Bowden v. Superior Court of Marin Cnty.
| Decision Date | 26 August 2022 |
| Docket Number | A163592 |
| Citation | 82 Cal.App.5th 735,298 Cal.Rptr.3d 620 |
| Parties | Deanna Lynn BOWDEN, Petitioner, v. SUPERIOR COURT OF MARIN COUNTY, Respondent; The People, Real Party in Interest. |
| Court | California Court of Appeals Court of Appeals |
82 Cal.App.5th 735
298 Cal.Rptr.3d 620
Deanna Lynn BOWDEN, Petitioner,
v.
SUPERIOR COURT OF MARIN COUNTY, Respondent;
The People, Real Party in Interest.
A163592
District Court of Appeal, First District, Division 3, California.
Filed August 26, 2022
Burglin Law Offices, Paul Burglin, Mill Valley, for Petitioner and Appellant.
Rob Bonta, Attorney General of California, Lance W. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Deputy Attorney General, Eric D. Share, Supervising Deputy Attorney General and John H. Deist, Deputy Attorney General, San Francisco, for Real Party in Interest.
TUCHER, P.J.
Pursuant to a negotiated plea bargain, petitioner Deanna Bowden pled guilty to a felony violation of Penal Code section 191.5, subdivision (b) (vehicular manslaughter while intoxicated but without gross negligence) and was placed on five years’ probation. Following her plea and sentencing, Assembly Bill Number 1950 (2019–2020 Reg. Sess.) (Assem. Bill 1950) amended Penal Code sections 1203a and 1203.1 to limit probation to one year for most misdemeanors and to two years for most felonies. Petitioner contends that Assembly Bill 1950 limits the term of her probation to two years, and that the People and the trial court cannot retract their consent to the plea agreement. We agree.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was driving in Novato when she struck and killed a pedestrian in a marked crosswalk at 9:20 p.m. on May 30, 2019. Blood and breath samples taken at
the scene indicated that petitioner had been driving under the influence of alcohol.
The Marin County District Attorney initially charged petitioner with three counts, but during petitioner's preliminary hearing, the parties informed the superior court that they had negotiated a plea bargain in which petitioner would plead guilty to a felony violation of Penal Code section 191.5, subdivision (b) ( section 191.5(b) )1 in exchange for the prosecutor recommending a prison term of two years, the first year to be served in county jail and the second on mandatory supervision. The superior court advised petitioner of her rights, accepted her guilty plea, and dismissed all remaining charges.
At petitioner's sentencing hearing on February 4, 2020, the superior court informed the parties that it did not agree with the negotiated sentencing recommendation, which the court described as overly lenient in view of the severity of the crime. Under the proposed sentence, the court explained, petitioner could fulfill her prison term by serving a year in the county jail, reduced to six months with good conduct credit. With additional credits, her remaining probation term could similarly be reduced to six months. The court proposed instead placing petitioner on probation for five years, consisting of a full year in county jail followed by probation supervision for the remaining four years. The court believed this longer term of supervision over petitioner would better ensure safety in the community. The parties agreed to these terms, and the court imposed them.
Less than a year later, on January 1, 2021, Assembly Bill 1950 took effect, amending section 1203.1 to restrict the length of many felony probation terms to two years. (Stats. 2020, ch. 328, § 2, eff. Jan. 1, 2021.) By written memorandum dated August 16, 2021, the Marin County Probation Department asked the superior court to determine whether petitioner was entitled to be released from probation under Assembly Bill 1950 after two years, rather than serving the originally imposed five years. The superior court held a hearing on September 1, 2021, and found that Assembly Bill 1950 did not limit petitioner's probation to two years. Petitioner then sought a writ of mandamus, asking this court to order the superior court to limit petitioner's probationary period to two years pursuant to Assembly Bill 1950. On January 6, 2022, we issued an order to show cause why the relief requested in the writ petition should not be granted.
DISCUSSION
The parties do not dispute that when petitioner was placed on probation in February 2020, former section 1203.1 allowed the superior court to impose probation for five years. (Former § 1203.1, subd. (a).) Assembly Bill 1950 subsequently amended section 1203.1 to limit the probation term for felony offenses to two years, except in two circumstances. The first exception, for violent felonies, is not relevant here; the second exempts from the two-year limit any "offense that includes specific probation lengths within its provisions." ( § 1203.1, subd. (l)(1) ; Assem. Bill 1950, § 2.) The question in this case is whether section 191.5(b) should be treated as an offense that includes a five-year probation term within its provisions because the Vehicle Code expressly authorizes five years of probation for driving-under-the-influence offenses that are lesser included offenses of section 191.5(b). (See Pen. Code, § 191.5 ; Veh. Code, §§ 23152, 23153, 23600.)
The People maintain, and the trial court concluded, that reading Assembly Bill 1950 to limit petitioner's probation term to two years would be an absurd result because then the lesser included offenses would carry longer probation terms than the greater offense, which the Legislature could not have intended. The People also contend that if Assembly Bill 1950 applies to shorten petitioner's probation term, the matter should be remanded to the superior court to allow the People or the court to withdraw agreement to the plea bargain.
For the reasons that follow, we agree with petitioner that Assembly Bill 1950 shortens her probation term to two years, and disagree with the People that remand is required to allow the plea agreement to be revisited.
A. Petitioner's probation term is limited to two years under Assembly Bill 1950
As a preliminary matter, we consider whether the ameliorative amendatory provision of Assembly Bill 1950 applies retroactively to individuals such as petitioner who are currently serving a term of probation. We conclude, pursuant to In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ), that it does, and note that the People did not argue otherwise in their return to the order to show cause. Although petitioner was convicted before Assembly Bill 1950 became effective, she remains on probation so her case is not " ‘final’ " for purposes of retroactivity under Estrada . (See People v. McKenzie (2020) 9 Cal.5th 40, 46–47, 259 Cal.Rptr.3d 224, 459 P.3d 25.) While we acknowledge that the retroactivity of Assembly Bill 1950 is currently under review by our Supreme Court in People v. Prudholme (Aug. 26, 2021, E076007), 2021 WL 3781712 (nonpub. opn.), review granted November 1, 2021,
S271057 ( Prudholme ), we agree with the many published opinions holding that the two-year felony probation limitation in Assembly Bill 1950 is retroactive to probationers such as petitioner whose convictions are, in this manner, not yet final. (See, e.g., People v. Arreguin (2022) 79 Cal.App.5th 787, 794, 295 Cal.Rptr.3d 195 ; People v. Butler (2022) 75 Cal.App.5th 216, 291 Cal.Rptr.3d 1, review granted June 1, 2022, S273773 ( Butler ); People v. Scarano (2022) 74 Cal.App.5th 993, 290 Cal.Rptr.3d 121, review ordered on Court's own motion June 1, 2022, S273830 ( Scarano ); People v. Lord (2021) 64 Cal.App.5th 241, 246, 278 Cal.Rptr.3d 642 ; People v. Stewart (2021) 62 Cal.App.5th 1065, 1074, 277 Cal.Rptr.3d 247, review granted and cause transferred April 20, 2022, S268787 ( Stewart )2 ; People v. Sims (2021) 59 Cal.App.5th 943, 955–964, 273 Cal.Rptr.3d 792.)
We accordingly must decide whether the new two-year limit on felony probation applies to petitioner's conviction for section 191.5(b), or whether instead the exception for...
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