The opinion
Filed 5/10/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078912
Plaintiff and Respondent,
v. (Super. Ct. No. SCN418188)
MARK FORESTER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Sim von Kalinowski, Judge. Affirmed.
Jeffrey S. Kross, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A.
Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and
Respondent.
I
INTRODUCTION
Defendant Mark Forester pleaded guilty to one count of felony stalking
and was found guilty of five counts of disobeying a domestic violence
restraining order. The trial court suspended imposition of sentence and
placed Forester on felony probation for a period of three years.1
Forester appeals the judgment and contends Penal Code section 1203.1,
subdivision (a) precluded the court from imposing a probation term in excess
of two years.2 Section 1203.1, subdivision (a) places a two-year limitation on
probation terms for most felony offenses.
The People argue an exception to the two-year felony probation
limitation applies because Forester was convicted of “an offense that includes
specific probation lengths within its provisions.” (§ 1203.1, subd. (l)(1).) They
assert Forester was convicted of an offense with a specific probation length
because he stalked a victim of domestic violence within the meaning of
section 1203.097. Section 1203.097, subdivision (a)(1) mandates “[a]
minimum period of probation of 36 months” when a person is placed on
probation for perpetrating a crime against a victim of domestic violence.
We agree with the People. Because Forester was found guilty of
stalking a victim of domestic violence, the two-year felony probation
limitation in section 1203.1, subdivision (a) does not apply.
The judgment is affirmed.
1 The documents in the appellate record are inconsistent in the way they
spell the defendant’s surname. Sometimes they spell it “Forester,” and other
times they spell it “Forrester.” For purposes of this appeal, we will refer to
the defendant as “Forester,” which is the spelling used in the notice of appeal.
2 Subsequent undesignated statutory references are to the Penal Code.
2
II
BACKGROUND
H.F. is Forester’s ex-wife and the mother of his child. In January 2020,
H.F. obtained a domestic violence restraining order against Forester after he
exhibited bouts of anger and threatened physical violence against her.
Thereafter, Forester sent dozens of disturbing and threatening
communications to H.F. and her friend.
Forester was charged by information with one count of stalking with a
court order in effect (§ 646.9, subd. (b); count 1) and five misdemeanor counts
of disobeying a court order (§ 273.6, subd. (a); counts 2–6). A jury found
Forester guilty of the charges of disobeying a court order. However, it was
unable to reach a verdict on the stalking charge and a mistrial was declared
as to that charge.
After trial, Forester pleaded guilty to felony stalking in violation of
section 646.9, subdivision (a), a lesser included offense of stalking with a
court order in effect, and the court dismissed the greater offense charged in
the information. As part of the plea agreement, Forester admitted he
“willfully [and] malicously [sic] harassed [H.F.] [and] made a credible threat
to her with the intent to place her in reasonable fear for her safety.”
The court suspended imposition of sentence and placed Forester on
probation for three years. When selecting three years as the probation term,
the court opined the two-year felony probation limitation in section 1203.1,
subdivision (a) was inapplicable because it “does not apply to domestic
violence related charges.” Forester was released from custody for time
served.
Forester appeals the judgment and challenges his three-year probation
term.
3
III
DISCUSSION
A
Assembly Bill No. 1950
Effective January 1, 2021, Assembly Bill No. 1950 (2019–2020 Reg.
Sess.) amended section 1203.1 to limit the maximum probation term that
may be imposed for most felony offenses. Prior to the effective date of the
legislation, a court could impose felony probation for a period “not exceeding
the maximum possible term of the sentence,” except “where the maximum
possible term of the sentence [was] five years or less,” in which case probation
could “continue for not over five years.” (Former § 1203.1, subd. (a).) As
amended, section 1203.1 now states that felony probation “may continue for a
period of time not exceeding two years.”3 (§ 1203.1, subd. (a).)
