Filed 5/31/22 P. v. Ung CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Thanh Van Ung pleaded no contest to stalking (Pen. Code, § 646.9, subd. (a)),[1] vandalism (§ 594, subd. (b)(2)(A)), and dissuading a witness (§ 136, subd. (c)(1)). Because the victim of these offenses was Ung’s estranged wife, the trial court granted Ung probation in accordance with section 1203.097, including the minimum three-year term of probation required by section 1203.097, subdivision (a)(1).

On appeal, Ung asks that we now reduce his probation term to two years, under section 1203.1, subdivision (a) as amended after his sentencing in Assembly Bill No. 1950 (2019-2020 Reg. Session) (A.B. 1950).[2] His appeal accordingly calls for us to resolve the apparent conflict between section 1203.1 as amended and section 1203.097, by interpreting section 1203.1, subdivision (l), the exception to the new legislation’s two‑year maximum. Because we discern no legislative intent to amend section 1203.097, we interpret section 1203.1 as exempting from its two-year probation limit those offenses subject to section 1203.097’s three-year minimum.

As for Ung’s claim that the trial court abused its discretion in declining to waive certain fines and fees despite his inability to pay, we reject his claim under People v. Dueñas (2019) 30 Cal.App.5th 1157 but conclude that the trial court failed to acknowledge its statutory authority to waive fees under section 1203.097, subdivision (c)(1)(P).

I. BACKGROUND

Ung was charged with one count of stalking by malicious harassing (§ 646.9, subd. (a); count one); two counts of criminal threats (§ 422, subd. (a); counts two, three); one count of assault with a deadly weapon (§ 245, subd. (a)(1); count four); one count of misdemeanor vandalism (§ 594, subd. (b)(1); count five); one count of misdemeanor violation of a protective order (§ 273.6, subd. (a); count six); and one count of dissuading a witness (§ 136.1, subd. (c)(1); count seven).

Ung entered into a plea agreement in which he pleaded no contest to counts one, five, and seven in exchange for dismissal of the remaining charges. The parties jointly recommended a three-year term of formal probation.

The postplea probation report confirmed that the victim of these offenses was Ung’s wife, T.N.[3] At sentencing, the trial court suspended imposition of sentence for three years of formal probation, conditions of which included service of 364 days in county jail and completion of a certified domestic violence program pursuant to section 1203.097.

Citing Dueñas, the trial court waived all fines and fees except for a restitution fine and collection fee (§ 1202.4), a probation revocation restitution fine (suspended) (§ 1202.44), a presentence investigation fee (§ 1203.1b), and a monthly probation supervision fee (§ 1203.1b). The trial court further ordered that Ung pay all certified batterers’ program fees (§ 1203.097, subd. (a)(7)(A)), stating that it had no discretion to waive those fees.

Ung timely appealed.

II. DISCUSSION

A. Application of Sections 1203.1 and 1203.097

By enacting A.B. 1950, the Legislature amended sections 1203a and 1203.1 to restrict the length of most probation terms.[4] (Stats. 2020, ch. 328, §§ 1 & 2.) Effective January 1, 2021, misdemeanor probation terms are generally limited to one year (§ 1203a, subd. (a)), and felony probation terms are generally limited to two years (§ 1203.1, subd. (a)).[5] The Legislature, however, expressly exempted from the limitation set forth in section 1203.1, subdivision (a) (section 1203.1(a)) “[a]n offense listed in subdivision (c) of Section 667.5 and an offense that includes specific probation lengths within its provisions.” (§ 1203.1, subd. (l)(1).)

None of the statutes Ung was convicted of violating include specific probation lengths within their provisions. (Compare §§ 646.9, subd. (a), 594, subd. (b)(1), and 136.1, subd. (c)(1) with Health & Saf. Code, § 11550, subd. (a).) Nor are these statutes limited in application to abuse of an intimate partner or family member. But a grant of probation for such offenses must nonetheless comport with the terms prescribed by section 1203.097 where “the victim is a person defined in Section 6211 of the Family Code.” (§ 1203.097, subd. (a); People v. Cates (2009) 170 Cal.App.4th 545, 548 [applying section 1203.097 to “generic crime” of § 245 where “the statute defining the crime does not specifically refer to domestic violence”].) Persons defined in Family Code section 6211 include “[a] spouse or former spouse.”[6] (Fam. Code, § 6211, subd. (a).) Foremost among section 1203.097’s mandatory terms is “[a] minimum period of probation of 36 months.” (§ 1203.097, subd. (a)(1).)

