Bowden v. Super. Ct. ( 2022 )

Filed 8/26/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
DEANNA LYNN BOWDEN,
Petitioner,
v. A163592
SUPERIOR COURT OF MARIN
COUNTY, (Marin County
Super. Ct. No. SC209417A)
Respondent;
THE PEOPLE,
Real Party in Interest.
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.
1
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
1
Statutory references are to the Penal Code unless otherwise
indicated.
2
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-
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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 (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.) 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) (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
4
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; People v. Butler (2022) 75 Cal.App.5th 216, review
granted June 1, 2022, S273773 (Butler); People v. Scarano (2022) 74
Cal.App.5th 993, review ordered on Court’s own motion June 1, 2022,
S273830 (Scarano); People v. Lord (2021) 64 Cal.App.5th 241, 246; People v.
Stewart (2021) 62 Cal.App.5th 1065, 1074, review granted and cause
transferred April 20, 2022, S268787 (Stewart)2; People v. Sims (2021) 59
Cal.App.5th 943, 955–964.)
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 offenses that include specific probation lengths
within their provisions allows for a five-year probation term. The question is
one of statutory interpretation, which we review de novo. (See People v. Tran
(2015) 61 Cal.4th 1160, 1166.) In interpreting statutes, we begin with the
statutory text, keeping in mind that the fundamental goal is to ascertain and
carry out the intent of the Legislature. (People v. Cruz (1996) 13 Cal.4th 764,
782.) The words of a statute generally provide the most reliable indicator of
legislative intent. (Diamond Multimedia Systems, Inc. v. Superior Court
(1999) 19 Cal.4th 1036, 1046–1047 (Diamond Multimedia).) If there is no
2
The Supreme Court transferred Stewart back to the Court of Appeal
with directions to vacate the decision and reconsider the cause in light of
Senate Bill Number 483 (2021–2022 Reg. Sess.), stating that the decision
“has no binding or precedential effect, and may be cited for potentially
persuasive value only. (Cal. Rules of Court, rule 8.1115(e)(3).)” (People v.
Stewart (2022) __ Cal.__ [292 Cal.Rptr.3d 570].) The same is true of People v.
France (2020) 58 Cal.App.5th 714, 723–730, cited infra at p. 13. Stewart and
France are cited in this opinion for their persuasive value only.
5
ambiguity in the text, we “ ‘presume the Legislature meant what it said and
the plain meaning of the statute governs.’ ” (Ibid.)
We begin by examining petitioner’s crime of conviction and related
provisions of the Vehicle Code. Penal Code section 191.5(b) defines
“[v]ehicular manslaughter while intoxicated” as, in pertinent part, “the
unlawful killing of a human being without malice aforethought, in the
driving of a vehicle, where the driving was in violation of Section 23140,
23152, or 23153 of the Vehicle Code,” but without gross negligence. Putting
to one side Vehicle Code section 23140 (a driving-under-the-influence offense
that applies only to individuals under the age of 21), this definition means
that one who violates section 191.5(b) necessarily violates Vehicle Code
section 23152 (driving under the influence) and/or Vehicle Code section 23153
(driving under the influence causing bodily injury). And indeed, case law
confirms that Vehicle Code sections 23152 and 23153 are lesser included
offenses of Penal Code section 191.5(b). (See People v. Miranda (1994) 21
Cal.App.4th 1464, 1468.)
Penal Code section 191.5(b) does not contain a specific probation length
within its provisions, nor do the People point us to any other statute that
contains a specific probation length for a violation of section 191.5(b).
However, the Vehicle Code mandates a three-to-five-year term for individuals
placed on probation for violating Vehicle Code sections 23152 or 23153.
Vehicle Code section 23600, subdivision (b) states in relevant part: “If any
person is convicted of a violation of [Vehicle Code sections] 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
6
years . . . .” As is evident from reviewing Vehicle Code section 23600, it
includes no mention of Penal Code section 191.5(b).
