The opinion
Filed 7/20/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080978
Plaintiff and Respondent,
(Super. Ct. No. CRF60570)
v.
STEPHEN RAY SCHULZ, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I.
Segerstrom, Jr., Judge.
Christopher Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A.
Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the Introduction,
part II. of the Discussion, and the Disposition are certified for publication.
INTRODUCTION
Defendant Stephen Ray Schulz raises two issues on appeal. He claims 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, via supplemental briefing, that pursuant to the Estrada2
presumption, he is entitled to relief under Assembly Bill No. 1950 (2019–2020 Reg.
Sess.) (Assembly Bill No. 1950 or Assem. Bill No. 1950), 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 People contend that
the trial court did not abuse its discretion when it denied defendant’s motion to reduce his
felony convictions to misdemeanors, and although they do not dispute defendant’s
assertion that he is otherwise eligible for a probationary term that does not exceed two
years under section 1203.1, subdivision (a), as amended, they contend that probation is
not punishment and, therefore, the amendment does not apply retroactively to this case
under Estrada.
After briefing was complete, we 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
1 All further statutory references are to the Penal Code unless otherwise stated.
2 In re Estrada (1965) 63 Cal.2d 740 (Estrada).
2.
granted probation, the terms and conditions of probation shall include … [¶] … a period
of probation not less than three nor more than five years .…”].)
Defendant 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 People disagree with defendant’s interpretation of the statute and contend that
because his convictions for violating Vehicle Code section 23153 subject him to a
specific statutory probation period under Vehicle Code section 23600, he is excluded by
section 1203.1, subdivision (m)(1), from eligibility for the two-year maximum
probationary period under subdivision (a).
We reject defendant’s claim that the trial court abused its discretion when it denied
his motion to reduce his felony convictions to misdemeanors. We also reject his claim
that he is entitled to a reduction in his probationary period. As discussed below, we agree
with defendant that under Estrada, Assembly Bill No. 1950 applies retroactively to cases
not yet final on review, but we reject his interpretation of section 1203.1,
subdivision (m)(1), and conclude that his convictions for violating Vehicle Code
section 23153 preclude him from relief under subdivision (a) of section 1203.1.
Therefore, we affirm the judgment.
PROCEDURAL HISTORY
Defendant, who had no prior criminal record, was arrested on July 22, 2019, after
his truck veered into the oncoming traffic lane and struck another vehicle head-on,
injuring the other driver and her two passengers. Defendant’s blood-alcohol level was
0.17 percent.
On July 29, 2019, defendant was charged by complaint with driving under the
influence of alcohol and causing bodily injury to the other driver, in violation of Vehicle
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Code section 23153, subdivision (a), and driving with a blood-alcohol level of
0.08 percent or greater and causing bodily injury to the other driver, in violation of
Vehicle Code section 23153, subdivision (b), with attached sentence enhancements for
proximately causing bodily injury to multiple victims, in violation of Vehicle Code
section 23558, and driving with a blood-alcohol level of 0.15 percent or greater, in
violation of Vehicle Code section 23578.
On November 20, 2019, defendant entered an open plea of guilty to the two felony
charges, admitted the enhancements, and admitted his blood-alcohol content exceeded
0.15 percent; and he stated his intent to seek reductions of the felonies to misdemeanors
under section 17, subdivision (b).3 Defendant subsequently filed a motion requesting
reduction of the felony counts to misdemeanors, which the prosecutor opposed.
On February 10, 2020, the trial court denied defendant’s motion to reduce his
felony convictions to misdemeanors. The court suspended imposition of sentence for a
period of five years, placed defendant on probation, and ordered defendant to serve five
months in local custody, with two days of credit for time served. (§ 1170, subd. (h).)
Defendant filed a timely notice of appeal.
DISCUSSION
I. Denial of Motion to Reduce Felony Convictions to Misdemeanors
For first time offenders such as defendant, 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
3 “An open plea is one under which the defendant is not offered any promises,” and
“‘plead[s] unconditionally, admitting all charges and exposing himself to the maximum possible
sentence if the court later chose to impose it.’” (People v. Cuevas (2008) 44 Cal.4th 374, 381,
fn. 4.)
See footnote, ante, page 1.
4.