Neither section 1203.1, subdivision (l)(1) nor section 1203.097 are ambiguous taken in isolation. However, even “language that seems plain when considered in isolation may be ambiguous when examined within the context of the scheme it implements. [Citations.]” (In re Mohammad (2022) 12 Cal.5th 518, 531-532.) The ambiguity emerges where, as here, each section has arguable application. Section 1203.097, subdivision (a)(1) (section 1203.097(a)(1)) continues to mandate a minimum 36-month term of probation, because Ung committed these offenses against his wife; as newly amended, section 1203.1(a) now would mandate no more than a two-year term, because none of the three offenses of conviction “includes specific probation lengths within its provisions” as excepted by section 1203.1, subdivision (l)(1).

We must accordingly resolve whether Ung is entitled to relief under section 1203.1(a) or whether his term of probation remains controlled by section 1203.097.

1. Interpretive Canons

In resolving the tension between legislative enactments, “ ‘ “[a] court must, where reasonably possible, harmonize statutes, reconcile seeming inconsistencies in them, and construe them to give force and effect to all of their provisions. [Citations.] This rule applies although one of the statutes involved deals generally with a subject and another relates specifically to particular aspects of the subject.” [Citation.] Thus, when “ ‘two codes are to be construed, they “must be regarded as blending into each other and forming a single statute.” [Citation.] Accordingly, they “must be read together and so construed as to give effect, when possible, to all the provisions thereof.” [Citation.]’ ” [Citation.] Further, “ ‘ “[a]ll presumptions are against a repeal by implication. [Citations.]” [Citation.] Absent an express declaration of legislative intent, we will find an implied repeal “only when there is no rational basis for harmonizing the two potentially conflicting statutes [citation], and the statutes are “irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.’ ” ’ ” ’ [Citations.]” (State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 955-956 (Dept. of Public Health).) Implied amendments are likewise disfavored. (Wilde v. City of Dunsmuir (2020) 9 Cal.5th 1105, 1117.)

Ung’s argument that his probation term must be reduced under section 1203.1(a) depends on a determination that the Legislature intended to amend or repeal the mandatory minimum 36-month period of probation set forth in section 1203.097(a)(1). Because the Legislature did not express such an intent in section 1203.1, however, we may not deem the Legislature to have implied such a result if the two statutes can rationally be harmonized. We agree with People v. Forester (May 10, 2022, D078912) ___ Cal.App.5th ___ [2022 Cal.App. LEXIS 395], that they can be harmonized, by construing section 1203.1, subdivision (l)(1)’s exemption of “an offense that includes specific probation lengths within its provisions” to include any offense for which the Legislature has otherwise prescribed a specific maximum or minimum duration.

We acknowledge that this construction is at apparent odds with the “within its provisions” formulation. Read narrowly, this formulation would seem to presume that for every offense where the Legislature intended a specific length of probation, it prescribed that duration within the same statute defining the offense. But the organization of the Penal Code and penal provisions of other codes is not so linear or repetitive. (See, e.g., Health & Saf. Code, § 11374 [prescribing maximum sentence for every violation of “any provision of this division, except one for which a penalty is otherwise in this division specifically provided”]; Veh. Code, § 23600 [minimum and maximum probation for offenses defined in a prior division of code].) Our construction is not inconsistent with the Legislature’s treatment of section 1203.097 in other statutory provisions. For example, section 273.5 does not, strictly speaking, include a probation length within its provisions; instead it cross-references section 1203.097. (§ 273.5, subd. (g) [if probation is granted, “the court shall impose probation consistent with the provisions of Section 1203.097”]; see also § 273.6, subd. (h).)

Moreover, even if we were unable to harmonize sections 1203.1(a) and 1203.097, we would nonetheless be constrained to accord section 1203.097 full operation. “ ‘If conflicting statutes cannot be reconciled, later enactments supersede earlier ones [citation], and more specific provisions take precedence over more general ones [citation].’ [Citation.] But when these two rules are in conflict, the rule that specific provisions take precedence over more general ones trumps the rule that later-enacted statutes have precedence.” (Dept. of Public Health, supra, 60 Cal.4th at p. 960.) There can be no question, as between the competing provisions, that section 1203.097 is the more specific, addressing by its plain terms only a subset of offenses defined by Family Code section 6211.

