THE PEOPLE, Plaintiff and Respondent, v. STEPHEN RAY SCHULZ, Defendant and Appellant.
F080978
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Filed 7/20/21
CERTIFIED FOR PARTIAL PUBLICATION*
(Super. Ct. No. CRF60570)
OPINION
APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge.
Christopher Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
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* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the Introduction, part II. of the Discussion,
INTRODUCTION
Defendant Stephen Ray Schulz raises two issues on appeal. He claims the trial court abused its discretion when it declined to reduce his felony
After briefing was complete, we ordered the parties to file supplemental letter briefs pursuant to
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granted probation, the terms and conditions of probation shall include ... [¶] ... a period of probation not less than three nor more than five years ....“].)
Defendant concedes that “in felony cases,
We reject defendant‘s claim that the trial court abused its discretion when it denied his motion to reduce his felony convictions to misdemeanors. We also reject his claim that he is entitled to a reduction in his probationary period.
PROCEDURAL HISTORY
Defendant, who had no prior criminal record, was arrested on July 22, 2019, after his truck veered into the oncoming traffic lane and struck another vehicle head-on, injuring the other driver and her two passengers. Defendant‘s blood-alcohol level was 0.17 percent.
On July 29, 2019, defendant was charged by complaint with driving under the influence of alcohol and causing bodily injury to the other driver, in violation of
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On November 20, 2019, defendant entered an open plea of guilty to the two felony charges, admitted the enhancements, and admitted his blood-alcohol content exceeded 0.15 percent; and he stated his intent to seek reductions of the felonies to misdemeanors under
On February 10, 2020, the trial court denied defendant‘s motion to reduce his felony convictions to misdemeanors. The court suspended imposition of sentence for a period of five years, placed defendant on probation, and ordered defendant to serve five months in local custody, with two days of credit for time served. (
DISCUSSION
I. Denial of Motion to Reduce Felony Convictions to Misdemeanors*
For first time offenders such as defendant, violation of section 23153 is punishable as either a misdemeanor or a felony (
* See footnote, ante, page 1.
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evidenced by his behavior and demeanor at the trial.‘” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978 (Alvarez).) Courts may also consider the sentencing objectives set forth in California Rules of Court, rule 4.410. (Alvarez, at p. 978.) Those include protecting society, punishing the defendant, deterring crime, encouraging the defendant to lead a law-abiding life, and preventing the defendant from committing new crimes. (Cal. Rules of Court, rule 4.410(a).) The trial court‘s discretion under
In this case, the trial court recognized its discretion to reduce defendant‘s felony convictions to misdemeanors under
“In his favor is that he does have no prior criminal history, and that he has apparently taken the appropriate responses. On the other hand, I‘ve seen lots of people, when faced with being sentenced, take appropriate responses, and as soon as they receive the leniency from the Court, the motivation to continue in that is diminished in those actions.
“Driving under the influence and causing injury is an extremely serious offense. There are circumstances where a reduction under [section] 17[, subdivision ](b) would be appropriate where it was very minor injuries, where the blood alcohol was marginal.
“This just isn‘t that case. I think the defendant has a lot of things in his favor and there are circumstances in mitigation that tend to mitigate that; as I said, no prior criminal history and he has taken the initiative to participate in all these programs, and the probation officer gives him—gives him credit for that.
“But this is not a case where the Court is inclined—is going to exercise its discretion to reduce this to a misdemeanor. In the Court‘s view, when you come around the wrong side of the road on a blind curve on Big
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Hill at a one-seven in a big truck and head-on injuring three people is not a misdemeanor in the Court‘s view.”
Defendant argues that the court abused its discretion in denying his motion because his conduct was “not so egregious that [he] needed to be punished by incarceration” and “[t]he public interest did not require that the public be protected from [him].” We conclude that defendant has not met his burden of demonstrating error.
“To prove an abuse of discretion, ‘[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.‘” (Alvarez, supra, 14 Cal.4th at pp. 977-978.) To meet this burden, the defendant must ‘affirmatively demonstrate that the trial court misunderstood its sentencing discretion.’ (People v. Davis (1996) 50 Cal.App.4th 168, 172.)” (People v. Lee, supra, 16 Cal.App.5th at p. 866; accord, People v. Gollardo (2017) 17 Cal.App.5th 547, 562.)
The record expressly reflects that the trial court understood the scope of its sentencing discretion. The court recognized that defendant was a first time offender and that he took responsibility for his actions. However, defendant also had a high blood-alcohol level and crossed over into the oncoming traffic lane on a blind curve, resulting in a head-on collision. Defendant‘s disagreement with the court‘s decision falls well short of establishing the court abused its discretion. The record here readily supports the court‘s decision to deny defendant‘s motion and we are unpersuaded by defendant‘s contrary claim.