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:
“In his favor is that he does have no prior criminal history, and that
he has apparently taken the appropriate responses. On the other hand, I’ve
seen lots of people, when faced with being sentenced, take appropriate
responses, and as soon as they receive the leniency from the Court, the
motivation to continue in that is diminished in those actions.
“Driving under the influence and causing injury is an extremely
serious offense. There are circumstances where a reduction under
[section] 17[, subdivision ](b) would be appropriate where it was very
minor injuries, where the blood alcohol was marginal.
“This just isn’t that case. I think the defendant has a lot of things in
his favor and there are circumstances in mitigation that tend to mitigate
that; as I said, no prior criminal history and he has taken the initiative to
participate in all these programs, and the probation officer gives him—
gives him credit for that.
“But this is not a case where the Court is inclined—is going to
exercise its discretion to reduce this to a misdemeanor. In the Court’s view,
when you come around the wrong side of the road on a blind curve on Big
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Hill at a one-seven in a big truck and head-on injuring three people is not a
misdemeanor in the Court’s view.”
Defendant argues that the court abused its discretion in denying his motion
because his conduct was “not so egregious that [he] needed to be punished by
incarceration” and “[t]he public interest did not require that the public be protected from
[him].” We conclude that defendant has not met his burden of demonstrating error.
“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.)
The record expressly reflects that the trial court understood the scope of its
sentencing discretion. 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. Defendant’s disagreement with the court’s decision falls well short
of establishing the court abused its discretion. The record here readily supports the
court’s decision to deny defendant’s motion and we are unpersuaded by defendant’s
contrary claim.
II. Assembly Bill No. 1950
A. Background
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
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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.)
The parties disagree on the following two issues: one, whether Assembly Bill
No. 1950 applies retroactively to cases not yet final on appeal under the Estrada
presumption and, two, whether, by virtue of the specific probationary period set forth in
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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). For the reasons set forth below, we conclude 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).
B. Legal Principles
“We review de novo questions of statutory construction. [Citation.] In doing so,
‘“our fundamental task is ‘to ascertain the intent of the lawmakers so as to effectuate the
purpose of the statute.’”’ [Citation.] We begin with the text, ‘giv[ing] the words their
usual and ordinary meaning [citation], while construing them in light of the statute as a
whole and the statute’s purpose [citation].’ [Citation.] ‘If no ambiguity appears in the
statutory language, we presume that the Legislature meant what it said, and the plain
meaning of the statute controls.’” (People v. Blackburn (2015) 61 Cal.4th 1113, 1123.)
“‘Only when the statute’s language is ambiguous or susceptible of more than one
reasonable interpretation, may the court turn to extrinsic aids to assist in interpretation.’”
(In re C.H. (2011) 53 Cal.4th 94, 100 (C.H.).)
“Generally, statutes are presumed to apply only prospectively.” (People v. Frahs
(2020) 9 Cal.5th 618, 627 (Frahs), citing People v. Superior Court (Lara) (2018) 4
Cal.5th 299, 307 (Lara); § 3.) “However, this presumption is a canon of statutory
interpretation rather than a constitutional mandate. [Citation.] Accordingly, ‘the
Legislature can ordinarily enact laws that apply retroactively, either explicitly or by
implication.’ [Citation.] Courts look to the Legislature’s intent in order to determine if a
law is meant to apply retroactively.” (Frahs, supra, at p. 627, citing Lara, supra, at
p. 307.)
Pursuant to the California Supreme Court’s decision in Estrada, “[n]ewly enacted
legislation lessening criminal punishment or reducing criminal liability presumptively
applies to all cases not yet final on appeal at the time of the legislation’s effective date.
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(See Estrada, supra, 63 Cal.2d at pp. 744–745.) This presumption ‘rests on an inference
that, in the absence of contrary indications, a legislative body ordinarily intends for
ameliorative changes to the criminal law to extend as broadly as possible, distinguishing
only as necessary between sentences that are final and sentences that are not.’” (People
v. Gentile (2020) 10 Cal.5th 830, 852 (Gentile); accord, Frahs, supra, 9 Cal.5th at p. 624;
People v. McKenzie (2020) 9 Cal.5th 40, 44–45; Lara, supra, 6 Cal.5th at p. 307.)
