Tag Archives: Probation Parole PRCS

Probation Parole PRCS, Statutory interpretation

Case: 000153

Posted on by Gary McCurdy

Error and/or relief

After petitioner admitted to parole violations, the superior court revoked petitioner’s parole and remanded him to the custody of the Department of Corrections and Rehabilitation (CDCR) pursuant to section 3000.08(h). He should not have been remanded to state prison under section 3000.08(h), but instead confined to county jail for no more than 180 days pursuant to section 3000.08(f) and (g)

First Holding:

For all inmates released from prison on parole on or after July 1, 2020, notwithstanding any other law, any inmate sentenced to a life term shall be released on parole for a period of three years. Therefore, it is section 3000.01 and not section 3000.1 that applies to convicted murderers who, like petitioner, are paroled after July 1, 2020. Because section 3000.1 does not apply to petitioner, he is not subject to section 3000.08(h), remanding him to the custody of CDCR. The trial court is directed to vacate its order remanding petitioner to the custody of the CDCR and hold further proceedings to determine what penalties to impose for petitioner’s parole violation, as provided by section 3000.08(f) and (g

Authority:

PEN 3000.01(b)(2) [subject to two exceptions not relevant here, under subdivision (d)]

Second Holding:

By using the phrase “notwithstanding any other law,” the Legislature signaled its intent for the later-enacted statute–section 3000.01–to preempt the conflicting, preexisting statute in section 3000.1

Authority:

APeople v. Reed (2024) 103 Cal.App.5th 43, 53

Probation Parole PRCS

Case: 000138

Posted on by Gary McCurdy

Error and/or relief

Probation Condition 13 is invalid under Lent and Ricardo P. In accord with Ricardo P., we will vacate Probation Condition 13 and remand for consideration of whether a more narrowly tailored electronic search condition may be devised and is justified on this record.

First Holding:

In Lent, the Supreme Court adopted a three-part test to determine whether a probation condition is reasonable and, therefore, statutorily valid. Generally, a condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. The third prong of the Lent test requires a narrow tailoring evaluation to determine whether the burden an electronic search condition imposes on the probationer’s privacy is reasonably proportionate to the risk of future criminality.

Authority:

People v. Lent (1975) 15 Cal.3d 481

In re Ricardo P. (2019) 7 Cal.5th 1113, 1122-1123

Second Holding:

Under Lent, the third prong reasonableness determination as explained and applied in Ricardo P. requires a case-by-case, record-specific balancing of factors. The third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality. It is insufficient to say, categorically, that electronic surveillance improves effective probation supervision. A probation condition cannot be justified solely on the basis that it enhances the effective supervision of the probationer without regard for the burden it places on the probationer.

Authority:

People v. Bryant (2021) 11 Cal.5th 976, 983, 984

Third Holding:

There must be information in the record establishing a connection between the search condition and the probationer’s criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical. Even though a direct nexus between the search condition and underlying offense is not always required, there still must be information in a probation report that raises concerns about future criminality.

Authority:

In re Alonzo M. (2019) 40 Cal.App.5th 156, 165-166E

Duty of the court, Probation Parole PRCS, Standard of review

Case: 000128

Posted on by Gary McCurdy

Error and/or relief

We find that the nature of the required program is impermissibly vague in the condition of probation that the defendant “enter into and continue such education, psychological, psychiatric, drug, alcohol, or other rehabilitation program as directed by the probation officer or as specifically ordered as a term of probation, and shall not leave or terminate such programs without the permission of the probation officer.”

First Holding:

Applying de novo review, we address each challenge to a probation condition separately.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902

Second Holding:

It is the court’s duty to determine the nature of the requirements imposed on the probationer. Although a probation condition need not be set forth with mathematical certainty, the language used must have reasonable specificity. Here, such specificity is lacking. The program choices for the probation officer are open-ended, ranging from education to psychological and psychiatric to drug, alcohol, or other rehabilitation. This is too vague to pass muster, and we cannot interpret it more narrowly in light of other probation conditions, the probation report, or the trial court’s commentary. Without meaningful guidance from the record, the open-ended program condition cannot be saved by permitting the probation department to provide the necessary specificity.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902

Sheena K. (2007) 40 Cal.4th 875, 890

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358

Probation Parole PRCS, Standard of review

Case: 000113

Posted on by Gary McCurdy

Error and/or relief

The condition of probation that prohibits the defendant from “frequenting] any area where gang members are known by him/her to congregate, or areas known by him/her for gang related activity” is overbroad and can be more narrowly tailored by allowing the defendant’s probation officer to specify the areas involving gang-related activity. Accordingly, we modify the condition of probation to read that the defendant “shall not associate with any person known to him/her as a gang member and shall not frequent any areas specified by his probation officer as involving gang-related activity, subject to reasonable exceptions to accommodate family, work, and educational needs as determined by his probation officer.”

