ABOUT PROBATION

Both formal (supervised) and informal (unsupervised or "court") probation are defined by Penal Code (PC) §1203, with formal probation being the suspension of the imposition or execution of a sentence and the conditional release of the defendant into the community under the specific direction of a probation officer.  Informal probation is defined as a conditional sentence, which is also the suspension of the imposition of a sentence accompanied by an order of revocable release into the community, subject to conditions established by the court without the supervision of a probation officer.  Probation is generally reserved for convicted criminals whose conditional release into society poses minimal risk to public safety and promotes rehabilitation.   Although probation may be granted by the court, it can also be conditioned on the defendant serving a period of incarceration in county jail, as well as on specified terms and conditions related to the offense. Judges have broad discretion to impose conditions that both foster the rehabilitation of the defendant and protect the public safety, including an order requiring the defendant to pay restitution to the victim.  In felony cases, the court has the discretion to grant probation for up to five (5) years, or no longer than the prison term that can be imposed when the prison term exceeds five (5) years.   In misdemeanor cases, the court may generally grant probation for up to three (3) years, or no longer than the consecutive sentence imposed if more than three (3) years.  However, due to Vehicle Code §23600, in DUI misdemeanor cases, probation can extend for up to five (5) years.

The terms and conditions ordered by a court are varied, and usually depend upon the nature of the underlying offense - from ordering the defendant to attend counseling: substance abuse for drug and alcohol-related offenses, to anger management counseling for domestic violence, sexual and battery-related cases. A ubiquitous term found in virtually every probation order is that the defendant obey all laws. Meaning, of course, fresh misdemeanor or felony charges will most likely trigger a trailing probation revocation petition. Recently, the Court of Appeal ruled that a trial (sentencing) court that had ordered the defendant to do community service in order to pay for the costs of probation was improper.  Because the costs of probation can't be ordered as a condition of probation. (People v. Hart, 65 CA4th 902), the court held that costs of probation can't be ordered absent a finding of ability to pay. (PC §1203.1b(a)) and the appellate court held the trial court could not convert a costs of probation order into a community service order. (People v. Hall (2002) 103 CA4th 889; 126 CR2d 916.)

When Probation Is Prohibited - PC §1203(e) provides that, except in unusual cases where the interests of justice would best be served if the person were to be granted probation, probation shall not be granted to any person who is convicted of arson, robbery, carjacking, burglary, burglary with explosives, rape with force or violence, torture, aggravated mayhem, murder, attempt to commit murder, train-wrecking, kidnapping, extortion, a violation of PC §§286, 288, 288a, or 288.5, or a conspiracy to commit one or more of those crimes, escape from the state prison, or a conspiracy to commit one or more of those crimes, and who was armed with a deadly weapon at either of those times, or any person who used, or attempted to use, a deadly weapon upon a human being in connection with the perpetration of the crime of which he or she has been convicted, or any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which he or she has been convicted, or any person who has been previously convicted twice in California of a felony or in any other place of a public offense which, if committed in California, would have been punishable as a felony, or any public official or peace officer of this state or any city, county, or other political subdivision who, in the discharge of the duties of his or her public office or employment, accepted or gave or offered to accept or give any bribe, embezzled public money, or was guilty of extortion, or any person who knowingly furnishes or gives away phencyclidine (PCP), or any person who intentionally inflicted great bodily injury in the commission of arson under PC §451(a), or who intentionally set fire to, burned, or caused the burning of, an inhabited structure or inhabited property in violation of PC §451(b), or any person who, in the commission of a felony, inflicts great bodily injury or causes the death of a human being by the discharge of a firearm from or at an occupied motor vehicle proceeding on a public street or highway, or any person who possesses a short-barreled rifle or a short-barreled shotgun under PC §12020, a machine gun under PC §12220, or a silencer under PC §12520, or any person who is convicted of violating §8101 of the Welfare and Institutions Code (providing a firearm to a mental patient), or any person who is described in PC §12072(g)(2)&(3) (providing a firearm to persons prohibited from possessing the same). If, however, probation is granted in any of the foregoing instances, the court shall specify on the record and shall enter on the minutes the circumstances indicating that the interests of justice would best be served by that disposition.

The Pre-Sentencing Probation Report - A pre-sentencing probation report is typically prepared only in felony offenses by a probation officer, and at the court's direction after a plea or trial.  The probation report is designed to assist the judge in making a sentencing decision.  In misdemeanor offenses, judges typically make a summary pronouncement of a conditional sentence (probationary terms and conditions).  Pre-plea probation reports may also be obtained, but due to the burdens on probation departments, these reports are rare.  Because judges oftentimes follow the probation officer's recommendation, it is important that any and all mitigating information be provided to the probation officer, otherwise, probation will usually not be aware of such information.  Of more importance is the fact that the defendant not be allowed to talk directly to the probation officer (a sworn peace officer) outside the presence of counsel.   However, many times the defendant is ordered to promptly meet with the probation department.  In those encounters, the probation officer wants to know the, "When did you start the offense; how much of the contraband did you sell/consume; and who else assisted you with the offense?"   Needless to say, probation reports can be devastating if contact between the probation officer and the defendant is made outside the presence of defense counsel.

In People v. Robinson (2002) 104 CA4th 902; 128 CR2d 619, the Court of Appeal held that the 1993 amendment to PC §1203.1b permitted the sentencing court to order that the defendant pay the cost of a pre-sentencing probation report (here, a cost of $358.00) even in the event he is sentenced to state prison vs. being sentenced to county jail and placed on probation.

