Does AB 1950 Bar Probation Revocation Hearing? No.

On January 1, 2021, Assembly Bill (AB) 1950 came into effect, changing the probation period for most misdemeanors to one year and most felonies to two years. 

Since that time, it has been legally accepted that the statute is retroactive in effect to those cases wherein a defendant was on probation on January 1, 2021. In re Estrada (1965) 63 Cal. 2d 740, 745; People v. Quinn (2021) 59 Cal. App. 4th 874 (statutes are generally presumed to apply prospectively, but the Legislature may “enact laws that apply retroactively, either expressly or by implication” and “amendatory statutes that lessen the punishment for criminal conduct are ordinarily intended to apply retroactively”).

However, as with most all new statutes, cases arise wherein defendants seek the new statute’s benefits for situations that the statutory language does not address, but for which a legal interpretation of the statutory intent is required.

The case of Kellie Kuhnel out of Contra Costa County is one such case.  On November 17, 2016, Ms. Kuhnel was convicted of misdemeanor embezzlement and placed on probation for three years.  Eleven months into her probation, in October 2017, the Olinda Police Department received a report that Ms. Kuhmel had committed new acts of fraud in December 2016.

The probation department was then notified, which then reported this to the judge overseeing Ms. Kuhnel’s probation.

The judge then summarily revoked Kuhnel’s probation on December 11, 2017, thirteen months into her probation, and set a probation violation hearing for January 8, 2018.  The hearing was continued multiple times because Kuhmel failed to appear and then twice in 2021 at Kuhnel’s request.

Without the probation violation hearing ever being held, Ms. Kuhmel filed a motion to terminate her probation on June 18, 2021, arguing that since AB 1950 was retroactive, her probation had ended on November 17, 2017, one year after her conviction. 

The People opposed the motion to terminate, arguing that the court retained jurisdiction to adjudicate violations that took place during the original term of probation.  The trial court agreed and denied Kuhnel’s motion.

Ms. Kuhnel then petitioned the trial court’s appellate division for a writ of mandate and the appellate division denied the petition without explanation. 

Ms. Kuhnel then petitioned the First Appellate District for a writ of mandate under California Code of Civil Procedure § 904.3 and on September 23, 2021, the First Appellate District issued an alternative writ directing the appellate division of the superior court either to grant Kuhnel’s petition or to show cause why a peremptory writ of mandate should not be granted.

The appellate division, in response, elected not to grant Kuhnel’s petition, explaining that it would welcome guidance from the First Appellate District on the interaction between Assembly Bill 1950, People v. Leiva (2013) 56 Cal. 4th 498 (revocation of probation tolls the running of the probationary term under Penal Code § 1203.2(a)) and Penal Code § 1203.2(a).

In response, the People filed a return to the writ petition and Ms. Kuhnel filed her traverse.

The First Appellate District then ruled that since Ms. Kuhnel was validly on probation when her probation was summarily revoked and her probation violation hearing never took place, Assembly Bill 1950 did not apply to end Ms. Kuhnel’s probation as she argued.  Instead, probation remained tolled under Penal Code § 1203.2(a) until the formal probation violation hearing took place. 

The appellate court explained that it saw nothing in Estrada, supra, that suggests the courts are to apply AB 1950 retroactively to divest courts of the jurisdiction 1203.2(a) confers – “nothing that would absolve Kuhnel of responsibility for a probation violation she committed during her first year, based on the fortuity that the court revoked probation after the one-year mark.”

Perhaps sensing that it was stretching an artificial reading into Estrada that did not fit because Estrada was a 1965 case, the appellate court looked to Penal Code § 1203.2(a), which was codified in 1977.  In looking at 1203.2(a), the court found the Legislature was intent “on preserving the jurisdiction of the trial court to hold formal probation violation hearings.”  Leiva, supra, 56 Cal. 4th at 512.

The citation for the First Appellate District Court ruling discussed above is People v. Kellie Kuhnel (1st App. Dist., 2022) 75 Cal. App. 5th 726, 290 Cal. Rptr. 3d 693.

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