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Filed 02/28/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

KELLIE KUHNEL,

Petitioner,

v.

THE SUPERIOR COURT OF 

CONTRA COSTA COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

 A163307

 (Contra Costa County

 Super. Ct. No. 5-210601-1)

Kellie Kuhnel seeks a writ of mandate directing the trial court to 

terminate her probation on the ground she is entitled to the retroactive 

benefit of a recent statutory amendment reducing the length of probationary 

terms. Previous law generally allowed a court to place a defendant convicted 

of a misdemeanor on probation for up to three years. (Former Pen. Code, 

§ 1203a.)1 Effective January 1, 2021, this default period is reduced to one 

year. (Assem. Bill No. 1950 (2019–2020 Reg. Sess.), Stats. 2020, ch. 328, § 1

(Assembly Bill 1950); Pen. Code, § 1203a.) Appellate courts have 

unanimously concluded that Assembly Bill 1950 applies retroactively to cases 

that are not yet final, and have accordingly reduced the length of 

probationary terms imposed before the new law went into effect. (See, e.g., 

1 All undesignated statutory references are to the Penal Code.
2

People v. Quinn (2021) 59 Cal.App.5th 874 (Quinn).) In this case, Kuhnel 

was originally placed on three years’ probation, and the question before us is

whether this rule of retroactivity prevents the court from adjudicating a 

violation allegedly committed during her first year on probation, which

resulted in the court summarily revoking her probation early in the second 

year. 

All of these events occurred well before Assembly Bill 1950 was enacted 

or went into effect, and were appropriate under then-governing law. (See 

section 1203.3, subd. (a).) We conclude that having summarily revoked 

Kuhnel’s probation under these circumstances, the trial court retained 

jurisdiction to conduct a formal hearing on the probation violation even after 

the effective date of Assembly Bill 1950, and we accordingly deny the 

petition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Kellie Kuhnel was convicted of misdemeanor embezzlement 

and placed on probation for three years on November 17, 2016. Eleven 

months into her probation, in October 2017, the Orinda Police Department 

received a report that Kuhnel had committed new acts of fraud, and in early 

December the probation department reported this to the trial court. Thirteen 

months into her probation, on December 11, 2017, the trial court summarily 

revoked Kuhnel’s probation and set a hearing on the violation for January 8, 

2018. The hearing was continued multiple times, on several occasions 

because Kuhnel failed to appear and twice in 2021 at her request. 

Without the probation violation hearing ever being held, Kuhnel moved 

on June 18, 2021 to terminate her probation, arguing that she had been on 

probation for more than one year and Assembly Bill 1950 applied 

retroactively to shorten her probationary term. Relying on People v. Leiva
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(2013) 56 Cal.4th 498 (Leiva) and a statutory provision that revocation of 

probation serves to toll the running of a probationary term (§1203.2, subd. (a) 

(§ 1203.2(a))), the People opposed the motion on the ground the court 

retained jurisdiction to adjudicate violations that took place during the 

original term of probation. The trial court accepted this theory, at least 

under the circumstances of this case, and accordingly denied Kuhnel’s motion 

on July 9, 2021. 

Kuhnel petitioned the trial court’s appellate division for a writ of 

mandate, and the appellate division denied the petition without explanation

on August 12, 2021. Kuhnel then petitioned this court for a writ of mandate

(Code Civ. Proc., § 904.3), and on September 23, 2021, we issued an 

alternative writ directing the appellate division of the superior court either to 

grant her petition or to show cause why a peremptory writ of mandate should 

not be granted. The appellate division elected not to grant the petition, 

explaining that it would welcome our guidance on the interaction among 

section 1203.2(a), Leiva, and Assembly Bill 1950. The District Attorney 

therefore filed a return to the writ petition, and Kuhnel has filed a traverse. 

DISCUSSION

When Kuhnel was placed on probation, section 1203a provided that 

courts could suspend the imposition or execution of sentence in misdemeanor 

cases and “make and enforce . . . terms of probation for a period not to exceed 

three years,” or longer if the maximum term of imprisonment provided by law 

exceeded three years. Among the amendments made by Assembly Bill 1950, 

signed by the Governor on September 30, 2020 and effective January 1, 2021, 

misdemeanor probation may now not exceed one year, unless the offense 

provides for a specific probation length, which Kuhnel’s crime did not. 

(§ 1203a; Stats. 2020, ch. 328, § 1; §§ 487, subd. (a), 489.) Thus, under the 
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new law, Kuhnel could have been ordered to serve no more than one year of 

probation for her offense. Assembly Bill 1950 also reduced the default 

maximum probationary term for felonies to two years. (§ 1203.1, subds. (a) 

& (m); Stats. 2020, ch. 328, § 2.) Kuhnel contends that these amendments 

apply retroactively and that, as a result, her probation ended as a matter of 

law on November 17, 2017 and the court no longer has jurisdiction over her. 

I. Estoppel

As a threshold issue, the People contend Kuhnel may not challenge the 

court’s authority to consider the probation violation because she consented to 

the court’s continuing jurisdiction and contributed to the delays that resulted 

in the matter being continued until after Assembly Bill 1950 went into effect. 

They rely for this proposition on People v. Ford (2015) 61 Cal.4th 282 (Ford), 

but Ford is readily distinguishable. 

In Ford, the defendant was placed on probation under an agreement 

that provided he would pay restitution to the victim of his crime. (Ford,

supra, 61 Cal.4th at p. 285.) When the probation officer determined the 

appropriate amount of restitution, the defendant requested a hearing, which 

was continued many times, sometimes at his request and always with his 

consent. (Id. at p. 285.) The hearing finally concluded a week after probation 

expired, at which point the defendant contested the court’s jurisdiction to 

order restitution. (Id. at pp. 285–286.) In concluding the trial court could 

still order restitution, our high court explained that “the expiration of a 

probationary period does not terminate a court’s fundamental jurisdiction”; 

an award after that time would at most be “an ordinary act in excess of 

jurisdiction.” (Id. at p. 287.) Such an act “is treated as valid until set aside,” 

and a defendant who seeks or consents to such an act may be estopped from 

challenging the court’s jurisdiction. (Ibid.) Because the defendant’s own 
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requests played a role in delaying the hearing and he did not object to a 

continuance beyond his probationary term, he was estopped from challenging 

the court’s exercise of jurisdiction, Ford held. (Id. at pp. 288–289.) Other 

cases have reached similar conclusions. (See In re Bakke (1986) 42 Cal.3d 84, 

89–90 [trial court had jurisdiction to order execution of jail term that had 

been stayed at probationer’s request]; In re Griffin (1967) 67 Cal.2d 343, 348 

[estoppel where probationer requested continuance of probation revocation 

hearing beyond expiration of probationary term]; People v. Ham (1975) 44 

Cal.App.3d 288, 294 [defendant requested continuance of hearing past 

probationary period].)

The People argue that Kuhnel is likewise estopped because she was the 

reason for some of the continuances in this matter and consented to the 

continuance that placed this case within the effective date of Assembly Bill 

1950. But unlike the defendant in Ford, Kuhnel neither requested nor 

consented to delays that directly resulted in the court losing jurisdiction. 

Rather, if her theory is correct, the trial court should be deemed to have lost 

jurisdiction in November 2017, before the alleged violation was even reported 

to the court. The delays Kuhnel sought or agreed to took place after that date

and therefore did not cause the alleged loss of jurisdiction, except indirectly 

in that they caused the case to be still pending when the new law was passed 

and took effect. Because the Ford line of cases does not address such indirect 

effects, we will consider her contentions on the merits.

II. Retroactivity

Multiple courts have considered whether the amendments of Assembly 

Bill 1950 apply retroactively to the benefit of a person whose judgment is not 
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yet final on appeal, and they have uniformly held that they do.

2

 As Division 

Four of this appellate district recently explained, although statutes are 

generally presumed to apply prospectively, the Legislature may “ ‘ “enact 

laws that apply retroactively, either explicitly or by implication,” ’ ” and

“ ‘amendatory statutes that lessen the punishment for criminal conduct are 

ordinarily intended to apply retroactively.’ ” (Quinn, supra, 59 Cal.App.5th 

at p. 881.) This is because “[w]hen the Legislature amends a statute so as to 

lessen the punishment it has obviously expressly determined that its former 

penalty was too severe and that a lighter punishment is proper.” (In re 

Estrada (1965) 63 Cal.2d 740, 745 (Estrada).) After such a legislative 

determination, “ ‘it is safe to assume, . . . that it was the legislative design 

that the lighter penalty should be imposed in all cases that subsequently 

reach the courts.’ ” (Id. at pp. 745–746.)