     ABOUT PROBATION REVOCATION HEARINGS - VOP'S

As mentioned above, typically, when a defendant is on either formal (supervised) or informal (unsupervised) probation, a new misdemeanor or a new felony charge filed against the defendant will, more times than not, trigger a separate probation revocation proceeding. Thus, under PC §1203.2, probation revocation is a sanction against probationers who fail to comply with the terms and conditions of their probation grant, including the condition to obey all laws. Probation revocation proceedings give the prosecution added leverage in any new case, and as mentioned, typically trail the new charge until there is a disposition of the new offense. Due process rights of a defendant were recognized in People v. Vickers (1972) 8 C.3d 451, and are derived directly from the due process requirements as set forth by the U.S. Supreme Court in Morrissey v Brewer (1972) 408 US 471, for parole revocation hearings. These rights are typically referred to as Morrissey-Vickers rights.

When a petition to revoke probation is filed concurrently with a new prosecution, the prosecution obviously has added leverage in the new case. Alternatively, and admittedly rather rare, when a petition to revoke probation is filed instead of a new prosecution, the prosecutor can dispense with taking the case through the various steps that a formal criminal proceeding would require. Instances of such a procedure may occur when 4th Amendment issues are involved in the new violation (see below). Probation revocations usually involve two steps: a summary revocation proceeding, followed by a subsequent evidentiary hearing. Customarily, based upon a sworn affidavit, or sworn revocation petition, a court summarily revokes probation after making a judicial determination of probable cause. Afterwards, a formal evidentiary hearing is afforded the probationer per Morrissey and Vickers. Bail or O.R. release for felony defendants charged with a probation violation is at the court's discretion. Bail or O.R. release for misdemeanor defendants charged with a probation violation is customary.

A single hearing that combines both the summary revocation and the actual revocation hearings is permissible, provided, however, that reasonable notice is given to the defendant.  At the formal probation revocation hearing (evidentiary hearing), the probationer is not entitled to a jury trial - only to a court trial.

No Right To Speedy Probation Revocation Hearing?  In People v. Broughton (2003) (3/21/03; 03 C.D.O.S. 2577; 107 CA4th 307) the Court of Appeals held that PC §1381.5 requires that the prosecution bring a defendant imprisoned in a federal correctional institution to trial, or for sentencing in state criminal proceedings, within 90 days after receiving an assent from an authorized federal official for the release of the defendant from federal custody for that purpose.  If the defendant is not brought to trial or for sentencing as required by PC §1381.5, the trial court must, on motion, “dismiss the action.”  The Court of Appeals went on to hold that, as a formal matter, if the trial court at a sentencing hearing suspends imposition of sentence and places the defendant on probation, the defendant has not yet been sentenced, thus, PC §1381.5 applies only to defendants who have not been tried or afforded an initial sentencing hearing following conviction, not probationers awaiting a probation revocation hearing.   In an apparent technical analysis, the Court also nixed defendant's motion under a PC §1203.2a analysis. (See In re Flores (1983) 140 CA3d 1019 [although PC §1381 was not available to a sentenced probationer, his demand letter should have been evaluated under the requirements of PC §1203.2a].)   As applied to a probationer whose sentence has not been imposed, the probationary court has 30 days from the receipt of a valid, formal request from the defendant within which to impose sentence or lose further jurisdiction. (Per PC §1203.2a; In re Hoddinott (1996) 12 C4th 992, 999.)  However, the Court here held that the defendant's motion did not meet the strict requirements for such a request; specifically, it did not include a waiver of the right to be present and to be represented by counsel. (PC §1203.2a)  In the absence of such a waiver, the sentencing court was without the constitutional power to impose sentence in the defendant’s absence. (Hoddinott, supra,at p. 999; and Hayes v. Sup. Ct (1971) 6 C3d 216, 225 [that PC §1203.2a affords opportunity for concurrent sentences, if that is the trial court’s discretion, only after probationer waives his or her right to be present and represented by counsel is a “reasonable method of effectuating proper legislative purposes” and is not unconstitutional].)   PC §1203.2a also imposes a duty upon a probation officer to advise the probationary court within 30 days after being notified in writing of the defendant’s confinement.  The probation officer’s failure to do so deprives the court of further jurisdiction, whether or not the letter includes a waiver of the right to be present and represented by counsel. (Hoddinott, supra, 12 C4th at p. 1000; PC §1203.2a)  The record here was silent as to whether the defendant's April motion or October demand were ever delivered to defendant's probation officer.  The Court of Appeal therefore contended that it had no basis to find that PC §1203.2a was invoked, or that the trial court lacked jurisdiction to set aside the prior order revoking probation and to grant probation under the terms and conditions afforded.  Accordingly, the Court of Appeals held that the trial court’s denial of defendant's motion to dismiss the criminal action against her (a probation revocation hearing), notwithstanding the prosecution's failure to comply with the procedural requirements of PC §1381.5 following defendant's demand for a “speedy trial” of her probation revocation hearing, was proper.   Editor's Note:  In the caustic dissent, Justice Johnson accused the majority of using judicial "canons" of legislative interpretation solely for the purpose of justifying its holding that the Legislature didn't really mean what it said in PC §1381.5.  In addition to the tortuous argument nixing the defendant's PC §1203.2a contention, the majority opinion distinguished its ruling from several other cases holding to the contrary (albeit in dicta), cases which the dissent obviously felt were correctly decided, to wit: that PC §§1381 and 1381.5 applied in such situations - See, Boles v. Sup. Ct. (1974) 37 CA3d 479; People v. Johnson (1987) 195 CA3d 510;and Rudman v. Sup. Ct. (1973) 36 CA3d 22.

