Revocation of Probation
Category > Revocation of Probation
Updated 1/31/2024A spontaneous statement is not automatically admissible at a probation revocation proceeding.The lower court erred in holding that a hearsay statement that comes within the spontaneous statement exception to the hearsay rule automatically satisfies a probationer's constitutional right of confrontation and is automatically admissible at a probation revocation proceeding.id: 28056
The trial court lost jurisdiction to sentence defendant after revoking his probation when it failed to act until eight months after being notified that he was in prison in Nevada. Defendant was placed on probation with execution of his prison term suspended. Probation was later revoked for failing to report and a bench warrant issued for his arrest. Before any proceedings were held, defendant was convicted of new offenses in Nevada and sentenced to prison. Defendant notified the court of this but the court did not act until eight months later, when it imposed a three year term to run consecutively to his Nevada sentence. However, the trial court had lost jurisdiction over his case, pursuant to Penal Code section 1203.2a, when it did not sentence him within 60 days of receiving the forms providing notice that he was in a Nevada prison.id: 24878
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
Summary revocation operates in conjunction with section 1203.2, subd.(a)’s tolling provision to allow the trial court to retain the authority to adjudicate a claim that defendant violated a term during the court-imposed period of probation.Former Penal Code section 1203.2, subd.(a) provided that a summary revocation of probation “shall serve to toll the running of the probation period.” That tolling provision did not permit a court to determine in a hearing following a summary revocation that the probationer committed a violation of probation after the originally imposed period of probation had lapsed.id: 23148
The trial court erred by failing to admonish defendant regarding his right to counsel at a probation revocation/deferred sentencing hearing.The trial court erred by failing to inform the defendant of his right to counsel at the probation revocation and deferred sentencing hearings. The probation revocation/sentencing orders were conditionally reversed and the matter remanded for a hearing to determine whether defendant wishes to waive his right to counsel after proper admonishments.id: 23003
The trial court lost jurisdiction to sentence on his probation revocation by failing to sentence him within 90 days of the DA's receipt of his section 1381 demand. The speedy sentencing rights provided by Penal Code sections 1381 and 1203.2 apply to a probation revocation proceeding where imposition of sentence was originally suspended. The sections provide a defendant with alternative methods of sentencing. Here, in a probation revocation proceeding, the court sentenced defendant beyond the 90 day time limit set forth in section 1381. The sentence was vacated as counsel rendered ineffective assistance in failing to move to dismiss on the jurisdictional basis. However, under section 1387, the prosecution may refile the probation revocation.id: 19809
Ordering defendant jailed without bail, and scheduling a hearing a month later for "contempt" of the court's assistant was a de facto revocation of probation without satisfying any of the due process requirements.Defendant appeared in court regarding a possible probation violation, and a judicial assistant angrily notified the judge that defendant refused to make the $1,000 donation to "Laura's House," a battered woman's shelter. The payment had been a condition of his probation. The trial court then ordered defendant to be taken into custody for lack of cooperation with the judicial assistant. However, placing defendant in jail, denying him bail, and scheduling a hearing a month later constituted a de facto revocation of his probation without satisfying any of the due process requirements demanded upon such revocation. Moreover, the trial court should not have personally selected the charity to which defendant was ordered to contribute. Because of the judge's personal embroilment in the case, defendant could request the case be transferred to another judge.id: 18393
The trial court erred in revoking defendant's probation where his failure to report was due to his deportation upon release from jail.The trial court erred in revoking defendant's probation due to his failure to report to the probation department after his release from custody because the federal government deported him immediately after he was released from county jail, and his violation was therefore not willful.id: 19872
The trial court improperly revoked defendant's probation based on hearsay testimony regarding defendant's alleged alcohol consumption. The trial court erred in admitting hearsay testimony from defendant's probation officer, which had been relayed from a
counselor at a treatment program, that defendant smelled like alcohol. Defendant had no ability to cross-examine the declarant, the court had no opportunity to observe her demeanor, and the prosecutor never argued she was unavailable. The order revoking defendant's probation on that basis was reversed.id: 19796
Absent a hearing, probation may not be revoked solely due to failure to pay monetary sanctions imposed as a condition of probation.Due process requires probation not be revoked solely due to failure to pay monetary sanctions imposed as an order of probation absent findings of the defendant's ability to pay and willful failure. Defendant did not waive his right to such a determination where he wrote a letter to the district attorney asking that the court dispose of his probationary status by finding he was not in violation.id: 13636
