Probation, generally
Category > Probation, generally
Updated 3/4/2024Following SB 383, the judgment was conditionally reversed to allow the juvenile court to consider informal probation.Recently enacted SB 383 provides that a minor charged with a felony offense committed at age 14 or older is no longer presumptively ineligible for informal supervision based on his or her age. The provisions apply retroactively to cases not yet final on appeal. The judgment was conditionally reversed with instructions to the juvenile court to consider informal supervision under Welfare and Institution Code section 654.2.id: 27530
Updated 3/4/2024The minor met the requirements for satisfactory completion of probation notwithstanding his subsequent admission to a minor infraction.The minor’s subsequent admission of an infraction and the resulting continuation of his wardship did not preclude dismissal and sealing of records because only a wardship adjudication for a felony offense or a misdemeanor involving moral turpitude precludes satisfactory completion of probation under Welfare and Institutions Code section 786(c)(1).id: 28209
Updated 2/24/2024AB 1950, which limits felony probation to two years in most cases is retroactive to cases pending on appeal when it was enacted. Defendant pled no contest to aggravated assault and was given a sentence of three years on probation. However, the period of probation was reduced to two years in accordance with the enactment of AB 1950 which became effective while his appeal was pending.id: 27281
Updated 2/24/2024AB 1950, which limits probation in most cases to two years applies retroactively. The amendment to Penal Code section 1203.1, provided in AB 1950, which limits the length of time a defendant can be subject to probation is retroactive to all cases not yet final at the time of its effective date. id: 27319
Updated 2/23/2024Defendant was only subject to one term of probation based on the suspended imposition of his aggregate sentence.Defendant was convicted of robbery and related crimes. The trial court erred when it placed him on two separate but concurrent grants of probation based on separate offenses rather than on one grant of probation based on his aggregate sentence.id: 26887
Updated 2/7/2024New law reducing probation terms to two years is to be applied retroactively.AB 1950, which became effective on January 1, 2021, reduces felony probation terms in most cases to two years. The provision applies retroactively to cases not yet final on appeal. Defendant’s probation term was reduced from three years to two years.id: 27165
Updated 2/7/2024Provision reducing felony probation from three years to two is to be applied retroactively. Defendant was entitled to a reduction of his felony probation term from three years to two because AB 1950, which became effective January 1, 2021, is to be applied retroactively.id: 27167
Updated 2/4/2024The exception to the five-year probation limit described in AB 1950 did not authorize a five-year term of probation.The trial court violated Penal Code section 1203.1 as amended by AB 1950 by imposing a five-year term of probation. The maximum possible term the court could have imposed (under the exception to the two year limit) was three years and eight months.id: 27625
Updated 2/1/2024AB 1950 applies retroactively to prevent a court from finding a probation violation based on misconduct that occurred more than two years after his probationary term began, but before the law’s effective date.AB 1950 applied retroactively to ban a court from considering an alleged probation violation that occurred more than two years after the court had imposed a four year term of probation.id: 27908
Updated 2/1/2024The prosecution was not entitled to withdraw from a plea bargain after the court reduced defendant’s probation to one year under AB 1950.Defendant pled guilty to a misdemeanor and the court placed him on probation for three years. Following the enactment of AB 1950 he was entitled to a reduction of his probation term to one year. The court rejected the prosecution’s claim that it should be allowed to withdraw from the plea bargain.id: 27961
Updated 2/1/2024AB 1950 applied to the defendant who had violated the terms of his probation before the law became effective.Defendant had violated the terms of his probation before AB 1950 became effective in January of 2021. The statute nevertheless applied retroactively to him. Because he violated probation more than two years after the court imposed probation, his 32 month prison sentence imposed after the violation was reversed.id: 27965
Updated 2/1/2024The trial court had jurisdiction to consider a motion seeking to correct information contained in an old probation report.Defendant whose conviction for murder had been final for over 40 years moved to correct information contained in his presentence probation report. The trial court erred in concluding it lacked jurisdiction to consider the motion.id: 27966
Updated 2/1/2024The trial court erred by delegating the decisions on a drug treatment program to the probation officer.As a condition of probation, defendant was required to participate in a residential drug treatment program “as directed by the probation officer.” However, that condition violated the separation of powers doctrine by delegating judicial authority to the probation officer.id: 28013
Updated 1/29/2024Proper remedy when applying AB 1950 to a plea agreement was to reduce the probation term to two years and keep the rest of the agreement intact.AB 1950 became effective in 2021 and reduced the maximum length of probation in most felony cases to two years. The provision applies retroactively to all nonfinal cases. The proper remedy for applying the new law to an existing plea agreement that provided for a longer probationary term was to reduce that term to two years while maintaining the remainder of the plea agreement.id: 27897
Unpaid restitution debts do not foreclose a finding of satisfactory completion of probation.The juvenile court erred by finding that defendant’s probation terminated “unsuccessfully” because he failed to pay restitution ordered as a condition of probation. Unpaid restitution debts do not foreclose a finding of satisfactory completion of probation.id: 24905
The trial court erred in determining that it lacked jurisdiction to terminate defendant’s probation following the domestic violence conviction.The trial court erred in determining that the Penal Code section 1203.097, subd. (a)(1) mandate that probation imposed on a person for a domestic violence offense circumscribed the court’s authority to terminate defendant’s probation thereafter pursuant to section 1203.3. id: 25703
Once the defendant’s probation period expired, the sheriff had no authority to detain him for failing to complete his work release program. Defendant was serving 365 days in jail as a condition of probation but was allowed to complete his jail sentence in a work release program. When he failed to complete the program the sheriff issued an “IRC Want” for defendant’s arrest. He was arrested in May 2017 on that IRC Want. Notwithstanding the expiration of probation, the sheriff claimed authority to confine defendant under Penal Code section 4024.2, which provides that a person who violates the terms of a work release can be taken into custody for the remainder of his term. However, there was no basis to detain defendant because his probation had expired, and section 4024.2 did not provide authority to detain him.id: 25357
The 30-day remediation period was unlawful as it allowed the probation officer to find a violation without notice and an opportunity to be heard. The juvenile court ordered the minor to the Correctional Academy for 12 months, consisting of six months of confinement and six months of aftercare under the supervision of probation. It was ordered that the minor could be returned to the Correctional Academy for a one-time remediation of 30 days at any time during the aftercare component due to a violation of the probation or program rules. However, the 30 day remediation violated protections in the Welfare and Institutions Code as it permitted the probation officer to find a violation of probation without notice to the minor and an opportunity to be heard.id: 24917
If a juvenile’s compliance with probation is satisfactory for dismissal purposes, then it is necessarily satisfactory for record-sealing purposes.The juvenile court has discretion under Welfare and Institutions Code section 786 to find the ward has or has not substantially complied with his probation so as be deemed to have substantially completed it. If the court finds the ward in substantial compliance such that he or she has satisfactorily completed probation, the court must dismiss the petition and seal the ward’s records.id: 25249
The trial court lost jurisdiction to sentence defendant on the probation offense by failing to act on the section 1203.2a demand for sentencing she had filed several months earlier.Defendant was on probation for a Riverside case when she committed a new offense in San Bernardino and was sentenced to county jail under Prop 47. However, the trial court erred by failing to act on defendant’s Penal Code section 1203.2a demand for sentencing that she had filed months earlier in absentia, and the trial court therefore lacked jurisdiction to rule on the violation of probation allegations or to impose sentence. Contrary to the prosecution’s argument, section 1203.2a requests can be made by people serving jail sentences under Prop 47. Moreover, the fact that the request lacked any attestation by the warden’s representative did not invalidate the request since that was not in defendant’s control.id: 24362
The trial court erred by indefinitely extending the revocation of probation in order to collect victim restitution.Shortly before defendant’s probation was set to expire the trial court revoked it based partly on nonpayment of victim restitution. However, the court erred by then suspending imposition of probation. The court’s choices were to sentence defendant to prison or reinstate probation. It wasn’t authorized to postpone its disposition. Defendant was not estopped from challenging the court’s formalized practice of indefinitely extending revocation to collect restitution.id: 23808
The trial court erred by granting probation with a jail term because section 1210.1 mandated 30 days in jail for a drug offense where the offender was not amenable to treatment.Defendant was convicted of a drug offense, found not to be amenable to drug treatment under Penal Code section 1210.1, subd.(b)(5), placed on probation for three years with a condition of 120 days in jail. However, section 1210.1, subd.(b)(5) expressly holds that in this situation, the only available sentence is 30 days in jail.id: 23844
The trial court may have misunderstood the scope of its discretion to reinstate and modify probation.The trial court revoked defendant’s probation and executed a previously imposed sentence of five years in state prison. However, the record showed the trial court may have been unaware of its discretionary power to reinstate and modify probation, even if it found violations and revocation appropriate. The matter was remanded to give the court the opportunity to exercise its discretion. id: 23890
Any fact that bars a defendant from being granted probation must be pled and proved, and the failure to plead the fact rendered defendant eligible for probation.Defendant was on felony probation when he committed the current serious felony offenses, and he was therefore ineligible for probation under Penal Code section 1203, subd.(k), However, because his probation status was neither alleged nor proved, he was not ineligible, and the trial court therefore did not err in granting probation.id: 23494
The trial court erred in extending his probation beyond three years for the wobbler offense the court earlier classified as a misdemeanor.The trial court erred by extending defendant’s probation beyond three years because at an earlier proceeding, the court had classified his wobbler conviction as a misdemeanor. The probation extension was reversed because misdemeanors may not be punished by probation in excess of three years.id: 23423
Summary revocation and Penal Code section 1203.2, subd.(a)’s tolling provision do not allow trial courts to retain jurisdiction to modify or extend a probationary term indefinitely.The trial court summarily revoked defendant’s probation based on the probation department’s representation that she had failed to pay restitution. Probation remained summarily revoked for two more years, beyond the expiration of the maximum probationary period of five years. Then the court tried to reinstate and extend probation believing it was extending the probation term to the 5 year maximum because it had been tolled under section 1203.2, subd.(a). The court never found she willfully failed to pay restitution. Under these circumstances, the court did not retain the jurisdiction to modify or extend probation indefinitely.id: 23412
The trial court improperly modified the terms of defendant’s probation to include the new provisions of section 1203.067.The trial court erred by modifying defendant’s probation pursuant to the amended Penal Code section 1203.067, which sets forth various new probation conditions for registered sex offenders. Because the presumption of prospectivity of Penal Code statutes mandated by section 3, cannot be rebutted, the provisions of section 1203.067 cannot be applied retroactively to change the terms and conditions of probation for probationers who committed their offenses before the effective date of the amendment.id: 23371
Defendant was not in violation of his probation for refusing to wear a GPS monitoring device ordered by his probation officer where the court refused to order the condition. Penal Code section 1210.12, subd. (a) provides that the county’s chief probation officer shall have “sole discretion” in deciding which persons shall be supervised using a GPS system. In the present case, the trial judge placed defendant on probation but specifically ordered that he not wear a GPS device. The chief probation officer could not nevertheless order the defendant to wear a GPS device. Allowing the probation officer “sole” authority to make such a decision would violate the separation of powers clause of the state constitution.id: 22334
The sentencing court cannot condition a defendant's probation on the payment of certain fees and costs.The trial court erred by conditioning defendant's probation on the payment of certain fees and costs. The remedy was to simply order their payment as part of the judgment of the case. id: 21624
Defendant who was in immigration custody at the time of his probation review hearing did not violate probation.The trial court knew defendant was an undocumented alien and agreed to suspend a state prison term and grant probation in exchange for a guilty plea. Defendant pled guilty and received a grant of probation. He was thereafter unable to
appear for a 30-day review hearing because he was in the custody of immigration authorities. Under the circumstances, he was not in violation of his probation.id: 21052
Defendant convicted of conspiracy to pimp and conspiracy to pander was not ineligible for probation.Defendant was convicted of conspiracy to pimp and conspiracy to pander under Penal Code sections 182 and 266, subdivisions (h) and (i). The prosecution argued defendant was ineligible for probation under Penal Code sections 182, subd.(a) and 1203.65. However, the Penal Code's failure to identify probation ineligibility as punishment, and the well-accepted principle that probation is not punishment suggest that section 182's reference to "punishment" should not be interpreted to necessarily include any "probation ineligibility" provisions applicable to the underlying felony.id: 17654
Court erred in finding defendant ineligible for probation under section 1203.066, where there was no finding that he committed "substantial sexual conduct." Defendant was convicted of three counts of committing lewd acts upon his 10 year-old daughter. The trial court relied on Penal Code section 1203.066 to find him ineligible for probation. However, that provision did not limit the court from granting probation since the prosecutor did not allege and the jury did not find the defendant committed "substantial sexual conduct" as required by section 1203.066. The matter was remanded for resentencing in light of factors that might support a grant of probation.id: 16770
Defendant who was placed on probation with imposition of sentence suspended for one offense who is then convicted of a later offense had the choice to request speedy sentencing for the probation violation under either section 1203.2a or 1381.For a defendant placed on probation with imposition of sentence suspended who is subsequently incarcerated for a second offense, Penal Code section 1203.2a provides the court that granted probation has jurisdiction to impose the suspended sentence if asked to do so by the absent probationer. Once the court receives the request in a situation where sentence has not previously been imposed the court lacks jurisdiction if it fails to impose sentence within 30 days of the request. Section 1381 provides that a state prisoner may request sentencing within 90 days of notice to the district attorney. Defendant was incarcerated after having been placed on probation with imposition of sentence suspended. He had a choice to request speedy sentencing based on the probation violation under either section 1203a or 1381. When the trial court failed to comply with the 90 day requirement of section 1381, it had to dismiss the pending probation revocation proceeding, not the conviction underlying the original grant of probation.id: 20853
Defendant who successfully completed probation following his convictions for attempted lewd acts was entitled to section 1203.4 relief.Defendant pled guilty to attempted lewd acts and was placed on formal probation. After successfully completing probation, defendant filed a motion seeking release from penalties under Penal Code section 1203.4. The trial court denied the motion relying on section 1203.4, subsd.(b) which says relief is not available for those convicted of section 288 offenses. However, since defendant was convicted of attempted section 288 violations, the exception did not apply, and the relief sought was mandatory.id: 19390
A defendant has a right to admit a probation violation even if counsel disagrees with the decision to do so.A defendant has a personal and fundamental right to admit a
probation violation even if his attorney disagrees with his decision to do so. The trial court did not err in denying defense counsel's request for an evidentiary hearing to determine whether there was a violation.id: 19467
The trial court had the authority to modify the terms of probation over the prosecution's objection and despite the plea agreement.The trial court denied defendant's request to reduce the jail term imposed as a probation condition based on the belief
that it lacked the power to do so because the term was imposed as part of a plea bargain. However, under Penal Code section 1203.3 a trial court enjoys continuing authority to modify the
terms and conditions of probation, even over the prosecutor's objection and notwithstanding any plea agreement.id: 19324