The court in Quinn concluded the amendments of Assembly Bill 1950 

fell within this rule, rejecting the argument that the Estrada presumption of 

retroactivity did not apply because probation is not a form of criminal 

punishment. (Quinn, supra, 59 Cal.App.5th at pp. 882–885.) Quinn followed 

People v. Burton (2020) 58 Cal.App.5th Supp. 1, an opinion of the Los Angeles 

County appellate division that applied Assembly Bill 1950 retroactively. 

(Quinn, supra, 59 Cal.App.5th at p. 882.) As explained in Burton, “[t]he 

longer the length of probation, the greater the encroachment on a 

probationer’s interest in living free from government intrusion,” whether that 

2 In People v. Prudholme, S271057, rev. granted Nov. 10, 2021, our high 

court has directed the parties to submit briefing on whether Assembly Bill 

1950 applies retroactively under Estrada and, if so, whether the remand 

procedure of People v. Stamps (2020) 9 Cal.5th 685 applies. (People v. 

Prudholme (Dec. 22, 2021) 2021 Cal. Lexis 8859.)
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intrusion takes the form of probation conditions or a risk of further 

incarceration. (Burton, at p. 15.)

Quinn also discussed the legislative history of Assembly Bill 1950, 

which reflects “the Legislature’s concern . . . that lengthy probationary 

periods do not serve a rehabilitative function and unfairly lead to 

reincarceration for technical violations.” (Quinn, supra, 59 Cal.App.5th at 

p. 879.) For instance, the author’s statement explained that many 

probationers “ ‘ “violate probation and end up incarcerated as a result,” ’ ” 

often for violations that are technical in nature; that research shows 

probation services are most effective in the first 18 months, so “ ‘ “[a] shorter 

term of probation, allowing for an increased emphasis on services, should 

lead to improved outcomes” ’ ”; and that the bill’s reduced probationary period 

was “sufficient to fulfill the rehabilitative function of probation.” (Id. at 

pp. 879–880, citing Assem. Com. on Public Safety, Analysis of Assem. Bill 

No. 1950 (2019–2020 Reg. Sess.) as amended May 6, 2020, pp. 3–6.) Quinn

concluded, “the only reasonable inference to draw from” this legislative 

history “is that the shorter term of probation ‘now deemed to be sufficient 

should apply to every case to which it constitutionally could apply.’ 

[Citation.] The alternative is untenable: that the Legislature intended to 

subject thousands of criminal defendants whose cases are not yet final to 

terms of probation determined to be unnecessary for rehabilitation, arguably 

discriminatory and likely to result in unfair and unnecessary 

reincarceration.” (Quinn, at p. 883.) 

Every appellate case to have considered the retroactivity of Assembly 

Bill 1950 has agreed with Quinn, and the People do not disagree with their 

conclusions. (See, e.g., People v. Greeley (2021) 70 Cal.App.5th 609, 627; 

People v. Czirban (2021) 67 Cal.App.5th 1073, 1095; People v. Schulz (2021) 
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66 Cal.App.5th 887, 894–895; People v. Lord (2021) 64 Cal.App.5th 241, 245–

246; People v. Stewart (2021) 62 Cal.App.5th 1065, 1071–1074, review 

granted June 30, 2021, S268787; People v. Sims (2021) 59 Cal.App.5th 943, 

958–964.) But the question in each of those cases was whether a probationer 

was entitled to a reduction of an ongoing probationary term, not whether 

Assembly Bill 1950 effectively expunges, or deprives the trial court of 

authority to adjudicate, probation violations that occurred and that resulted 

in summary revocation while a person was validly on probation under the 

law in effect at the time. 

To understand whether or how Estrada applies in this case we look for 

guidance in the law governing the adjudication of probation violations. First 

comes the rule that it is only “during the term of probation” that the court 

has authority to revoke or modify an order placing the defendant on 

probation. (§ 1203.3, subd. (a).) Once probation expires, the trial court loses 

jurisdiction to modify its terms. (Hilton v. Superior Court (2014) 239 

Cal.App.4th 766, 772–773, 777 [court cannot award additional restitution 

after probationary term expires].) As Hilton explains, “ ‘[a]n order revoking 

probation must be made within the period of time circumscribed in the order 

of probation. Otherwise, the probationary period terminates automatically on 

the last day.’ ” (Id. at p. 773, italics omitted.) 

The second rule modifies the first: revocation of probation, “summary or 

otherwise, shall serve to toll the running of the probationary period.” 

(Former § 1203.2(a).)3 The Legislature added this provision in 1977 to 

respond to two then-current appellate decisions construing section 1203.3 to

3 The principle remains in the current version of section 1203.2(a) but 

is articulated in more general terms: “revocation, summary or otherwise, 

shall serve to toll the running of the period of supervision.” (§ 1203.2(a) 

(italics added).)
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require even the formal revocation hearing—compliant with Morrissey v. 