With these provisions in mind, we now consider Assembly Bill 1950’s
amendments to the Penal Code. New section 1203.1, subdivision (l) provides
that “[t]he two-year probation limit in subdivision (a) shall not apply to:
[¶] . . . an offense that includes specific probation lengths within its
provisions.” (§ 1203.1, subd. (l).) Given that there is no statute that specifies
a particular probation length for a violation of section 191.5(b), a plain
reading of the text of section 1203.1, subdivisions (a) and (l) leads us to
conclude that Assembly Bill 1950 does indeed limit petitioner’s probation
term to two years. Nowhere in the new provisions of the Penal Code is there
any suggestion that the two-year limitation on felony probation does not
apply if lesser, or lesser included, crimes expressly provide for longer
probation terms. Finding no ambiguity in the statutory text, we therefore
conclude “ ‘the Legislature meant what it said,’ ” and the language of section
1203.1, subd. (l) governs. (Diamond Multimedia, supra, 19 Cal.4th at
pp. 1046–1047; accord Couzens et. al., Sentencing California Crimes (The
Rutter Group 2021) Appendix 8A [listing of crimes excluded from the two-
year probation term limit due to specified probation lengths does not mention
§ 191.5(b)].)
Our conclusion that Assembly Bill 1950 applies to shorten Petitioner’s
probation term is consistent with the Legislature’s intent in enacting
Assembly Bill 1950. As discussed extensively in other decisions, Assembly
Bill 1950 reflects the Legislature’s “concern with the social and financial costs
of the existing probation system—in particular, with probation as ‘ “a
pipeline for re-entry into the carceral system” ’ due to the large number of
people incarcerated for violations of probation, most of which are ‘ “ ‘technical’
7
and minor in nature.” ’ ” (Stewart, supra, 62 Cal.App.5th at p. 1073 [citing
cases].) Assembly Bill 1950 embodies the Legislature’s “categorical
determination that a shorter term of probation is sufficient for the purpose of
rehabilitation.” (People v. Quinn (2021) 59 Cal.App.5th 874, 885; see also
Stewart, at p. 1073 [legislative analyses of Assem. Bill 1950 “address the
apparent absence of need for longer probation periods with regard to
rehabilitation”].) Although the Legislature exempts from the shorter
probation periods those crimes for which it has expressly specified a longer
period of probation, the Legislature nowhere suggests that courts should take
it upon themselves to expand the list of exempted crimes as they see fit.
The People point out that we need “not follow the plain meaning of the
statute if to do so ‘ “would inevitably [have frustrated] the manifest purposes
of the legislation as a whole or lead to absurd results.” ’ ” (Quoting People v.
Bellici (1979) 24 Cal.3d 879, 884.) The People contend it defies common
sense for Assembly Bill 1950 to limit to two years the probation period for an
individual who drives while intoxicated and kills a person, while allowing
probation up to five years for an individual who merely drives while
intoxicated (or drives while intoxicated and causes bodily injury). There is
some logic to the argument, but comparing the two-year maximum probation
term for a felony violation of section 191.5(b) with the three-to-five-year
probation term for a violation of Vehicle Code sections 23152 or 23153 is not
an apples-to-apples comparison. The People’s contention ignores the
available alternative to probation: that a felony violation of section 191.5(b)
is punishable by imprisonment “for 16 months or two or four years.” (§ 191.5,
subd. (c)(2).) This is a greater overall penalty than the penalty for a violation
of Vehicle Code sections 23152 or 23153, despite those provisions carrying a
longer probation term. (Compare Pen. Code, § 191.5(b) [maximum is four
8
years in state prison], with Veh. Code, § 23536 [maximum for first violation
of Veh. Code, § 23152 is six months in county jail] and Veh. Code, § 23554
[maximum for first violation of Veh. Code, § 23153 is one year in county jail
or three years in county jail or state prison (Pen. Code, § 18, subd. (a))].)
The People next offer a formalistic variant of their “common sense”
argument. They contend that because Vehicle Code sections 23152 and
23153 are lesser included offenses of Penal Code section 191.5(b), the
Legislature could not reasonably have intended to shorten petitioner’s
probation period because her conviction includes lesser offenses for which a
three-to-five-year probation term is mandated. The People correctly assert
that a conviction of a greater offense is also a conviction of the lesser offense,
in the sense that a conviction of a greater offense requires the prosecution to
prove all of the elements of the lesser offense. (People v. Medina (2007) 41
Cal.4th 685, 701 [“[A] lesser offense is necessarily included in a greater
offense if either the statutory elements of the greater offense, or the facts
actually alleged in the accusatory pleading, include all the elements of the
lesser offense, such that the greater cannot be committed without also
committing the lesser”].) As the People also recognize, however, a conviction
of a greater offense and of a lesser offense cannot stand at the same time.