Expungement of the conviction was required where probation was terminated before the original term had expired.Pursuant to Penal Code section 1203.4 a person is entitled to have the proceedings expunged from the record and have the accusations dismissed if he or she has fulfilled the conditions of probation, or has been discharged prior to the termination of the probationary period. In the instant case, probation was terminated before the original term had expired. This constituted discharge prior to the termination of the probationary period. Appellant was therefore entitled to expungement of his conviction as a matter of right.id: 13589
Court must conduct a hearing before ordering reimbursement of probation costs.The trial court erred in ordering defendant to reimburse the county its costs of probation and the cost of presentence investigation and reports without first holding a hearing as required under Penal Code section 1203.1b. Because no hearing was conducted, there was no evidence to support the court's finding that defendant had the ability to pay.id: 13582
Under the DSL the court retains jurisdiction to grant probation once denied where a defendant on appeal obtained a reversal as to some counts.Defendant was convicted of assault and commercial burglary and was sentenced. On appeal the court reversed the assault conviction. The Determinate Sentencing Law changed the prior rule that once execution of the sentence had begun, the court lost jurisdiction to resentence or consider a renewed application for probation. Accordingly, the trial court retained jurisdiction to resentence on the commercial burglary when the assault conviction was reversed. The trial court had full authority to select any sentencing choice allowed by applicable law, including probation.id: 13600
Probation officer's failure to notify the court of defendant's incarceration on another matter resulted in the court's loss of jurisdiction to sentence him.Defendant was sentenced for a crime. Imposition of sentence was suspended and he was placed on probation under certain terms and conditions. He was then committed to state prison on another case. Prison authorities notified the probation officer of defendant's confinement in state prison. The probation officer failed to notify the court which released defendant on probation of his commitment to state prison within 30 days of receiving this notice. Under Penal Code section 1203.29, the court which placed defendant on probation was deprived of jurisdiction to sentence him even though it suspended imposition of sentence.id: 13596
Denial of motion to modify probation is appealable.Trial court denied appellant's motion for early termination of probation and to obtain release from penalties pursuant to Penal Code sections 1203.3 and 1203.4. Respondent argued that the order denying a section 1203.4 motion is not appealable. However, the order denying appellant's motion is appealable as an order after judgment pursuant to the express language of section 1237.id: 13586
Defendant was not statutorily ineligible for probation because of her accomplice's use of a weapon.Penal Code section 1203, subdivision (e)(1) provides that a person who has been convicted of murder and who was armed with a deadly weapon either at the time he or she committed the crime or at the time of his or her arrest is presumptively ineligible for probation except when the deadly weapon is not a firearm and the person had a lawful right to carry the non-firearm deadly weapon. In the instant case defendant was not presumptively ineligible for probation since only defendant's accomplice was armed with a weapon at the time of the murder and defendant was not armed.id: 13584
Where defendant was convicted of selling cocaine as opposed to cocaine base the court erred in believing probation could be granted only upon a finding that this was an unusual case.Defendant was convicted of selling cocaine pursuant to Health and Safety Code Section 11352. Inasmuch as he was not convicted of sale of cocaine base, the trial court erred in believing probation could be granted only upon a finding that this was an unusual case. However, remand was not required where the court found but one mitigating circumstance and then listed a series of aggravating circumstances.id: 10774
Court did not abuse its discretion in granting probation to the grocer who shot a customer and was convicted of voluntary manslaughter.Defendant, a Korean grocer, was convicted of voluntary manslaughter in the killing of a customer in her store. She was presumptively ineligible for probation under Penal Code section 1203, subdivision (e)(2) based on her use of a firearm. However, the trial court did not abuse its discretion in finding that this was an unusual case as provided in the statute, and imposing probation. The trial court found the law was not aimed at shopkeepers who kept a weapon for protection, who have no criminal record, and who use the weapon only after great provocation. Moreover, the court's decision not to impose a jail term as a condition of probation was within the general sentencing guidelines because voluntary manslaughter is not listed among the crimes the court must except in unusual cases. Impose a jail term as a probation condition.id: 13576
Court erred in imposing a second term of probation for failure to pay restitution where probation had not been revoked and the court found defendant was unable to pay.Trial court imposed a second term of probation because defendant was unable to fully pay restitution during the original maximum term of probation. However, Penal Code section 1203.2, subdivision (e) is the only statutory authority for extending probation beyond the initial maximum term. Probation cannot be imposed again unless probation is revoked based on a violation and the revocation has been set aside. Since the trial court found that defendant did not violate probation and was unable to pay full restitution, there was no formal revocation and section 1203.2, subdivision (e) did not authorize extending probation beyond the initial maximum five-year term.id: 13579
Trial court erred in finding the mandatory terms of section 667, subdivision (a) deprives the court of discretion to grant probation.Imposition of a Penal Code section 667, subdivision (a) enhancement for a prior serious felony conviction does not deprive a trial court of its discretion to grant probation to a defendant who is otherwise eligible for probation.id: 16163
The trial court cannot enter a civil money judgment against a defendant for the fines and costs imposed in accordance with his probation.The trial court erred in entering a civil money judgment against him for the fines and costs imposed and challenging certain conditions of his probation. The statutes do not authorize the court actually to enter money judgments against defendants for these amounts but rather to execute upon the orders already entered.id: 16161
The trial court erred in finding it lacked discretion to reinstate defendant on probation.Following a guilty plea the trial court imposed a prison term, suspended execution of sentence and placed defendant on probation. Shortly thereafter, defendant violated probation and the court imposed the previously suspended sentence. In doing so, the court believed it lacked discretion to reinstate defendant to probation. However, the discretionary power to reinstate probation is not lost where probation was originally granted after imposition of sentence.id: 15076
The court erred by failing to conduct a hearing regarding defendant's ability to pay probation costs and by ordering community service in lieu of monetary payment.Defendant challenged the trial court's order requiring him to perform community service in lieu of paying the costs of probation. The court erred by failing to conduct a hearing regarding defendant's ability to pay and by ordering defendant to perform community service in lieu of monetary payment.id: 17060
Court erred in finding defendant statutorily ineligible for probation under section 1203, subd.(e)(2) because he did not personally use a weapon.The phrase "any person who used, or attempted to use, a deadly weapon" in Penal Code section 1203, subd.(e)(2), limits its application to personal use of a deadly weapon. Because the defendant did not violate sections 245, subd.(a)(1) and 243, subd.(d) by personally using a deadly weapon, the court sentenced him under the mistaken impression he was presumptively ineligible for probation under section 1203. The matter was remanded for sentencing.id: 16633
Trial court must determine whether defendant intended to inflict great bodily injury in order to determine whether he was presumptively ineligible for probation.Defendant was convicted of assault on a child with force likely to produce great bodily injury resulting in death. (Penal Code section 273ab.) He argued the trial court misinterpreted section 123, subd.(e)(3) and erroneously concluded he was presumptively ineligible for probation because he inflicted great bodily injury on the victim. A defendant is presumptively ineligible for probation under this provision if he or she intended to cause great bodily injury. The trial court makes this factual determination. The matter was remanded to allow the trial court to determine whether defendant intended to inflict great bodily injury on the victim.id: 17987
Probation department erred by excluding the minor from the informal supervision program based solely on his refusal to admit the offense.The law requires an individual assessment of a minor's suitability for informal supervision based on specified
criteria. It is inconsistent with the nature of that assessment to apply a policy of categorical exclusion from informal supervision based on a minor's refusal to admit the offense.id: 18966
