Metropolitan News-Enterprise


Friday, September 28, 2007


Page 1


Deported Probationer’s Failure to Report Not ‘Willful’—C.A.


By STEVEN M. ELLIS, Staff Writer


A probationer who failed to meet with his probation officer because the federal government deported him upon his release from jail did not willfully violate his probation, this district’s Court of Appeal ruled yesterday.

Div. Three reversed the judgment of Los Angeles Superior Court Judge Ronald S. Coen that Hector Rodriguez Galvan had violated the terms and conditions of his probation after he failed to report to the probation department both after his release from custody and after his subsequent reentry into the United States.

Presiding Justice Joan D. Klein wrote that insufficient evidence existed to sustain revocation on the latter ground because there was no showing of when Galvan reentered the country, and that the former ground did not constitute a willful violation because the federal government deported Galvan to Mexico immediately upon his release.

Galvan pled guilty in February of 2003 to cocaine possession.  The trial court deferred entry of judgment and Galvan was placed on probation for three years.

On Aug. 22, 2005, he pled no contest to burglary and admitted he had violated his earlier probation.  The trial court imposed a three-year prison term but did not execute it, instead revoking and reinstating Galvan’s earlier probation with the condition that he serve 365 days in county jail, the sentence to run concurrently with the burglary sentence.

The terms of probation required Galvan to contact a probation officer within 24 hours of his release from county jail, to not reenter the country illegally if he left, and, if he did leave, to report to the probation officer within 24 hours of reentry with documentation proving he was in the country legally.

Galvan failed to appear for a Dec. 27, 2005 probation violation hearing, and a bench warrant was issued for his arrest.  On April 12, 2006, he was arrested in the United States and taken into custody.

On June 12, 2006, the trial court held a formal probation violation hearing, and Galvan’s probation officer testified that, according to the records of the U.S. Citizenship and Immigration Services, Galvan had been deported to Mexico on Nov. 1, 2005.

The officer testified that she was never in contact with Galvan while serving as his probation officer, that she was unaware he had returned to the United States until being subpoenaed to appear at the hearing, and that she could find no record that he had reported to the probation department after his release.

The trial court found Galvan in violation and revoked his probation in both cases.  It executed his three-year sentence in the burglary case, and sentenced him to state prison for two years in the drug case, with sentences to run concurrently.

Klein wrote that the trial court apparently revoked Galvan’s probation both because he failed to report within 24 hours of his release from county jail, and because he subsequently failed to report within 24 hours of his reentry into the United States.

Observing that a court may revoke probation in its discretion where it has reason to believe that a probationer has violated any of the conditions of probation, Klein noted that this determination must be supported by evidence that the probationer’s conduct constituted a willful violation of the probation’s terms.

Applying this standard to the decision to revoke probation for Galvan’s failure to report within 24 hours of reentering the country, Klein held that the trial judge abused his discretion because the record contained no evidence showing how long Galvan had been back in the United States before he was arrested in April of 2006.

Turning to Galvan’s failure to report within 24 hours of leaving jail, she agreed with Galvan that his immediate deportation following his release demonstrated that his failure to report was not willful.

Pointing out that Galvan’s deportation “obviously prevented him from reporting in person,” Klein said that a reasonable person in his position would have believed such an appearance to be excused under the circumstances. 

Concluding that his failure to report was not the result of irresponsible behavior, disrespect for the orders and expectations of the court, or a willful violation of his probation conditions, Klein said the revocation had to be reversed.

Klein was joined in her opinion by Judge H. Walter Croskey, and Judge Richard D. Aldrich.

The case is People v. Galvan, B192308.


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