Court must state reasons when sentencing after revoking probation.Where a court initially suspends the imposition of sentence and grants probation, the court thereafter upon revoking probation and imposing a sentence must state reasons for any sentencing choice it makes.id: 13648
The trial court must expressly find that a probationer has the ability to pay restitution before probation may be revoked for failure to pay restitution.The trial court abused its discretion in revoking defendant's probation without making an express finding that defendant had the ability to pay restitution as required by Penal Code section 1203.2.id: 13655
Statement of reasons is required when court imposes prison sentence following revocation of probation.Upon revoking probation a trial court is required to give a statement of reasons when it decides to impose a state prison sentence where no sentence has previously been imposed. The court's statement that it is unquestionably clear the defendant is in violation of the terms of his probation was an insufficient statement as it focused upon the decision to revoke and neglected to mention the reasons for choosing state prison over probation.id: 13653
Court erred in failing to state reasons for prison sentence following probation revocation despite a statement that appellant failed to enter a drug rehabilitation center.Appellant argued the court erred in failing to state reasons for refusing to reinstate probation after finding that probation had been violated. The only reason that appeared inferentially was that appellant failed to exert reasonable efforts to gain entrance into a drug rehabilitation program. However, it was apparent from the record that appellant was incarcerated without funds and unable to contact a drug rehabilitation center. Consequently, the court could not use this as a reason and the matter wa remanded.id: 13644
Trial court erred in permitting an amendment to the petition to revoke probation without affording defendant notice.Defendant was denied her due process rights to notice and an opportunity to be heard when the trial court permitted the prosecution to amend the petition to revoke probation to include an additional violation of probation.id: 13656
Court abused its discretion in revoking probation where appellant was 22 minutes late for a court appearance.Appellant was ordered to appear in court at 8:30 a.m. As a result of a last minute unforseen circumstance, she was aproximately 22 minutes late to court having driven some 35 miles from her home to the courtroom. Evidence did not support the conclusion that the conduct of appellant, even assuming the order was a probationary condition, constituted a wilful violation of that condition. The court's action in revoking probation was an arbitrary and capricious use of the court's power and constituted an abuse of discretion.id: 13642
When the probationer's identity is placed at issue, the prosecution must prove this essential element of the probation violation.The superior court revoked defendant's probation in two cases. He argued the evidence at the revocation hearing was insufficient to establish his identity as the probationer. Unless a defendant denies he is the probationer, the prosecution need not be prepared to prove his identity at the hearing, only that he committed the alleged violation. That the defendant waited until the day of the hearing to raise the identity issue was not fatal to his claim. The prosecution was entitled to a recess to gather evidence to meet the defense challenge. However, where the prosecutor did not seek additional time and there was no satisfactory proof of identity the judgment was reversed.id: 13658
Court erred in revoking defendant's probation after the matter had been assigned to another judge.The trial court judge acted in excess of his jurisdiction when he revoked defendant's probation, after defendant's probation violation matter had been duly assigned to another judge in accordance with local court rules.id: 13645
Court lacked jurisdiction to sentence following probation revocation where probation did not notify the court of defendant's incarceration within 30 days after receiving the warden's letter.The trial court imposed a prison sentence after the revocation of probation. However, the superior court lacked jurisdiction to sentence the defendant since the probation department did not comply with the time requirements of Penal Code section 1203.2(a) where the probation department failed to notify the court of defendant's incarceration within 30 days after receiving the warden's letter. This holding followed <i>In re Hodinott</i> (1996) 12 Cal.4th 992, which was decided while this appeal was pending. <i>Hodinott</i> was not limited to prospective application only since it did not establish new standards or a new rule of law.id: 13647
Medical marijuana provision provides a defense to probation revocation.A defendant may assert a medical marijuana defense pursuant to Health and Safety Code section 11362.5 as a defense to the criminal sanction of revocation where, as here, there was no claim that his conduct endangered others or that he diverted marijuana for nonmedical purposes. Moreover, the prosecution may not evade the provision on the ground that defendant violated a probation condition that he obey the federal criminal marijuana law. Since the federal law is given effect only by its incorporation in the state law as a probation condition, it is subject to the state law defense of section 11362.5.id: 17652
