AB 1950: Probation Length for 245(a)(4), Girlfriend

Assembly Bill (AB) 1950 went into effect on January 1, 2021, changing the length of probation for misdemeanor offenses to one year and for felonies to two years, subject to certain exceptions. 

The exceptions to AB 1950 caused disagreement almost immediately.  Our office has had several cases with heated argument over how a judge should set the length of probation for those offenses possibly exempt from AB 1950 because, arguably, the offenses include “specific probation lengths within their provisions.”  Penal Code §§ 1203a(b), 1203.1(l)(1).

Our office prevailed in one case, which was for a client on felony probation for a violation of Penal Code § 273.5(a) (domestic violence).  In that case, we argued that the plain meaning of “within their provisions” meant within the provision of 273.5(a), which did not state a specific probation length.  The judge on the case agreed with Greg Hill that this meant our client’s probation was two years, much to the strenuous objection of the district attorney’s office.

The same argument Greg Hill made was adopted by Earl Maurice Rodriguez in People v. Earl Maurice Rodriguez, a case arising in Solano County Superior Court.  On February 18, 2020, following an argument by text message, Rodriguez drove his vehicle into his girlfriend’s vehicle three times while she was driving to her friend’s house.

Rodriguez was arrested shortly thereafter and charged with one count of assault with a deadly weapon (Penal Code § 245(a)(1)).  He pleaded not guilty but later, before AB 1950 became effective, through plea bargaining, was able to resolve the case for an amended count two with a plea to Penal Code § 245(a)(4), a non-strike, “assault with force likely to produce great bodily injury.”  The 245(a)(1) charge was then dismissed and the judge placed Rodriguez on three years of formal probation.

After AB 1950 became effective, Rodriguez appealed the length of his probation, arguing that his probation length should be two years because AB 1950 was retroactive to his sentence entered before January 1, 2021 (when AB 1950 went into effect).  Rodriguez’s appeal was to the First Appellate District.

Rodriguez argued that the exceptions to AB 1950 are unambiguous in that to be an exception, an offense must include “specific probation lengths within its provisions.”  The plain meaning of the statute must be followed.

The First Appellate Court disagreed and affirmed the probation period as three years, not two.  The appellate court acknowledged that while the statute seemed to have a plain meaning “when considered in isolation, it must be construed in context and harmonized with other related statutes to the extent possible.” Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal. 3d 1379, 1386-1387. 

The court then gave examples of other statutes which included mandatory probation terms found in a section separate from the statute that defines the offense.  For example, Penal Code § 1203.047 provides for probation of not less than three years if a person is convicted of violating Penal Code § 502 (computer crimes).  Vehicle Code § 23600(b) provides for probation of not less than three years if a person is convicted of violating Vehicle Code §§ 23152 or 23153 and is granted probation. See People v. Saxton (2d App. Dist., 2021) 68 Cal. App. 5th 428, 432.  Finally, Penal Code § 273.5(g) does not include a specific probation length, but requires that if probation is granted to a person convicted under § 273.5(a), the terms must be consistent with the provisions of 1203.097.

This last example is what the District Attorney argued in Greg’s prior case, but the judge did not agree.

In Rodriguez’s case, the First Appellate District then addressed domestic violence offenses, which his was because the victim was his girlfriend.  The First Appellate District then cited to Couzens et al., Sentencing California Crimes (The Rutter Group 2021) § 8:15.30, which states “[b]ecause of section 1203.097, a conviction for a crime where the victim is listed in Family Code § 6211 is an offense that includes a specific probation length within its provisions for the purposes of the exception under the former 1203.1(m)(1)” [now §§ 1203a(b), 1203.1(l)(1)].

“Indeed, ‘the fact that the specification of the 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.’ Id., at fn 2.”

Therefore, 1203.097’s three-year probation period applied to Rodriguez.

We present this summary as somewhat of a cautionary tale.  Our office was perhaps luckier than Rodriguez, but the First Appellate District laid out here exactly what any other court perhaps needs to keep probation at three years for any domestic violence offense, effectively meaning all domestic violence offenses are exempt from AB 1950.

The citation for the First Appellate District Court ruling discussed above is People v. Earl Maurice Rodriguez (1st App. Dist., 2022) 79 Cal. App. 5th 637, 295 Cal. Rptr. 3d 79.

For more information about AB 1950, please click on the following articles: