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.