A defendant's probation cannot be revoked under Prop. 36 unless at least one the probation violations is not drug-related or the court finds the defendant to be a danger to others.After failing to complete a drug treatment program and failing to report to her probation officer, the defendant's probation was revoked; the court sentenced her to prison for four years. On appeal, it was held that upon a first non-drug related violation the defendant may only be sent to prison if the violation is non-drug related or the court finds the defendant to be a danger to others. Here, the prosecution failed in its burden to prove either circumstance, therefore the prison commitment was reversed. id: 17452
Witness' preliminary hearing testimony may not be used to revoke probation absent a showing of the witness' unavailability.At a probation revocation hearing, the prosecution may not introduce the transcript of a witness' preliminary hearing testimony in lieu of the witness' live testimony in the absence of the declarant's unavailability or other good cause. That the defendant was notified prior to the preliminary hearing that testimony at the hearing could later be used to revoke probation did not change the result. However, the error in offering the preliminary hearing testimony at the revocation hearing without a showing of unavailability was harmless in light of defendant's post-revocation hearing conviction based upon the same facts reflected in the preliminary hearing transcript.id: 13092
Pretrial Faretta warnings are inadequate for subsequent probation revocation and sentencing hearing.If, at a deferred sentencing hearing where the defendant represents himself or herself, there is a complete absence of a waiver of the right to counsel and of any self-representation warnings, reversal is required.id: 12423
Updated 2/26/2024The trial court did not abuse its discretion by revoking the probation of a defendant who failed to report initially and then failed to appear for resentencing.The trial court did not abuse its discretion by revoking defendant’s probation after she failed to report in the first instance, and then failed to appear for resentencing after persuading the court to release her on her own recognizance. She argued that her failure to register for community service was due to her inability to pay the registration fee but there was no evidence to support that claim and she failed to explain why she didn’t raise that issue earlier.id: 26449
Updated 2/4/2024Hearsay statement that qualified as an excited utterance that would have been inadmissible at trial as a confrontation clause violation was admissible at a probation violation hearing.On video recorded by a bodycam worn by a police officer, a visibly distraught woman reported that her boyfriend beat her up. Although the statement qualified as an excited utterance under the hearsay rule, it would have been inadmissible at trial under the confrontation clause as construed in Crawford v. Washington (2004) 541 U.S. 36, if she was unavailable at trial. However, this was a probation violation video hearing not governed by the confrontation clause. The admissibility of the video under the excited utterance exception satisfied the minimum requirements of due process applicable at probation violation hearings.id: 27301
Report from the ankle bracelet monitoring company showing defendant had consumed alcohol was sufficient to support the revocation of his mandatory supervision.The trial court revoked defendant’s mandatory supervision after the probation department’s case manager testified based on the data from the monitoring ankle bracelet company showing he had consumed alcohol in violation of the terms of his mandatory supervision. While the company’s report was hearsay, the court could rely on it because it was trustworthy and not contradicted. Moreover, trial counsel did not render ineffective assistance by failing to challenge the report on Kelly grounds because ankle monitoring bracelet technology is generally accepted as reliable, and the record did not show that had a Kelly objection been raised there was a reasonable probability of a different result.id: 25403
The trial court must, upon revocation of probation, order the previously suspended sentence into effect even when the evidence was a subordinate term imposed consecutively to a principal term that no longer exists. When a lawful sentence is imposed but execution is suspended and the defendant is placed on probation, the exact sentence must be ordered executed if probation is subsequently revoked. The trial court is without jurisdiction to do anything else, even if, during the probationary period, circumstances change so that the sentence would be unauthorized if it were being imposed in the first instance. id: 24336
2011 Realignment Act does not apply to defendants whose sentences, were imposed but suspended before October 1, 2011, but executed after that date. Defendant was sentenced to state prison after his probation was revoked and argued he should have been committed to county jail pursuant to Penal Code section 1170, subd.(h). However, the statute does not apply to defendants whose sentences, imposed but suspended prior to October 1, 2011, were executed after that date.id: 23373
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
Although no good cause justified continuing the probation revocation proceeding, defendant suffered no prejudice from the two-week delay.The trial court erred by granting the prosecution’s request to continue defendant’s probation revocation proceeding for two weeks absent good cause. However, defendant suffered no prejudice from the delay because the revocation hearing was held within a reasonable time.id: 23295