First Holding:

The court’s discretion of the court to impose conditions of probation is not boundless. The authority is wholly statutory, and the statute furnishes and limits the measure of authority which the court may exercise. A condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. Conversely, a condition of probation that requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.

Authority:

PEN 1203.1

People v. Cervantes (1984) 154 Cal.App.3d 353, 356

People v. Lent (1975) 15 Cal.3d 481, 486

Second Holding:

The Lent test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.

Authority:

People v. Moran (2016) 1 Cal.5th 398, 403

Third Holding:

As to the third prong of Lent, courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. But the third prong “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1122

People v. Lopez (1998) 66 Cal.App.4th 615, 626 [relying on information in probation report for gang-related condition]

Fourth Holding:

Probation is a privilege and not a right, and adult probationers, in preference to incarceration, validly may consent to limitations upon their constitutional rights.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 384

Fifth Holding:

A probation condition that infringes a constitutional right is permissible if necessary to serve the dual purpose of rehabilitation and public safety. However, a probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.

Authority:

People v. Burden (1988) 205 Cal.App.3d 1277, 1281

People v. Salvador (2022) 83 Cal.App.5th 57, 62-63

In re Sheena K. (2007) 40 Cal.4th 875, 890

In re E.O. (2010) 188 Cal.App.4th 1149, 1153

Sixth Holding:

In Victor L., the defendant challenged for overbreadth and vagueness a condition of probation ordering him to stay away from areas known by him for gang-related activity. The court distinguished between probation restrictions encompassing areas known for gang related crimes (which other courts had upheld against constitutional challenges) from restrictions involving gang-related activity. Noting the word ‘activity’ is one of surpassing breadth that could banish the defendant from the area in which he lived, worked, or went to school, Victor L. determined that an individualized list of stay away areas, together with any exceptions necessary to reasonably accommodate the defendant’s legitimate work and educational needs was required. Victor L. reasoned a probation officer, rather than the trial court, was in a better position to identify the forbidden areas for each defendant, using either geographic or activity-based limits. Victor L. modified the condition to prohibit the defendant’s presence in areas known by him for gang-related activity (or specified by his probation officer as involving gang-related activity). Other courts have imposed similar gang-area restrictions.

Authority:

In re Victor L. (2010) 182 Cal.App.4th 902, 913-918, 931-932

People v. Barajas (2011) 198 Cal.App.4th 748, 754-760 [affirming condition that stated that the defendant was not to visit or remain in any specific location which he knows to be or which the probation officer informs him to be an area of criminal street gang-related activity]

In re H.C. (2009) 175 Cal.App.4th 1067, 1072 [It would be altogether preferable to name the actual geographic area that would be prohibited to the minor and then to except from that certain kinds of travel, that is, to school or to work]

Discretion, Elements of crime, Probation Parole PRCS

Case: 000108

Posted on by Gary McCurdy

Error and/or relief

The court revoked the defendant’s probation and sentenced him to six years in prison. Because we conclude no substantial evidence supports a finding that the defendant willfully failed to appear at the January 1998 hearing and because the September 1998 offense occurred after his probation had ended, we reverse.

First Holding:

When a court summarily revokes a defendant’s probation, the revocation, summary or otherwise, shall serve to toll the running of the period of supervision. However, the tolling provision preserves the trial court’s authority to adjudicate, in a subsequent formal probation violation hearing, whether the probationer violated probation during, but not after, the court-imposed probationary period. In other words, because the defendant’s three-year probation term ended in July 1998, the court could adjudicate after July 1998 whether acts he committed between July 1995 and July 1998 violated his probation, but could not adjudicate whether acts committed after July 1998 violated his probation.