Brewer (1972) 408 U.S. 471 (Morrissey) and People v. Vickers (1972) 8 Cal.3d 

451 (Vickers)—to conclude before the probationary period expired. (See 

Leiva, supra, 56 Cal.4th at p. 512.) The Legislature added a tolling provision 

because it “was focused on preserving the jurisdiction of the trial court to hold 

formal probation violation hearings that met Morrissey-Vickers requirements 

after the period of probation had expired.” (Ibid.) It is now well established 

that summary revocation of probation is appropriate and preserves a court’s 

jurisdiction over a probationer, “even if the evidentiary hearing, formal 

revocation and sentencing all occur after the period of probation would 

otherwise have been completed.” (People v. Journey (1976) 58 Cal.App.3d 24, 

27 (Journey); accord, People v. Medeiros (1994) 25 Cal.App.4th 1260, 1267; 

§ 1203.2(a).) 

The parties disagree on how these principles apply to the case before 

us. The order revoking Kuhnel’s probation was made within the period 

circumscribed by the original order of probation as required by Hilton, but 

Kuhnel is quick to point out that it was not made within the one-year 

probationary period that retroactive application of Assembly Bill 1950 would 

have allowed. Citing section 1203.2(a) and Leiva, the People argue that even 

after enactment of Assembly Bill 1950 the trial court retains jurisdiction to 

adjudicate probation violations occurring during the original grant of 

probation. But Kuhnel challenges the efficacy of a summary revocation order 

made thirteen months into her probationary period, once Assembly Bill 1950 

shortened the maximum term for her probation to one year.

While not directly on point, Leiva is helpful for its analysis of the 

Legislative intent behind section 1203.2(a). The question in Leiva was

whether, years after probation had been summarily revoked, the tolling 
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provision of former section 1203.2(a) authorized a court to find a violation of

probation based only on different conduct that occurred after the courtimposed probationary period had elapsed. (Leiva, supra, 56 Cal.4th at 

p. 502.) Following an extensive review of the legislative history, our high 

court concluded that the tolling provision was intended to preserve a court’s 

jurisdiction to act on a violation after summarily revoking probation, even if 

the probationer did not appear for a formal hearing until after the expiration 

of the term; however, the provision was not intended to extend the terms and 

conditions of probation indefinitely so as to authorize a finding that probation 

was violated by acts committed after the original probationary term. (Id. at 

pp. 514–515.) 

Leiva explains that the Legislature intended the tolling provision to 

promote two objectives. (Leiva, supra, 56 Cal.4th at p. 515.) First, the 

provision “would ensure that, once probation was summarily revoked, the 

prosecution would have a fair opportunity to prove that a defendant violated 

probation during the probationary period even when a formal probation 

violation hearing could not be held before probation expired,” and, second, it

“would ensure a defendant’s due process right to a formal hearing in which to 

litigate the validity of an allegation that he violated the conditions of 

probation during the probationary period whenever such a formal hearing 

could be held.” (Ibid.) The high court thus concluded that “summary 

revocation of probation preserves the trial court’s authority to adjudicate a 

claim that the defendant violated a condition of probation during the 

probationary period.” (Ibid.) At the hearing on the violation, the court may 

decide whether there was a violation during the probationary period and 

whether to reinstate or terminate probation. (Id. at pp. 515–516, citing
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People v. Tapia (2001) 91 Cal.App.4th 738, 741–742, disapproved on another 

point in People v. Wagner (2009) 45 Cal.4th 1039, 1061, fn. 10.)

We agree with the People that Leiva points us in the right direction. 

Both Kuhnel’s alleged violation and the summary revocation of probation 

occurred during the original probationary period. And her first probationary 

year had not yet expired when Kuhnel allegedly violated probation in 2017.4 

All of these events occurred well before the effective date of Assembly Bill 

1950—indeed, before the law was even introduced in the Legislature—so no 

one had any reason to expedite summary revocation of probation to ensure 

the court’s continued jurisdiction. (Compare Journey, supra, 58 Cal.App.3d 

at pp. 26–28 [ex parte summary revocation on last possible day preserved 

jurisdiction]; Legis. Counsel’s Dig., Assem. Bill 1950, Stats. 2020, ch. 328, 

approved by Governor Sept. 30, 2020.)

