With the passage of Assembly Bill 1950 into law, effective January 1, 2021, the probation period for all misdemeanors is to be limited to one year and all felonies to two years, with certain exceptions specified in the new law. This law modified Penal Code § 1203a for misdemeanor and § 1203.1 for felonies.
The law, decreasing punishment, is retroactive.
The exceptions are certainly important to know. There are five general areas to know for felonies. First, the law does not apply to any violent felony listed under Penal Code § 667.5(c), which lists the offenses considered under the Three Strikes Law as violent offenses.
Second, AB 1950 does not apply to any offense with a specified period of probation stated within the offense, i.e., felony DUI (Vehicle Code § 23153 – three years minimum), felony witness intimidation (Penal Code § 136.1(a) or (b)) (3 years), felony violation of a family law restraining order prohibiting gun ownership (Penal Code § 166(d)(1)) (3 years) and many others.
Assembly Bill 1950 also does not apply to any felony conviction for violating Penal Code § 487 (b)(3), if the total value of the property taken exceeds $25,000. In this case, the maximum term of probation is three years. Fourth, it does not apply felony conviction for violating Penal Code § 503, if the total value of the property taken exceeds $25,000. In this case, the maximum term of probation is three years. Fifth, it does not apply to any felony conviction for violating Penal Code § 532a, if the total value of the property taken exceeds $25,000. In this case, the maximum term of probation is three years.
Legal scholars have argued that domestic violence is also an exception to the two year probation period because Penal Code § 1203.097 specifies the period of probation to be three years, but there is some debate as to whether this is legally correct because 1203.097 was passed many years before AB 1950 and new laws are presumed to supersedes old laws or change them. If the judge believes 1203.097 controls over AB 1950, then probation must last at least three years for a felony domestic violence charge and can be up to five years, depending upon the original plea.
Legal scholars also argue that under § 1203.097, probation for a violation of Penal Code § 245(a)(4), assault by means likely to cause great bodily injury, when the victim is a person considered a victim of domestic violence (i.e., a spouse or former spouse, girlfriend, boyfriend, etc.), then the minimum probation period can be two years, but can also be up to four years, depending upon the original plea terms.
In our client’s case, he had entered into a plea bargain in San Luis Obispo County for a violation of two counts of felony domestic violence, Penal Code § 273.5(a), one count of felony assault by means likely to cause great bodily injury, Penal Code § 245(a)(4), one count of felony witness intimidation, Penal Code § 136.1(b) and one count of felony false imprisonment, Penal Code § 236.
The event leading to the charges took place in 2015, but because of massive credibility issues with the alleged victim, our client’s then-girlfriend, the case did not resolve until November 2018. The case resolved only when the judge, sensing an inflexible prosecutor who insisted upon four years of state prison for our client, invited our client to “plea in the open” to her.
Our client did so and the judge sentenced our client to each charge with five years of formal probation and 180 days in the San Luis Obispo County jail, with 52 batterers classes thereafter and 40 hours of community service, plus certain court fines and fees.
Fast forward to 2021 and the client had his probation transferred to Los Angeles County, where he moved.
He called our office one day and inquired about early termination of probation and expungement, as well as possibly having the felonies reduced to misdemeanors. He described the facts of the case and why being off probation was urgently sought, which for him involved certain work contracts he was barred from entering while on any form of probation.
Greg discussed AB 1950 and how some judges and many prosecutors believed domestic violence was excluded from the new law’s provisions.
Greg also explained what a judge looks for in evaluating a motion for early termination of probation.
Our office then prepared, served and filed the motion for early termination of probation in the Clara Shortridge Foltz courthouse, previously known as CCB. The judge assigned to the matter was highly respected and Greg was familiar with him as being one of the best, as well as having an extremely humble, patient demeanor.
At the hearing for the motion, the District Attorney, as expected, argued that AB 1950 did not apply to those on probation for a domestic violence conviction because of Penal Code § 1203.097 and Greg argued that it did, under the plain wording of the new law and because AB 1950 presumably was codified without ignoring 1203.097. Legislators can be expected to know prior laws that might conflict with a new law, so when a new law does conflict, it prevails.
The judge acknowledged the conflict and, over a hearing lasting close to 90 minutes, ultimately ruled in our client’s favor. The judge explained that if he had discretion in this motion, which he did not, he would have denied the motion due to the horrendous facts. He even stated that had this case been brought in Los Angeles County, our client would never have received probation.
The judge further advised Greg that he would deny any request to have the felonies reduced to misdemeanors and would deny any petition for dismissal (“expungement”) based on a finding that our client did not successfully complete probation because probation was terminated early.
Our client was overjoyed by the ruling, knowing he now could move forward in work in areas he had been excluded for the last seven years (since 2015).
For more information about early termination of probation issues, please click on the following articles: