People v. Ferguson CA4/1 ( 2022 )

Filed 6/13/22 P. v. Ferguson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078244
Plaintiff and Respondent,
v. (Super. Ct. No. JCF003372)
EDWARD WALTER FERGUSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Imperial County,
Christopher J. Plourd, Judge. Affirmed.
Taylor L. Clark, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson and Felicity A. Senoski, Deputy Attorneys General, for Plaintiff and
Respondent.
I.
INTRODUCTION
Edward Walter Ferguson pled no contest to one count of felony stalking
of victim B.H. (Pen. Code, § 646.9, subd. (b).)1 Pursuant to the parties’ plea
agreement, the trial court placed Ferguson on three years of formal
probation.
On appeal from the probation order, Ferguson contends that he is
entitled to a reduction of his period of probation from three years to two years
due to a retroactive change in the law that occurred while his appeal was
pending. Ferguson notes that the new law provides in relevant part: “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 . . . .” (§ 1203.1,
subd. (a), italics added.)
The People acknowledge that the change in the law applies
retroactively and generally requires that periods of probation be no longer
than two years. However, the People note that section 1203.1, subdivision (l)
provides an exception to the two-year probation limit, stating in relevant
part: “The two-year probation limit in subdivision (a) shall not apply to:
(1) . . . [A]n offense that includes specific probation lengths within its
provisions.”2 The People maintain that the exception to the two-year
1 Unless otherwise specified, all subsequent statutory references are to
the Penal Code.
2 To be precise, the People cite to former section 1203.1, subdivision
(m)(1), which has been recodified without substantive change in section
1203.1, subdivision (l)(1). (See Stats. 2021, ch. 257, § 21.) For ease of
reference, we refer to the current codification throughout this opinion unless
otherwise noted.
2
probation limit applies in this case because Ferguson committed his felony
stalking offense against B.H., a victim of domestic violence within the
meaning of Family Code section 6211, and section 1203.097,
subdivision (a)(1) specifically mandates “[a] minimum period of probation of
36 months” in such an instance.
Applying this court’s decision in People v. Forester (2022)
78 Cal.App.5th 447 (Forester), we agree with the People. In Forester, this
court considered the same issue as is presented in this case and, for reasons
explained in part III, post, concluded, “Because [defendant] was found guilty
of stalking a victim of domestic violence, the two-year felony probation
limitation in section 1203.1, subdivision (a) does not apply.” (Id. at p. 450.)
Because Ferguson also was found guilty of stalking a domestic violence
victim, the two-year felony probation limitation in section 1203.1,
subdivision (a) does not apply in this case, either. Accordingly, we affirm the
trial court’s order placing Ferguson on probation for a period of three years.3
3 While his appeal was pending, Ferguson requested that this court take
judicial notice of various documents purporting to show his satisfactory
performance on probation. In his reply brief, Ferguson contended that these
documents are relevant to a determination of the proper disposition of this
appeal in the event that this court reverses the probation order.
In light of our affirmance of the probation order, we deny Ferguson’s
request for judicial notice on the ground that the documents are not relevant
to the matter that we decide here. (See People v. Doane (2021)
66 Cal.App.5th 965, 969 [denying request for judicial notice of documents on
the ground that they were “unnecessary to our decision”].)
3
II.
FACTUAL AND PROCEDURAL HISTORY
A. The underlying offense
According to the probation report that was prepared in this case, 4 on
March 24, 2020, “a [c]riminal [p]rotective [o]rder was issued [against
Ferguson] listing [B.H.] as the protected person.” The probation report states
that, on numerous dates between March 24, 2020 and May 24, 2020, B.H.
reported to police that Ferguson had contacted and/or harassed her.
B. The charges
In July 2020, the People charged Ferguson with two felony offenses,
stalking (§ 646.9, subd. (b)) (count 1) and making a criminal threat (§ 422,
subd. (a)) (count 2). The complaint alleged that B.H. was the victim of both
offenses. With respect to count 1, the People alleged that Ferguson violated a
temporary restraining order as to B.H. when he committed the stalking
offense.
C. Ferguson’s no contest plea
In September 2020, Ferguson pled no contest to count 1. The parties
stipulated that two police reports provided a factual basis for the plea. 5
Ferguson’s plea agreement with the People contains a “[s]upplement,”
that outlines the “terms of [the] plea.” Among other terms, the supplement
states that the People would dismiss the balance of the charges in this case
4 Ferguson agreed that two police reports could serve as the factual basis
of his plea. However, those reports have not been transmitted to this court.
In their briefs, Ferguson and the People both cite to the probation report and
its description of the underlying offense.
5 As noted in part II.A, ante, the police reports are not contained in the
clerk’s transcript and have not been transmitted to this court.
4
and four other pending cases, and that the trial court would place Ferguson
on “[t]hree years formal probation” and impose a suspended sentence of the
“[u]pper term [of] [four] years [(]state prison).”6 In addition, the supplement
provides that Ferguson was to have “[n]o contact with [B.H.]” and that a
“10 year [criminal protective order] protecting [B.H.]” would be imposed.
D. The trial court places Ferguson on formal probation for three years
On November 2, 2020, the trial court held a sentencing hearing. In
accordance with the plea agreement, the court imposed a four-year state
prison sentence, suspended execution of the sentence and placed Ferguson on
formal probation for three years subject to various conditions, including that
he have no contact with B.H and that he comply with a criminal protective
order in favor of B.H.
During the hearing, Ferguson initially indicated that he would not
comply with a probation condition prohibiting him from using or possessing
alcohol. However, at a later point in the hearing, he appeared to agree to the
condition, stating “I’ll take your deal, and I’ll appeal this later.” At the
conclusion of the hearing, Ferguson appeared to attempt to revoke his
agreement to the probation conditions.
A few days later, on November 6, 2020, the court held a hearing during
which the court stated, “[W]e left the sentencing with an issue regarding
whether or not Mr. Ferguson accepts the conditions of probation.” The court
proceeded to confirm that Ferguson accepted the conditions of probation. The
court also served Ferguson with the criminal protective order prohibiting him
6 The supplement states “Upper term (4 years state prison) ESS.” A
separate document referring the matter to a probation officer outlines the
“[c]onditions [o]f [p]lea” and states, “upper term of four years in state prison
as a suspended sentence.”
5
from having any contact with B.H. for ten years. The order states that it is a
“probation condition order (Pen. Code, § 1203.097).”
E. The appeal
Ferguson filed an appeal on November 16, 2020 from the November 6,
2020 order.7
III.
DISCUSSION
The two-year felony probation limitation contained in section 1203.1,
subdivision (a) does not apply when a defendant is convicted of
stalking a domestic violence victim
Ferguson claims that his period of probation must be reduced from
three years to two years due to the enactment of Assembly Bill No. 1950
(AB 1950) and its amendment of section 1203.1. (See Stats. 2020, ch. 328,
§ 2.) The People concede that AB 1950 “applies retroactively to cases like
appellant’s that are not yet final on direct appeal.”8 However, the People
argue that Ferguson’s stalking conviction (§ 646.9) brings him under an
exception to the reduced probation period provision of AB 1950 that applies
when “an offense . . . includes specific probation lengths within its
provisions.” (§ 1203.1, subd. (l)(1).) Specifically, the People argue that the
7 Given the uncertainty over whether the trial court formally granted
probation on November 2 or November 6, Ferguson’s apparent intent to
challenge the order granting probation, and the lack of any resulting
prejudice to the People, we liberally construe Ferguson’s notice of appeal as
applying to both the November 2 and the November 6 orders. (See Cal. Rules
of Court, rule 8.304(a)(4) [“The notice of appeal must be liberally construed”].)
8 The People cite numerous cases that have held that AB 1950 applies
retroactively to nonfinal cases pending on appeal. (See People v. Quinn
(2021) 59 Cal.App.5th 874, 879–885.) We accept the People’s concession.
6
trial court was required to impose a probation period of no less than 36
months pursuant to section 1203.097, subdivision (a)(1) because the victim,
B.H., was a domestic violence victim as defined in Family Code section 6211.9
The People contend that, given the applicability of section 1203.097,
Ferguson’s stalking conviction was for an offense that included a specific
probation length within its provisions for purposes of section 1203.1,
subdivision (l)(1).
Ferguson’s claim raises an issue of statutory interpretation. We review
such claims de novo. (See, e.g., People v. Ollo (2021) 11 Cal.5th 682, 687 [“We
review this question of statutory interpretation de novo”].)
A. Governing law
1. AB 1950’s amendment of section 1203.1
On September 30, 2020, the Governor signed AB 1950 into law. (Stats.
2020, ch. 328, § 2.) AB 1950 amended section 1203.1 to generally limit felony
probation terms to no longer than two years. (See § 1203.1, subd. (a).) The
current version of section 1203.1, subdivision (a)(1) provides in relevant part:
“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.”
(Italics added.)
