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AB 1950, PC 1203.1(m)(1), 2 Year Probation Exceptions

In a Nutshell:  Probation for a DUI is not shortened by AB 1950 because Vehicle Code § 23600(b)(1) specifies that probation for a DUI shall be at least three years and not more than five years.
On July 22, 2019, police in Tuolumne County arrested Stephen Ray Schultz after his truck veered into oncoming traffic and struck another vehicle head-on, injuring the other driver and her two passengers.  Shultz’s blood alcohol content (BAC) was measured at 0.17%.  Shultz had no prior criminal history.

On November 20, 2019, Schultz entered an open plea of guilty to the two felony charges of violating Vehicle Code § 23153, admitted the great bodily injury enhancements under Vehicle Code § 23558 and admitted his BAC exceeded 0.15% in violation of Vehicle Code § 23578.  Shultz also asked the judge to reduce the felonies to misdemeanors.

On February 10, 2020, the trial court judge denied Schultz’s motion to reduce his felonies to misdemeanors under Penal Code § 17(b) and suspended imposition of sentence for a period of five years, placed defendant on formal probation and ordered Schultz to serve five months in local custody.

art_1543_-_fifth_district_court_of_appeal__fresno___1_.jpgFifth District Court of Appeal Fresno

Schultz filed an appeal to the Fifth Appellate District Court in Fresno, arguing that the trial court judge abused his discretion when he declined to reduce his felonies to misdemeanors and that under In re Estrada (1965) 63 Cal. 2d 740, he was entitled to have his probation period reduced to two years under Assembly Bill (AB) 1950, which amended Penal Code § 1203.1(a) to limit probation for felony offenses to no more than two years, subject to certain exceptions.

In his appeal, Schultz claimed that the exclusion under Penal Code § 1203.1(m) applies only to felonies that are both a violent felony as listed under Penal Code § 667.5(c) and that include a specific probation length within its provisions.
The People argued that the Estrada presumption of retroactivity did not apply because probation by itself is not considered a form of punishment.  The Fifth Appellate District disagreed with this argument, noting that this argument has been uniformly rejected by many courts.  People v. Lord (2021) 64 Cal. App. 5th 241, 245.

The People also argued that the trial court judge did not abuse his discretion in denying Schultz’s motion for reduction of the felonies to misdemeanors.  The Fifth Appellate District agreed with the People on this, noting that the trial court judge, Donald I. Segerstrom, took time to explain his thinking on the facts of the case and Schultz’s conduct. 

Turning then back to the probation period question, the Fifth Appellate District explained that Penal Code § 1203.1(m) the two-year probation limit in 1203.1(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 . . . and (2) A felony conviction for paragraph (3) of subdivision (b) of Section 487, Section 503, and Section 532 if the total value of the property taken exceeds $25,000.”

The Fifth Appellate District then explained that “and” in Penal Code § 1203.1(m) was intended to mean “or” because to otherwise interpret “and” would lead to unintended results such as murder being eligible for a two-year probation period.

The appellate court then noted as to DUI possibly having a two-year probation period for felony DUI, Vehicle Code § 23600(b)(1) prevents that.  Section 23600(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 . . . a period of probation not less than three nor more than five years.”

[It merits mention that domestic violence is excluded from AB 1950 as well, although this was not at issue and not discussed by the Fifth Appellate District.]

Consequently, the Fifth Appellate District found that while AB 1950 was retroactive under Estrada, Vehicle Code § 23600(b)(1) mandated a specific probation length, so the court denied Mr. Schultz’s appeal to have his probation term reduced under Penal Code § 1203.1(a).

We present this article for the reader because we have received perhaps ten phone calls on this very issue, in the context of both misdemeanor DUI and felony DUI.

The citation for the Fifth Appellate District Court ruling discussed above is People v. Stephen Ray Schultz (5th App. Dist., 2021) 66 Cal. App. 5th 887, 281 Cal. Rptr. 3d 469.

For more information about the new law (2021) limiting felony probation to two years, please click on the following articles:
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