Evidence obtained from defendant’s purse was properly admitted at the probation revocation hearing even though it had been previously ordered suppressed.Defendant’s probation was revoked after her arrest on new criminal charges. The evidence supporting that arrest was suppressed under Penal Code section 1538.5, and the new charges dismissed, but was nevertheless used to revoke probation. Contrary to defendant’s claim, Penal Code section 1538.5, subd.(d) was abrogated following the passage of Proposition 8. The evidence obtained from defendant’s purse was properly admitted at the revocation hearing despite having been previously suppressed where the seizure was not shocking to the conscience.id: 22732
The trial court did not err in violating defendant’s probation following a West plea.Defendant argued the trial court erred in finding that he violated the terms of his probation based on a conviction following a no contest plea. In that case he entered a “West plea” which is a plea of no contest without admitting guilt. Contrary to defendant’s claim, the probation violation following the West plea was proper.id: 22507
Melendez-Diaz confrontation clause analysis does not apply at probation revocation proceedings.Defendant argued that certain documentary evidence presented at his probation revocation hearing violated Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___. However, the Sixth Amendment confrontation clause applies only to criminal prosecutions and a probation revocation hearing is not a criminal prosecution.id: 22082
Defendant’s hearsay statement that he failed to report to probation and reentered the country illegally supported the probation revocation absent any evidence to the contrary.Defendant argued the single hearsay statement from the supplemental probation report upon which the court relied was insufficient to prove that he failed to report to probation or reentered the country illegally. However, in the face of nothing to the contrary, the probation report contained sufficient evidence to support the court’s findings. There was no due process violation where he was given the opportunity to contest the accuracy of the statement in the report.id: 22101
The trial court had the authority to revoke defendant’s probation almost 10 years later where the term was tolled following the summary revocation in 2001.Defendant was given a three year probation term following a plea deal in 2000. In 2001, his probation was summarily revoked (based on his failure to report to a probation officer as required despite his claim that he was out of the country) and the court issued a bench warrant. Defendant was back in the country and arrested on the bench warrant in 2008. Defendant argued the trial court thereafter lacked jurisdiction to revoke his probation due to the lack of proof that the alleged violation occurred during the original three year period of probation. However, the court has the authority to revoke probation until the probationary term expires or probation is terminated and the term was tolled here where the court revoked in 2001. id: 22100
Denial of motion revocation following a hung jury at trial did not bar second trial under the collateral estoppel doctrine. The jury at the first trial was unable to reach a verdict on the firearm possession charge. Thereafter, the court refused to revoke defendant’s probation after reviewing the evidence from the first trial. Contrary to defendant’s claim, under the doctrine of collateral estoppel, the court’s ruling on the probation revocation did not bar the second trial. id: 21972
The exclusionary remedy for a Miranda violation does not apply in probation revocation proceedings.Defendant argued the trial court erred in considering evidence at the probation revocation hearing of an admission from defendant elicited by police in violation of the Miranda requirements. However, the Miranda exclusionary rule does not apply in probation revocation proceedings. Defendant also failed to show prejudice where the challenged testimony was not necessary to meet the prosecution’s burden of proof.id: 22183
Probation report showing defendant never reported to probation or paid restitution was admissible at the probation revocation proceeding.Defendant argued the trial court at his probation revocation hearing violated his due process rights by admitting the probation report which showed he did not pay restitution, meet with his probation officer or verify his employment or attendance at counseling sessions. He argued the report contained inadmissible, multiple-level hearsay and the court failed to find good cause to admit it in lieu of live testimony. However, the probation report was the type of documentary material that is admissible in a probation revocation hearing.id: 21393
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
The court’s initial summary probation revocation preserved the court’s jurisdiction to revoke probation based on a later violation during the period that was not charged in the original petition. The prosecution filed a petition alleging a probation violation that it later failed to prove. It also filed a second petition alleging a different violation which the court found he committed. He argued the trial court lacked jurisdiction to revoke probation because the charge in the first petition, which triggered the tolling of the probation period was not proved. However, once the period is tolled, as long as the probationer is found to have committed some violation during the period, as charged in the petition during the period, the court retains jurisdiction to revoke probation after the expiration of the probation term, even if the tolling was based on a violation the prosecution did not ultimately prove.id: 21236
Due process does not require that the victim-witness who uttered spontaneous statements be available for cross-examination at the probation revocation hearing.