AB 1950 also contained an exception to the two-year probation limit for
certain offenses, which is currently codified in section 1203.1, subdivision
(l)(1). The exception provides in relevant part:
“(l) The two-year probation limit in subdivision (a) shall not
apply to:
9 We discuss each of the statutory provisions referenced in this
introduction in parts III.A, post.
7
“(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.” (Italics added.)
The new law became effective on January 1, 2021, while Ferguson’s
appeal was pending.
2. Section 646.9
Ferguson pled no contest to, and was convicted of, a violation of section
646.9, subdivision (b). Section 646.9 provides in relevant part:
“(a) Any person who willfully, maliciously, and repeatedly
follows or willfully and maliciously harasses another person
and who makes a credible threat with the intent to place
that person in reasonable fear for his or her safety, or the
safety of his or her immediate family is guilty of the crime
of stalking, punishable by imprisonment in a county jail for
not more than one year, or by a fine of not more than one
thousand dollars ($1,000), or by both that fine and
imprisonment, or by imprisonment in the state prison.
“(b) Any person who violates subdivision (a) when there is a
temporary restraining order, injunction, or any other court
order in effect prohibiting the behavior described in
subdivision (a) against the same party, shall be punished
by imprisonment in the state prison for two, three, or four
years.”
8
3. Section 1203.097
Section 1203.097 provides in relevant part:
“(a) If a person is granted probation for a crime in which
the victim is a person defined in Section 6211 of the Family
Code,[10] the terms of probation shall include all of the
following:
“(1) A minimum period of probation of 36 months, which
may include a period of summary probation as
appropriate.
“(2) A criminal court protective order protecting the
victim from further acts of violence, threats, stalking,
sexual abuse, and harassment, and, if appropriate,
10 Family Code section 6211 provides:
“ ‘Domestic violence’ is abuse perpetrated against any of the
following persons:
“(a) A spouse or former spouse.
“(b) A cohabitant or former cohabitant, as defined in
Section 6209.
“(c) A person with whom the respondent is having or has
had a dating or engagement relationship.
“(d) A person with whom the respondent has had a child,
where the presumption applies that the male parent is
the father of the child of the female parent under the
Uniform Parentage Act (Part 3 (commencing with
Section 7600) of Division 12).
“(e) A child of a party or a child who is the subject of an
action under the Uniform Parentage Act, where the
presumption applies that the male parent is the father
of the child to be protected.
“(f) Any other person related by consanguinity or affinity
within the second degree.”
9
containing residence exclusion or stay-away
conditions.”11
4. Principles of statutory interpretation
In People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, this court outlined
the following principles of statutory interpretation:
“A reviewing court’s construction of a statute is ‘ “guided by
the overarching principle that [its] task ‘ “is to determine
the intent of the enacting body so that the law may receive
the interpretation that best effectuates that intent.” ’ ” ’
[Citation.] First among the principles of statutory
interpretation is honoring ‘ “ ‘the language of the statute’ ” ’
as ‘ “construed in the context of the statute as a whole and
the overall statutory scheme.” ’ [Citation.] If the language
of the statute is ambiguous, a court ‘can look to legislative
history [citation] and to rules or maxims of construction’ to
resolve the ambiguity. [Citation.]” (Id. at p. 951.)
B. Application
1. Section 646.9 is an offense that contains a specific probation length
within its provisions when the victim of the offense is a person who
is defined in Family Code section 6211; the 36-month probation
period contained in section 1203.097, subdivision (a)(1) therefore
applies
a. The relevant statutory text
As noted in part III.A.1, ante, section 1203.1, subdivision (l)(1) provides
that the “two-year probation limit in subdivision (a) shall not apply to . . . an
11 Although it does not appear that the trial court ever expressly found
that subdivision (a)(1) of section 1203.097 applied, in granting Ferguson
probation, the trial court did order Ferguson to “[c]omply with [c]riminal
[p]rotective order issued by the [c]ourt pursuant to [section] 1203.097(a)(2).”
Thus, it appears that the court found that B.H. was a person defined in
Family Code section 6211. Ferguson does not contend otherwise on appeal.
10
offense that includes specific probation lengths within its provisions.” (Italics
added.)
As in Forester, the parties dispute the meaning of the word “offense,” in
section 1203.1, subdivision (l)(1). (See Forester, supra, 78 Cal.App.5th at
p. 454.) The People maintain that the term encompasses all penalty
provisions that apply to a given offense, arguing in relevant part: “Because of
section 1203.097, a conviction of a crime where the victim is listed in Family
Code section 6211 is an offense ‘that includes [a] specific probation length[ ]
within its provisions’ for the purposes of the exception under section 1203.1,
subdivision [l](1).” Ferguson argues that the People’s contention that section
1203.1, subdivision (l)(1) applies “[b]ecause of section 1203.097,” is erroneous
because he was not convicted of violating section 1203.097 and section
1203.097 does not constitute “an offense,” of which any person could be
convicted. He contends that this court should reject the People’s
“bootstrapping argument.”
