Sunday, May 26, 2024

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California’s New Probation Length Limits

     The maximum period of probation for most misdemeanor convictions is now one year in California, Pen. C. § 1203a(a), but this limit does not apply to misdemeanor DUI convictions because Veh. C. § 23600 has a specific probation length of three to five years. Pen. C. § 1203a(b).
The maximum period of probation for most felony convictions is now two years, Pen. C. § 1203.1(a), but this limit does not apply to felony DUI convictions for the same reason it doesn’t apply to misdemeanor DUI convictions—Veh. C. § 23600 has a specific length of three to five years. Pen. C. § 1203.1(l)(1). However, there is an important limit to the exception for felony DUI convictions: The maximum period of probation is no more than what the maximum possible term of the sentence could be (including other offenses that are not subject to Pen. C. § 654). Ibid. See People v. Kite (2023) ___ Cal.App.5th ___ (Fourth Dist., Div. 1, Court of Appeal – Docket No. D080176).
     The two-year maximum period of probation applies to Pen. C. § 191.5 convictions (vehicular manslaughter while intoxicated, with or without gross negligence). See Bowden v. Superior Court (2022) 82 Cal.App.5th 735, a case handled at both the trial court and appellate level by Board-Certified DUI Defense attorney Paul Burglin. Bowden rejected the contention that the two-year limitation does not apply because Veh. C. § 23153 is a lesser included offense. “[A] conviction of a greater offense and of a lesser offense cannot stand at the same time [cites].” Id, at 626. The Bowden Court states in dicta that “the five year term of probation would have been permissible had she been convicted of a lesser included offense.” Id., at 627. However, that would only seem to apply if she had not also been convicted of the greater offense of Pen. C. § 191.5(b). Moreover, Kite, supra, holds that the maximum probation length would have been three years since that’s the maximum period of potential imprisonment for a first offense Veh. C. § 23153 conviction. Veh. C. § 23554.
     Some defendants sentenced prior to the foregoing amendments have sought an early termination of probation and most have been granted. The basis for the motion is that as long as a defendant is still on probation their case is not “final” for purposes of retroactivity under In re Estrada (1965) 63 Cal.2d 740. People v. McKenzie (2020) 9 Cal.5th 40, 46-47. The vast majority of Court of Appeal decisions have agreed, but there’s a split of authority as to whether prosecutors and judges should have the opportunity to set aside plea agreements conditioned on longer lengths of probation. Bowden, supra, answered no and cited a number of other opinions in agreement with it. Prosecutors have relied upon People v. Stamps (2020) 9 Cal.5th 685, 706-708, for the counter argument, but Bowden distinguished Stamps by noting the latter involved a trial court’s exercise of discretion as opposed to a legislative directive that a shorter period of probation must apply.
     The issues are currently under review by the California Supreme Court in People v. Prudholme (2021), nonpub. opn., Fourth Dist., Div. 2 – Docket No. E076007), review granted, S271057. Oral argument was heard on April 4, 2023, and a decision is anticipated soon.

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Paul Burglin

Paul Burglin

Paul Burglin practices DUI defense in the San Francisco Bay Area including the Napa/Sonoma wine country. He has been specializing in DUI defense for more 35 years After graduating from U.C. Berkeley in 1980, Mr. Burglin received his law degree from Gonzaga University School of Law in Washington. He is Board Certified in DUI Defense (as approved by the American Bar Association) and co-authors the two-volume treatise, "California Drunk Driving Law." He is past Dean of the National College of DUI Defense ( and is Editor-in-Chief of its case law update and newsletter. He is one of only a select few of DUI defense attorneys in the United States to have attended the University of Indiana’s Borkenstein Course on chemical testing and scientific protocols offered to prosecution experts, and he is a certified graduate of that program. He has been selected to the 2021 Northern California Super Lawyers list and is A-V rated by Martindale-Hubbell.

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