While acknowledging that the Sixth Amendment confrontation clause does not apply in a probation revocation hearing (because it is not a criminal prosecution), defendant argued he had due process right to confront and cross-examine the witness at the hearing. However, while defendant had due process rights at a probation revocation proceeding, the due process balancing test for admissibility of hearsay does not apply to evidence falling withing the hearsay exception for spontaneous statements.id: 20754
The victim’s identification following detailed police questioning qualified as a spontaneous statement under section 1240 and was admissible at the probation revocation hearing. The trial court did not abuse its discretion at the probation revocation proceeding by admitting the victim’s statement under Evidence Code section 1240. The statements were made 30 minutes after the incident (battery) and were made in response to police questioning. The officer said the victim was not excited, but also said he was upset and breathing heavily. That the victim may have taken up to 15 seconds after looking at defendant’s photograph before identifying him, did not defeat a finding of spontaneity. Detailed questioning by police before the statements likewise did not deprive the statement of their spontaneity.id: 20747
Prosecution is not required to prove probationer's identity at the revocation hearing unless the defense raises the issue of identity at the arraignment on the violation.The prosecution is not required to affirmatively establish that when the person who appears in court, steps forward when the case is called, and sits next to defense counsel throughout the hearing is in fact the probationer. It is within the trial court's discretion in conducting an informal hearing to dispense with such proof unless that person somehow indicates it is in issue.id: 13651
The trial court did not err in allowing hearsay evidence to prove defendant's failure to comply with his probation obligations. Whether or not a defendant has reported to his probation officer or made monetary payments to the officer are essentially non-testimonial, and thus, even if hearsay they are admissible at a probation violation hearing.id: 20019
The trial court did not err by ordering a section 1202.44 probation revocation restitution fine when imposition of sentence was suspended.Defendant argued the trial court erred when it ordered the Penal Code section 1202.44 fine because the statute provides for imposition of the fine only where a sentence is imposed, which she claims did not occur because she was placed on probation. However, the probation revocation restitution fine applied to a sentence where probation was imposed.id: 19980
The trial court did not violate Prop 36 or due process by conducting one hearing on two probation revocation petitions.Defendant argued his procedural rights under Prop 36 and his due process rights were violated where the court conducted only one hearing on two probation revocation petitions. However, the court did not err in conducting a single hearing to adjudicate the two separate probation violations and the resultant petitions to revoke probation.id: 19098
During revocation proceedings the trial court had authority to allow a probationer to inspect the nonconfidential portions of his probation file.In probation revocation proceedings, the superior court ordered that defendant be allowed to inspect his probation file. The probation department argued the Penal Code discovery provisions are the exclusive means by which a probationer can obtain discovery in probation revocation proceedings. Regardless of whether the Penal Code discovery procedures otherwise apply in probation revocation proceedings, Penal Code section 1203.10 gives the trial court the authority to allow a probationer to inspect nonconfidential portions of his probation file.id: 18618
Defendant's Arbuckle right does not extend to probation violation hearings.People v. Arbuckle (1978) 22 Cal.3d 749, entitles a plea bargaining defendant to insist that the same court that accepts his plea also impose sentence. However, a defendant does not have a right to have the judge who accepted his plea bargain and put him on probation, hear his subsequent probation violation.id: 18463
Defendant's inconsistent statements about the circumstances surrounding the forgery supported the probation violation.The evidence of forgery was sufficient to support the probation violation even though there was no showing that defendant wrote or signed the check. Defendant's inconsistent statements about who approached him and where, likely undercut his credibility with the court. The trial court's disbelief that defendant did not know the check was forged, was sufficient to support the probation violation.id: 18465
The restitution order that was made when defendant was placed on probation was not terminated upon revocation of probation.After revoking his probation, the trial court sentenced defendant to the 2 year prison term previously imposed and stayed, and set the amount of restitution at $9,000. The restitution order was initially made when defendant was placed on probation. He argued the restitution order did not survive the probation revocation. However, having voluntarily agreed to the terms of probation, a defendant cannot use his own breach of those terms as a basis for evading the properly imposed restitution obligation he assumed.id: 18190
