Metropolitan News-Enterprise


Wednesday, June 22, 2011


Page 3


Court of Appeal Announces New Approach to Probation Orders


By a MetNews Staff Writer


The Third District Court of Appeal said yesterday that it has grown weary of addressing the need for a condition of probation to include an element of scienter on a repetitive case-by-case basis and that such a requirement should be uniformly read into the conditions of probation.

Presiding Justice Vance W. Raye’s opinion for the panel served to “give notice of our intent to henceforth no longer entertain this issue on appeal, whether at the request of counsel or on our own initiative,” in the interests of fiscal and judicial economy.

He explained that “appellate courts have issued opinions consistently holding that conditions of probation must include scienter requirements to prevent the conditions from being overbroad” since at least 1993, but “with dismaying regulatory, we still must revisit the issue in orders of probation.”

Raye remarked that this “is a drain on the public fisc that could be avoided if the probation departments at fault would take greater care in drafting proposed probation orders,” which the court was opting to address in the future by construing “every probation condition proscribing a probationer’s presence, possession, association, or similar action to require the action be undertaken knowingly.”

Following issuance of yesterday’s opinion—in which Justices Harry Hull and Andrea Lynn Hoch joined—Raye said it “will no longer be necessary to seek a modification of a probation order that fails to expressly include such a scienter requirement.”

This issue arose in People v. Patel, 11 S.O.S. 3314, which involved a challenge raised by Javid Patel after entering negotiated pleas of no contest to charges of driving under the influence of alcohol and with a suspended license.

Patel was arrested in March 2010, with a blood-alcohol level of 0.22 percent, after he drove his car through a red light and collided with another vehicle. The other driver suffered a broken leg, and two of the passengers in Patel’s vehicle were also injured.

Patel’s license was suspended at this time as a result of an October 2009 DUI incident.

Sacramento Superior Court Judge Gary Ransom accepted Patel’s pleas and, based on a finding of unusual circumstances, granted probation.

Ransom imposed several special conditions, which included a 364-day jail term, the suspension of driving privilege for three years, participation in an alcoholism treatment program, and installation of an ignition interlock device in any vehicle that Patel owns or operates after his release from custody.

A condition prohibiting Patel from drinking alcohol, possessing it, or being in any place where it is the chief item of sale, however, did not include a qualification that he must commit the proscribed conduct knowingly.

Patel’s court-appointed counsel filed a Wende brief, asking the appellate court to determine whether any arguable issues were presented. The justices did not find any other arguable issue raised aside from the scienter qualification, and affirmed Patel’s sentence, as modified to reflect the requisite knowledge requirement.


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