Authority:

PEN 1203.2(a)

People v. Leiva (2013) 56 Cal.4th 498, 502

Second Holding:

Revocation of probation rests in the sound discretion of the court. Although that discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based upon the facts before it.

Authority:

People v. Zaring (1992) 8 Cal.App.4th 362, 378

Third Holding:

A court abuses its discretion in finding a defendant violated a condition of probation unless the evidence supports the conclusion that the conduct constituted a willful violation of that condition.

Authority:

People v. Leiva (2013) 56 Cal.4th 498, 379

People v. Galvan (2007) 155 Cal.App.4th 978, 982

Fourth Holding:

The facts supporting revocation of probation may be proven by a preponderance of the evidence. However, the evidence must support a conclusion the probationer’s conduct constituted a willful violation of the terms and conditions of probation.

Authority:

People v. Rodriguez (1990) 51 Cal.3d 437, 439

People v. Sem (2014) 229 Cal.App.4th 1176, 1188 [a willful violation is a prerequisite to revoking probation]

Probation Parole PRCS, Standard of review

Case 000045

Posted on by Gary McCurdy

Error and/or relief

On appeal, the minor contends that the electronics search conditions should be stricken as unreasonable under People v. Lent (1975) 15 Cal.3d 481 or, at a minimum, modified as unconstitutionally overbroad. He also maintains that the association condition should be modified due to its overbreadth. We find the electronics search conditions reasonable under Lent, but we accept the People’s concession that they are unconstitutionally overbroad. We see no constitutional infirmity in the association condition. We therefore remand the matter to the trial court to strike or modify the electronics search condition. Remanded to modify terms 9 and 16

First Holding:

Under Lent, a condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. The Lent test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. We find dispositive the first element of Lent’s test, which asks whether the probation condition has no relationship to the conviction. Here, the record supports an implied finding that there was a relationship between the offense and minor’s use of an electronic device and the internet.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 486

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Patton (2019) 41 Cal.App.5th 934, 945

Second Holding:

The failure to object to a probation condition as unreasonable under Lent generally forfeits the contention on appeal. Only facial constitutional challenges to a probation condition that are capable of correction without reference to the particular sentencing record are exempt from the general forfeiture rule.

Authority:

People v. Welch (1993) 5 Cal.4th 228, 234-235, 237

In re Sheena K. (2007) 40 Cal.4th 875, 887

Third Holding:

The court may nevertheless exercise its discretion to consider the merits of both his Lent and constitutional claims in light of the People’s concession and the minor’s alternative contention that his trial counsel’s failure to make an adequate objection constituted ineffective assistance.

Authority:

People v. Mattson (1990) 50 Cal.3d 826, 854 [considering issues not raised in trial court to forestall later claim of constitutionally inadequate representation]

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [appellate courts may reach unpreserved questions]

Fourth Holding:

In applying the Lent test, we review the conditions imposed for abuse of discretion.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118

People v. Salvador (2022) 83 Cal.App.5th 57, 62, 64

Fifth Holding:

We review constitutional overbreadth questions de novo

Authority:

In re P.O. (2016) 246 Cal.App.4th 288, 297

Sixth Holding:

The electronic search conditions here were overly broad.

Authority:

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355 [If a probation condition serves to rehabilitate and protect public safety, the condition may impinge upon a constitutional right otherwise enjoyed by the probationer, who is not entitled to the same degree of constitutional protection as other citizens.]

In re Sheena K. (2007) 40 Cal.4th 875, 890 [A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.]

In re E.O. (2010) 188 Cal.App.4th 1149, 1153 [The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement]

Probation Parole PRCS, Sentencing, Standard of review

Case 000034

Posted on by Gary McCurdy

Error and/or relief

On appeal, the defendant challenges the trial court’s imposition of probation conditions regarding association with minors, completion of a sex offender treatment program, polygraph examinations, possession of pornography, electronic search, and electronic monitoring. We conclude the association with minors and pornography conditions are unconstitutionally vague or overbroad and will remand the case to the trial court to modify them

First Holding:

Regarding the conditions of probation. we conclude the association with minors and pornography conditions are unconstitutionally vague or overbroad and will remand the case to the trial court to modify them.

Authority:

PEN 1203.1

Second Holding:

A probation condition is valid under the statutory scheme if it relates to the crime for which the defendant was convicted, relates to other criminal conduct, or requires or forbids conduct that is reasonably related to future criminality.