Defendant was permitted to withdraw his admission to the probation violation where it was based on a three year prison term which was in conflict with the four year term imposed when probation was granted.The trial court erred in sentencing defendant to the three year midterm upon revocation of his probation since it previously imposed a four year term when probation was granted. Because defendant's admission of the probation violation was based on a three year sentence, he was given the opportunity to withdraw the admission.id: 17538
Court did not err in imposing a prison sentence once defendant violated the terms of his probation.Defendant pled guilty to two counts of auto theft. The prison sentence was suspended and he was placed on probation. He subsequently violated the terms of probation and a prison sentence was imposed. He argued the sentence violated the plea bargain. However, when defendant violated the terms of probation, there was no agreement limiting the court's discretion to impose sentence. The plea bargain form advised defendant he would face the maximum term if he violated probation so he was aware of the consequences prior to entering into the agreement.id: 16431
Mendocino County court did not err in revoking defendant's probation following a San Diego conviction and ordering the San Diego sentence to run consecutively with the Mendocino sentence.Defendant was on probation following a conviction in Mendocino County. He was then convicted of auto theft in San Diego. The Mendocino court revoked his probation and imposed the stayed prison term. It then ordered that the San Diego and Mendocino sentences run consecutively. Defendant argued the court violated Penal Code section 669 by ordering his San Diego County sentence to run consecutively to his Mendocino County sentence. While this was true earlier, the 1978 amendment to section 669 did away with this prohibition. The Mendocino County court properly imposed consecutive sentences pursuant to section 669.id: 16432
Court lacked jurisdiction to revoke and extend probation where the defendant admitted to a violation that occurred after the probation had expired.Defendant was on a three year period of formal probation following a 1996 guilty plea. The probation included a one year jail term. After his release from jail in 1997 he was deported to Mexico. Later that year his probation was summarily revoked when he failed to report to his probation officer. A bench warrant was issued. He was arrested when he returned to California in September 2000, and a probation violation hearing was held in November. He admitted he did not report to his PO when he returned in September 2000. The court found a violation and revoked probation. However, defendant never admitted that he failed to report in 1996 and did not admit that his reentry in 2000 was illegal. His probation expired in 1999 since no violation was proved. The trial court had no jurisdiction to revoke his probation based upon his failure to report in 2000. id: 16456
Court did not lose jurisdiction to order execution of a previously imposed term under the 60-day rule where the notice of probation was filed or where defendant filed a motion to dismiss.Defendant argued the trial court lost jurisdiction to order execution of his sentence under Penal Code section 1203.2a which provides 60 days to order execution of a previously imposed sentence. He argued the 60-day clock was triggered by three events: 1) the notice of probation violation filed on December 1, 1994, 2) the amended notice of probation violation filed on September 20, 1995, and 3) the motion to dismiss filed by defendant on April 22, 1996, while he was at Corcoran State Prison. The first two events did not inform the court that defendant was committed to prison for another offense. The third event did not trigger the 60-day clock because the notice must come from a warden or probation officer, and not the defendant. Finally, the probation officer's failure to notify defendant of the filing of the notice to revoke probation and the summary probation revocation did not result in a loss of jurisdiction where that sentencing had already taken place.id: 16174
Court has no authority to modify the upper term after probation is revoked.Defendant argued that following the probation revocation, the record did not demonstrate the sentencing court was aware of its discretion to modify the upper term when it ordered the sentence executed. However, if the court has imposed a sentence, and the defendant has begun a probation term representing acceptance of that sentence, then the court has no authority, on revoking probation, to impose a lesser sentence at the precommitment stage.id: 16175
Court lacked jurisdiction to revoke probation and impose a sentence for a charge pending in another county.The Placer County court had no jurisdiction to revoke defendant's probation and impose a sentence for a charge pending in El Dorado County. Moreover, defendant did not waive his right to raise the error committed by Placer County by failing to object below. The waiver principle has limited application to claims of improper venue.id: 16176
On revocation of probation, if the court previously had imposed sentence, the sentencing judge must order that exact sentence into effect subject to recall under section 1170, subdivision (d) after defendant has been committed to custody.There has been a split of authority regarding a trial court's authority, on revoking probation, to reduce a probationer's previously imposed but suspended sentence. If the trial court has suspended <U>imposition</U> of sentence, it ultimately may select any available sentencing option. However, if, as here, the court actually imposes sentence but suspends its <U>execution</U>, and the defendant does not challenge the sentence on appeal, but instead commences a probation period reflecting acceptance of that sentence, then the court lacks the power, at the precommitment stage (Penal Code section 1170, subdivision (d)) to reduce the imposed sentence once it revokes probation.id: 16177