II. Assembly Bill No. 1950
A. Background
As amended by Assembly Bill No. 1950, subdivision (a) of
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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. The court, or judge thereof, in the order granting probation and as a condition thereof, may imprison the defendant in a county jail for a period not exceeding the maximum time fixed by law in the case....” (Italics added.) However, Assembly Bill No. 1950 also added subdivision (m) to
“The two-year probation limit in subdivision (a) shall not apply to:
“(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.
“(2) A felony conviction for paragraph (3) of subdivision (b) of Section 487, Section 503, and Section 532a, if the total value of the property taken exceeds $25,000. 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 three years, and upon those terms and conditions as it shall determine. All other provisions of subdivision (a) shall apply.” (Assem. Bill No. 1950, Stats. 2020, ch. 328, § 2, pp. 4-5, italics added.)
Assembly Bill No. 1950 also amended
The parties disagree on the following two issues: one, whether Assembly Bill No. 1950 applies retroactively to cases not yet final on appeal under the Estrada presumption and, two, whether, by virtue of the specific probationary period set forth in
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B. Legal Principles
“We review de novo questions of statutory construction. [Citation.] In doing so, ‘our fundamental task is “to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.“‘” [Citation.] We begin with the text, ‘giv[ing] the words their usual and ordinary meaning [citation], while construing them in light of the statute as a whole and the statute‘s purpose [citation].’ [Citation.] ‘If no ambiguity appears in the statutory language, we presume that the Legislature meant what it said, and the plain meaning of the statute controls.‘” (People v. Blackburn (2015) 61 Cal.4th 1113, 1123.) “Only when the statute‘s language is ambiguous or susceptible of more than one reasonable interpretation, may the court turn to extrinsic aids to assist in interpretation.” (In re C.H. (2011) 53 Cal.4th 94, 100 (C.H.).)
“Generally, statutes are presumed to apply only prospectively.” (People v. Frahs (2020) 9 Cal.5th 618, 627 (Frahs), citing People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara);
Pursuant to the California Supreme Court‘s decision in Estrada, “[n]ewly enacted legislation lessening criminal punishment or reducing criminal liability presumptively applies to all cases not yet final on appeal at the time of the legislation‘s effective date.
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(See Estrada, supra, 63 Cal.2d at pp. 744-745.) This presumption ‘rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.‘” (People v. Gentile (2020) 10 Cal.5th 830, 852 (Gentile); accord, Frahs, supra, 9 Cal.5th at p. 624; People v. McKenzie (2020) 9 Cal.5th 40, 44-45; Lara, supra, 6 Cal.5th at p. 307.)
C. Analysis
1. Estrada Presumption Applies
As an initial matter, the People maintain that Assembly Bill No. 1950 is not retroactive because the Estrada presumption applies to punishment and probation is not punishment. This position has been uniformly rejected by courts considering the matter. (People v. Lord (2021) 64 Cal.App.5th 241, 245 (Lord); People v. Stewart (2021) 62 Cal.App.5th 1065, 1072-1073, review granted June 30, 2021, S268787 (Stewart); People v. Sims (2021) 59 Cal.App.5th 943, 960-961 (Sims); People v. Quinn (2021) 59 Cal.App.5th 874, 882-883 (Quinn); People v. Burton (2020 58 Cal.App.5th Supp. 1, 14-16 (Burton).)
In Burton, the court explained,
“[A] ‘[g]rant of probation is, of course, qualitatively different from such traditional forms of punishment as fines or imprisonment. Probation is neither “punishment” [citation] nor a criminal “judgment” [citation]. Instead, courts deem probation an act of clemency in lieu of punishment [citations], and its primary purpose is rehabilitative in nature [citation].’ [Citations.] [¶] But, although probation is not considered ‘punishment’ for specified purposes, the presumption of legislative intent in Estrada is not confined to only situations when jail and prison sentences are directly decreased due to new laws. A court may presume an intent to broadly apply laws even when they ‘merely [make] a
reduced punishment possible.’ (People v. Frahs, supra, 9 Cal.5th at p. 629.) The Legislature in this instance clearly contemplated that reducing the amount of time probation can last was significantly beneficial to persons on probation, and that concomitantly, being on probation for longer than a year was detrimental ‘rather than being rehabilitative.’ As previously noted, ‘a legislative body
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ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible’ (People v. Conley [(2016)] 63 Cal.4th [646,] 657), not solely to changes that reduce ‘punishment’ as defined in contexts different than assessing whether Estrada is applicable.” (Burton, supra, 58 Cal.App.5th Supp. at pp. 15-16.)