C. Analysis
1. Estrada Presumption Applies
As an initial matter, 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 (Lord); People v. Stewart (2021) 62
Cal.App.5th 1065, 1072–1073, review granted June 30, 2021, S268787 (Stewart); People
v. Sims (2021) 59 Cal.App.5th 943, 960–961 (Sims); People v. Quinn (2021) 59
Cal.App.5th 874, 882–883 (Quinn); People v. Burton (2020 58 Cal.App.5th Supp. 1, 14–
16 (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” [citation] 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 [citation].’
[Citations.] [¶] 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.) 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
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ordinarily intends for ameliorative changes to the criminal law to extend as
broadly as possible’ (People v. Conley [(2016)] 63 Cal.4th [646,] 657), 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.)
Subsequently, the Courts of Appeal in Stewart, Sims, and Quinn agreed and
rejected the argument advanced by the People here, that probation is not punishment
within the meaning of Estrada. (Stewart, supra, 62 Cal.App.5th at pp. 1072–1073,
review granted; Sims, supra, 59 Cal.App.5th at pp. 959–961; Quinn, supra, 59
Cal.App.5th at p. 883; accord, Lord, supra, 64 Cal.App.5th at p. 245.) Sims stated, “[W]e
do not believe the label affixed to probation—i.e., whether it is labeled punishment,
rehabilitation, or some combination—is necessarily determinative of whether the Estrada
presumption of retroactivity applies.” (Sims, supra, at p. 959.) “[P]robation—though
often deemed preferable to imprisonment from the perspective of a defendant—can be
invasive, time-consuming, and restrictive for a probationer. A probationer ‘is in
constructive custody—he is under restraint.’ [Citations.] Thus, ‘[w]hile probation is not
technically a “punishment,” being “‘rehabilitative in nature’” [citation], there is no
question it is a sanction that imposes significant restrictions on the civil liberties of a
defendant.’ [Citations.] By limiting the maximum duration a probationer can be subject
to such restraint, Assembly Bill No. 1950 has a direct and significant ameliorative benefit
for at least some probationers who otherwise would be subject to additional months or
years of potentially onerous and intrusive probation conditions.” (Ibid., fn. omitted.)
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 at 671, 674–675 [2021 Cal. Lexis 4156, *6];
Gentile, supra, 10 Cal.5th at p. 852; Frahs, supra, 9 Cal.5th at pp. 631–632) and the court
has stated that the primary focus is “whether a change in law is ameliorative” (Esquivel,
supra, at pp. 675–676 [2021 Cal. Lexis 4156, *6]). We agree with the courts that have
10.
considered Estrada in the context of Assembly Bill No. 1950 and concluded the
presumption of retroactivity applies. (Lord, supra, 64 Cal.App.5th at pp. 245–246;
Stewart, supra, 62 Cal.App.5th at pp. 1072–1073; Sims, supra, 59 Cal.App.5th at pp.
959–961; Quinn, supra, 59 Cal.App.5th at p. 882–883; Burton, supra, 58 Cal.App.5th
Supp. at pp. 18–19.) Therefore, we reject the People’s argument on this point.
2. Exclusion Under Subdivision (m)(1) of Section 1203.1
a. Statutory Language
Next, we must address, as a matter of first impression, whether defendant 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. We turn first to
the plain language of the statute.
Defendant 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)). Relevant to the
probationary period for these offenses, 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
11.
be for a longer period than three years but may not exceed the maximum time for which
sentence of imprisonment may be pronounced.” (Italics added.)
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.
Defendant’s argument centers on the principle that, as here, “[t]he ordinary and
usual usage of ‘and’ is as a conjunctive, meaning ‘“an additional thing,”’ ‘also’ or
‘plus[]’” (C.H., supra, 53 Cal.4th at pp. 101–102), in contrast with the “‘[u]se of the word
“or” in a statute[,] indicat[ing] an intention to use it disjunctively so as to designate
alternative or separate categories[]’” (People ex rel. Green v. Grewal (2015) 61 Cal.4th
544, 561). Application of this principle does not straightforwardly resolve the matter,
however.
