Judge Erred in Revoking Probation of Man Who Had Been Deported

Friday, October 11, 2019

Page 3

Court of Appeal:

Judge Erred in Revoking Probation of Man Who Had Been Deported

Contrary Decision From the First District Is Repudiated

By a MetNews Staff Writer

The Court of Appeal for this district, repudiating the reasoning of a 1988 First District opinion, held yesterday that a judge abused his discretion in revoking the probation of a man who had been deported.

Writing for this district’s Div. Two, Justice Brian Hoffstadt said in an unpublished opinion:

“The trial court summarily revoked a criminal defendant’s probation for ‘never report[ing]’ to the Probation Department, even though it was undisputed that the reason the defendant never reported was because he was involuntarily deported. This was error, so we reverse.”

The defendant, Serviano Orozco, on April 10, 2017, pled guilty to a felony count of transporting methamphetamine. He was placed on three years of formal probation conditions of which were spending six months in jail, reporting to the Probation Office within 48 hours of his release, and keeping in touch with that office.

He was released on May 4, 2017, and promptly deported.

Judge Richman’s Order

At a hearing on Aug. 24, 2018, Los Angeles Superior Court Judge Craig Richman said he was “well aware that deportation is not a willful violation of probation,” but revoked probation and issued a no-bail warrant for Orozco’s arrest.

Richman did the right thing, the Office of Attorney General argued on appeal, citing the Feb 19, 1988 decision in People v. Campos. There, Presiding Justice Clinton White of the First District’s Div. Three said:

“A defendant who is deported while on probation may be found in violation of that probation for failure to report to the probation department although his deportation makes it impossible for the defendant to fulfill this condition of his probation.”

Contravenes Precedents

That proposition, Hoffstadt said in yesterday’s opinion, “is impossible to square” with subsequent pronouncents by courts of appeal “that violations of probation be willful” to justify summary revocations—precedents, he added, that “our Supreme Court recently cited with approval” in People v. Hall, rendered in 2017.

The Office of Attorney General also argued that revocation was warranted because Orozco had failed to abide by a condition of probation that he supply information as to his home and work addresses and phone number, and failed to pay the fines that were imposed.

“This argument ignores that the Probation Office did not allege defendant’s failure to provide current contact information as a basis for revocation…, ignores that it would have been nigh impossible to provide that information absent the initial assignment to a particular probation officer (and his deportation prevented that assignment), and ignores that there was also no evidence that defendant’s failure to pay the fines was willful,” Hoffstadt responded.

The case is People v. Orozco, B292926.