MEEHAN, J.
Certified for Partial Publication.
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.
Christopher Love, Los Angeles, 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.
OPINIONMEEHAN, J.
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). He also claims, via supplemental briefing, that pursuant to the Estrada 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.
All further statutory references are to the Penal Code unless otherwise stated.
In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (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 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.
See footnote *, ante .
DISCUSSIONI. Denial of Motion to Reduce Felony Convictions to Misdemeanors
See footnote *, ante .
II. Assembly Bill No. 1950 A. BackgroundAs 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 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 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, 191 Cal.Rptr.3d 458, 354 P.3d 268.) " ‘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, 133 Cal.Rptr.3d 573, 264 P.3d 357 ( C.H. ).)
"Generally, statutes are presumed to apply only prospectively." ( People v. Frahs (2020) 9 Cal.5th 618, 627, 264 Cal.Rptr.3d 292, 466 P.3d 844 ( Frahs ), citing People v. Superior Court (Lara ) (2018) 4 Cal.5th 299, 307, 228 Cal.Rptr.3d 394, 410 P.3d 22 ( 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, 264 Cal.Rptr.3d 292, 466 P.3d 844, citing Lara, supra , at p. 307, 228 Cal.Rptr.3d 394, 410 P.3d 22.)
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. (See Estrada, supra , 63 Cal.2d at pp. 744–745 [48 Cal.Rptr. 172, 408 P.2d 948].) 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, 272 Cal.Rptr.3d 814, 477 P.3d 539 ( Gentile ); accord, Frahs, supra , 9 Cal.5th at p. 624, 264 Cal.Rptr.3d 292, 466 P.3d 844 ; People v. McKenzie (2020) 9 Cal.5th 40, 44–45, 259 Cal.Rptr.3d 224, 459 P.3d 25 ; Lara, supra , 4 Cal.5th at p. 307, 228 Cal.Rptr.3d 394, 410 P.3d 22.)
C. Analysis 1. Estrada Presumption AppliesAs 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, 278 Cal.Rptr.3d 642 ) ( Lord ); People v. Stewart (2021) 62 Cal.App.5th 1065, 1072–1073, 277 Cal.Rptr.3d 247, review granted June 30, 2021, S268787 ( Stewart ); People v. Sims (2021) 59 Cal.App.5th 943, 960–961, 273 Cal.Rptr.3d 792 ( Sims ); People v. Quinn (2021) 59 Cal.App.5th 874, 882–883, 273 Cal.Rptr.3d 770 ( Quinn ); People v. Burton (2020 58 Cal.App.5th Supp. 1, 14–16, 272 Cal.Rptr.3d 797 ( 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 [264 Cal.Rptr.3d 292, 466 P.3d 844].) 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 ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible’ ( People v. Conley [(2016)] 63 Cal.4th [646,] 657 [ 203 Cal.Rptr.3d 622, 373 P.3d 435] ), 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, 272 Cal.Rptr.3d 797.)
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, 277 Cal.Rptr.3d 247, review granted; Sims, supra , 59 Cal.App.5th at pp. 959–961, 273 Cal.Rptr.3d 792 ; Quinn, supra , 59 Cal.App.5th at p. 883, 273 Cal.Rptr.3d 770 ; accord, Lord, supra , 64 Cal.App.5th at p. 245, 278 Cal.Rptr.3d 642.) 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, 273 Cal.Rptr.3d 792.) "[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 671, 674–675, 279 Cal.Rptr.3d 659, 487 P.3d 974 ; Gentile, supra , 10 Cal.5th at p. 852, 272 Cal.Rptr.3d 814, 477 P.3d 539 ; Frahs, supra , 9 Cal.5th at pp. 631–632, 264 Cal.Rptr.3d 292, 466 P.3d 844 ) and the court has stated that the primary focus is "whether a change in law is ameliorative" ( Esquivel, supra , at pp. 675–676, 279 Cal.Rptr.3d 659, 487 P.3d 974 ). We agree with the courts that have 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, 278 Cal.Rptr.3d 642 ; Stewart, supra , 62 Cal.App.5th at pp. 1072–1073, 277 Cal.Rptr.3d 247 ; Sims, supra , 59 Cal.App.5th at pp. 959–961, 273 Cal.Rptr.3d 792 ; Quinn, supra , 59 Cal.App.5th at p. 882–883, 273 Cal.Rptr.3d 770 ; Burton, supra , 58 Cal.App.5th Supp. at pp. 18–19, 272 Cal.Rptr.3d 797.) Therefore, we reject the People's argument on this point. 2. Exclusion Under Subdivision (m)(1) of Section 1203.1
a. Statutory LanguageNext, 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 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, 133 Cal.Rptr.3d 573, 264 P.3d 357 ), 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, 189 Cal.Rptr.3d 686, 352 P.3d 275 ). 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, 133 Cal.Rptr.3d 573, 264 P.3d 357 ; accord, People v. Leiva (2013) 56 Cal.4th 498, 506, 154 Cal.Rptr.3d 634, 297 P.3d 870.) 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 p. 103, 133 Cal.Rptr.3d 573, 264 P.3d 357 ; accord, People v. Leiva, supra , at p. 506, 154 Cal.Rptr.3d 634, 297 P.3d 870 ; People v. Valencia (2021) 64 Cal.App.5th 641, 649, 279 Cal.Rptr.3d 153.)
b. Legislative HistoryBecause 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, 133 Cal.Rptr.3d 573, 264 P.3d 357.) 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.) The 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.)
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."
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, subdivision (m). 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. Neither the plain language of the provision nor the legislative history supports such an untenable result.
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).)
"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, 178 Cal.Rptr.3d 185, 334 P.3d 573.)
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.
DISPOSITIONThe judgment is affirmed.
WE CONCUR:
LEVY, Acting P.J.
FRANSON, J.
Comments