Probation department's failure to locate defendant in federal prison and timely initiate revocation proceedings was caused by his own actions in failing to update his address.The trial court revoked defendant's probation and sentenced him to five years in state prison. He argued the probation department violated his "speedy trial" rights because it did not locate him in federal prison and timely initiate a probation revocation so that he could move for a concurrent sentence. However, the delay was attributable to defendant's decision not to notify the probation department of his current address. The court refused to allow him to benefit from a delay caused by his own actions.id: 16178
Probation revocation may be based on uncorroborated accomplice testimony.The evidentiary rule stated in Penal Code section 1111, requiring corroboration of accomplice testimony, does not apply in probation revocation proceedings.id: 16179
Question regarding propriety of hearsay evidence admitted at probation revocation hearing was moot where defendant later admitted in a guilty plea that he violated his probation.Defendant argued a confrontation clause violation where a police officer testified at his probation revocation hearing as to certain hearsay declaration of defendant's wife. However, since defendant later admitted in a guilty plea to having violated his probation, the question regarding the propriety of the probation revocation was rendered moot.id: 16180
A restitution fine imposed at the time probation is granted survives the revocation of probation.The trial court granted a $200 restitution fine when it granted the defendant probation, but it also imposed a $500 fine later when defendants probation was revoked. Since the first restitution fine survived the revocation of probation, the second restitution fine was unauthorized.id: 16127
Court had authority to require that defendant waive credit for time served as a condition of probation and to refuse to award credits when probation was revoked.Defendant argued the court imposed an unauthorized sentence by holding him to his agreement to waive credit for time served during the period between his arrest and the revocation of his probation. He claimed that since he received the maximum term, the court lacked the authority to award him credit for time served prior to the date of the revocation. However, the court had the authority to require defendant to waive credit for time served as a condition of probation, and to refuse to award the credits after probation was revoked.id: 15078
Court had discretion to impose the mid term after a grant of probation was revoked for violation.When a sentencing court, having found facts justifying probation when probation is statutorily disfavored, need not later, when imposing sentence after probation has been terminated for a violation, choose the mitigated term based on the same facts previously used to grant probation. In deciding to grant probation the trial court was not required to, and did not, weigh the aggravating and mitigating circumstances, and was not thereafter precluded from selecting the midterm sentence option upon consideration of all relevant sentencing factors.id: 13646
Probation may be revoked with proof by a preponderance of the evidence.Facts supporting revocation of probation may be proven by a preponderance of the evidence.id: 13649
Probation officer's report is not a prerequisite to revocation of probation.A probation officer's report is not a prerequisite to revocation of probation, where revocation is based on a violation established by independent evidence, as long as the probation report is obtained, read and considered at the subsequent sentencing hearing during which reinstatement of probation is considered.id: 13650
Revoking judge did not have the power at the time of probation revocation to modify the earlier imposed sentence.Defendant was convicted of possessing heroin for sale. While on probation he was again convicted of possessing heroin, this time while armed with a firearm. Although he was sentenced to the upper term of five years with a four year weapon enhancement, he received probation again in those matters. He was then convicted of another drug/firearm offense. He was sentenced in that case and probation was revoked on the other cases. He argued the revoking judge had the power at the time of revocation to modify the earlier imposed sentence. However, the revoking court had no power to modify the originally imposed sentence, which became final as to the trial court's power to modify upon entry into the minute book, and thereafter became final for all purposes upon expiration of the time to file a notice of appeal.id: 13652
The trial court did not err in imposing a full consecutive term after revocation of probation based upon the commission of new crimes.Defendant argued the trial court erred in imposing a full term of imprisonment following revocation of his probation to be served consecutive to the term imposed on the new offense. He claimed the consecutive term should be calculated at one-third of the middle base-term pursuant to Penal Code section 1170.1, subdivision (a). However, the court did not err in imposing a full consecutive term for the burglary upon revocation of probation for that offense. Where probation is revoked following a conviction of new crimes, application of section 1170.1, subdivision (a), as urged by defendant would preclude a court from either pronouncing judgement for any time within the longest period for which the person might have been sentenced for the earlier offense or offenses, or ordering that the judgment previously pronounced be in full force and effect."id: 13654