Under Penal Code section 1203.2, subd.(e), the trial court lacked the authority to extend defendant's probation before the expiration of her original term.Defendant's failure to pay restitution and complete her community service supported the finding that she was in violation of her probation. However, the court lacked the authority to extend defendant's probation for an additional five years. The court, may, on remand, vacate its earlier order, and now that the original term has expired, reimpose probation.id: 18850
Limitation on pre-probation and sentence conduct credits does not apply to defendant placed on probation.The 15 percent limitation on pre-probation and sentence conduct credits in Penal Code section 2933.1 is inapplicable when the accused is placed on probation.id: 16155
Superior Court must impose sentence within 30 days of receipt of an unsentenced probationer's request to be sentenced in absentia.The 30-day period in Penal Code section 1203.2a in which a trial court must impose sentence in absentia on an unsentenced probationer begins to run on the court's receipt of a request for sentencing, in absentia. Thus, the superior court had lost jurisdiction when it sentenced defendant 31 days after receiving defendant's request.id: 13391
Even though limited hearsay is available in juvenile probation hearings after Prop. 21, the prosecutor must still show the witness' unavailability or other good cause.Since the passage of Proposition 21, limited hearsay evidence is admissible in juvenile probation hearings under Welfare and Institutions Code section 777. The hearsay admitted in the present case consisted of statements from the only percipient witnesses to the alleged violation. However, the prosecution made no showing that the witnesses were unavailable or that good cause existed for failing to present them. Under the circumstances, the court's admission of the probation officer's testimony violated defendant's right of due process, as well as the requirements of section 777, subd.(c). Moreover, the error was prejudicial since all of the prosecution's evidence was inadmissible.id: 16535
While section 777, as amended by Prop 21, permits hearsay at a hearing to revoke juvenile probation, the prosecution's reliance on the hearsay allegations in the section 777 notice, without more, did not support the finding of a violation.Welfare and Institutions Code section 777, as amended by Prop 21, permits the introduction of hearsay evidence at a hearing to revoke probation. The prosecution chose not to present any testimony and relied solely on the hearsay allegations in the section 777 notice, even though there was no showing that some of the probation officers who allegedly observed misconduct were unavailable and other probation officers who allegedly observed misconduct were present in court. However, the evidence presented denied defendant's right to confront and cross-examine witnesses, and failed to satisfy the requirements of a section 777, subd.(c). The finding of a probation violation was reversed.id: 17007
Juvenile court erred in failing to exercise its independent discretion in determining whether informal supervision was appropriate.Before the juvenile court petition was filed, the probation officer determined pursuant to Welfare and Institutions Code section 654, that informal supervision would not be appropriate. Because the prosecutor then filed the petition, the court's decision whether to grant informal supervision was subject to section 654.2. The court's decision pursuant to this section is not merely a review of the probation officer's earlier decision, but rather, an independent, exercise of its own discretion. The court's refusal to exercise independent discretion required remand.id: 11670
The juvenile court erred in imposing conditions of probation once it had committed the minor to the CYA.The juvenile court's imposition of discretionary conditions of probation constitutes an attempt to regulate or supervise the minor's rehabilitation, a function solely in the hands of the CYA after the minor's commitment.id: 14968
Section 777, by itself, does not authorize the imposition of a fine following a probation violation.Welfare and Institutions Code section 777, by itself, does not authorize the imposition of fines following a probation violation. However, the juvenile court does have authority to impose fines in a section 777 proceeding pursuant to other statutory provisions.id: 17044
Court erred in finding probation ineligibility for a conviction of attempted burglary.Penal Code section 462, which mandates a denial of probation for a conviction of burglary does not apply to appellant's crime of attempted burglary. Moreover, the judge's finding of planning and professionalism was unsupported and constituted an insufficient reason to deny him probation.id: 10343
Updated 3/7/2024The trial court lacked discretion to grant probation for a defendant who used a firearm to commit a robbery.Defendant committed a robbery while using a firearm. He argued the trial court erred by failing to grant him probation given that the law following SB 620 allows a court to strike a firearm enhancement, and grant probation. However, Penal Code section 1203.06 expressly prohibits a court from granting probation to a defendant who uses a gun to commit a robbery. The court also lacked authority to dismiss the robbery conviction in order to grant probation.id: 26348
Updated 3/4/2024The new law reducing probation to two years applies retroactively, and the case was remanded to allow the court and prosecutor the opportunity to withdraw from the plea. AB 1950, which reduces the maximum length of probation in felony cases to two years, took effect while defendant’s appeal was pending. The law applied retroactively to defendant’s case. The remedy was not to reduce the probation term to two years but rather to send the case back to allow the trial court and the prosecution the opportunity to withdraw from the original plea deal. id: 27787
Updated 3/4/2024The provision limiting felony probation to two years excludes offenses for which a statute provided a specific period of probation.AB 1950, which amended Penal Code section 1203.1(a) to limit felony probation to two years (in most cases) applies retroactively to cases pending on appeal when it was enacted. However, because defendant’s convictions for violating Vehicle Code section 12600, he was excluded by section 1203.1(m)(1), from eligibility for the two year maximum probationary period under subdivision (a).id: 27387
Updated 2/4/2024A defendant convicted of both a misdemeanor exempt from AB 1950's probation term limits and a nonexempt felony can be ordered to serve a probation term equal to the time specified by the exempt misdemeanor. AB 1950 limits probation terms but several criminal offenses are exempt. A defendant who is convicted of both a misdemeanor exempt from AB 1950's probation term limits and a nonexempt felony can be ordered to serve a term of formal probation equal to the length of time specified by the exempt misdemeanor. But consistent with AB 1950's purpose, a probation violation can carry felony consequences only during the first two years of the probationary term. Any violation that occurs after the two-year period can have misdemeanor punishment consequencesid: 27482
Updated 2/4/2024If the court reinstates probation after summary revocation, it has the discretion to not count the period of revocation towards the total probationary term.When probation has been summarily revoked and then reinstated within the initial probationary term, the trial court has discretion to extend probation to account for the time when it was summarily revoked so long as the total does not exceed the statutory maximum.id: 27632
Updated 2/3/2024The passing of AB 1950, which reduced the maximum term of probation did not empower the prosection to retract its consent to the plea.The defendant negotiated a plea bargain that included a five year term of probation. AB 1950 was then passed, and the provision limits felony probation in most circumstances to two years. The passing of the new law did not empower the prosecution or the court to unwind the plea.id: 27555
Updated 2/3/2024The trial court erred in terminating the defendant’s probation to facilitate his return to Japan and relieve the state of the continued financial burden.The trial court erred when it terminated defendant’s probation early without applying the standard required by Penal Code section 1203.3(a). The court’s decision was based on its interest in facilitating defendant’s return to Japan in an effort to spare the state further expense, but that wasn’t relevant to the issue of whether he demonstrated “good conduct and reform” as required by the statute.id: 27700
Updated 2/3/2024SB 81 does not give the trial court authority to strike a factual finding that establishes ineligibility for probation.Defendant argued that Penal Code section 1385, as amended by Senate Bill 81, allows the court on remand to strike the jury finding under section 1203.066 that establishes an ineligibility for probation However, the provision applies only to sentence enhancements and does not allow the court to strike a section 1203.066 finding or to grant probation.id: 27715
Updated 2/1/2024AB 1950 did not retroactively terminate defendant’s probation which had been revoked after violations.AB 1950, which limits probation to two years for most felonies, went into effect after the defendant’s probation had already been revoked based on violations, and he had begun serving his prison sentence. The new law did not serve to retroactively terminate his probation before it was revoked.id: 27930