Subsequently, the Courts of Appeal in Stewart, Sims, and Quinn agreed and rejected the argument advanced by the People here, that probation is not punishment within the meaning of Estrada. (Stewart, supra, 62 Cal.App.5th at pp. 1072-1073, review granted; Sims, supra, 59 Cal.App.5th at pp. 959-961; Quinn, supra, 59 Cal.App.5th at p. 883; accord, Lord, supra, 64 Cal.App.5th at p. 245.) Sims stated, “[W]e do not believe the label affixed to probation—i.e., whether it is labeled punishment, rehabilitation, or some combination—is necessarily determinative of whether the Estrada presumption of retroactivity applies.” (Sims, supra, at p. 959.) “[P]robation—though often deemed preferable to imprisonment from the perspective of a defendant can be invasive, time-consuming, and restrictive for a probationer. A probationer ‘is in constructive custody—he is under restraint.’ [Citations.] Thus, ‘[w]hile probation is not technically a “punishment,” being “rehabilitative in nature” [citation], there is no question it is a sanction that imposes significant restrictions on the civil liberties of a defendant.’ [Citations.] By limiting the maximum duration a probationer can be subject to such restraint, Assembly Bill No. 1950 has a direct and significant ameliorative benefit for at least some probationers who otherwise would be subject to additional months or years of potentially onerous and intrusive probation conditions.” (Ibid., fn. omitted.)
Recent California Supreme Court decisions make clear that the Estrada presumption applies broadly to ameliorating benefits that flow from a change in the law (People v. Esquivel (2021) 11 Cal.5th 671, 674-675; Gentile, supra, 10 Cal.5th at p. 852; Frahs, supra, 9 Cal.5th at pp. 631-632) and the court has stated that the primary focus is “whether a change in law is ameliorative” (Esquivel, supra, at pp. 675-676). We agree with the courts that have
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considered Estrada in the context of Assembly Bill No. 1950 and concluded the presumption of retroactivity applies. (Lord, supra, 64 Cal.App.5th at pp. 245-246; Stewart, supra, 62 Cal.App.5th at pp. 1072-1073; Sims, supra, 59 Cal.App.5th at pp. 959-961; Quinn, supra, 59 Cal.App.5th at p. 882-883; Burton, supra, 58 Cal.App.5th Supp. at pp. 18-19.) Therefore, we reject the People‘s argument on this point.
a. Statutory Language
Next, we must address, as a matter of first impression, whether defendant is entitled to relief under subdivision (a) of
Defendant was convicted of violating subdivisions (a) and (b) of
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be for a longer period than three years but may not exceed the maximum time for which sentence of imprisonment may be pronounced.” (Italics added.)
Subdivision (m)(1) of
Defendant‘s argument centers on the principle that, as here, “[t]he ordinary and usual usage of ‘and’ is as a conjunctive, meaning ‘an additional
The statute excludes “[a]n offense listed in subdivision (c) of Section 667.5 and an offense that includes specific probation lengths within its provisions.” (
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p. 103; accord, People v. Leiva, supra, at p. 506; People v. Valencia (2021) 64 Cal.App.5th 641, 649.)
b. Legislative History
Because the Legislature could have but did not use the term “or” in
Assembly Bill No. 1950 was amended three times. The third and final amendment, which was the version enacted, added qualifying language to the
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earlier versions of the bill reduced the term of probation to no more than one year in misdemeanor cases and to no more than two years in felony cases, without the aforementioned limitations. (Assem. Bill No. 1950, as amended May 6, 2020, p. 2 & May 21, 2020, p. 2.)
The committee report on the third and final amended version states, in relevant part, “This bill provides that the two-year probation limit does not apply to offenses defined by law as violent felonies, or to an offense that includes a specific probation term within its provisions.” (Sen. Com. on Public Safety, Rep. of Assem. Bill No. 1950, June 10, 2020, p. 3, italics omitted; accord, Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1950, as amended June 10, 2020, pp. 4 & 5.) The report also summarizes the author‘s comments on the matter: The legislative amendment under Assembly Bill No. 1950 “does not include offenses falling under section 667.5 of the State Penal Code, crimes committed against monetary property (i.e., ‘white collar crimes‘) valued at over $25,000 nor any specific crimes with probation term lengths identified by statute.” (Sen. Com. on Public Safety, Rep. of Assem. Bill No. 1950, June 10, 2020, p. 4.) The addition of the limitations in the bill as enacted and the intent expressed with respect to those limitations support our reading of the statute as excluding those felony offenses that fall under
Finally, in our view, defendant‘s suggested interpretation of the law as excluding from
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subdivision (m).5 Defendant does not address this argument and he identifies no felony offenses that would qualify for exclusion under his interpretation of
In sum, defendant was convicted of violating
DISPOSITION
The judgment is affirmed.
MEEHAN, J.
WE CONCUR:
LEVY, Acting P.J.
FRANSON, J.
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