People v. JacksonPeople v. Jackson
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The enactment at issue, Assembly Bill No. 1950, codified at Penal Code1 section 1203.1 and enacted effective January 1, 2021, reduced the maximum probationary term for most felonies from five years to two years. We must decide whether the bill applies retroactively, in cases not yet final when the bill took effect, to prevent a court from finding a violation of probation based on misconduct that occurred more than two years after a defendant‘s probationary term began, but before the bill‘s effective date.
BACKGROUND
The facts are not in dispute. In January 2017, Jackson was convicted through a no contest plea of felony second-degree burglary and was sentenced to five years of probation, including less than a year in jail. In July 2020, he was charged with having committed probation violations in July and October 2019 (i.e., more than two years after his probationary term began). In August 2020, the court summarily revoked probation pending a formal hearing.
In January 2021, Assembly Bill No. 1950 took effect. (Assem. Bill No. 1950 (2019–2020 Reg. Sess.) Stats. 2020, ch. 328, § 1.) The bill amended
In February 2022, the trial court held a hearing on the alleged probation violations that had occurred in July and October 2019 and sustained two of them, one of which involved a violation of
DISCUSSION
As set forth above, Jackson committed the misconduct at issue, and the court summarily revoked probation, after the termination of the two-year probation term as modified by Assembly Bill No. 1950, but before the statute‘s effective date. In determining whether Assembly Bill No. 1950 applies retroactively in such a case, we start with the familiar goal of statutory construction, which is to determine legislative intent. (People v. Brown (2012) 54 Cal.4th 314, 319 (Brown).) In general, when the text of a statute has not made the Legislature‘s intent clear, we apply its declaration that: “No part of [the Penal Code] is retroactive, unless expressly so declared.” (
“Appellate courts are so far unanimous in holding that Assembly Bill No. 1950 applies retroactively to defendants who were serving a term of probation when the legislation became effective on January 1, 2021; in such cases, the courts have acted to reduce the length of their probation terms.” (Faial, supra, 75 Cal.App.5th at p. 743; Canedos, supra, 77 Cal.App.5th at pp. 475–476.) The Attorney General does not dispute that proposition. Appellate courts have reached different conclusions, however, as to whether the statute applies retroactively when, as here, the defendant has engaged in misconduct that would constitute a probation violation under the original sentence, and that misconduct occurred before the bill‘s effective date, but more than two years after the defendant‘s sentencing. (See, e.g., Canedos, at p. 469; Faial, at p. 738.) As noted, the question is now before our Supreme Court. (Faial, supra, 75 Cal.App.5th 738, review granted May 18, 2022, S273840; Canedos, supra, 77 Cal.App.5th 469, review granted June 29, 2022, S274244.)
In short, we agree with Canedos that the Estrada presumption of retroactivity applies to this case, because neither the trial court‘s revocation of probation nor Jackson‘s original conviction was final under Estrada when Assembly Bill No. 1950 took effect on January 1, 2021. (Canedos, supra, 77 Cal.App.5th at pp. 473–474.) Nothing in the statutory text or legislative history mandates an exception to the ” ‘presumed legislative intent’ that an ameliorative criminal statute applies retroactively to all defendants whose
The starting point of the analysis, briefly sketched above, of how Assembly Bill No. 1950 applies to a case like this is, as Canedos explains and the Attorney General concedes, the central holding of Esquivel, supra, 11 Cal.5th 671, namely, that an order revoking probation does not render a case final for purposes of Estrada. (Canedos, supra, 77 Cal.App.5th at p. 476.) Jackson‘s case is thus nonfinal for those purposes despite the August 2020 order summarily revoking his probation, which preceded the effective date of Assembly Bill No. 1950, and despite the February 2022 order formally revoking that probation. (Canedos, supra, 77 Cal.App.5th at p. 477.) The Attorney General also does not dispute that Assembly Bill No. 1950 reduces punishment in a way triggering the Estrada presumption of retroactive application. (See People v. Sims (2021) 59 Cal.App.5th 943, 958–959 (Sims) [rejecting argument that probation is not punishment].)
The Attorney General‘s main argument for nonetheless affirming the challenged order is that the retroactive sweep of Assembly Bill No. 1950 does not encompass the court‘s findings of probation violations, and its orders revoking and terminating probation, because the text of the bill “does not
It is true that, as the Faial court observed and the Attorney General now emphasizes, Assembly Bill No. 1950 did not “undertake to amend
The Kuhnel court quoted
Here, Assembly Bill No. 1950 retroactively modified Jackson‘s probationary period so that it ended in January 2019. The conclusion that his conduct in July or October 2019 cannot amount to a violation of that probation thus involves a simple application of the unmodified
Kuhnel is not inconsistent with this conclusion, for Assembly Bill No. 1950 retroactively limited the defendant‘s misdemeanor probationary term in that case to one year, yet she had committed a violation 11 months into the term—i.e., within the period as limited by the new law. (Kuhnel, supra, 75 Cal.App.5th at pp. 729–730.) Her claim was that, because the trial court had not issued its order summarily revoking her probation until 13 months into the term, it had lost jurisdiction to find a violation. (Id. at p. 729.) Division Three held that, since she had committed the violation before Assembly Bill No. 1950 had even been introduced, “no one had any reason to expedite summary revocation of probation to ensure the court‘s continued jurisdiction.” (Id. at pp. 735–736.) In Canedos—where, as here, the purported violation occurred after the end of the modified probationary term—the court distinguished Kuhnel on that basis, while endorsing its analysis of the facts before it. (Canedos, supra, 77 Cal.App.5th at p. 480, quoting Kuhnel, supra, 75 Cal.App.5th at p. 736.) We agree with Kuhnel and with Canedos‘s reading of it. But we must disagree with Faial, for we do not believe that the Legislature‘s failure to amend the provisions governing probation violations and revocations means that the amendment can have no downstream effects on such matters by virtue of the ordinary operation of those provisions.
