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Assembly Bill 1950 – Does It Apply to 273.5, 191.5?

As the reader of this article may already be well aware, Assembly Bill 1950, effective January 1, 2022, changed the duration of probation for misdemeanors to one year and felonies to two years, subject to exceptions for those convicted of: (1) “an offense that includes specific probation lengths within its provisions;” (2) an offense listed under Penal Code § 667.5(c) (a “violent felony”); (3) grand theft, as defined under Penal Code § 487(b)(3), embezzlement (§ 503), or theft by false pretenses (§ 532a) involving theft over $25,000.

The exception for “an offense that includes specific probation lengths within its provision” is exemplified by the provisions applicable to driving under the influence at Vehicle Code § 23600 which provides, in relevant part, “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 . . .”

However, based on the language of Vehicle Code § 23600, one may argue that when the Legislature chose to include only 23152 and 23153, the enhanced probation term is limited to convictions for those specific offenses.

However, this probably does not make sense that if the defendant is convicted of ordinary DUI, he will receive up to three or four or even five years of probation, but if he kills someone while committing a DUI offense, he will have a probation limit of two years (if probation is granted) because he may be charged with violating Penal Code § 191.5(a) and not Vehicle Code § 23153.

We believe that this will not take place, however, because Penal Code § 191.5(a) is defined as the unlawful killing of a person in the driving of a vehicle “where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code. . .”  Put another way, if one is convicted of violating Penal Code § 191.5(a), defendant must also be found to having violated 23152, 23153 or 23140.  Indeed, Vehicle Code § 23153 is a necessarily included offense to a violation of 191.5(a).  People v. Miranda (1994) 21 Cal. App. 4th 1464, 1468.

Likewise, in the domestic violence context, some may argue that since Penal Code § 1203.097 states that those who are sentenced on domestic violence offenses, if probation is granted, must be placed on probation for at least three years, and consequently, that any domestic violence offense is an exception to AB 1950.  A domestic violence offense is defined as any offense in which the victim is a person as defined under Family Code § 6211.

Family Code § 6211 defines “domestic violence” as “abuse” perpetrated against certain people with a certain relationship to defendant.  “Abuse,” however, is any type of physical, mental, emotional or psychological conduct or reckless conduct that causes or attempts to cause damage or injury to another or places a person in reasonable apprehension of such injury.

The big question then becomes whether a conviction under Penal Code § 273.5(a) (or 243(e)(1) or 242) is covered by a one year or two year probation period when there is no abuse, i.e., no injury of any type, but there is a relationship between defendant and the alleged victim.  After all, this type of conviction commonly takes place where there is no visible injury and the victim denies being injured, but defendant is arrested and may even enter into a plea bargain (perhaps under People v. West, wherein defendant denies the allegations, but agrees to a resolution to take advantage of the plea bargain to avoid the risk of heavier punishment if convicted at trial) or is convicted at trial of domestic violence.  Does the one-year or two-year probation limit then apply?

Our office has litigated this issue, arguing that felony 273.5(a) is not an exception to AB 1950 because it is not a listed “violent crime” under Penal Code § 667.5(c), is not a theft offense with more than $25,000 at issue, and “an offense that includes specific probation lengths within its provision.”  After all Penal Code § 273.5(a) (and 243(e)(1) and 242) does not include a specific probation length within its provisions.  The judge agreed with us, over a district attorney loudly opposing this. 

We have also argued this and lost with a different judge, however, we also advised the judge that regardless of whether the judge believes domestic violence (Penal Code §§ 273.5(a), 243(e)(1) or 242) is an exception to AB 1950, the judge retains discretion under Penal Code § 1203.3(a) to terminate probation at any time.  Section 1203.3(a) states that “[t]he court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence.”  See e.g., People v. Allen (1975) 46 Cal.App.3d 583, 588.

For example, in People v. Reyna Killion (4th App. Dist., 2018) 24 Cal.App.5th 927, the Fourth Appellate District held that a judge may terminate summary probation in a felony domestic violence case after just one year of probation. 

We present this article because, while AB 1950 seems very clear, it has ambiguities that Legislators probably did not anticipate.

For more information about AB 1950 issues, please click on the following articles:
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