(See id. at p. 701 [multiple convictions based on necessarily included offenses
are prohibited].) Thus, in People v. Vasquez (2021) 63 Cal.App.5th 107(Vasquez), partially superseded by Penal Code section 654 (as amended by
Stats. 2021, ch. 441, § 1, effective Jan. 1, 2022), where a defendant was
convicted of aggravated sexual assault of a minor and the lesser included
offense of rape, the court had to vacate one of the convictions because the
defendant could not stand convicted of both.
9
The People rely on Vasquez, although it is not helpful to their case. In
Vasquez, the court vacated the greater offense because the lesser included
offense carried a longer term due to various enhancements. (See Vasquez,
supra, 63 Cal.App.5th at p. 115.) The case was an unusual application of
section 654, which provided, at the time Vasquez was decided, that “[a]n act
or omission that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the longest potential
term of imprisonment.” (Former Pen. Code, § 654.) As between Penal Code
section 191.5(b) and the lesser included Vehicle Code sections, this principle
would have required Bowden to be sentenced under section 191.5(b).3 Here,
of course, petitioner was convicted only under Penal Code section 191.5(b),
not under Vehicle Code sections 23152 or 23153. The People point us toward
no authority, and we are aware of none, that would allow us to pick and
choose among the punishments prescribed for a charged offense and a lesser
included offense not charged.
We recognize that the greater offense in this case (Pen. Code,
§ 191.5(b)) carries a shorter probation term than the lesser included offenses
(Veh. Code, §§ 23153 or 23152), but this outcome is neither absurd nor
contrary to the Legislature’s intent. The act of legislating is the act of line
drawing, and the Legislature could reasonably have determined that it would
exempt from the new two-year limit on felony probation those crimes for
which it had specifically provided a longer probation term, but not other
crimes even if they might normally be considered more serious, especially
3
Following recent amendments to section 654, criminal conduct that
violates multiple statutes “may be punished under either” statute “but in no
case shall the act or omission be punished under more than one provision.”
(§ 654, subd. (a), as amended by Stats. 2021, ch. 441, § 1.)
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where, as here, the greater offense carries a greater overall punishment than
the lesser included offenses. Vasquez is an example of a case where
conviction of the greater offense—there aggravated sexual assault of a
minor—resulted in a shorter sentence than conviction of the lesser included
offense as a result of the unequal application of sentence enhancements.
(Vasquez, supra, 63 Cal.App.5th at p. 115.) And People v. Cook (2015) 60
Cal.4th 922 is a case in which our high court confirmed and enforced the
legislative directive that great bodily injury enhancements do “not apply to
murder or manslaughter,” even though that created the possibility that a
defendant who merely injured another could face a longer potential prison
term than one who killed. (Id. at pp. 935–938 [construing § 12022.7,
subd. (g)].) “ ‘Prescribing punishment is the Legislature’s domain, and we
conclude the legislative proscription in [section 12022.7,] subdivision (g)
means what it says,’ ” the Court explained. (Cook, at p. 933.) After all, no
interpretation of the Legislature’s penalty provision “is guaranteed to
eliminate all possible anomalies.” (Id. at p. 938.)4
We acknowledge the severity of this crime—a man was killed. We
recognize that, in this particular case, petitioner will serve a probation term
of two years, even though the trial court sentenced her to a five-year term,
4
To the extent a shorter probation term for the more serious crime
might be perceived as an anomaly in situations like the instant one, the
Legislature remains free to specify a longer probation term for section
191.5(b)—or a shorter term for the lesser included Vehicle Code violations—if
it so chooses. Also, any such anomaly appears more pronounced when a
misdemeanor violation of section 191.5(b) is at issue. The misdemeanor is
punishable by up to one year in the county jail (§ 191.5, subd. (c)(2)), and
under Assembly Bill 1950 may be subject to a probation term of no more than
one year. (See Assembly Bill 1950, § 1, amending Pen. Code, § 1203a.)
11
and that the five-year term would have been permissible had she been
convicted of a lesser included offense. But we are not free to disregard the
plain terms of Assembly Bill 1950 when the Legislature intended to reduce
probation terms for many felony offenses—including this felony offense—to
two years. We therefore hold that Assembly Bill 1950 shortens petitioner’s
probation term for felony violation of section 191.5(b) to two years.
