Can a probationer be found to be in willful violation of his probation for failing to report to the probation department?

California, United States of America


The following excerpt is from The People v. Leiva, B214397, No. PA035556 (Cal. App. 2011):

over the prescribed probationary term that his or her conduct has reformed to the degree that punishment for the offense may be mitigated or waived." (People v. Feyrer (2010) 48 Cal.4th 426, 439.) Where, as here, a probationer is deported upon his release from custody, he cannot be found to be in willful violation of his probation for failing to report to the probation department. (People v. Galvan (2007) 155 Cal.App.4th 978, 984.) That being the case, if probation were to expire absent proof of a violation during the original probationary term, a probationer, such as defendant, who is deported, returns to this country illegally and is not caught until after the original term of probation expires, could potentially escape from ever having to comply with his or her probationary conditions. Concluding that defendant, who illegally reentered this country, chose not to report to his probation officer upon returning with proof that he was here legally, and failed to pay his financial obligations, has demonstrated that his conduct "has reformed to the degree that punishment for the offense may be mitigated or waived" flies in the face of common sense. Defendant, who committed a string of acts that violated the conditions of his probation, would receive the same benefit as one who complied with all the terms of his or her probationary grantavoidance of a more severe sentence by successfully completing probation. Such a result is hardly consistent with the rehabilitative purpose of a grant of probation.

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