Kuhnel v. Superior Court

• Decision Date: 28 February 2022
• Docket Number: A163307
• Parties: Kellie KUHNEL, Petitioner, v. The SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; The People, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

75 Cal.App.5th 726

290 Cal.Rptr.3d 693

Kellie KUHNEL, Petitioner,

v. The SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent;The People, Real Party in Interest.

A163307

Court of Appeal, First District, Division 3, California.

Filed February 28, 2022

Robin Lipetzky and Ellen McDonnell, Public Defenders, Lyla Bugara, Deputy Public Defender for Petitioner

Diana Becton, District Attorney, Ryan Wagner, Deputy District Attorney, Daniel Becker, Certified Law Clerk for Real Party in Interest

TUCHER, P.J.

Kellie Kuhnel seeks a writ of mandate directing the trial court to terminate her probation on the ground she is entitled to the retroactive benefit of a recent statutory amendment reducing the length of probationary terms. Previous law generally allowed a court to place a defendant convicted of a misdemeanor on probation for up to three years. (Former Pen. Code, § 1203a.)¹ Effective January 1, 2021, this default period is reduced to one year. (Assem. Bill No. 1950 (2019–2020 Reg. Sess.), Stats. 2020, ch. 328, § 1 (Assembly Bill 1950); Pen. Code, § 1203a.) Appellate courts have unanimously concluded that Assembly Bill 1950 applies retroactively to cases that are not yet final, and have accordingly reduced the length of probationary terms imposed before the new law went into effect. (See, e.g., People v. Quinn (2021) 59 Cal.App.5th 874, 273 Cal.Rptr.3d 770 ( Quinn ).) In this case, Kuhnel was originally placed on three years’ probation, and the question before us is whether this rule of retroactivity prevents the court from adjudicating a violation allegedly committed during her first year on probation, which resulted in the court summarily revoking her probation early in the second year.

All of these events occurred well before Assembly Bill 1950 was enacted or went into effect, and were appropriate under then-governing law. (See section 1203.3, subd. (a).) We conclude that having summarily revoked Kuhnel's probation under these circumstances, the trial court retained jurisdiction to conduct a formal hearing on the probation violation even after the effective date of Assembly Bill 1950, and we accordingly deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Kellie Kuhnel was convicted of misdemeanor embezzlement and placed on probation for three years on November 17, 2016. Eleven months into her probation, in October 2017, the Orinda Police Department received a report that Kuhnel had committed new acts of fraud, and in early December the probation department reported this to the trial court. Thirteen months into her probation, on December 11, 2017, the trial court summarily revoked Kuhnel's probation and set a hearing on the violation for January 8, 2018. The hearing was continued multiple times, on several occasions because Kuhnel failed to appear and twice in 2021 at her request.

Without the probation violation hearing ever being held, Kuhnel moved on June 18, 2021 to terminate her probation, arguing that she had been on probation for more than one year and Assembly Bill 1950 applied retroactively to shorten her probationary term. Relying on People v. Leiva (2013) 56 Cal.4th 498, 154 Cal.Rptr.3d 634, 297 P.3d 870 ( Leiva ) and a statutory provision that revocation of probation serves to toll the running of a probationary term ( § 1203.2, subd. (a) ( § 1203.2(a) )), the People opposed the motion on the ground the court retained jurisdiction to adjudicate violations that took place during the original term of probation. The trial court accepted this theory, at least under the circumstances of this case, and accordingly denied Kuhnel's motion on July 9, 2021.

Kuhnel petitioned the trial court's appellate division for a writ of mandate, and the appellate division denied the petition without explanation on August 12, 2021. Kuhnel then petitioned this court for a writ of mandate ( Code Civ. Proc., § 904.3 ), and on September 23, 2021, we issued an alternative writ directing the appellate division of the superior court either to grant her petition or to show cause why a peremptory writ of mandate should not be granted. The appellate division elected not to grant the petition, explaining that it would welcome our guidance on the interaction among section 1203.2(a), Leiva , and Assembly Bill 1950. The District Attorney therefore filed a return to the writ petition, and Kuhnel has filed a traverse.