“We conclude the People’s interpretation of section 1203.1,
subdivision (l)(1) is the more reasonable interpretation of the statutory
language at issue and, more importantly, the one our Legislature intended.”
(Forester, supra, 78 Cal.App.5th at p. 454.) As this court explained in
Forester, supra, at p. 454, the Legislature’s use of the term “offense” as
contained in section 1203.1, subdivision (l)(1) is most reasonably interpreted
as referring “not only [to] the statute or statutes stating the elements of a
crime, but also other statutes—such as penalty provisions—that apply in a
given case.” (Forester, at p. 454.) The Forester court reasoned:
11
“The elements of a crime and the penalties attendant to the
commission of a crime are, of course, distinct concepts from
one another. But both are necessary components of an
offense. Section 15 makes this clear, as it defines a ‘public
offense’ as ‘an act committed or omitted in violation of a law
forbidding or commanding it, and to which is annexed, upon
conviction, . . . punishment[ ] . . . .’ (Italics added.) Our
case law reinforces the longstanding notion that it is the
combination of a prohibited act and a punishment, in
tandem, that compose an offense. (People v. Superior Court
(Gooden) (2019) 42 Cal.App.5th 270, 281 [‘[F]or a crime to
exist, there must exist both a prohibited act and
punishment’]; People v. Vasilyan (2009) 174 Cal.App.4th
443, 449–450 [‘That there must be a substantive crime and
a punishment for that crime in order to constitute a
criminal offense has been long recognized’].) We think it
reasonable to conclude the Legislature had in mind the
historic link between prohibited act and punishment when
it enacted Assembly Bill No. 1950, and that it thus
intended the two-year felony probation carve-out to apply
any time a specific probation length is contained within an
applicable statute–irrespective of whether that statute
delineates the substantive elements of a crime or prescribes
the consequences of said crime.” (Ibid.)
The Forester court stated that this understanding of the text of section
1203.1, subdivision (a)(1) is supported by the “practical reality that the
Legislature routinely prescribes specific probation lengths within statutory
provisions that are characterized as penalty provisions or, at the very least,
as statutes that do not define the substantive elements of a crime.” (Forester,
supra, 78 Cal.App.5th at p. 455 [citing inter alia Vehicle Code section 23600,
subdivision (b)(1)].)12 As the Forester court noted, Vehicle Code section
12 (See also Forester, supra, 78 Cal.App.5th at p. 457, quoting Couzens et
al., Sentencing California Crimes (The Rutter Group 2018) § 8:15–30, fn. 2
[discussing the interaction between section 1203.1, subdivision (l)(1) and
section 1203.097 (a)(1) and stating, “[t]he fact that the specification of the
12
23600, subdivision (b)(1) specifies the probationary period for a person put on
probation who is convicted of violating Vehicle Code sections 23152 or 23153.
(Forester, supra, at p. 455; accord People v. Schulz (2021) 66 Cal.App.5th 887(Schulz).)
In Schulz, the Court of Appeal considered a question concerning the
scope of the exception to the two-year probation limit (§ 1203.1, subd. (a)(1))
currently codified in section 1203.1, subdivision (l)(1).13 The Schulz court
observed that “[s]ubdivision [l](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. . . .’ ” (Schulz, supra, 66 Cal.App.5th at p. 896, second
italics in original.) The Schulz court considered “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
length of probation is expressed in a different code section than the crime
itself does not appear material. The Penal Code frequently separates the
punishment provisions from the crime. (See, e.g., burglary—the crime is
identified in sections 459 and 460, but the punishment is contained in section
461. But there is no doubt the sections operate in tandem to define the crime
and its consequences)”].)
13 The Schulz court considered the exception as it was codified in former
section 1203.1, subdivision (m)(1).
13
claim.” (Ibid.)14 The Schulz court ultimately concluded that the exception in
section 1203.1, subdivision (l)(1) applies both to “felony offenses that fall
under section 667.5, subdivision (c), and, separately, those felony offenses
that include specific probation lengths within their provisions.” (Schulz,
supra, at p. 898.)