There are exceptions to this general rule. The exception of relevance to
this appeal provides that the two-year felony probation limitation set forth in
section 1203.1, subdivision (a) “shall not apply to: [¶] … an offense that
includes specific probation lengths within its provisions.” (§ 1203.1,
subd. (l)(1); see also ibid. [the felony probation limitation does not apply to
violent felonies listed in section 667.5, subdivision (c)]; id., subd. (l)(2) [the
felony probation limitation does not apply to certain crimes involving grand
theft, embezzlement, or making false financial statements].)
B
The Parties’ Arguments
Forester was convicted of felony stalking. He claims the general two-
year felony probation limitation applies, and the above-referenced exception
3 Assembly Bill No. 1950 also amended section 1203a to limit probation
terms to one year for most misdemeanor offenses. (Stats. 2020, ch. 328, § 1.)
4
is inapposite, because the felony stalking statute (§ 646.9, subd. (a)) does not
include a specific probation length within its provisions.4
The People respond that Forester was not merely convicted of felony
stalking. Rather, he was convicted of stalking a victim of domestic violence
within the meaning of section 1203.097. The People assert the above-
referenced exception to the two-year felony probation limitation applies
because section 1203.097 (titled “Terms of probation for crimes of domestic
violence”) requires a specific minimum term of probation for any probationer
who committed a crime against a victim of domestic violence.
Section 1203.097 provides in relevant part as follows: “If a person is
granted probation for a crime in which the victim is a person defined in
Section 6211 of the Family Code, the terms of probation shall include all of
the following: [¶] (1) A minimum period of probation of 36 months, which may
include a period of summary probation as appropriate.” (§ 1203.097,
4 Section 646.9, subdivision (a) states in full: “Any person who willfully,
maliciously, and repeatedly follows or willfully and maliciously harasses
another person and who makes a credible threat with the intent to place that
person in reasonable fear for his or her safety, or the safety of his or her
immediate family is guilty of the crime of stalking, punishable by
imprisonment in a county jail for not more than one year, or by a fine of not
more than one thousand dollars ($1,000), or by both that fine and
imprisonment, or by imprisonment in the state prison.”
5
subd. (a)(1).)5 Section 1203.097 does not only apply when a probationer
commits the substantive offense of domestic violence. Instead, it “applies to
any person placed on probation for a crime if the underlying facts of the case
involve domestic violence, even if the statute defining the crime does not
specifically refer to domestic violence.” (People v. Cates (2009) 170
Cal.App.4th 545, 548; see People v. Selga (2008) 162 Cal.App.4th 113, 119
[stalking victim “qualified for protection under section 1203.097, as both a
former girlfriend of defendant’s and the mother of his child”].)
C
The Two-Year Felony Probation Limitation Does Not Apply When a
Defendant Is Convicted of Stalking a Domestic Violence Victim
1
To determine whether the two-year felony probation limitation applies
to a defendant like Forester, who has been convicted of stalking a victim of
domestic violence, we must employ the principles of statutory interpretation.
5 Family Code section 6211 states, in turn, as follows: “ ‘Domestic
violence’ is abuse perpetrated against any of the following persons: [¶] (a) A
spouse or former spouse. [¶] (b) A cohabitant or former cohabitant, as defined
in [Family Code] [s]ection 6209. [¶] (c) A person with whom the respondent is
having or has had a dating or engagement relationship. [¶] (d) A person with
whom the respondent has had a child …. [¶] (e) A child of a party or a child
who is the subject of an action under the Uniform Parentage Act …. [¶]
(f) Any other person related by consanguinity or affinity within the second
degree.”
“Abuse is not limited to the actual infliction of physical injury or
assault.” (Fam. Code, § 6203, subd. (b).) It includes “any of the following: [¶]
(1) To intentionally or recklessly cause or attempt to cause bodily injury.
[¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of
imminent serious bodily injury to that person or to another. [¶] (4) To engage
in any behavior that has been or could be enjoined pursuant to [Family Code]
Section 6320.” (Id., subd. (a).)