Authority:

People v. Hall (2017) 2 Cal.5th 494, 498

People v. Lent (1975) 15 Cal.3d 481, 486

Third Holding:

The Lent test is conjunctive—all three factors must be found in order to invalidate a probation condition.

Authority:

People v. Balestra (1999) 76 Cal.App.4th 57, 65, fn. 3

Fourth Holding:

A trial court abuses its discretion only when the probation conditions imposed are arbitrary, capricious, or exceed the bounds of reason.

Authority:

People v. Welch (1993) 5 Cal.4th 228, 233-234

Fifth Holding:

Even valid probation conditions must not be unconstitutionally vague or overbroad. Vagueness considers whether a condition is sufficiently precise to give the probationer fair warning of what conduct is required or prohibited; overbreadth considers the closeness of fit between the state’s interest in reformation and rehabilitation and the burden imposed on the [probationer’s] constitutional rights.

Authority:

People v. Rhinehart (2018) 20 Cal.App.5th 1123, 1126-1127

In re I.V. (2017) 11 Cal.App.5th 249, 260

In re Sheena K. (2007) 40 Cal.4th 875, 890

Sixth Holding:

A probation condition must be sufficiently definite for the probationer to know what conduct is required or prohibited, and to allow the court to determine when that condition has been violated.

Authority:

People v. Hall (2017) 2 Cal.5th 494, 500

Seventh Holding:

A probation condition also must be closely tailored to its legitimate objective to avoid being invalidated as unconstitutionally overbroad

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 946

In re Sheena K. (2007) 40 Cal.4th 875, 890

People v. Garcia (1993) 19 Cal.App.4th 97, 101-102 [such conditions must be narrowly drawn]

Eighth Holding:

We review de novo constitutional challenges to probation conditions.

Authority:

People v. Mendez (2013) 221 Cal.App.4th 1167, 1172

AppellateAdvisor Updates

Case 000032

Posted on by Gary McCurdy

Error and/or relief

Because the trial court improperly admitted hearsay testimony, the order revoking the defendant’s Post-Release Community Supervision (PRCS) is reversed and the matter is remanded to the trial court for further proceedings consistent with this opinion.

First Holding:

A preliminary hearing transcript of a witness’ testimony is not admissible at a parole or probation revocation hearing absent a showing of good cause.

Authority:

People v. Winson (1981) 29 Cal.3d 711

People v. Arreola (1994) 7 Cal.4th 1144

Second Holding:

A trial court’s decision to admit or exclude evidence in a revocation hearing will not be disturbed on appeal absent an abuse of discretion.

Authority:

People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197-1198

Third Holding:

The court reviews rulings on whether hearsay was improperly admitted at a violation hearing for abuse of discretion.

Authority:

People v. Abrams (2007) 158 Cal.App.4th 396, 400

Fourth Holding:

Before a defendant’s probation or parole may be revoked, the prosecution must prove a violation by a preponderance of the evidence.

Authority:

People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066

Fifth Holding:

Probation and parole revocations are not part of a criminal prosecution; as such, the full panoply of rights due a defendant in a criminal proceeding does not apply.

Authority:

People v. Gray (2023) 15 Cal.5th 152, 163

Sixth Holding:

The Sixth Amendment’s right of confrontation does not apply to probation violation hearings; rather, a defendant’s right to cross-examine and confront witnesses at a violation hearing stems from the due process clause of the Fourteenth Amendment. This right to confrontation, however, is not absolute and the parole revocation process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.

Authority:

People v. Abrams (2007) 158 Cal.App.4th 396, 400

People v. Winson (1981) 29 Cal.3d 711, 716, 719

Seventh Holding:

In considering the admissibility of hearsay evidence at a parole or probation revocation hearing, a case-by-case consideration is necessary because under a due process analysis, the importance of a defendant’s confrontation right will vary with the circumstances.

Authority:

People v. Liggins (2020) 53 Cal.App.5th 55, 66-67

Eighth Holding:

The California Supreme Court has has established two separate standards for admitting hearsay evidence depending on whether the hearsay is testimonial or documentary in nature. With respect to testimonial evidence, a preliminary hearing transcript of a witness’ testimony is not admissible at a parole or probation revocation hearing absent a showing of good cause. The broad standard of good cause is met (1) when the declarant is unavailable under the traditional hearsay standard, (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant’s presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant.