We are mindful of the doctrine of avoidance and its warning that “a statute should not be construed to violate the Constitution ‘ “ ‘if any other possible construction remains available.’ ” ’ [Citations.] The theory underlying the canon rests not only on a preference for avoiding the unnecessary resolution of constitutional questions, but also on the presumption that the Legislature (whose members have sworn to uphold the Constitution) did not ‘intend[] to infringe constitutionally protected liberties or usurp power constitutionally forbidden it.’ [Citations.]” (People v. Garcia (2017) 2 Cal.5th 792, 804.) Under our interpretation, the Legislature has now created two categories of offenders who are similarly situated but effectively subject to different maximum terms of probation for the same generic crime of abuse. A defendant who commits a stalking offense against a stranger will be subject to a shorter maximum probation term than a defendant who commits the same offense against a person defined in Family Code section 6211. But the disparity implicates neither a suspect class nor a fundamental right: it is well settled that a defendant “ ‘does not have a fundamental interest in a specific term of imprisonment or in the designation a particular crime receives.’ [Citation.]” (People v. Wilkinson (2004) 33 Cal.4th 821, 838 (Wilkinson).) “ ‘It is the prerogative, indeed the duty, of the Legislature to recognize degrees of culpability when drafting a Penal Code.’ [Citation.]” (Id. at p. 840.) Accordingly, as Ung originally conceded at oral argument, the disparity in prescribed probation lengths is subject to deferential rational basis review. (Id. at p. 836.)

In supplemental briefing submitted after oral argument, Ung argued instead that the disparity attendant upon our interpretation of section 1203.1, subdivision (l)(1) is subject to strict scrutiny, and accordingly “ ‘can be sustained only if . . . necessary to achieve a compelling state interest.’ ” (Public Guardian of Contra Costa County v. of Eric B. (2022) 12 Cal.5th 1085, 1107.) Probation, Ung argues, implicates a probationer’s liberty interest, because a probationer is in constructive custody and subject to incarceration for violation of conditions of supervision. The authorities on which he relies for this proposition are inapposite, however: we do not here address the process due before a probation term, once imposed by the trial court, may be extended or revoked (People v. Leiva (2013) 56 Cal.4th 498, 508), or whether habeas jurisdiction may lie after the expiration of probation or parole (In re Azurin (2001) 87 Cal.App.4th 20, 23; In re Stier (2007) 152 Cal.App.4th 63, 81). To be sure, conditional release on probation subjects a defendant to potentially intrusive supervision by a probation officer and specified conditions imposed in the court’s broad discretion, including conditions that may limit the probationer’s constitutional rights. (People v. Olguin (2008) 45 Cal.4th 375, 380-384.) “On the other hand, . . . probation is a privilege and not a right.” (Id. at p. 384.)

Accordingly, we analyze whether the disparity is rationally related to any legitimate government purpose. (Wilkinson, supra, 33 Cal.4th at p. 836 [statutorily created sentencing disparity subject to rational basis review].) “ ‘This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] While the realities of the subject matter cannot be completely ignored [citation], a court may engage in “ ‘rational speculation’ ” as to the justifications for the legislative choice [citation]. It is immaterial for rational basis review “whether or not” any such speculation has “a foundation in the record.” ’ . . . If a plausible basis exists for the disparity, courts may not second-guess its ‘ “wisdom, fairness, or logic.” ’ [Citations.]” (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.)

Here, there exists a plausible basis for the disparate treatment of those, like Ung, who are convicted of offenses against a person defined in Family Code section 6211 and those convicted of the same offenses where the victim is not a person so defined. The courts in other contexts have recognized a “compelling interest” in preventing the recurrence of domestic violence (People v. Jungers (2005) 127 Cal.App.4th 698, 705) and held that the relationship of both intimacy and intimidation in domestic violence cases “easily distinguishes these offenses from the broad variety of criminal conduct in general.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313 [rejecting equal protection challenge to Evid. Code, § 1109].) The Legislature has elsewhere determined that coercive control, a hallmark of domestic violence, is “a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty.” (Fam. Code, § 6320, subd. (c), italics added.) Other provisions of section 1203.097 reflect the Legislature’s judgment that redressing that pattern necessitates sustained and regular treatment over 12 to 18 months, and potentially longer. (§ 1203.097, subds. (a)(6) [consecutive weekly sessions to be completed within 18 months], (a)(10)(A) [potential requirement of additional treatment sessions].) The minimum three-year term of probation is consistent with the legislative determination that those subject to section 1203.097 require a longer period of supervision. We accordingly may not substitute our judgment for the Legislature’s.