6
“ ‘ “ ‘ “When we interpret a statute, ‘[o]ur fundamental task ... is to
determine the Legislature’s intent so as to effectuate the law’s purpose. We
first examine the statutory language, giving it a plain and commonsense
meaning. We do not examine that language in isolation, but in the context of
the statutory framework as a whole in order to determine its scope and
purpose and to harmonize the various parts of the enactment. If the
language is clear, courts must generally follow its plain meaning unless a
literal interpretation would result in absurd consequences the Legislature did
not intend. If the statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the statute’s purpose,
legislative history, and public policy.’ ” ’ ” ’ ” (Segal v. ASICS America Corp.
(2022) 12 Cal.5th 651, 662.) “ ‘In the end, we “ ‘must select the construction
that comports most closely with the apparent intent of the Legislature, with a
view to promoting rather than defeating the general purpose of the statute,
and avoid an interpretation that would lead to absurd consequences.’ ” ’ ”
(In re M.B. (2009) 174 Cal.App.4th 1472, 1477.)
Consistent with these principles of statutory interpretation, we begin
our analysis with the relevant statutory language—section 1203.1,
subdivisions (a) and (l)(1). These provisions state that felony probation “may
continue for a period of time not exceeding two years,” (§ 1203.1, subd. (a))–
unless the defendant is convicted of “an offense that includes specific
probation lengths within its provisions” (§ 1203.1, subd. (l)(1)).
The defendant suggests the word “offense,” as used in section 1203.1,
subdivision (l)(1), refers strictly to the statute or statutes defining the
substantive elements of a crime. By contrast, the People urge us to interpret
“offense” more expansively. They argue “offense” encompasses not only the
statute or statutes defining the elements of a crime, but also other statutes—
7
such as penalty provisions—that apply in a given case. We conclude the
People’s interpretation of section 1203.1, subdivision (l)(1) is the more
reasonable interpretation of the statutory language at issue and, more
importantly, the one our Legislature intended.
The elements of a crime and the penalties attendant to the commission
of a crime are, of course, distinct concepts from one another. But both are
necessary components of an offense. Section 15 makes this clear, as it defines
a “public offense” as “an act committed or omitted in violation of a law
forbidding or commanding it, and to which is annexed, upon conviction, …
punishment[]….” (Italics added.) Our case law reinforces the longstanding
notion that it is the combination of a prohibited act and a punishment, in
tandem, that compose an offense. (People v. Superior Court (Gooden) (2019)
42 Cal.App.5th 270, 281 [“for a crime to exist, there must exist both a
prohibited act and punishment”]; People v. Vasilyan (2009) 174 Cal.App.4th
443, 449–450 [“That there must be a substantive crime and a punishment for
that crime in order to constitute a criminal offense has been long
recognized.”].) We think it reasonable to conclude the Legislature had in
mind the historic link between prohibited act and punishment when it
enacted Assembly Bill No. 1950, and that it thus intended the two-year felony
probation carve-out to apply any time a specific probation length is contained
within an applicable statute—irrespective of whether that statute delineates
the substantive elements of a crime or prescribes the consequences of said
crime.
Our conclusion is reinforced by the practical reality that the
Legislature routinely prescribes specific probation lengths within statutory
provisions that are characterized as penalty provisions or, at the very least,
as statutes that do not define the substantive elements of a crime. The
8
present case involves one such example—section 1203.097. That statute does
not delineate the substantive elements of any crime. However, it
unambiguously prescribes a specific probation length within its provisions—
it states, “[i]f a person is granted probation for a crime in which the victim is
a [victim of domestic violence], the terms of probation shall include … [a]
minimum period of probation of 36 months….” (§ 1203.097, subd. (a)(1).)
Section 1203.047 presents another example. That statute provides
that, “except in unusual cases where the ends of justice would be better
served by a shorter period, the period of probation shall not be less than three
years” when a person is convicted and placed on probation for certain crimes
relating to the obtaining of telephone or telegraph services by fraud, or the
accessing or disrupting of computer data and computer systems. Once again,
the Legislature separated the elements of the crimes at issue (codified in
sections 502 and 502.7) from the specific probation length the Legislature
desired for those particular crimes (which it codified in section 1203.047).
