First Appellate District: AB 1950 & 191.5 Probation.

Vehicular manslaughter while intoxicated and without gross negligence is defined at Penal Code § 191.5(a) as the unlawful killing of a person while driving a vehicle “where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code. . .” 

In other words, if one is convicted of violating Penal Code § 191.5(a), that person must also be found to having violated 23140, 23152 or 23153.  Indeed, Vehicle Code § 23153 is a necessarily included offense to a violation of 191.5(a).  People v. Miranda (1994) 21 Cal. App. 4th 1464, 1468.

Consequently, one would not expect Assembly Bill (AB) 1950 to apply to vehicular manslaughter without gross negligence because since DUI is excluded from the new limits of one year of probation for misdemeanors and two years for felonies.

Consequently, we found the recently published First Appellate District opinion in the case of Deanna Lynn Bowden remarkable.  The opinion was issued on August 26, 2022.

Ms. Bowden pled guilty in Marin County Superior Court to a felony Penal Code § 191.5 charge for vehicular manslaughter while intoxicated but without gross negligence pursuant to a plea bargain and was placed on five years of formal probation with one year in county jail. 

To be placed on probation at all is remarkable, but what happened in her case thereafter is equally surprising.  In fact, at sentencing, the judge informed the parties that it did not agree with the sentencing, which the judge described as overly lenient because Ms. Bowden would most likely see her jail time reduced to six months with good conduct credit.

In the underlying case, Ms. Bowden struck and killed a pedestrian at 9:20 p.m. on May 30, 2019.  The pedestrian was in a marked crosswalk in Novato, California.

Following her sentencing, AB 1950 was enacted.  It amended Penal Code §§ 1203a and 1203.1 to limit probation to one year for most misdemeanors and two years for most felonies, with exceptions.  AB 1950 was understood to be retroactive in effect because, in Bowden’s case, her sentence was not final since she was on probation.  In re Estrada (1965) 63 Cal. 2d 740.

In response, the Marin County Probation Department asked the trial court to determine whether Bowden was entitled to be released from probation after two years due to AB 1950.  The trial court found that AB 1950 did not limit Bowden’s probation to two years because it would create the absurd result that lesser-included offenses of DUI would carry longer probation terms than the greater offense.

Ms. Bowden did not like this ruling, so she filed a writ of mandamus to the First Appellate District to limit her probationary term to two years under AB 1950.  Remarkably, the First Appellate District issued the writ.

The First Appellate District explained that AB 1950’s new limit on probation applied to all offenses except any “offense that includes specific probation lengths within its provisions.”  In Bowden’s case, Penal Code § 191.5(a) does not contain a specific probation length within its provisions.  Further, nowhere anywhere in AB 1950 was there any suggestion that the two-year limit on felony probation does not apply to lesser included crimes that expressly provide for longer probation terms.

Additionally, the First Appellate District determined that shortening Bowden’s probation was consistent with AB 1950’s legislative intent of reducing the probation pipeline for re-entry into the carceral system. 

Finally, the First Appellate District, perhaps anticipating that its ruling would be questioned, held that this outcome was not absurd because the Legislature could have reasonably determined that it would exempt crimes for which it had specifically provided a longer probation term, but not other similar crimes that might ordinarily be considered more serious.

The First Appellate District ended its ruling by noting that the California Supreme Court currently had before it a case with the issue posed of whether the prosecution could withdraw their consent to a plea bargain, so in Bowden’s case, it declined to allow the prosecution to withdraw from the plea bargain.

We ask our readers to note that, legally and technically, this opinion is limited to application in the First Appellate District unless or until the California Supreme Court affirms it, or any other appellate district, i.e., the Second Appellate District (covering Los Angeles County) or the Fourth Appellate District (covering Orange, Riverside and San Bernardino County), follows Bowden.

The citation for the First Appellate District Court ruling discussed above is Deanna Lynn Bowden v. Superior Court of Marin County  (1st App. Dist., 2022) 82 Cal. App. 5th 735, 285 Cal. Rptr. 3d 682.

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