Tuesday, June 12, 2018
Page 1
Court of Appeal:
Mandatory Minimum Probation Term Can Be Shortened
Court Says Statute Requiring Imposition of at Least Three Years of Probation Does Not Preclude Judge, After Imposing That Term, From Lifting It
By a MetNews Staff Writer
Although a statute provides that if a person who commits domestic violence is granted probation, the term of probation must be at least three years, a judge is not precluded from terminating probation early in the interests of justice, the Fourth District Court of Appeal held yesterday.
Justice Art McKinster of Div. Two wrote the opinion. It rejects the reasoning of Riverside Superior Court Judge L. Jackson Lucky IV that a specific statute, Penal Code §1203.097, which a “minimum period of probation of 36 months” for domestic violence, prevails over a general statute, Penal Code §1203.3(a), which permits termination of probation “at any time.”
Lucky granted a motion by probationer Reyna Killion to reduce her conviction for felony assault with a deadly weapon (her automobile) to a misdemeanor, but said he was powerless to terminate probation. The policy behind §1203.097, he said, “was to create—to put it mildly—onerous terms of probation for domestic violence offenders” and make sure judges “didn’t give them less than 36 months.”
McKinister wrote:
“Here, section 1203.097 mandates imposition of a 36-month term of probation when a court imposes probation for a defendant convicted of a domestic violence offense. The sentencing court imposed a 36-month term of probation on defendant. However, the latter court, 14 months later, was not imposing sentence upon defendant, but was tasked with determining whether defendant came within the remedial provisions of section 1203.3, a matter which is distinct from the imposition of probation….
“Indeed, section 1203.097, a rather lengthy statute, deals only with the initial imposition of probation at sentencing for domestic violence offenders. Nowhere does it address any subsequent remedial provisions of which a defendant might avail herself to reduce the terms and/or length of probation. That subject is dealt with exclusively in section 1203.3. This suggests that the legislature intended to require an initial imposition of a 36-month term of probation in domestic violence cases, but did not intend to circumscribe the court’s discretion to later reduce that term pursuant to section 1203.3 upon a showing of good cause.”
The case is People v. Killion, E068225
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