     FOURTH AMENDMENT SUPPRESSION HEARINGS IN VOP'S 

Whether a defendant is afforded his or her 4th Amendment rights (suppression motion based upon an illegal detention, search or arrest) at or before his probation revocation hearing, is currently subject to some heated debate.  In many instances, the express terms of probation call for a search and seizure waiver (4th Amendment waiver).  In other cases, courts have held that unlike a typical criminal prosecution, probation and parole revocation proceedings are distinct, such that the judicially-created exclusionary rule applicable to original criminal proceedings wherein there is a 4th Amendment violation, simply does not apply to probation revocation or parole violation proceedings.  However, it has been held that a probationer subject to a search condition still retains the right to be free from a police or governmental searches/seizures that are arbitrary, capricious or harassing.  A search is arbitrary "when the motivation for the search is unrelated to rehabilitative, reformative or legitimate law enforcement purposes, or when the search is motivated by personal animosity toward the parolee."  (People v. Reyes 19 C4th at p. 754.)  A search is a form of harassment when its motivation is a mere whim or caprice.  In a recent California appellate case, the Court of Appeals ruled in People v. Cervantes (2002) 103 CA4th 1404; 127 CR2d 468, that a defendant who was on searchable probation, could still challenge his initial stop by the police in a suppression motion on the basis that the stop itself (initial detention) was arbitrary and/or capricious.

Residential Searches  Despite a recent U.S. Supreme Court decision that was supposed to settle the issue, U.S. v. Knights (2001) 534 U.S. 112, 151 L.Ed.2d 497, 122 S.Ct. 587, the U.S. Supreme Court accepted and decided what was then the Ninth Circuit's latest iteration of the position that the police require "reasonable suspicion" before they may search the residence of a probationer.  Instead, the U.S. Supreme Court expressly ducked the question, deciding only that reasonable suspicion for the probation search did exist in Knights. (In Pa. Bd. of Prob. & Parole v. Scott (1998) 524 U.S. 357, 362 n.3, the U.S. Supreme Court deferred the issue for parolees, as well.)  In Knights, the Court did say it did not matter whether the Fourth waiver search was conducted by police or probation officers.

However, the California Supreme Court and Ninth Circuit are still bitterly divided over whether the police need reasonable suspicion before they may search the homes of persons with Fourth Amendment waivers.  These waivers are usually imposed as a condition of probation in California, and are always imposed as a term of parole under PC §3067.  Currently, there are about 330,000 felony probationers and another 115,000 parolees living in California.  In People v. Woods (1999) 21 C4th 668; 981 P.2d 1019; 88 CR2d 88 (cert. denied 3/20/00), the California Supreme Court reaffirmed its long standing position that police could search the home of a Fourth waiveree for any reason not amounting to caprice or harassment, even when the search was a pretext to search someone else living in the home.   Conversely, the Ninth Circuit has repeatedly denounced this position, holding that federal authorities needed reasonable suspicion before searching the home of a California Fourth waiveree and, further, the search could only be conducted if its purpose was reasonably related to a term of probation/parole.

Recently, over a vigorous dissent by Justice Trott, a Ninth Circuit majority in U.S. v. Crawford, infra, (final opinion as modified on March 21, 2003), the Ninth Circuit reaffirmed its earlier holdings that reasonable suspicion was required before police could search a probationer’s home.  While there may be an en banc review in Crawford, or the U.S. Supreme Court could finally decide this issue, it is just as likely that Fourth Amendment waiver searches in California*, will continue to receive disparate treatment depending on whether state or federal agents are conducting the search.  This dichotomy is especially maddening for defense counsel who lose a suppression motion in state court simply because they cannot file a writ with the federal district court - the only route is through the U.S. Supreme Court on a Petition for Certiorari (see, Stone v. Powell (1976) 428 U.S. 465.)  To date, the U.S. Supreme Court has rejected all such certiorari petitions.  *Editor's Note:  Currently, many state courts are requiring as a "mandatory condition" of a defendant's O.R. release (release without a defendant having to post a bail bond), an unconditional release of one's 4th Amendment rights against further warrantless searches and/or seizures by the police.  In this regard, see U.S. v. Crawford, infra, which held that similar "mandatory" blanket 4th Amendment waivers may not generally be forced as a threshold condition of a parolee's release.

The California Supreme Court is set to decide People v. Sanders*(a Fifth District Court of Appeals decision - 11/20/00), which reexamines an earlier holding that a Fourth waiver may justify searches even when the police were unaware of the waiver at the time of the search.  However, in People v. Robles (2000) 23 C4th 789; 3 P.3d 311; 97 CR2d 914, the California Supreme Court disallowed a search of a residential garage on the grounds that the police discovered three days after the search that the defendant’s brother had a Fourth waiver on file.  The Court in Robles recited the rule that under California law, issues relating to the suppression of evidence derived from police searches and seizures must be reviewed under federal constitutional standards. (People v. Ayala (2000) 23 C4th 225, 254-255; People v. Bradford (1997) 15 C4th 1229, 1291.)  The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures” by police officers and other government officials. (U.S. Const., 4th Amend.)   The touchstone of 4th Amendment analysis is whether a person has a constitutionally protected reasonable expectation of privacy, that is, whether he or she has manifested a subjective expectation of privacy in the object of the challenged search that society is willing to recognize as reasonable. (California v. Ciraolo (1986) 476 U.S. 207, 211; In re Tyrell J. (1994) 8 C4th 68, 83, cert. denied.)  *Editor's Note:  Sanders is currently before the California Supreme Court and may not be cited for any legal proposition or rule.