After reaching this conclusion, the Schulz court stated that Vehicle
Code section 23600, subdivision (b)(1) “provides for a specific probation
length,” (Schulz, supra, 66 Cal.App.5th at p. 899) for violations of Vehicle
Code section 23153, subdivisions (a) and (b), stating:
“[D]efendant 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 (l)(1)], applies in this case and
defendant is ineligible to have his probation term reduced
under subdivision (a) of section 1203.1.” (Schulz, supra, at
p. 899.)
Schulz thus provides an example of an instance in which a court
observed that the exception in section 1203.1, subdivision (l)(1) refers “not
only [to] the statute or statutes stating the elements of a crime, but also other
statutes—such as penalty provisions—that apply in a given case.” (Forester,
supra, 78 Cal.App.5th at p. 454.)
Similarly, in this case, the text of the relevant statutes supports the
conclusion that Ferguson was convicted of “an offense that includes specific
probation lengths within its provisions” (§ 1203.1, subd. (l)(1)), because
section 1203.097, subdivision (a)(1) provides a specific minimum probationary
14 In other words, the Schulz court considered the meaning of the word
“and” in the first sentence of section 1203.1, subdivision (l)(1).
14
term of 36 months when the victim of a crime, including a violation of section
646.9, is listed in Family Code section 6211. Stated differently, section 646.9
is an offense that contains “specific probation lengths within its provisions,”
(§ 1203.1, subd. (l)(1)) when the victim of a violation of section 646.9 is a
person who is defined in Family Code section 6211; the 36-month
probationary period contained in section 1203.097, subdivision (a)(1)
therefore applies.
b. The legislative history of section 1203.1, subdivision (l)(1)
The Forester court noted that the legislative history of AB 1950
supports its interpretation of section 1203.1, subdivision (l)(1). The Forester
court summarized that history as follows:
“When the bill was originally introduced, it imposed a two-
year limitation on felony probation terms similar to the one
that went on to become law. However, unlike the version of
Assembly Bill No. 1950 that was enacted into law, the
original version of the bill (and early amended versions of
the bill) did not include an exception for offenses with
specific probation lengths within their provisions.
“A report from the Assembly Committee on Public Safety,
commenting on an early version of the bill, noted the bill
would ‘limit felony probation to two years . . . regardless of
the maximum term of imprisonment.’ (Assem. Com. on
Public Safety, Rep. on Assem. Bill No. 1950 (2019–2020
Reg. Sess.) as amended May 6, 2020, p. 4.) However, it
pointed out that the bill would ‘not amend code sections
such as Veh. Code [section] 23600 (allowing probation up to
five years for a DUI) or Pen. Code [section] 1203.097
(requiring a minimum probation of three years for domestic
violence offenses), which specify probation lengths for
specific crimes.’ (Ibid.) The report cautioned it was ‘not
clear if [the] bill would limit the application of those
sections.’ (Ibid.) Soon after the committee report
highlighted these features of the bill, the language that
now constitutes section 1203.1, subdivision (l)(1), i.e., the
15
exception to the two-year felony probation limitation, was
added into the bill and enacted into law.” (Forester, supra,
78 Cal.App.5th at pp. 456–457.)
The Forester court stated that “[f]rom this legislative history, we can
reasonably discern that the Legislature most likely incorporated the relevant
exception into Assembly Bill No. 1950 to ensure that the bill did not limit the
application of section 1203.097 (and other code provisions like it).” (Forester,
supra, 78 Cal.App.5th at p. 457.)
2. Ferguson was convicted of an offense that contains a specific
probation length within its provisions because B.H. is a person who
is defined in Family Code section 6211; the 36-month probationary
period contained in section 1203.097, subdivision (a)(1) therefore
applies
As noted in footnote 11, ante, Ferguson does not dispute that he was
convicted of stalking a victim of domestic violence (B.H.) within the meaning
of section 1203.097, subdivision (a). Because Ferguson stalked a victim of
domestic violence, he was placed on probation for an offense that includes a
specific probation length within its provisions (i.e. §§ 646.9, subd. (b),
1203.097, subd. (a)(1)). Under these circumstances, the two-year felony
probation limitation codified in section 1203.1, subdivision (a), is
inapplicable. (See § 1203.1, subd. (l)(1).)
Accordingly, we conclude that Ferguson is not entitled to a reduction of
his three-year period of probation in light of AB 1950’s amendment of section
1203.1, subdivision (a). We agree with the People that the exception to the
two-year limitation on probation terms contained in section 1203.1,
subdivision (l)(1) applies in this case.
16
IV.
DISPOSITION
The November 6, 2020 probation order is affirmed.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
DATO, J.
17