Similarly, the Legislature separated the elements for certain felony
offenses relating to driving under the influence, on the one hand, and the
specific probation terms for those crimes, on the other hand. For those
offenses, Vehicle Code sections 23152 and 23153 define the prohibited acts
that compose the substantive offenses, while a different section of the Vehicle
Code—section 23600—mandates a specific probation term when a defendant
is put on probation for driving under the influence. Section 23600 mandates
that a person who is convicted of violating sections 23152 or 23153, and
placed on probation, must be put on probation for “not less than three nor
more than five years” and, where the maximum sentence for the offense may
exceed five years, the terms of probation may be enforced “for a longer period
9
than three years but may not exceed the maximum time for which sentence of
imprisonment may be pronounced.” (Veh. Code, § 23600, subd. (b)(1).)
As these illustrative examples demonstrate, the Legislature regularly
prescribes specific probation lengths in statutes that do not define the
substantive elements of a crime. If we were to adopt the defendant’s cramped
interpretation of section 1203.1, subdivision (a), we necessarily would have to
conclude that the Legislature—which approved an express carveout to the
two-year felony probation limitation for any “offense that includes specific
probation lengths within its provisions” (§ 1203.1, subd. (l)(1))—intended to
impliedly repeal or gut the scope of section 1203.097, and potentially all the
other statutes resembling section 1203.097 that we have just discussed.
“Our Supreme Court has instructed that where statutes possibly
conflict, ‘two principles of statutory construction are especially relevant.
First, “ ‘[a] court must, where reasonably possible, harmonize statutes,
reconcile seeming inconsistencies in them, and construe them to give force
and effect to all of their provisions.’ ” ’ [Citation.] ‘ “Thus, when ‘ “two codes
are to be construed, they ‘must be regarded as blending into each other and
forming a single statute.’ [Citation.] Accordingly, they ‘must be read
together and so construed as to give effect, when possible, to all the
provisions thereof.’ ” ’ ” ’ [Citations.] [¶] ‘Second, all “ ‘ “ ‘presumptions are
against a repeal by implication’ ” ’ ” [citation], including partial repeals that
occur when one statute implicitly limits another statute’s scope of operation
[citation]. Thus, “ ‘ “we will find an implied repeal ‘only when there is no
rational basis for harmonizing ... two potentially conflicting statutes
[citation], and the statutes are “irreconcilable, clearly repugnant, and so
inconsistent that the two cannot have concurrent operation.” ’ ” ’ ” ’ ” (Tan v.
Appellate Division of Superior Court (2022) 76 Cal.App.5th 130, 137–138.)
10
Applying these principles of statutory interpretation here, we conclude
the People’s interpretation of section 1203.1, subdivision (l)(1), is the proper
one. It does not impliedly repeal, or limit, section 1203.097. Rather, it
harmonizes section 1203.1, subdivision (l)(1) with section 1203.097, which
expressly requires that a probation term must “include … [a] minimum
period of probation of 36 months” whenever the probationer has committed a
crime against a victim of domestic violence. (§ 1203.097, subd. (a)(1).)
The legislative history of Assembly Bill No. 1950 supports our
interpretation of section 1203.1, subdivision (l)(1). When the bill was
originally introduced, it imposed a two-year limitation on felony probation
terms similar to the one that went on to become law. However, unlike the
version of Assembly Bill No. 1950 that was enacted into law, the original
version of the bill (and early amended versions of the bill) did not include an
exception for offenses with specific probation lengths within their provisions.
A report from the Assembly Committee on Public Safety, commenting
on an early version of the bill, noted the bill would “limit felony probation to
two years … regardless of the maximum term of imprisonment.” (Assem.