As mentioned above, in U.S. v Crawford (2003) 323 F.3d 700, in an amended opinion (dissent), the Ninth Circuit held that because law enforcement officials conducted a search of defendant's home without reasonable suspicion to believe that they would uncover evidence of criminal activity, the search violated the Fourth Amendment.  The fact that defendant signed a blanket “Fourth Waiver” as a mandatory condition of his parole, did not serve to waive the minimum constitutional protection of reasonable suspicion to which defendant and other parolees were entitled.  The Court held that parolees may not generally be forced as a threshold condition of their parole to surrender by blanket waiver their Fourth Amendment rights, including those so recently recognized by Knights, supra.  Moreover, as neither time, intervening events, nor the officers’ motives purged the taint of the unconstitutional search, the defendant's subsequent statements were likewise ordered suppressed.  Therefore, the Court reversed the district court’s denial of defendant's motion to suppress, and remanded the case back to the district court in order to permit the defendant to withdraw his guilty plea.

In People v. Spence (2003) (4/9/03; 03 C.D.O.S. 3107; 132 CR2d 621; ___ CA4th ___) the Court of Appeals held that a search of a probationer's residence was per se unreasonable where it exceeds the scope of the probationer's consent as articulated in a probation search clause (4th waiver clause) (People v. Woods (1999) 21 C4th 668, 68; 981 P.2d 1019; 88 CR2d 88 and People v. Bravo (1987) 43 C3d 600, 607.)  Thus, the exclusionary rule applied to a probation search conducted by the police in reliance on a probation roster that, by its own design, omitted information concerning judicially imposed limitations on the authority of the police to conduct a probation search.  Therefore, where a probation roster cannot differentiate between a "general" search condition and a "limited" search condition, the "good faith " exception to the exclusionary rule will simply not apply in such a case since, the deterrent effect would be substantial if courts, police and probation officials, are put on notice that reliance on a faulty roster system in its present form will result in the exclusion of evidence.

In a slight twist to the issue of lawful searches of a probationer on searchable probation, in People v. Ledesma* (2003) 106 CA4th 857; 131 CR2d 249, the Court of Appeals held that in a warrantless probation search of a probationer's home (probationer having a 4th waiver searchable condition to the terms of his probation), the police could perform a warrantless search of the room of another member of that residence who was not on probation at the time, under the pretext that it was a "protective sweep" of the residence made for purposes of police safety (i.e., from any surprise attack).  Here, the Court held that the particular facts known to officers, when evaluated in light of their training and experience, justified a protective sweep conducted prior to a valid probation search.  Money and controlled substances discovered in plain view in the defendant's bedroom (which officers would have been unable to otherwise enter during a probation search because the defendant was just a roommate of the probationer) during the course of the protective sweep, were not to be suppressed as the fruit of an illegal search.  Hence, the roommate of the probationer (i.e., Ledesma) was convicted as the result of an otherwise illegal warrantless search of one's residence.  *Editor's Note:  On May 14, 2003, the California Supreme Court denied reveiw of People v. Ledesma, supra, however, the Court also ordered that the opinion be de-published - meaning, it can't be cited as any authority for any legal proposition.

Bad Govt. Info Does Not Permit A Good Faith Exception  In People v. Willis (2002) 28 C4th 22; 46 P.3d 898; 120 CR2d 105, the California Supreme Court held that the good faith exception to the exclusionary rule did not apply to a warrantless search of a person who the police thought was still on parole.  Here, the police relied on information supplied to them by a CDC parole agent to the effect that an erroneous parole list showed the defendant to still be on parole.  In this case, the Court held that the CDC parole agent who supplied the erroneous information to the police, as well as the CDC clerks that made the erroneous data entry regarding defendant's parole status, are "adjuncts to the law enforcement team," to whom the exclusionary rule applies.  In accord is People v. Ferguson (2003) (5/30/03; 03 C.D.O.S. ___; ___CA4th ___) a case which following a traffic stop the police relied on faulty information that the defendant was on searchable probation for a prior drug offense.  It turned out that the defendant was not on probation, and based upon Willis, supra, the Third District Court of Appeal was compelled to reverse its earlier decision and overrule the trial court's denial of defendant's suppression motion.  Thus, where clerical staff for the County Probation Department is in error, that error redounds to the police, and the good faith exception to an otherwise erroneous warrantless search cannot be justified.

BURDEN OF PROOF IN A VOP HEARING

In a probation revocation (violation) hearing, the standard of proof required is a preponderance of the evidence to support the violation (versus the "proof beyond a reasonable doubt" standard in a criminal trial).  (People v. Rodriguez (1990) 51 C3d 437, 441, 447; People v. McGavock (1999) 69 CA4th 332, 337.)  The burden of proof is on the prosecution.  Further the rules of evidence in a probation revocation proceeding are far more relaxed, as the court is sitting as the trier of fact.  (See, O'Connell, infra.).  In a recent federal probation case, however, the Ninth Circuit ruled in US v. Turner (2002) 312 F.3d 1137, that the government failed to prove by a preponderance of the evidence that the probationer had violated the terms of his supervised release when a long-time friend had purchased a restitution debt from two (2) banks.  In that instance, the Ninth Circuit concluded that the district court abused its discretion in revoking Turner's supervised release and determined the district court's order resentencing him as void.  The Ninth Circuit also held that the district court further erred as a matter of law in terms of its imposing a new $100,000 fine on the probationer.  In other words, the Ninth Circuit held that US District Judge Thomas S. Zilly was a true knothead!