When sentencing upon revocation of reinstated probation the court may consider events occurring between the original grant and reinstatement.When a court reinstates probation following a violation, a later sentence upon revocation of the reinstated probation may take into account events occurring between the original grant and the reinstatement.id: 13657
Admission of officer's hearsay testimony at the probation revocation hearing was not improper where such testimony was reliable.The trial court did not abuse its discretion in admitting a police officer's hearsay testimony relating the findings of a chemist's test on confiscated substances at a probation revocation proceeding. There was no reason to believe the tests were anything but trustworthy and reliable as it is the regular business of the police laboratory to conduct such tests. Moreover, the evidence presented at the hearing was corroborated by both the articles of cocaine paraphernalia seized at the arrest and the chemist's case evidence disposition sheet.id: 13637
Appellant waived his right to a formal revocation of probation hearing by filing a statement in mitigation acknowledging the sentencing and failure to object at the sentencing hearing to the procedure or grounds for revocation.Appellant argued he was denied due process because no hearing was held prior to formal revocation of his probation and imposition of sentence. However, appellant waived his right to insist on a revocation hearing by filing a statement in mitigation which acknowledged that he would be sentenced on all three cases and failing to object at the sentencing hearing either to the sentencing procedure or to the grounds for revocation. Moreover, any error was harmless where appellant admitted the fact of his probation violation in his statement to the probation officer.id: 13638
Because defendant's letter did not comply with statutory requirements the probation officer was not required to report defendant's imprisonment to the court within 30 days.The sentencing court did not lose jurisdiction to sentence defendant after a probation revocation. Defendant argued to the contrary because the probation officer did not inform the court of defendant's incarceration within 30 days of receiving the letter from defendant. However, defendant's letter to the probation officer did not comply with the statutory requirements of Penal Code section 1203.2(a) because it did not request that sentence be imposed and was to attested to by the warden. Therefore, the probation officer was not required to report the imprisonment to the court within 30 days and the court was not subsequently deprived of jurisdiction to sentence defendant.id: 13639
Corpus delicti rule does not apply in a probation revocation hearing.Appellant argued the evidence at the probation revocation hearing was insufficient to establish the corpus delicti of the crime of illegal weapons possession independently of his admission to the probation officer. However, the nature of a probation revocation hearing does not require the application of the corpus delicti rule.id: 13640
Counsel was not ineffective at the probation revocation hearing in failing to object to the admission of an inculpatory statement made to the probation officer.Appellant argued his counsel erred by failing to object to the admission of his statement to the probation officer claiming out of court statements to the probation officers have traditionally been excluded from proceedings against him. However, the rule that excludes probation revocation hearing testimony at the subsequent trial on the underlying criminal charge has no effect on the admissibility of evidence presented at the revocation hearing itself.id: 13641
Court did not err in admitting the preliminary hearing transcript as evidence of the probation violation at the probation revocation hearing.The trial court did not err in admitting the preliminary hearing transcript as evidence of a probation violation at the probation revocation hearing. Defendant claimed this violated his rights of due process and confrontation of witnesses. However, defendant was afforded written notice that the prosection intended to use the transcript as proof of the violation. Defendant was given an opportunity to present evidence at the revocation hearing and made no offer to the court that his cross-examination at the preliminary hearing was less than complete. The court reviewed the transcript before admitting it and expressly found it sufficiently reliable. Finally, defendant stipulated for purposes of the preliminary hearing to a .29 blood alcohol level.id: 13643
Collateral estoppel does not bar prosecution where the People failed to present clear and convincing evidence of the offense at the probation revocation hearing.Collateral estoppel did not bar the People from prosecuting the petitioner for indecent exposure, even though the justice court found the People failed to present clear and convincing evidence of the crime at petitioner's probation revocation hearing. Because public policy requires that ultimate determinations of criminal guilt and innocence not be made at probation revocation hearings, barring relitigation of issues at trial will not preserve the integrity of the judicial system.id: 12075
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