These facts lead us to conclude that giving full effect to the trial court’s

summary revocation of Kuhnel’s probation conflicts with neither the letter 

nor the spirit of Estrada. “Generally, statutes are presumed to apply only 

4 This case does not raise the question of whether the court may 

adjudicate a violation that took place after the probationary period now 

permissible under Assembly Bill 1950 (i.e., after the first year for most 

misdemeanors), but while a person was validly on probation under the law 

then in effect. Another case we decide today, People v. Faial (Feb. 28, 2022, 

A159026) __ Cal.App.5th __, involves such violations in the felony probation 

context and holds that Assembly Bill 1950 does not invalidate a trial court’s 

revocation and termination of a defendant’s probation “where, as here, such 

actions were properly taken before Assembly Bill 1950’s effective date.” (Id. 

at p. 6.) The analysis in Faial reinforces the consistent conclusion we reach 

on the facts of this case. We acknowledge that another appellate court 

recently reached a different result in People v. Butler (Feb. 15, 2022, 

B313121) __ Cal.App.5th __, but without addressing section 1203.2(a) or 

Leiva, supra, 56 Cal.4th at p. 512, and we respectfully disagree with its 

conclusion.
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prospectively.” (People v. Frahs (2020) 9 Cal.5th 618, 627; Estrada, supra, 63 

Cal.2d at p. 746.) Estrada establishes a contrary presumption for a statute 

ameliorating a criminal penalty only because it understands such a provision 

to “ ‘represent[] a legislative judgment that the lesser penalty or the different 

treatment is sufficient to meet the legitimate ends of the criminal law.’ ” 

(Estrada, at p. 745.) The cases applying Assembly Bill 1950 retroactively 

have emphasized the legislative goal of limiting the length of probationary 

periods to that which promotes rehabilitation, thus leading to a decrease in 

unnecessary supervision and reincarceration for technical violations. (See, 

e.g., Sims, supra, 59 Cal.App.5th at pp. 961–962; Quinn, supra, 59 

Cal.App.5th at pp. 880–881.) This goal would not be served by a retroactive 

interpretation that gives a misdemeanor probationer a free pass for a

violation that already prompted summary revocation while she was properly 

on probation under then-prevailing law—especially where, as here, the

alleged violation occurred during the first year of probation, which the 

Legislature continues to believe is a period when probation serves a 

legitimate rehabilitative purpose.

Because Kuhnel was validly on probation when her probation was

summarily revoked, section 1203.2(a) by its terms tolls the running of the 

probationary period until a formal probation hearing occurs. We see nothing 

in the rationale of Estrada that suggests we are to apply Assembly Bill 1950 

retroactively to divest courts of the jurisdiction section 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 only after the one-year mark. At the time these events 

transpired, the passing of the first probationary year had no legal 

significance. Estrada teaches that we should avoid imposing punishment the 
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Legislature has determined to be excessive (Estrada, supra, 63 Cal.2d at 

p. 745), but it does not require us to play “gotcha” with the prosecution,

imposing an after-the-fact, artificial deadline for summary revocation. The 

rationale of Estrada provides no basis for departing from the general rule of 

prospective application when analyzing the date by which a court must have 

summarily revoked probation in order to preserve its authority to adjudicate 

a violation committed during a probationer’s first year. 

We know that in 1977 the Legislature was intent “on preserving the 

jurisdiction of the trial court to hold formal probation violation hearings.” 

(Leiva, supra, 56 Cal.4th at p. 512.) We see nothing in the language or 

legislative history of Assembly Bill 1950 to suggest a legislative change of 

course on this issue. Our task in construing a statute is to ascertain the 

intent of the Legislature (id. at p. 506), and we see no indication the 

Legislature intended Assembly Bill 1950 to deprive courts of the authority it 

had given them in enacting the tolling provision of section 1203.2(a). We 

accordingly conclude that the trial court’s summary revocation of Kuhnel’s 

probation preserved its authority to adjudicate the alleged violation, and the 

court did not err in denying her motion to terminate probation.

DISPOSITION

Kuhnel’s petition for a writ of mandate is denied.

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

PETROU, J.
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Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Brian F. Haynes

Counsel: Robin Lipetzky and Ellen Mcdonnell, Public Defenders, 

Lyla Bugara, Deputy Public Defender for Petitioner

Diana Becton, District Attorney, Ryan Wagner, Deputy 

District Attorney, Daniel Becker, Certified Law Clerk

for Real Party in Interest

Kuhnel v. Superior Court (A163307)