Adult Probation Revocation - Hearsay Issue  In People v. O'Connell (2003) (4/11/03; 03 C.D.O.S. 3152; ___ CA4th ___) the Court of Appeals held that in a probation revocation proceeding, the use of a drug program director's report regarding a participant's termination from the program, was admissible at a probation violation hearing as against a hearsay objection.  The defendant relied on People v. Arreola (1994) 7 C4th 1144 (Arreola), and People v. Winson (1981) 29 C3d 711 (Winson), for the proposition that the court's finding of defendant's VOP was based on inadmissible hearsay.  In Arreola, supra, at p. 1150, the defendant objected on several grounds to the use of a preliminary hearing transcript at a probation revocation hearing.  The defendant asserted hearsay and lack of foundation objections, noting that there had been no showing of the declarant's unavailability, or any other good cause shown.  The Arreola trial court admitted the transcript without finding good.  In reaffirming its holding in Winson, supra, the California Supreme Court in Arreola concluded that the arresting officer’s testimony at a preliminary hearing on new charges forming the basis for revocation of probation was inadmissible at the probation revocation hearing, absent a showing of good cause, or absent a showing of the witness' unavailability. (Arreola, supra, at pp. 1159-1161.)  The Arreola Court explained the rule in Winson that a transcript of preliminary hearing testimony is an improper substitute for live testimony at a revocation hearing was not modified by its decision in People v. Maki (1985) 39 C3d 707 (Maki).  In Maki the court noted its qualification in Winson, supra, that the right of confrontation is “not absolute and where ‘“appropriate,” witnesses may give evidence by document, affidavit or deposition.”  (Maki, supra, at p. 710.)  The Maki Court concluded that a car rental invoice with defendant’s signature was sufficiently trustworthy. (Id. at pp. 714-717.)  “There is an evident distinction between a transcript of former live testimony and the type of traditional ‘documentary’ evidence involved in Maki that does not have, as its source, live testimony.” (Arreola, supra, at p. 1157.)  “As long as hearsay testimony bears a substantial degree of trustworthiness it may legitimately be used at a probation revocation proceeding.  In general, the court will find hearsay evidence trustworthy when there are sufficient ‘indicia of reliability.’  Such a determination rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.”  (People v. Brown (1989) 215 CA3d 452, 454-455.)  The standard of proof required at a probation violation hearing is a preponderance of the evidence to support the violation. (People v. Rodriguez (1990) 51 C3d 437, 441, 447; People v. McGavock (1999) 69 CA4th 332, 337.)  The alleged inadmissible hearsay in the present case (O'Connell) consisted of a single page report from Sam Beasley, the Program Manager of Valley Community Counseling Services.  The report stated that appellant had been terminated from the program due to “Too Many Absences.” Beasley added: “This client completed 0 of 20 sessions.”  Contrary to the defendant's position, the O'Connell Court held that the subject report was akin to the documentary evidence that traditionally has been admissible at probation revocation proceedings. Unlike the fact patterns in Winson, supra, and Arreola, supra, where the prosecution proposed to use former testimony, the subject report here was prepared contemporaneously to, and specifically for, the hearing where appellant’s lack of compliance with the deferred entry of judgment program was at issue.  The court noted that such reports were routinely received without undertaking the added burden of calling the author to authenticate it because the reports were prepared in response to a referral from the court.

Juvenile VOP - Hearsay Issue  In In re Kentron D. (2002) 101 CA4th 1381; 125 CR2d 260, the Court held that allegations in Welfare and Institutions Code §777 notice were inadmissible hearsay, and court erred in revoking minor's probation based solely upon the statements in the notice. Even though Welfare and Institutions Code §777(c) permits reliable hearsay evidence to the same extent as it is admissible in adult probation revocation proceedings (People v. Brown (1989) 215 CA3d 452; Morrissey v. Brewer (1972) 408 U.S. 471, 480), here the notice contained multiple levels of hearsay and there was no showing of the unavailability of witnesses. Simply making the witnesses available for cross-examination was not enough, because there was nothing to cross-examine on, since they had not given testimony on direct because they had not been called. As defense counsel aptly argued, appellant should not have been required to call to the stand the witnesses against him when the prosecution did not.

     SENTENCING ISSUES

Johnson Waiver Issue In People v. Johnson (2002) 28 C4th 1050; 51 P.3d 913; 123 CR 2d 700, the California Supreme Court held that a defendant can expressly waive entitlement to credits for time served and that such an express waiver is proper and enforceable when, in sentencing a defendant to a maximum term of imprisonment, a trial court conditions a grant of probation upon the defendant’s waiver of custody credits.  Here, the trial court properly conditioned its grant of probation to defendant, who entered a plea of no contest to one count of residential burglary, upon defendant's waiver of custody credits and the Supreme Court determined that this condition was for a legitimate penal function.

In People v. Arnold *(2002) S106444 (C037898) an unpublished 3rd DCA opinion, the California Supreme Court recently accepted review of the question when a defendant waives custody credits after violating probation in order to avoid a prison sentence (Johnson waiver, supra), does that same waiver necessarily apply to those same custody credits if and when the defendant later violates probation again and the trial court this time sends the defendant to prison instead of county jail?  The 3rd DCA answered in the affirmative, holding that the defendant's initial waiver of pre-sentence custody credits was not a knowing and intelligent waiver of credit toward a future prison sentence, i.e., a knowing and intelligent waiver of the future consequences of the waiver and, thus, the defendant was entitled to credit for the time waived.  The 3rd DCA declined to follow the 1st DCA's decision in People v. Burks (1998) 66 CA4th 232 and, instead, relied on an earlier 3rd DCA opinion in People v. Harris (1987) 195 CA3d 717.  Hence, due to the DCA split, the California Supreme Court has decided to step in and resolve the issue for the lower courts. *Editor's Note:  Because People v. Arnold is currently before the Supreme Court, it may not be cited for any legal rule or proposition.  In addition, People v. Jeffrey (2002) an unpublished opinion from the First DCA, as well as People v. Hilger, infra, are also before the California Supreme Court on this issue.