DISCUSSION

When Kuhnel was placed on probation, section 1203a provided that courts could suspend the imposition or execution of sentence in misdemeanor cases and "make and enforce ... terms of probation for a period not to exceed three years," or longer if the maximum term of imprisonment provided by law exceeded three years. Among the amendments made by Assembly Bill 1950, signed by the Governor on September 30, 2020 and effective January 1, 2021, misdemeanor probation may now not exceed one year, unless the offense provides for a specific probation length, which Kuhnel's crime did not. ( § 1203a ; Stats. 2020, ch. 328, § 1 ; §§ 487, subd. (a), 489.) Thus, under the new law, Kuhnel could have been ordered to serve no more than one year of probation for her offense. Assembly Bill 1950 also reduced the default maximum probationary term for felonies to two years. ( § 1203.1, subds. (a) & (m) ; Stats. 2020, ch. 328, § 2.) Kuhnel contends that these amendments apply retroactively and that, as a result, her probation ended as a matter of law on November 17, 2017 and the court no longer has jurisdiction over her.

I. Estoppel

As a threshold issue, the People contend Kuhnel may not challenge the court's authority to consider the probation violation because she consented to the court's continuing jurisdiction and contributed to the delays that resulted in the matter being continued until after Assembly Bill 1950 went into effect. They rely for this proposition on People v. Ford (2015) 61 Cal.4th 282, 187 Cal.Rptr.3d 919, 349 P.3d 98 ( Ford ), but Ford is readily distinguishable.

In Ford , the defendant was placed on probation under an agreement that provided he would pay restitution to the victim of his crime. ( Ford , supra , 61 Cal.4th at p. 285, 187 Cal.Rptr.3d 919, 349 P.3d 98.) When the probation officer determined the appropriate amount of restitution, the defendant requested a hearing, which was continued many times, sometimes at his request and always with his consent. ( Id . at p. 285, 187 Cal.Rptr.3d 919, 349 P.3d 98.) The hearing finally concluded a week after probation expired, at which point the defendant contested the court's jurisdiction to order restitution. ( Id . at pp. 285–286, 187 Cal.Rptr.3d 919, 349 P.3d 98.) In concluding the trial court could still order restitution, our high court explained that "the expiration of a probationary period does not terminate a court's fundamental jurisdiction"; an award after that time would at most be "an ordinary act in excess of jurisdiction." ( Id . at p. 287, 187 Cal.Rptr.3d 919, 349 P.3d 98.) Such an act "is treated as valid until set aside," and a defendant who seeks or consents to such an act may be estopped from challenging the court's jurisdiction. ( Ibid . ) Because the defendant's own requests played a role in delaying the hearing and he did not object to a continuance beyond his probationary term, he was estopped from challenging the court's exercise of jurisdiction, Ford held. ( Id . at pp. 288–289, 187 Cal.Rptr.3d 919, 349 P.3d 98.) Other cases have reached similar conclusions. (See In re Bakke (1986) 42 Cal.3d 84, 89–90, 227 Cal.Rptr. 663, 720 P.2d 11 [trial court had jurisdiction to order execution of jail term that had been stayed at probationer's request]; In re Griffin (1967) 67 Cal.2d 343, 348, 62 Cal.Rptr. 1, 431 P.2d 625 [estoppel where probationer requested continuance of probation revocation hearing beyond expiration of probationary term]; People v. Ham (1975) 44 Cal.App.3d 288, 294, 118 Cal.Rptr. 591 [defendant requested continuance of hearing past probationary period].)

The People argue that Kuhnel is likewise estopped because she was the reason for some of the continuances in this matter and consented to the continuance that placed this case within the effective date of Assembly Bill 1950. But unlike the defendant in Ford , Kuhnel neither requested nor consented to delays that directly resulted in the court losing jurisdiction. Rather, if her theory is correct, the trial court should be deemed to have lost jurisdiction in November 2017, before the alleged violation was even reported to the court. The delays Kuhnel sought or agreed to took place after that date and therefore did not cause the alleged loss of jurisdiction, except indirectly in that they caused the case to be still pending when the new law was passed and took effect. Because the Ford line of cases does not address such indirect effects, we will consider her contentions on the merits.

II. Retroactivity

Multiple courts have considered whether the amendments of Assembly Bill 1950 apply retroactively to the benefit of a person whose judgment is not yet final on appeal, and they have uniformly held that they do.² As Division Four of this appellate district recently explained, although statutes are generally presumed to apply prospectively, the Legislature may " ‘ "enact laws that apply retroactively, either explicitly or by implication," ’ " and " ‘amendatory statutes that lessen the punishment for criminal conduct are ordinarily intended to apply retroactively.’ " ( Quinn , supra , 59 Cal.App.5th at p. 881, 273 Cal.Rptr.3d 770.) This is because "[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper." ( In re Estrada (1965) 63 Cal.2d 740, 745, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ).) After such a legislative determination, " ‘it is safe to assume, ... that it was the legislative design that the lighter penalty should be imposed in all cases that subsequently...