Updated 2/1/2024Having summarily revoked probation, the trial court retained jurisdiction to conduct a hearing on the violation even after the effective date of AB 1950.AB 1950, which limits probation- in most felony cases to two years, applies retroactively to cases not yet final. However, the rule of retroactivity doesn’t prevent the court from adjudicating a violation allegedly committed during the first year of probation, which resulted in the court summarily revoking probation early in the second year.id: 27931
Updated 2/1/2024Defendant was not entitled to relief under AB 1950 because he was convicted of a domestic violence offense that included a specified term of probation.Defendant was convicted of assault with force likely to cause great bodily injury under Penal Code section 245(a)(4). He was sentenced to three years of probation. AB 1950, which was later enacted and applies retroactively, limits felony probation to two years in most cases, but there is an exception where the offense for which defendant was convicted specifies a three year probation period. While section 245(a)(4) has no such language, it does refer to section 1203.097 which specifies a minimum probation period of 36 months. Defendant was not entitled to relief under AB 1950.id: 28009
Updated 1/31/2024The two-year felony probation limit does not apply to a defendant convicted of stalking a domestic violence victim.In light of AB 1950, Penal Code section 1203.1(a) places a two year limitation or probation for most felony offenses. However, it does not apply to a defendant found guilty of stalking a domestic violence victim.id: 27993
Updated 1/31/2024Trial court lacked the authority to release defendant on probation after a new offense where he was on lifetime parole.Because defendant was on lifetime parole, the superior court lacked authority to release him on probation after finding that he committed a new criminal offense. Once the court found he had committed a new crime, it was required to remand him to the custody of the CDCR.id: 28064
The trial court had justification to modify the probation terms to add an electronic search condition given the enactment of the ECPA.Defendant argued the trial court erred by modifying the conditions of his supervised probation to expressly authorize a search of his electronic devices. He argued that no new circumstances existed to justify the modification, but while defendant was on probation, the California Electronic Communications Privacy Act (ECPA) went into effect, and the act established a new requirement that an electronic search condition be clear and unambiguous. The fact that the probation search condition did not have the same meaning that it had when the original sentence was announced demonstrates that the court had jurisdiction to add the express electronic search condition.id: 25644
The trial court had the authority to enforce the 120-day jail sentence after probation had terminated where defendant caused the delay in serving the term.Defendant pled guilty to a drug offense in 2010. The court later terminated his probation and ordered him to serve 120 days in jail. Despite failures to appear, the court granted his request to report later to serve his jail term. He then failed to appear. The trial court thereafter erred by finding it lacked the power to enforce the sentence because probation had terminated. It had the power to enforce a prior lawful sentencing order. Moreover, defendant was estopped from complaining about the trial court’s lack of jurisdiction given that his actions caused the delay in enforcing the sentence.id: 25387
The trial court properly found defendant was ineligible for “drug probation” under section 1210.1 even though the jury convicted him of simple possession. The jury rejected the charges that defendant possessed the heroin and methamphetamine for sale, and convicted him of simple possession instead. Despite the verdict, the trial court could properly find that he did not possess the drugs for personal use and thus was not eligible for drug treatment probation under Penal Code section 1210.1. The trial court’s finding on that basis was supported by substantial evidence.id: 24543
Erroneous finding that defendant was ineligible for probation did not require a remand where the court would undoubtedly have denied probation anyway.The trial court erred by finding defendant was statutorily ineligible for probation under Penal Code section 1203, subd.(e)(4), because three of the four Louisiana convictions the court relied on did not satisfy the statute’s requirement. However, a remand was unnecessary where the record shows the court would undoubtedly have sentenced defendant to state prison even if it did not find she was statutorily ineligible for probation.id: 21514
The trial court did not abuse its discretion in denying probation in a “drunk sex” rape case where a prison sentence was presumed. Defendant was convicted of the rape of an unconscious or intoxicated victim. The trial court did not abuse its discretion by denying probation even though there were factors favorable to the defendant, where the record showed the court carefully considered all of the facts and materials presented and noted this was a presumptive prison case. id: 24136
Defendant impliedly consented to the court’s continued jurisdiction by agreeing to continue the restitution hearing to a date after his probationary term had expired.Defendant argued the trial court lacked jurisdiction to conduct the restitution hearing because his probation term (including the restitution condition) expired one week earlier. However, by agreeing to a continuance of the restitution hearing to a date after his probationary term expired, defendant impliedly consented to the court’s continued exercise of jurisdiction. . id: 24110
The trial court did not abuse its discretion by refusing to reinstate probation for a drug addict who needed long term treatment.Defendant pled guilty to various drug charges and was sentenced to prison. He argued the trial court erred in failing to reinstate probation because all of the crimes and probation violations were a result of his addiction and an expert testified that he was motivated to succeed but needed treatment. However, the court did not abuse its discretion in denying probation given defendant’s repeated failure to comply with the previous terms of probation. id: 23923
In the event a warrant is used to arrest a probationer, it need not comply with the oath or affirmation provision of the warrant clause.Defendant argued that the statute governing probation proceedings (Penal Code section 1203.2) is unconstitutional because it permits a warrant to be issued for a probationer’s arrest unsupported by statements made by oath or affirmation. However, considering the government’s need to act expeditiously while monitoring a probationer and the probationer’s reduced expectation of liberty, a probationer falls outside the ambit of the Fourth Amendment’s warrant clause.id: 23208
Section 1203.2 impliedly requires a probable cause hearing if there is any significant delay between the probationer’s arrest and final revocation hearing. Defendant argued that the statute governing probation revocation proceedings (Penal Code section 1203) is unconstitutional because it does not require a preliminary probable cause hearing before a final hearing as mandated in Morrissey v. Brewer (1972) 408 U. S 471. However, the provision has been properly interpreted to impliedly require a probable cause hearing if there is any significant delay between the probationer’s arrest and a final revocation hearing.id: 23209
Excess section 4019 credits defendant accrued in custody could not be applied to reduce his mandatory supervised probationary period.The trial court miscalculated defendant’s conduct credits under Penal Code section 4019, and ended up serving more time in custody than he should have. However, unlike parole, the law does not allow the court to apply the additional days served to reduce defendant’s mandatory supervised probationary period.id: 23377
A defendant is not eligible for relief when his probation is terminated early after a violation of probation.Penal code section 1203.4 provides that when a defendant has fulfilled the conditions of probation for the entire probationary period, her or she is entitled to have the verdict changed to not guilty and to have the proceedings expunged from his record. A defendant whose probation is terminated early does not have a right to relief under section 1203.4, without regard to the failure to fulfill probation conditions.id: 22973
The trial court did not lack jurisdiction to revoke probation where the original term had been extended and his violation occurred before the term expired. Defendant argued the trial court lacked jurisdiction to find him in violation of his probation at either the February 2009 or October 2009 hearing because his original probation period had expired. However, his probation term had been continued following an earlier violation and he was required to comply with the condition.id: 22317
The court is not limited to one year in ordering how long a defendant must make payments on various probation fees.When a court orders a defendant in a criminal case to pay certain probation fees, it may not consider a period of more than one year from the date of hearing to determine the defendant’s future financial position. The court, however, is not limited to one year in ordering how long a defendant must make periodic payments.id: 22446
Probation report fee was authorized even though defendant was sentenced to prison.Defendant argued the trial court erred by imposing the probation report fee under Penal Code section 1203.16 because he was sentenced to prison and not granted probation. However, the fee was authorized, as it applies to any case resulting in a conviction whether or not probation is ordered by the court.id: 22381