The Attorney General also argues that “invalidating” probation violations or revocations that occurred before Assembly Bill No. 1950 took effect will not further the bill‘s “legislative aims.” This argument fails for two independent reasons. The first is that it misapprehends Estrada, which creates a presumption of retroactivity that can be overcome only by clear
In People v. Quinn (2021) 59 Cal.App.5th 874 (Quinn), this court summarized that history: “The legislative history reflects that the Legislature‘s concern was that lengthy probationary periods do not serve a rehabilitative function and unfairly lead to reincarceration for technical violations. The author‘s statement with respect to the bill provides: ’ “California‘s adult supervised probation population is around 548,000—the largest of any state in the nation, more than twice the size of the state‘s prison population, almost four times larger than its jail population and about six times larger than its parole population. [¶] A 2018 . . . study [citation] found that a large portion of people violate probation and end up incarcerated as a result. The study revealed that 20 percent of prison admissions in California are the result of supervised probation violations, accounting for the estimated $2 billion spent annually by the state to incarcerate people for supervision violations. Eight percent of people incarcerated in a California
Other courts have agreed with Quinn‘s distillation of the bill‘s aims, while citing further passages in its legislative history to similar effect. (See, e.g., People v. Shelly (2022) 81 Cal.App.5th 181, 194, review granted Sep. 21, 2022, S276031 [quoting history showing “the Legislature‘s concern that ’ “[p]robation—originally meant to reduce recidivism—has instead become a pipeline for re-entry into the carceral system” ’ ” and adding, “we agree with those courts that have found Assembly Bill No. 1950 was enacted, in large part, to ‘ensure that many probationers avoid imprisonment’ “]; Sims, supra, 59 Cal.App.5th at p. 961 [noting that legislative history reflects “strong concerns that probationers . . . face unwarranted risks of incarceration due to the lengths of their probation terms” and quoting statements, e.g., that “defendants ‘on probation for extended periods of time are less likely to be successful because even minor or technical violations of the law may result in a violation of probation’ “].)
The Attorney General‘s discussion of the legislative history does not refute that conclusion. He asserts that “[t]he legislative analyses used in the drafting of AB 1950 focused on the increased effectiveness of and financial benefits to other supportive services that would result from having shorter probation sentences.” Those goals in no way exclude or negate the above-noted goal of minimizing reimprisonments. (See People v. Frahs, supra, 9 Cal.5th at p. 635 [“The report‘s reference to cost savings tells us little, if anything, about whether the Legislature intended the statute to apply retroactively. Therefore, we do not regard the mention of cost savings in a legislative report as a clear indication of contrary legislative intent“].) The Attorney General also quotes and attempts to negate Canedos‘s statement that it is “counterproductive to incarcerate defendants for minor violations of the terms of their probation committed more than two years after the original offense.” (Canedos, supra, 77 Cal.App.5th at p. 479.) The Attorney General disputes that point by arguing that the court thereby substituted its judgments for the Legislature‘s stated intent, and by arguing that Canedos‘s rule “would nullify not only probation revocations for ‘minor violations’ but for major ones as well—like the robbery in this case.” The first argument is incorrect, as shown by the above-cited passages expressing the legislative intent. The second argument ultimately fails because, as Canedos notes, “if
In rejecting the latter argument, however, we acknowledge the potential appeal of distinguishing technical from criminal violations of probation. Given the Legislature‘s intent to reduce reimprisonments resulting from “minor” or “technical” violations of probation, it could have chosen to calibrate the bill‘s scope by specifying that courts should apply it retroactively, as to misconduct occurring after the modified end date of an existing probationary term, only if the misconduct would amount to a minor or technical violation. But the Legislature did not clearly signal an intent to limit the bill‘s retroactive effect in that way. Estrada does not permit us to read into the bill, for purposes of retroactivity, a distinction between technical and criminal violations that the Legislature itself did not draw.
However, as Canedos noted, this is not a significant problem: Applying the usual presumption of retroactivity will not give defendants like Jackson a free pass for criminal misconduct. (Canedos, supra, 77 Cal.App.5th at p. 479.) While such misconduct no longer can amount to a violation of a probationary term that was modified by Assembly Bill No. 1950 so as to expire before the misconduct occurred, the People still can charge and prosecute the misconduct as a new crime—as they did in Canedos, supra, 77 Cal.App.5th 469 and in this case.
DISPOSITION
The order revoking probation and terminating probation as unsuccessful is reversed, and the matter is remanded with directions to enter an order modifying the term of probation imposed on January 18, 2017, to two years, in accordance with
Fineman, J.*
WE CONCUR:
Brown, P. J.
Streeter, J.
* Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.