2. Legislative History and Lenity

Ung offers the legislative history of A.B. 1950 as extrinsic evidence of a contrary legislative intent, but we do not read this history as supporting his position. The Assembly Committee on Public Safety (Committee), in commenting on the May 6, 2020, version of the bill, discussed whether a one-year misdemeanor probation term would allow sufficient time to complete program requirements, specifically 52 weeks of domestic violence counseling required by section 1203.097. (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1950 (2019-2020 Reg. Sess.) as amended May 6, 2020, p. 62.) The Committee expressly acknowledged that A.B. 1950 “does not amend code sections such as Veh[icle] Code 23600 (allowing probation up to five years for a DUI) or Pen[al] Code 1203.097 (requiring a minimum probation of three years for domestic violence offenses) which specify probation lengths for specific crimes. It is not clear if this bill would limit the application of those sections.” (Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1950 (2019-2020 Reg. Sess.) as amended May 6, 2020, p. 4, italics added.) A.B. 1950 was subsequently amended to add the exclusionary provisions of section 1203.1, including the subdivision now denominated as (l)(l), and that version of the bill was signed into law. (Assem. Bill No. 1950 (2019-2020 Reg. Sess.) June 10, 2020.)

Ung submits that the Legislature’s failure to specifically exclude offenses subject to section 1203.097 is a clear expression of its intent that a grant of probation for such offenses—while continuing to be subject to every other provision mandated by section 1203.097—would now be limited by operation of section 1203.1(a) rather than governed by section 1203.097(a)(1). Even if we were to treat the analysis by a committee of one chamber as reflective of the Legislature’s[7] intent, its belief that A.B. 1950 “does not amend code sections such as . . . [section] 1203.097” and its uncertainty as to how A.B. 1950 might in practice be applied falls short of an intention to amend, modify, or repeal. “We do not presume that the Legislature intends, when it enacts a statute, to overthrow long-established principles of law unless such intention is clearly expressed or necessarily implied. [Citation.] Rather, we must assume that . . . the Legislature was aware of existing related laws and intended to maintain a consistent body of rules. [Citation.]” (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199.) “[W]e consider legislative history ‘as dispositive only when that history is itself unambiguous.’ [Citation.]” (Coso Energy Developers v. County of Inyo (2004) 122 Cal.App.4th 1512, 1526.) At most, the Legislature’s resort to the ambiguous language of section 1203.1, subdivision (l)(1), despite actual notice of the potential conflict with section 1203.97, represents a tolerance for judicial interpretation, rather than an intention to adopt Ung’s reading.

Ung in his reply brief invokes the rule of lenity to assert that any ambiguity as between sections 1203.1(a) and 1203.097(a)(1) must be resolved in his favor. “The rule of lenity, under which ‘ambiguous penal statutes are construed in favor of defendants[,] is inapplicable unless two reasonable interpretations of the same provision stand in relative equipoise, i.e., that resolution of the statute’s ambiguities in a convincing manner is impracticable.’ [Citations.] The rule does not automatically grant a defendant ‘the benefit of the most restrictive interpretation given any statute by any court’ when there is a split of authority. [Citation.] Neither does it require a statutory interpretation in a defendant’s favor when, as here, a court ‘can fairly discern a contrary legislative intent.’ [Citation.]” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1022-1023.) Because resolution of the ambiguity here is practicable, we may not resort to lenity as a tiebreaker, untethered to the interpretive merits.

Although lenity was the obvious impetus behind A.B. 1950, it is also clear that the legislative priority to limit generally the duration of probationary restrictions on defendants’ liberty was not intended to be absolute: it was instead balanced against other legislative concerns reflected in longer probation terms for discrete types of offenses.

B. Fines and Fees

Ung’s counsel represented that he “will be homeless” upon his release and “wasn’t working at the time of this offense and for some[]time before that.” The trial court accepted that representation and stated explicitly its intention to follow Dueñas, supra, 30 Cal.App.5th 1157. The trial court waived certain fines and fees due to the representation by Ung’s counsel that he was indigent and homeless, but imposed a restitution fund fine of $300 (§ 1202.4), as well as a presentence investigation fee of $50, and a monthly probation supervision fee of $10 pursuant to section 1203.1b.[8] Ung argues on appeal that the trial court abused its discretion as there was no evidence supporting his ability to pay this fine.