Defendant did not commit the drunk driving murder as a result of combat service-related PTSD.Defendant was a Marine convicted of second degree murder in a drunk driving incident. He argued the trial court erred in failing to properly consider his request for alternative sentencing as a combat veteran suffering from PTSD under Penal Code section 1170.9. However, the trial court did not abuse its discretion in finding that defendant did not show he committed the offense as a result of combat service-related PTSD.id: 22158
The probation progress report provided adequate notice that the state was seeking to extend defendant’s probation. A probationer in a probation extension proceeding is not entitled to the same due process rights that obtain in a probation revocation proceeding. Defendant in the present case, received adequate notice of the proposal to extend his probation in the probation progress report. There was no confrontation clause violation where the court relied on the probation officer’s report and neither the probation officer nor the sex offender treatment personnel whose observations formed the basis of the report, were sworn and subject to cross-examination. Finally, defendant was given an opportunity to present his side of the story to the court.id: 21767
Denial of motion to return property must be challenged by way of a petition for writ of mandate.Defendant argued the trial court erred in denying his nonstatutory motion to return property that would have been used as a trial exhibit (see Penal Code sections 1417.2-1417.6.) However, the denial of the motion is not reviewable on an appeal from the conviction but must be raised in a petition for writ of mandate. id: 20854
The trial court could not grant probation under section 1203.066 which requires a finding that it be in the best interest of the child molest victim where the victim was no longer a child at the time of the sentencing.Defendant pled guilty in 2006 to charges of child molest against the daughter of his live-in girl friend in 1995. The victim was 11 years old at the time of the offenses. Defendant argued for probation under Penal Code section 1203.066, but the request was denied since the trial court could not find it would be in the "best interests of the child" who was now 22 years old. Defendant argued the probation analysis should focus on whether it would have been in the victims's best interest at the time of the offense, in 1995. However, the court found that it could not grant probation in a case where the molestation victim was no longer a child at the time of sentencing.id: 20105
Because defendant consented to the increased prison term as part of a plea bargain, he was estopped from complaining that the trial court exceeded is jurisdiction by imposing the modified term.Defendant pled guilty to a drug offense in 2003 and was sentenced to four years but the judge suspended the execution of sentence and imposed probation. A year later he admitted a probation violation and he was allowed to remain on probation, but the court increased the unexecuted term from four to five years. In 2006, he again violated the terms of his probation, which was then terminated and he was ordered to serve the five year term. The trial court exceeded its jurisdiction by increasing the sentence from four to five years. However, defendant was not entitled to relief, first, because he agreed to the increased term as part of the plea bargain and second, because the challenge was untimely where he did not appeal from the order imposing the increased term.id: 20090
Defendant must object at sentencing to issue of noncompliance with probation fee procedures to preserve the issue for appeal.A defendant's failure to object at sentencing to noncompliance with the probation fee procedures of Penal Code section 1203.1b waives the claim on appeal, consistent with the general waiver rules.id: 17183
If a defendant violates probation, he may be sentenced accordingly notwithstanding the terms of any plea bargain.Appellant argued that after revocation of his probation the trial court impermissibly violated the terms of his original plea bargain by sentencing him to a four year prison term when the plea bargain provided for a maximum term of two years in prison or probation. However, the pea bargain made no mention of what would happen if probation were violated. After the violation occurred, there was no plea bargain involved because the bargain contemplated the initial sentencing proceeding only.id: 13590
The trial court did not err in failing to find defendant who killed her elderly mother to be an usual case to overcome the presumption against probation.Defendant pled guilty to voluntary manslaughter after suffocating her elderly mother and admitted an allegation that made her presumptively ineligible for probation under Penal Code section 1203, subd.(e)(3). She argued the trial court abused its discretion in failing to find hers to be an "unusual case" in support of probation. However, despite her claim that she acted out of love for and duty to her mother, a reasonable person could conclude she acted in part out of financial considerations and without the victim's knowledge or consent. She failed to show provocation, duress or a mental condition that would overcome the presumption against probation.id: 19905
The trial court did not err in finding the victims of gross vehicular manslaughter while intoxicated were "vulnerable" for purposes of probation denial and "particularly vulnerable" as an aggravating factor when selecting the prison term.Defendant pled guilty to one count of gross vehicle manslaughter while intoxicated in violation of Penal Code section 191.5, subd.(a). The trial court thereafter did not err in denying her
request for probation based on the fact that the victims were vulnerable. Moreover, the court also did not err in finding the victims were "particularly vulnerable" as an aggravating factor when imposing a prison term.id: 19572
The court did not abuse its discretion by not ordering a diagnostic study under section 1203.067, where it was not inclined to grant probation. Defendant was convicted of raping an intoxicated person. The trial court did not abuse its discretion in denying
probation and imposing a prison term where there was abundant evidence supporting the court's conclusion that the rape was aggravated. That there were mitigating facts also did not mean there was an abuse of discretion. Moreover, the court did not err in not referring the matter for a diagnostic study under Penal Code section 1203.067 where the court showed it was not inclined to consider probation.id: 19318
Although the trial court improperly extended defendant's probation in 1999, defendant was precluded from challenging that extension.Defendant's original probationary term was set to expire on August 19, 2001. Defendant's request for an extension of the term did not empower the court to extend the request beyond the statutory maximum. While the court erred in granting the defendant's request, the defense was estopped from challenging the order.id: 18849
The court properly found defendant violated her probation by failing to make monthly restitution payments but improperly extended her probation term beyond the statutory maximum.Evidence showed defendant was in violation of the conditions of her probation in that she neither paid the full amount of the restitution order nor made the minimum required monthly payment each month she spent on probation. Contrary to defendant's claim, her failure to make the required payments constituted a change of circumstances supporting an extension of her probation. However, in the absence of any express findings or evidence showing defendant's ability to pay and willful failure to do so, the court exceeded its jurisdiction when it extended defendant's probation for an additional five years.id: 18663
Media may gain access to a probation report (after judgment) after a petition to the court and an opportunity for the subject to object to the release of personal information.Probation reports are available to the public for 60 days after judgment is pronounced or probation is granted. After that time only specified persons retain unfettered access. When a nonspecified person files a petition seeking a probation report, the subject of the report is entitled to notice and an opportunity to be heard at an in camera hearing concerning any personal information he or she does not want released. If the subject does not seek a hearing, the court should release the entire probation report. However, if the subject seeks a hearing, then, after balancing the subject's interest in the confidentiality of personal information against the potential benefit from its release, the court may exercise its discretion to redact personal information. It should then release the remainder of the report.id: 17743
Criminal conduct is not excluded per se from proceedings under section 777 (a)(2) as amended by Prop 21.Welfare and Institutions Code section 777 has long allowed a more restrictive disposition where juvenile probationers previously found to have committed crimes under section 602 commit new misconduct. Proposition 21 limits section 777, as applied to persons under section 602 jurisdiction, to alleged probation violations not amounting to crimes. (Section 777, subd.(a)(2).) That provision is not limited to probation violations that are inherently noncriminal in nature, but applies to any misconduct so long as it is alleged as a probation violation, and not as a new juvenile crime.id: 17504
