com. on Public Safety, Rep. of Assem. Bill No. 1950, June 10, 2020, p. 3, italics omitted; accord, Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1950, as amended June 10, 2020, pp. 4 & 5.) The report also summarizes the author’s comments on the matter: The legislative amendment under Assembly Bill No. 1950 “does not include offenses falling under section 667.5 of the State Penal Code, crimes committed against monetary property (i.e., ‘white collar crimes’) valued at over $25,000 nor any specific crimes with probation term lengths identified by statute.” (Sen. Com. on Public Safety, Rep. of Assem. Bill No. 1950, June 10, 2020, p. 4.) The addition of the limitations in the bill as enacted and the intent expressed with respect to those limitations support reading of the statute as excluding those felony offenses that fall under section 667.5, subdivision (c), and, separately, those felony offenses that include specific probation lengths within their provisions.
Schulz was convicted of violating Vehicle Code section 23153, subdivisions (a) and (b), and for those offenses, section 23600, subdivision (b)(1), provides for a specific probation length. Therefore, the exclusion under section 1203.1, subdivision (m)(1), applies in this case and defendant is ineligible to have his probation term reduced under subdivision (a) of section 1203.1.