In People v. Burroughs (2003) (5/13/03; 03 C.D.O.S. 4005; ___ CA4th ___), the Court of Appeals held that in the continuing saga of Johnson waivers, here, the defendant's PC §§ 4019 and 2900.5 credit waivers were all general waivers.  As such, the waivers were deemed not knowingly and intelligently made because the record did not show the defendant understood his Johnson waivers applied not only to county jail time, but also to any future prison term.  The Court went on to note that the California Courts of Appeal are divided on what a defendant must show to prove a waiver was not knowing and intelligent and, further, that issue is pending before the California Supreme Court in People v. Arnold, supra, review granted 6-12-02, and People v. Jeffrey, review granted 6-12-02.  However, until those cases are decided we apply the majority view of published cases to date. "A 'knowing and intelligent waiver' of a right implies that the waiver was entered into with awareness of its consequences. [Citations.]" (People v. Harris (1987) 195 CA3d 717, 725.) "[B]efore a defendant agrees to waive custody credit to which he is entitled, he should understand the full consequences of the waiver." (People v. Ambrose, supra , 7 CA4th at pp. 1922-1923, italics added.) "An awareness of the [full] consequences of waiving any right should include an understanding of the impact of that waiver on the amount of time a defendant may be incarcerated. [Citations.]" ( Id . at p. 1922.)  The totality of the circumstances shown in the entire record is reviewed in determining whether a defendant had a sufficient understanding of the full consequences of the waiver. (People v. Salazar (1994) 29 CA4th 1550, 1554, fn. 1; People v. Howard (1992) 1 C4th 1132, 1174-1178.)  Although there do not appear to be anypublished cases applying the standard of proof for knowing and intelligent §2900.5 waivers to §4019 waivers, we are unaware of any reason not to, and therefore shall, apply the same standard.

In People v. Hilger (2003) 105 CA4th 202; 129 CR2d 102, the Court of Appeals held that a defendant's Johnson waiver (i.e., custody credits waiver) waiver was ineffective without the sentencing court first explaining to the defendant that his custody time might exceed the upper term imposed for his offense.  Editor's Note: The courts of appeal are split on what a defendant must show to prove a waiver was not knowing and intelligent.  One line of decisions, the minority view spawned by People v. Burks (1998) 66 CA4th 232, requires a defendant expressly to state on the record that his waiver is limited and applies only to county jail time, not state prison; otherwise, the waiver applies to a prison term as well. (Id, at p. 236 & fn. 3.)  A second line of decisions adopts a case-by-case approach, looking at the particular facts to determine whether they support the conclusion that the defendant knew the waiver applied to prison time. (See, e.g., People v. Harris (1987) 195 CA3d 717, 725 [adopting a fact specific analysis in determining whether defendant knew he was waiving credits against any eventual prison sentence].)  For example, People v. Ambrose (1992) 7 CA4th 1917, found a waiver where the court specifically told the defendant he would not receive any credit against a prison sentence if he violated probation. (Id. at pp. 1922- 1923.)  And People v. Salazar (1994) 29 CA4th 1550, found a waiver because the court informed the defendant he was waiving credits "for all time and for all purposes." (Id., at pp. 1553-1554.)  However, none of the above cases establish what a defendant must show when the Johnson waiver causes him to serve more time in custody than an offense's upper term. (See People v. Burks, 66 CA4th at p. 234 [does not discuss that two-year sentence for stalking is mid-term]; People v. Salazar, 29 CA4th at p. 1552 [does not discuss that five-year sentence for sale of cocaine is upper term]; People v. Harris, 195 CA3d at p. 719 [does not discuss that three-year sentence for assault with a deadly weapon is mid-term].)  With one exception, People v. Ambrose, the decisions' silence in describing the sentences as low, mid-, or upper term reveals their analyses did not consider the implications of a defendant's serving more time for an offense than the Legislature has directed.  Also, it appears that the Court of Appeals has evidently jumped the gun, as it recognizes in its opinion in Hilger, supra, that there are two cases involving the very same issue currently pending before the California Supreme Court in People v. Arnold (No. S106444) (2002 WL 462280) and People v. Jeffrey (S105978) (2002 WL 392798).  Recently, on March 19, 2003, the California Supreme Court accepted review of People v. Hilger, supra, thus, the case cannot be cited for its holding and the Supreme Court will ultimately resolve the conflict.

In People v. Tillman (2000) 22 C4th 300; 992 P.2d 1109; 92 CR2d 741, the California Supreme Court held that two provisions of the Penal Code – §§1202.4 and 1202.451 – require trial courts to impose a restitution fine as part of the judgment of conviction entered against a criminal defendant and, in cases where parole is granted, an additional fine in the same amount suspended unless parole is later revoked.  The restitution fine under PC §1202.4 is mandatory unless the sentencing court, in the words of the statute, “finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” (PC §1202.4(b).)   In cases in which the court imposes a restitution fine, imposition of a parole revocation fine is also mandatory. (PC §1202.45.)  However, the Court held that in instances where these fines are not imposed by the trial court, recent precedents of the Court require the waiver doctrine to be applied against the People, precluding the subsequent additions of these fines on appeal.  (See, People v. Scott (1994) 9 C4th 331 and People v. Welch (1993) 5 C4th 228.)  However, in People v. Smith (2001) 24 C4th 849; 14 P.3d 942; 102 CR2d 731, the Supreme Court held that the waiver doctrine (Tillman, supra) is not applicable to situations where the trial court imposed an invalid (erroneous) parole revocation fine.  Such invalid fines fall within the class of sentencing errors that present a pure question of law, and the error is correctable by the appellate court without reference to any factual issues.