The statute excludes “[a]n offense listed in subdivision (c) of Section 667.5 and an
offense that includes specific probation lengths within its provisions.” (§ 1203.1,
subd. (m)(1), italics added.) “It is a settled principle of statutory construction that courts
should ‘strive to give meaning to every word in a statute and to avoid constructions that
render words, phrases, or clauses superfluous[,]’” and “[w]e harmonize statutory
provisions, if possible, giving each provision full effect.” (C.H., supra, 53 Cal.4th at
p. 103; accord, People v. Leiva (2013) 56 Cal.4th 498, 506.) If we were to adopt
defendant’s interpretation, it would render the second usage of the term “an offense”
superfluous, or a surplusage. Such a result is to be avoided to the extent possible and
doing so here is neither contrary to legislative intent nor absurd in result. (C.H., supra, at
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p. 103; accord, People v. Leiva, supra, at p. 506; People v. Valencia (2021) 64
Cal.App.5th 641, 649.)
b. Legislative History
Because the Legislature could have but did not use the term “or” in section 1203.1,
subdivision (m)(1), and the parties offer competing interpretations based on the use of the
term “and,” we consider the legislative history in resolving this ambiguity. (C.H., supra,
53 Cal.4th at pp. 100–101.) According to the author, Assembly Bill No. 1950 was
drafted to address the following factors: the effect of probation on already marginalized
populations; the burden of probation fees on the poor; the high cost to taxpayers of
incarcerating individuals for minor, technical, noncriminal violations of probation; and
research reflecting that probation services are most effective the first 18 months of
supervision and that increased supervision and services earlier on reduces likelihood to
recidivate. (Sen. Com. on Public Safety, Rep. of Assem. Bill No. 1950 (2019–2020 Reg.
Sess.) June 10, 2020, pp. 4–5.) The author concluded, “AB 1950 creates reasonable and
evidence-based limits on probation terms, while lowering costs to taxpayers, allowing for
the possible investment of savings in effective measures proven to reduce recidivism and
increasing public safety for all Californians. The bill also supports probation officers in
completing the duties of their job more effectively, by making their caseloads more
manageable.” (Id. at p. 4.)
Assembly Bill No. 1950 was amended three times. The third and final
amendment, which was the version enacted, added qualifying language to the one-year
probation term limit for misdemeanors and the two-year probation term limit for felonies
by adding subdivision (b) to section 1203a and subdivision (m) to section 1203.1,
respectively. (Assem. Bill No. 1950, as amended June 10, 2020, pp. 2 & 6–7.)4 The
4 Section 1203a, subdivision (b), provides, “The one-year probation limit in subdivision (a)
shall not apply to any offense that includes specific probation lengths within its provisions.”
13.
earlier versions of the bill reduced the term of probation to no more than one year in
misdemeanor cases and to no more than two years in felony cases, without the
aforementioned limitations. (Assem. Bill No. 1950, as amended May 6, 2020, p. 2 &
May 21, 2020, p. 2.)
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 our 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.
Finally, in our view, defendant’s suggested interpretation of the law as excluding
from section 1203.1, subdivision (a), only those offenses that are categorized as violent
under section 667.5, subdivision (c), and include specific probation lengths within their
provisions would lead to absurd consequences. The People point out that serious crimes
categorized as violent offenses under section 667.5, subdivision (c), such as murder,
mayhem, rape, and sodomy, do not include specific probation terms, and, therefore,
would be not be excluded under defendant’s interpretation of section 1203.1,
14.
subdivision (m).5 Defendant does not address this argument and he identifies no felony
offenses that would qualify for exclusion under his interpretation of section 1203.1,
subdivision (m)(1), which would render the subdivision meaningless.6 Neither the plain
language of the provision nor the legislative history supports such an untenable result.
In sum, defendant 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.
DISPOSITION
The judgment is affirmed.
MEEHAN, J.
WE CONCUR:
LEVY, Acting P.J.
FRANSON, J.
5 There are other statutory limits on the trial court’s authority to grant probation for certain
felony offenses. (E.g., §§ 1203, subd. (e), 1203.06, subd. (a), 1203.065, subd. (a), 1203.066,
subd. (a).)
6 “If a party’s briefs do not provide legal argument and citation to authority on each point
raised, ‘“the court may treat it as waived, and pass it without consideration. [Citations.]”’”
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363–364.)
15.