Com. on Public Safety, Rep. on Assem. Bill No. 1950 (2019–2020 Reg. Sess.)
as amended May 6, 2020, p. 4.) However, it pointed out that the bill would
“not amend code sections such as Veh. Code [section] 23600 (allowing
probation up to five years for a DUI) or Pen. Code [section] 1203.097
(requiring a minimum probation of three years for domestic violence
offenses), which specify probation lengths for specific crimes.” (Ibid.) The
report cautioned it was “not clear if [the] bill would limit the application of
those sections.” (Ibid.) Soon after the committee report highlighted these
features of the bill, the language that now constitutes section 1203.1,
11
subdivision (l)(1), i.e., the exception to the two-year felony probation
limitation, was added into the bill and enacted into law.
From this legislative history, we can reasonably discern that the
Legislature most likely incorporated the relevant exception into Assembly
Bill No. 1950 to ensure that the bill did not limit the application of section
1203.097 (and other code provisions like it). The defendant’s narrow
interpretation of section 1203.1, subdivision (l)(1) would, of course, limit the
application of section 1203.097. The interpretation proffered by the People,
which we approve, does not limit the application of section 1203.097.
Finally, we note that our interpretation of section 1203.1, subdivision
(l)(1) is consistent with the views expressed by Judge J. Richard Couzens,
Presiding Justice Tricia A. Bigelow, and Judge Gregg L. Prickett in the
“leading treatise on California sentencing law.” (People v. Hernandez (2021)
60 Cal.App.5th 94, 109; see also People v. Santa Ana (2016) 247 Cal.App.4th
1123, 1144 [describing the treatise as a “well-respected treatise”].)
In their sentencing treatise, the jurists opined as follows:
“Because of section 1203.097, a conviction of a crime where the
victim is listed in Family Code section 6211 is an offense ‘that
includes [a] specific probation length[] within its provisions” for
the purposes of the exception under section 1203.1, subdivision
[(l)(1)]. The underlying crime, however, may not normally carry a
minimum probationary term. For example, probation for a
violation of section 245, subdivision (a)(4) [assault by means of
force likely to produce great bodily injury], does not normally
have a minimum term of probation—which means felony
probation is limited to two years. But if the victim is a person
included in Family Code section 6211, section 1203.1, subdivision
[(l)(1)], provides an exception to the new limits established by
[Assembly Bill No.] 1950.”
(Couzens et al., Sentencing California Crimes (The Rutter Group 2021)
§ 8:15.30, pp. 8-20 to 8-21, fn. omitted.) They added: “The fact that the
12
specification of the length of probation is expressed in a different code section
than the crime itself does not appear material. The Penal Code frequently
separates the punishment provisions from the crime. (See, e.g., burglary—
the crime is identified in sections 459 and 460, but the punishment is
contained in section 461. But there is no doubt the sections operate in
tandem to define the crime and its consequences.)” (Id., fn. 2.) We are
persuaded by these well-reasoned observations and we adopt them as our
own.
Based on all of the foregoing, we conclude that a defendant who is
placed on probation for committing a crime against a victim of domestic
violence, as defined by section 1203.097, has committed “an offense that
includes specific probation lengths within its provisions.” (§ 1203.1,
subd. (l)(1).) In such circumstances, and in the absence of a contrary
legislative indication, the two-year felony probation limitation codified in
section 1203.1, subdivision (a) does not apply.
2
Applying these legal principles is simple on the facts presented.
Forester does not dispute that he was convicted of stalking a victim of
domestic violence (H.F.) within the meaning of section 1203.097. Because he
stalked a victim of domestic violence, he was placed on probation for an
offense that includes a specific probation length within its provisions. Under
these circumstances, the two-year felony probation limitation codified in
section 1203.1, subdivision (a), is inapplicable.6 (See § 1203.1, subd. (l)(1).)
6 No party disputes that H.F. was a victim of domestic violence. Thus,
we have no occasion to determine the showing that must be made to establish
that a person is a victim of domestic violence under section 1203.097.
13
IV
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
AARON, J.
IRION, J.
14