Authority:

People v. Shepherd (2007) 151 Cal.App.4th 1193, 1199

People v. Winson (1981) 29 Cal.3d 711, 713-714

People v. Arreola (1994) 7 Cal.4th 1144, 1159-1160

Ninth Holding:

First, to be testimonial the statement must be made with some degree of formality or solemnity. Second, the statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution. Statements which merely record objective facts or observations of fact are generally not testimonial in nature. Nor are official records which serve purposes other than to aid a criminal investigation.

Authority:

People v. Dungo (2012) 55 Cal.4th 608, 619-621

People v. Lopez (2012) 55 Cal.4th 569, 582

Tenth Holding:

In contrast to the good cause standard for testimonial hearsay, documentary hearsay evidence may be admitted at a probation or parole revocation proceeding if there are sufficient indicia of reliability regarding the proffered material. The right of confrontation is not absolute; revocation proceedings should be flexible enough to allow for conventional substitutes for live testimony (including affidavits, depositions, and documentary evidence); and various federal courts had demonstrated a willingness to consider inadmissible hearsay evidence when it is accompanied by a reasonable indica of reliability.

Authority:

People v. Maki (1985) 39 Cal.3d 707, 709

Eleventh Holding:

Whereas the need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness’s demeanor, the witness’s demeanor is not a significant factor in evaluating foundational testimony relating to the admission of evidence such as laboratory reports, invoices, or receipts. This is because, often, the purpose of such foundational testimony is simply to authenticate the document, and the author, signator or custodian of the document may not even be able to recall from memory the specific contents of the writing.

Authority:

People v. Arreola (1994) 7 Cal.4th 1144, 1157

Twelfth Holding:

In determining whether the erroneous admission of hearsay evidence prejudiced a defendant, we apply the “harmless-beyond-a-reasonable-doubt” standard as the error is of federal constitutional dimension.

Authority:

People v. Arreola (1994) 7 Cal.4th 1144, 1161

Thirteenth Holding:

Post-Release Community Supervision (PRCS) was created by the Legislature in 2011 as an alternative to parole for non-serious, nonviolent felonies. It is similar, but not identical to parole.

Authority:

People v. Gutierrez (2016) 245 Cal.App.4th 393, 399

 

Duty of the court, Sentencing

Case 000020

Posted on by Gary McCurdy

Error and/or relief

Following a revocation of probation, the defendant was sentenced to state prison. The trial court erred in not obtaining a probation report before sentencing him. The error was prejudicial. We reverse.

First Holding:

Absent written stipulation (or oral if in open court), the court must refer the matter to probation after probation has been revoked. The preparation of the report of the consideration of the report by the court may be waived only by a written stipulation of the prosecuting and defense attorneys that is filed with the court or an oral stipulation in open court that is made and entered upon the minutes of the court, except that a waiver shall not be allowed unless the court consents thereto.

Authority:

PEN 1203(b)(1)

PEN 1203(b)(4)

Second Holding:

The purpose of a probation report is to advise the court of the circumstances surrounding the crime and to provide information about the defendant’s history and record.

Authority:

People v. Llamas (1998) 67 Cal.App.4th 35, 40

Third Holding:

Prejudice is measured under Watson.

Authority:

People v. Watson (1956) 46 Cal.2d 818

People v. Dobbins (2005) 127 Cal.App.4th 176

Fourth Holding:

A stipulation to waive referral to probation must appear in the minutes

Authority:

PEN 1203(b)(4)

Jurisdiction, Probation Parole PRCS

Case 000016

Posted on by Gary McCurdy

Error and/or relief

Assembly Bill No. 1950 (2019–2020 Reg. Sess.) applied retroactively to shorten the defendant’s probation term from four years to two years, thereby retroactively depriving the trial court of jurisdiction to revoke his probation after passage of the two-year mark and rendering the revocation and termination of his probation invalid. [GARY NOTE: Penal Code sections 1203a for misdemeanors and 1203.1 for felonies, and there are exceptions to the one-year and two-year periods mentioned in those sections, so be sure to look at the actual applicable statute if the issue arises.]

First Holding:

Acts committed after the statutory shortening of the length of the probation term do not constitute violations of probation.

Authority:

AB 1950

People v. Faial (2025) 18 Cal.5th 199