Court of Appeal erred in reversing a gang registration requirement based upon the incorrect assumption that misconduct cannot be adjudicated as a probation violation under section 777 (a)(2) if it constitutes a crime.In In re Eddie M. (2003) ____ Cal.4th ____, the court held that restrictive juvenile probation under Welfare and Institutions Code section 777 (a)(2), as amended by Proposition 21, is not limited to probation violations that are noncriminal in nature. Because the Court of Appeal in the present case erred by finding misconduct cannot be adjudicated as a probation violation under section 777 (a)(2) if it constitutes a crime, the court also erred when it relied exclusively on that principle to void the juvenile court's finding of a gang-related crime for which a registration condition was appropriate.id: 17505
Pending the resolution of an appeal the trial court retains jurisdiction to supervise a probationer and to punish probation violations.The minor argued the notice of appeal challenging the denial of his suppression motion divested the juvenile court of jurisdiction to proceed to disposition. However, pending the resolution of an appeal, the trial court retains jurisdiction to supervise a probationer and to punish a violation of any probationary conditions.id: 17198
Waiver of custody credits is proper where the court suspends a maximum prison term and grants probation.Penal Code section 2900.5 provides that the total number of days a defendant spends in custody, either before sentencing or as a condition of probation, "shall be credited" against the defendant's "term of imprisonment." A defendant can expressly waive entitlement to credits for time served. Moreover, such an express waiver is proper and enforceable when a trial court in sentencing a defendant to a maximum term of imprisonment conditions a grant of probation upon the defendant's waiver of custody credits.id: 16987
The trial court was authorized to pay the cost of extradition as reasonable cost of probation supervision under section 1203.1b, subd.(a)A defendant on felony probation absconded from supervision and fled to Alabama. A bench warrant was issued for his arrest. He was arrested in Alabama and extradited to California. The trial court was authorized to order payment of the costs of extradition as a "reasonable cost of any probation supervision" within the meaning of Penal Code section 1203.1b, subd.(a).id: 16933
The trial court has no discretion to strike the section 1203, subd.(k) finding which prohibits probation for a serious and violent felony committed while on felony probation.Penal Code section 1203, subd.(k) prohibits probation for a person who commits a violent and serious felony while on felony probation. The trial court does not have discretion under section 1385 to strike that finding.id: 16869
Custody credits waived after probation violation may not be recaptured when probation is violated again absent an agreement.When a defendant agrees to waive custody credits after violating probation, the waived credits may not recaptured when probation is violated again, unless the agreement expressly reserves that right. In the absence of such a record, custody credits once waived may not used again.id: 16153
Trial court did not abuse its discretion in refusing to reinstate defendant's probation, despite the probation officer's recommendation to do so.The trial court did not abuse its discretion in refusing to reinstate probation and in sentencing defendant to prison. The court considered defendant's history, the arguments of counsel, and the reports submitted at sentencing. It was not required to follow the recommendations in the reports. The court gave a detailed explanation for its decision which was based on the defendant's lack of a commitment to carrying out the terms and conditions of his probationary grant and the need to protect defendant's and the public's safety. The court's decision was not a product of animus, and was not arbitrary or capricious.id: 16162
Defendant convicted of filming sexual conduct with a minor for noncommercial purposes was subject to provision denying probation eligibility even though that provision did not apply to the greater offense of filming for commercial purposes.Penal Code section 1203.065, subdivision (a) expressly prohibits a grant of probation following a conviction of filming sexual conduct with a minor for a non-commercial purpose in violation of section 311.4, subdivision (c). However, there is no similar probation ineligibility for a conviction of filming such conduct for a commercial purpose. Defendant challenged the provision since it did not apply to the more serious offenses of commercial filming, which carried an increased sentence. The court found the provisions were unambiguous and not absurd (though perhaps unwise). It is up to the Legislature to consider deleting section 311.4, subdivision (c) from the list of offenses in section 1203.065, subdivision (a).id: 15159
Defendant who struck the murder and robbery victim in the head knocking her to the floor was ineligible for probation notwithstanding that codefendant inflicted the fatal stab wounds.Defendant argued that since it was the codefendant who stabbed the victim the evidence was insufficient to support the finding against him under Penal Code section 1203.975, subdivisions (a)(1) and (a)(2), which prohibit probation for any person who in the commission of murder or robbery, with the intent to injure, inflicts great bodily injury. However, it could not be said as a matter of law that the multiple abrasions, lacerations and contusions suffered by the victim in addition to the fatal stab wounds did not constitute significant or substantial physical injury.id: 13585
Denial of probation was supported by the doctor's opinion that defendant was a pedophile and untreatable.The trial court said it was denying probation because Dr. Murphy, whose opinion defendant introduced, reported he was an opportunistic pedophile who lacked insight into his problem and was therefore untreatable and a danger to the community. Given this opinion, the denial of probation was neither arbitrary nor capricious.id: 13587
Evidence supported the finding that minor violated probation by associating with a known probationer when the two discussed the issue and were uncertain as to the latter's status.As a condition of probation the minor was ordered not to associate with probationers or gang members. Evidence supported the court's finding that he had violated his condition where he testified that he knew that someone he currently associated with had been on probation but the two of them thought the probation expired on the other's 18th birthday. The testimony established that the issue of the other boy's probation status had been discussed and that the minor received an equivocal answer at best as to the youth's current status. Based on this evidence it could reasonably be inferred that the minor associated with a known probationer.id: 13588
If probationer is dissatisfied with probation officer's determination regarding restitution (after consenting to the procedure) his remedy is to move for a hearing to dispute it.Past cases have held it was error for a sentencing court to delegate to the probation department the determination of the amount and manner of restitution to be paid by the probationer. They have been superseded by the enactment of Penal Code section 1203.1k when the probationer consents to this procedure. Petitioners who thereafter disagrees with the amount or manner of restitution may bring a motion in the trial court and object thereto. If still not satisfied the probationer may then appeal from the trial court's determination.id: 13591
Lack of remorse may be considered in denying probation even when defendant denies guilt where evidence of guilt is overwhelming.Defendant challenged three factors set forth by the court as supporting the denial of probation, defendant's danger to others, the planning, sophistication and premeditation, and finally, lack of remorse which he argued is not properly applied to a defendant who denies guilt. However, defendant's criminal record including armed robberies, supported the finding of danger to others. Evidence supported the finding of premeditation and planning where the robberies occurred in the middle of the night and defendant and the others wore masks. Finally, lack of remorse is properly utilized as a reason for denying probation even when the defendant does not admit guilt where, as here, the evidence of guilt is overwhelming.id: 13592
Probation conditions do not become unenforceable between the Vickers hearing and the period prior to reinstatement of probation.Probation terms are fully enforceable during the period subsequent to the violation of probation hearing (<i>People v. Vickers</i> (1972) 8 Cal.3d 451) and prior to the court formally proceeding to a disposition thereon.id: 13593
Probation file is a court record and not subject to disclosure under the Public Records Act.Defendant who was under the supervision of the probation department, requested a copy of his file. The department refused contending the file was confidential and specifically exempted form the Public Records Act (Government Code section 6250 et. seq.). The fact that the probation file is a court record and not subject to disclosure under the Public Records Act does not mean it is not subject to any disclosure. However, defendant did not show good cause for the inspection of the file as he disclosed no reason for wanting the file and merely stated that he was aggrieved by being deprived of the information contained therein.id: 13594
Probation is not a sentencing choice and no reasons need be stated for denial of probation.Probation is not a sentencing choice within the meaning of Penal Code section 1170, subdivision (c) and California Rules of Court, Rule 405(f). Consequently, the trial court need not state any reasons for such denial.id: 13595