The holding in Dueñas is the subject of competing views in the appellate courts, including different panels within our own district. (See, e.g., People v. Santos (2019) 38 Cal.App.5th 923, 927) [applying the “principles articulated [in Dueñas]”]; People v. Adams (2020) 44 Cal.App.5th 828, 832 [concluding that “Dueñas was wrongly decided”]; People v. Petri (2020) 45 Cal.App.5th 82, 90 [finding that Dueñas was not “persuasive”].) The California Supreme Court has granted review in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, S257844, to determine whether an ability to pay hearing is required before imposing fines and fees.[9]

Irrespective of the ultimate resolution of the question of law, Ung fails to establish error. The trial court, having invoked Dueñas in electing not to impose certain fines and fees, declined to waive the $300 restitution fine under section 1202.4. It is clear from the record that the trial court presumed that it had discretion with respect to otherwise mandatory fines and fees, considered Ung’s circumstances as relayed by defense counsel, exercised its discretion to waive certain fines and fees pursuant to Dueñas, and nonetheless deemed it appropriate to impose the section 1202.4 restitution fine. Implicit in the court’s imposition of a small subset of fees, accordingly, is a determination that Ung was not incapable of improving on his immediate financial straits. We therefore have no basis to conclude that the trial court abused its discretion here.

As to fees for Ung’s participation in a certified batterer’s program, the Attorney General appropriately concedes that the trial court erred in concluding that it lacked the discretion to waive those costs. Section 1203.097, subdivision (c)(1) specifically provides: “An indigent defendant may negotiate a deferred payment schedule, but shall pay a nominal fee, if the defendant has the ability to pay the nominal fee. Upon a hearing and a finding by the court that the defendant does not have the financial ability to pay the nominal fee, the court shall waive this fee.” (Id. at subd. (c)(1)(P), italics added.) The trial court having assumed it lacked the ability to waive this fee, we must remand to permit it to exercise its discretion under the statute. (People v. Fuhrman (1997) 16 Cal.4th 930, 944.)

III. DISPOSITION

The order of probation is reversed and the matter is remanded to the trial court with directions to exercise its discretion under Section 1203.097, subdivision (c)(1)(P) as to Ung’s payment of fees for his certified batterers’ program. On remand, the trial court shall also amend the order of probation to vacate the portions of the presentence investigation and probation supervision fees that remained unpaid as of July 1, 2021. In all other respects, we affirm.

LIE, J.

WE CONCUR:

DANNER, ACTING P.J.

WILSON, J.

People v. Ung

H048365

[1] Unspecified statutory references are to the Penal Code.

[2] A.B. 1950 amended section 1203.1 effective January 1, 2021.

[3] Because the facts of the offense are otherwise unnecessary to our analysis, we do not include them here.

[4] A.B. 1950 is ameliorative legislation applicable to cases that were not final on appeal as of its effective date. (See, e.g., People v. Quinn (2021) 59 Cal.App.5th 874, 883, mod. 60 Cal.App.5th 443b; People v. Czirban (2021) 67 Cal.App.5th 1073, 1095.)

[5] Former section 1203.1 set the maximum term of felony probation to the greater of “the maximum possible term of the sentence” or five years.

[6] Section 6211 also includes “(b) A cohabitant or former cohabitant, as defined in Section 6209. [¶] (c) A person with whom the respondent is having or has had a dating or engagement relationship. (d) A person with whom the respondent has had a child . . . . [¶] (e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act . . . . [¶] (f) Any other person related by consanguinity or affinity within the second degree.” (Fam. Code, § 6211.)

[7] In the Senate, there appears to have been no mention of section 1203.097 as pertinent existing law. (Sen. Com. On Public Safety, Analysis of Assem. Bill No. 1950 (2019-2020 Reg. Sess.) as amended June 10, 2020, pp. 2-3; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 1950 (2019-2020 Reg. Sess.) as amended June 10, 2020, pp. 1-3.)

[8] The parties agree that Section 1465.9 now provides in part that the presentence investigation fee and probation supervision fee are “unenforceable and uncollectible” as of July 1, 2021, and that Ung is entitled to vacatur of the portion of the judgment imposing those costs. (§ 1465.9, subd. (a), added by Stats. 2020, ch. 92, §§ 11, 62.).

[9] Ung has requested that this court take judicial notice of the Attorney General’s answering brief on the merits in People v. Kopp, supra, (2019) 38 Cal.App.5th 47, review granted. Ung argues that the Attorney General should be bound by his concession in that brief that trial courts must consider a defendant’s ability to pay when setting fines and fees. Because it is clear from the record in this case that the trial court did consider Ung’s ability to pay, the Attorney General’s concession on this issue is irrelevant. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1135, fn. 1.) We therefore deny the request.