Probationary Restriction of Medical Marijuana (Prop 215) In People v. Bianco (2001) 93 CA4th 748; 113 CR2d 392, the Court of Appeals held that the defendant was granted probation subject to certain conditions, one of which was that the defendant was prohibited from using or possessing marijuana.  The Court held that this probation restriction did not impinge upon defendant's right to the medical use of marijuana under state law. (H&S Code §11362.5.)  The Court of Appeals concluded that the trial court acted within its traditional discretion in imposing the probation condition.

PROP 36 ISSUES IN VOP'S

Proposition 36 (PC §1201.1) and Probation Revocation In People v. Murillo (2002) 102 CA4th 1414; 126 CR2d 358, the appellate court held that Prop. 36 applies to probation violations, and unless government proves by preponderance of the evidence that the defendant poses danger to others, or has violated probation three (3) times, court may not impose incarceration when revoking probation.

Probation Revocation - Ex Post Facto Issue In re Oscar R. (2002) 101 CA4th 1370; 125 CR2d 269.  In applying amended Welfare and Institutions Code §777(c), which permits reliable hearsay, the Court held that this did not violate any ex post facto prohibition.  Here, the minor violated probation after the statute was amended, though his original offense occurred before the enactment.  Hearsay in the form of the probation officer's testimony about threats made by the minor to a victim was admissible because the presence of the victim at the hearing would have posed an unreasonable risk of harm.  Editor's Note:  In re Oscar R., supra, was granted review by the California Supreme Court on November 26, 2002.  The Supreme Court's order was to defer action on the case pending the Court's review and decision in In re John L. (2002) (4/25/02;an unpublished opinion by the First DCA, concerning a related issue.

New Charges - Federal  In U.S. v. Weber (2003) 320 F.3d 1047, the Ninth Circuit held that a probationer's revocation proceeding was pending for purposes of an 18 USC §1503 charge (obstruction of justice based on a death threat made to a judge) and that the government had presented sufficient evidence for the jury to conclude that the probationer possessed the requisite intent to obstruct justice and that his death threat to the judge bore a sufficient relationship to the pending probation revocation proceeding, and that the district court did not err by applying the federal sentencing guidelines (U.S.S.G. § 2J1.2), as these guidelines applied specifically to an 18 USC §1503 conviction.

ABOUT PAROLE

While legal precedent from probation cases may sometimes be applicable to parole revocation proceedings, parole differs from probation in a variety of ways. Penal Code §3000 provides for the status of being a parolee in terms of the legal transitional status of all prisoners released from a California state prison after serving their sentence. Although no longer in custody, the parolee must comply with extensive restrictions imposed as a condition of parole. Two separate state agencies administer the parole system, the Board of Prison Terms (BPT) and the Department of Corrections (CDC). The parolee is formally supervised by a parole officer, and the object of parole is to reform the parolee so as to allow the individual to reenter society.

As mentioned above, Morrissey v Brewer, supra, established most of the due process rights of parolees in the parole revocation process. Effective July 1, 1977, under Penal Code §1168, et seq., California changed from an indeterminate sentencing law to the determinate sentencing law, and since that date, PC §3000 has made the parole period for a prisoner a part of the actual sentence, with parole revocation periods (except for parolees from indeterminate (life) sentences) have been limited to a maximum 12-month term for each return to custody. All prison sentences must include a period of parole unless it is waived by the BPT for good cause. Parole is an additional penal consequence of conviction and, if a prisoner is not advised of the parole requirement before his or her guilty plea, he or she may withdraw the plea on a showing of prejudice, i.e., but for the error the defendant would not have entered the plea, or, alternatively, be relieved of the parole requirement when the sentence already served exceeds the bargained-for sentence.

ABOUT PAROLE REVOCATION HEARINGS

Parole revocation proceedings differ from probation revocation proceedings inasmuch as the parole revocation proceeding is vested in either of two (2) administrative agencies - the BPT or the CDC. Thus, a parole revocation proceeding is administrative in nature, and does not require a judicial determination as does a probation revocation proceeding. Parole revocation proceedings are initiated for a violation of any parole condition (PC §§3052-3053.5) and, as mentioned, can result in the parolee receiving up to one year on each return to custody. Per PC §3057, acts of misconduct while serving a revocation term may result in up to an additional 12 months of custody, with maximums of 180 days of custody assessed for each act punishable as a felony, 90 days for each act punishable as a misdemeanor, and 30 days for each act amounting to a serious rule violation. Per PC §3000, time spent in custody on a parole violation does not count against the maximum period of parole. However, if the maximum prescribed period of parole for a prisoner is three years, he or she may not be retained on parole supervision or in custody on a parole violation for more than four years. If the prisoner was subject to a maximum five years of parole, he or she may not be retained for more than seven years. A parolee facing a revocation hearing may have his or her parole period extended in order to encompass the hearing date. (See 15 CCR §2637(b)(12).)

Parole - Prisoner Must Show Governor's Decision Not Supported By Any Evidence In re Morrall (2002) 102 CA4th 280; 125 CR2d 391  In the absence of specific evidence of refusal to perform a legal duty, the appellate court relied on the Governor's (Governor Davis) fidelity in the performance of the duties of his office, including his reversal of parole board's grant of parole.  The Governor's decisions with respect to parole are subject to judicial review on the merits, but scope of this review is narrow.  A court may not interfere with the Governor's exercise of discretion.  To establish cause for relief, prospective parolee must demonstrate that there is no basis in fact for the decision, i.e., it is not supported by any evidence. On the facts of this case, the appellate court could not find that the Governor's action had no basis in fact.  Thus, the Governor's review of the Board of Prison Terms' determination did not violate principles of due process and did not violate the prohibition against ex post facto laws. The courts of appeal are all over the place on this issue. (See, In re Dannenberg, below. Editor's Note:  The Morrall case was accepted for review on November 26, 2002 by the California Supreme Court.  It's decision was deferred due to the pendency of In re Rosenkrantz (see immediately below).  Since Rosenkrantz has been decided by the California Supreme Court, on February 11, 2003, the Morrall review was dismissed by the Supreme Court and the Court of Appeals decision ordered published.  Also, as mentioned below, In re Dannenberg was granted review by the California Supreme Court on January 15, 2003.