The trial court did not delegate excessive judicial authority to the probation department to select a drug rehabilitation program.Defendant challenged the proposed conditions of probation insofar as they granted authority to the probation department to unilaterally select a residential drug rehabilitation program and determine whether defendant successfully completed that program. Defendant argued that such an order effected an unlawful delegation of judicial authority. However, the court did not prejudicially err in refusing to specify, or more narrowly define, the drug program in which defendant would be placed, or in delegating the power to determine whether defendant successfully completed the program.id: 13597
The trial court possessed jurisdiction to revoke appellant's probation despite her additional status as a parolee.Appellant received an order of probation prior to her conviction and sentence to state prison on the Riverside County burglary. Although she was eligible for concurrent sentencing under Penal Code section 669, appellant did not invoke her rights as prescribed by section 1203.2a. Nothing in the determinate sentencing scheme prohibited her dual status as a probationer and a parolee. Therefore, the trial court possessed jurisdiction to revoke probation.id: 13598
Trial court abused its discretion in ordering probation for a county official convicted of embezzlement where the defendant was presumptively ineligible for probation on two separate grounds.Defendant, the Sheriff of Inyo County for many years was convicted of several offenses connected with the embezzlement of more than $100,000 in public funds. He was presumptively ineligible for probation first, because he embezzled public funds and second, because the amount exceeded $100,000. Nevertheless, the trial court granted probation citing defendant's dedication to law enforcement, his respect in the community, and the fact that he was not provided with adequate guidelines for use of the special funds ultimately embezzled. However, none of these factors is recognized in California Rules of Court, rule 413 which addresses defendants found presumptively ineligible for probation, and none of the listed factors apply in defendant's favor. The trial court abused its discretion in granting probation. Contrary to the prosecution's claim the appointment of a new judge on remand was not required.id: 13599
Court did not lose jurisdiction to sentence defendant on a probation revocation where the probation officer failed to notify the court of defendant's incarceration in county jail, as opposed to a prison commitment where notification is required when requested.Penal Code section 1203.2(a) establishes a procedure by which a state prisoner can obtain relief from the uncertainty of other outstanding convictions as to which he or she has been granted probation or execution of sentence suspended. Under this provision the defendant receives the benefit of the possibility of concurrent sentences. Defendant argued the superior court lost jurisdiction in his probation revocation case because his probation officer failed to report his incarceration for a subsequent offense as required by section 1203.2(a), and therefore, his sentence was void. However, defendant was incarcerated in county jail for twelve months following a drunk driving conviction and section 1203.2(a) applies only to probationers who are subsequently sentenced to state prison.id: 13577
Court erred in failing to make factual findings justifying the imposition of the upper or lower term if probation is later revoked.The trial court violated California Rules of Court, rule 433(b) in suspending imposition of sentence and granting probation without making findings as to the circumstances justifying the upper or lower term based upon the trial evidence.id: 13578
Court may extend probation where restitution has not been paid in full notwithstanding that defendant complied with the payment schedule as directed by the probation officer.The trial court can extend probation for failure to pay full restitution to the victim, when, during the entire period of probation originally ordered, the defendant made restitution to the victim at the exact rate and schedule as directed by the probation officer.id: 13580
Court may modify probation for non-willful failure to pay restitution.Defendant argued that the statutory limitation on the court's power to revoke probation for failure to pay restitution likewise limits the court's power to modify probation. However, Penal Code section 1203.2(a) does not prohibit a court from extending a term of probation when the probationer fails to pay restitution as ordered because of an inability to pay. Moreover, the sentencing court need not await a violation of probation before it may modify the conditions of probation.id: 13581
Court's error in failure to make findings to multiply appellant's statutory ineligibility for probation was harmless where appellant failed to prove his eligibility.Appellant argued the trial court erred in failing to make the findings which nullify a defendant's statutory ineligibility for probation under Penal Code section 1203.066. However, any error in the court's failure to make the required findings was harmless because appellant failed to prove his eligibility for probation. He presented no evidence regarding whether the child's best interest required that he not be imprisoned, whether rehabilitation was feasible, or whether he caused a threat of harm to the child if not imprisoned.id: 13583
Facts supported the stated reason that defendant's prior record was significant in the sense that it indicated a lack of amenability to probation supervision.In selecting imprisonment over probation, the trial court noted that defendant's prior record was significant. The facts supported the court's prior record sentencing reason as the defendant had previously been convicted of attempted robbery, resisting arrest and grand theft. These facts supported the determination that defendant's prior criminal record was significant in the sense that it indicated a lack of amenability to probation supervision.id: 13380
Failure to object to lack of notice regarding repayment of probation costs and court appointed counsel constituted a waiver.Defendant attacked the orders requiring her to repay the cost of the probation report and probation supervision as well as the order requiring reimbursement to the county for court-appointed counsel. She claimed lack of notice of the proceedings. However, the failure to object in the trial court on this ground was a waiver of the right to make the argument on appeal.id: 12253
Minor is not entitled to confront witnesses at the section 654.2 hearing regarding the determination of informal probation.Juvenile court must exercise its independent discretion in determining whether informal probation is appropriate under Welfare and Institutions Code section 654.2. Due process does not require a formal hearing with confrontation and cross-examination. The court shall consider all relevant evidence as presented by the probation officer. The minor shall have the opportunity to present all evidence relevant to this determination to the probation officer for inclusion in its report to the court.id: 11689
Prior drunk driving convictions were not an element of new offense and it was not improper to consider them in denying probation.Defendant was convicted of driving under the influence with prior convictions. Contrary to defendant's claim, prior convictions under Vehicle Code section 23175 are not elements of the offense but facts enhancing punishment. It was therefore permissible to rely on the priors in denying probation.id: 10611
Defendant was not a relative of the seven-year-old child molest victim for purposes of the exception to the probation ineligibility provision.Defendant pled guilty to molesting a seven-year-old boy he met at a wedding reception. The court found defendant statutorily ineligible for probation pursuant to Penal Code section 1203.066, subd. (a)(8), which applies where the victim is under the age of 11. He argued the court erred in denying probation because defendant discovered that he was a distant cousin of the victim and there is an exception to the probation ineligibility where the defendant is a relative of the victim (section 1203.066, subd. (c)(1)). However, defendant, whose only relationship to the victim was by marriage to the victim's distant cousin, was not a relative within the meaning of the exception.id: 9945
Court did not err in denying probation for defendant who committed kidnapping as well as assault with intent to commit rape.Defendant argued that the sentences for his convictions of assault with intent to commit rape (Penal Code section 220) and sexual battery (section 234.4, subd. (a)) should have been stayed under section 654, and that the remaining sentence on count one, his conviction for kidnapping with intent to commit rape (sections 207, 208 subd. (d)) would not have, by itself, triggered the statutory probation limitation under section 1203.065, subd. (b). However, regardless of whether the concurrent sentences for the former offenses are stayed under section 654, the convictions are still relevant in triggering any statutory probation limitations. The contention that one who is convicted of assault with intent to commit rape should not be subject to the probation limitation because he also committed kidnapping, is meritless. Moreover, the court is not required to state its reasons for not finding unusual cases to rebut the presumption against probation in section 1203.065, subd. (b).id: 9935
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245