B. Remand is not required to allow the People or the trial court an
opportunity to withdraw their consent to the plea agreement
The People next contend that if petitioner is entitled to relief, the
matter should be remanded to the superior court to allow the People or the
court to withdraw their agreement to the plea, should they so choose. The
People rely on People v. Stamps (2020) 9 Cal.5th 685, 706–708 (Stamps),
which concluded that a defendant whose sentence included an enhancement
for a serious felony conviction was entitled under Senate Bill Number 1393
(2017–2018 Reg. Sess.) to have his case remanded to the trial court so the
court could consider whether to exercise its newly-conferred discretion and
strike the enhancement in the interests of justice. However, if the trial court
decided to strike the enhancement in a case where it had been stipulated to
in a negotiated plea, Stamps held that the People or the trial court could
withdraw approval of that plea agreement. (Stamps, at pp. 707–708.)
Petitioner, for her part, denies that the People or the trial court may
withdraw from the plea agreement, distinguishing Stamps as involving a
trial court’s exercise of discretion, whereas here the Legislature directs that
the shorter probationary term must apply.
There is a split among the appellate courts on precisely this issue.
Some cases have held that a reviewing court must remand to allow the trial
court and the prosecution the opportunity to withdraw from the original plea
agreement. (See, e.g., Scarano, supra, 74 Cal.App.5th 993; Prudholme,
12
supra, S271057.) Another group of cases holds the opposite—that the
Legislature did not intend for the prosecution or the trial court to be
permitted to withdraw their approval from a plea agreement modified by
Assembly Bill 1950. (See, e.g., Stewart, supra, 62 Cal.App.5th at pp. 1074–
1079; Butler, supra, 22 Cal.App.5th at pp. 221–225; People v. Flores (2022) 77
Cal.App.5th 420, review granted June 22, 2022, S274561; People v. Shelly
(2022) 81 Cal.App.5th 181, 185–198.)
The question of the proper remedy in these kinds of cases is currently
before our Supreme Court in Prudholme, supra, S271057. For now, it suffices
to say that we agree with the cases that hold that the Legislature did not
intend for the prosecution or the trial court to be permitted to withdraw their
approval from a plea agreement modified by Assembly Bill 1950. (See, e.g.,
People v. Shelly, supra, 81 Cal.App.5th at pp.181–198; see generally People v.
France (2020) 58 Cal.App.5th 714, 723–730.) Allowing the People or the
court to withdraw their agreement to a plea bargain would undermine the
Legislature’s goal in enacting Assembly Bill 1950, since it would effectively
give the prosecution a veto over whether to reduce probation terms in the
large number of cases that were resolved by plea. (See In re Chavez (2003) 30
Cal.4th 643, 654, fn. 5 [pleas resolve “the vast majority of felony and
misdemeanor dispositions in criminal cases”]; Harris v. Superior Court (2016)
1 Cal.5th 984, 992 [Proposition 47’s resentencing process “would often prove
meaningless if the prosecution could respond to a successful resentencing
petition by withdrawing from an underlying plea agreement and reinstating
the original charges filed against the petitioner”].) Stamps does not require
that result since, unlike the ameliorative provision at issue in Stamps,
Assembly Bill 1950 does not authorize trial courts unilaterally to modify an
agreed-upon sentence, which is the practice the Stamps court found
13
problematic. (Stamps, supra, 9 Cal.5th at p. 701.) Instead, Assembly Bill
1950 shortens a defendant’s probation term automatically. And the shorter
term does not substantially deprive the People of the benefit of their bargain,
as where the application of an ameliorative amendatory statutory provision
totally relieves a defendant from her vulnerability to sentence. (Cf. People v.
Collins (1978) 21 Cal.3d 208.)
We thus conclude that when the Legislature decided to shorten the
probation term of a defendant who had pled guilty to her crime, it did not
empower the People or the court to unwind that plea.
DISPOSITION
Let a peremptory writ of mandate issue directing respondent superior
court to vacate its September 1, 2021 order declining to apply Assembly Bill
1950 to petitioner’s case, and to issue a new and different order recognizing
that Assembly Bill 1950 has reduced petitioner’s probation term to two years.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
PETROU, J.
Bowden v. Superior Court (A163592)
14
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Trial Court: Marin County Superior Court
Trial Judge: Hon. Paul M. Haakenson
Counsel: Burglin Law Offices, Paul Burglin 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 for Real
Party in Interest
16