Parole - Governor's Veto Upheld - In Re Rosenkrantz (2002) 29 C4th 616; 59 P3d 174; 128 CR2d 104   The California Supreme Court held that a Governor's decision granting or denying parole is subject to a limited judicial review to determine only whether the decision is supported by "some evidence."  The Court went on to explain that article V, section 8(b), does not grant a Governor unfettered discretion over parole matters, but rather explicitly requires his parole decision to be based upon the same factors that the Board is required to consider.   The Court also held that the governing authorities establish that the type of procedural change implemented by article V, §8(b) - i.e., a change that simply created a new level of review within the executive branch of parole decisions concerning a specified category of prisoners (thereby changing the identity of the ultimate decision maker within the executive branch for such parole decisions), but that did not change the substantive standard governing the grant or denial of parole - is not the type of change to which the ex post facto clause applies.  Hence, the Court determined that the petitioner's ex post facto claim lacked merit.

Parole - Governor's Veto Overruled  In In re Capistran (2003) (4/21/03; 03 C.D.O.S. 3327; ___ CA4th ___), the Court of Appeals held that in In re Rosenkrantz, supra, 29 Cal.4th 616, 676-677, the California Supreme Court
held that the Governor's decision to deny parole will not be disturbed if supported by "some evidence."  But, in reaching that conclusion, a reviewing court must also be satisfied that the Governor's decision was based on the same factors "which the parole authority is required to consider." (California Constitution Art. V, §8(b) [hereafter Article V, §8(b)].)  Here the Court of Appeals concluded that the report of the Governor required by Article V, §8(b) was, in part, based upon facts for which there was not "some evidence," and that the Governor failed to make an individualized consideration of the same factors upon which the Board of Prison terms (hereafter the Board) relied.  Hence, because the Governor's decision does not comply with Article V, §8(b), writ relief is appropriate.  However, the Court agreed with the Governor and the Warden that the trial court erred in ordering the petitioner's release.  On remand, the Governor was ordered to vacate the decision and thereafter to proceed to review the Board's decision in accordance with due process of law.  (In re Rosenkrantz, supra, 29 Cal.4th at p. 658.)

Parole - Remand To Board For Determination Under Proper Standards 

In re Dannenberg (2002) 102 CA4th 95. Using the standard set forth in In re Ramirez (2001) 94 CA4th 549 (deferential abuse of discretion standard is appropriate, one aspect of which is that Board's factual determinations need only be supported by some evidence), the Court of Appeals remanded parole denial to Board of Prison Terms to determine eligibility.  The Board must weigh gravity of inmate's criminal conduct against other instances of the same crime, performing an evaluation similar to that prescribed by the sentencing rules governing probation determinations.   It is not enough to say the crime (here, second degree murder) is cruel, unless it is more cruel than other second degree murders.  But the Court agreed that some murders are more cruel than others, and that unusual cruelty is a valid consideration.  Editor's Note:  On January 15, 2003, the California Supreme Court granted the petition for review and, thus, the above Dannenberg opinion is no longer citable for any legal proposition)

Parole - Federally Cognizable Liberty Interest McQuillion v. Duncan (2002) 306 F.3d 895, the Ninth Circuit held that California's parole scheme gave rise to constitutionally protected liberty interest.  As such, due process of law requires that before prisoner can be deprived of such an interest, there is some evidence in the record to support a later rescission of an earlier parole date.  Because Board of Prison Terms' grounds for its later rescission reflect nothing more than disagreement with ultimate determination reached by earlier granting panel, the some evidence standard was not met.  Thus, the prior denial of a federal habeas petition was reversed and remanded to the lower court with order to issue the writ.

No Immediate Deportation Permitted?  In U.S. v. Tinoso (2003) (4/25/03; 03 C.D.O.S. 3499; ___ F.3d ___), the Ninth Circuit held that 18 USC §3583(d) precludes a district court judge from ordering the immediate deportation of an alien upon the release of the defendant from a federal penitentiary.  The Appellate Court here said that the district court must provide that the defendant be delivered to the INS first.  Then, the defendant is placed on supervised release outside of the U.S.  The district court cannot order immediate deportation as a condition of the defendant's supervised release.  Editor's Note:  See Demore v. Kim (2003) 538 U.S. ___, wherein a divided U.S. Supreme Court held that 8 USC §1226(c) permitted the government to hold alien prisoners without bail after they have served their sentences in order that they may be turned over to the INS and, thus, be deported.

Obviously, if you have been convicted of a public offense and have been placed on probation, either formal or informal probation, or if you have been paroled for a felony conviction, or if you know someone who is on probation or on parole, you or they absolutely, positively need an attorney who knows the law, who will pursue justice in your/their case, and who can and will protect your or their liberty interests in a court of law. At the MAYO LAW CLINIC we vigorously defend individuals who are, for any number of reasons, being prosecuted for either a probation or a parole violation. CALL US AT (530) 898-8468 IN ORDER TO SCHEDULE YOUR FREE CONSULTATION!