Does a judge have discretionary authority to reinstate probation on the same or modified terms as to revoke probation and sentence a defendant to prison?

California, United States of America


The following excerpt is from People v. Davis, A149242 (Cal. App. 2017):

Defendant also contends the trial court failed to properly exercise its discretion in executing the previously imposed sentence. He contends that the record does not show that the trial judge was aware of his discretionary authority to reinstate defendant to probation on the same or modified terms. (See People v. Medina (2001) 89 Cal.App.4th 318, 323 ["We are cognizant that, when a judge suspends execution of a prison term, the message being conveyed is that the defendant is on the verge of a particular prison commitment. Nonetheless, upon violation and revocation of probation under such circumstances, the sentencing court retains discretion to reinstate probation."].)

While the court's comments are perhaps ambiguous with respect to whether the court properly understood it had discretion to reinstate probation, as compared to its lack of discretion to deviate from the imposed sentence if it terminated probation, its citation to People v. Bolian, supra, 231 Cal.App.4th 1415 resolves any ambiguity. In that case, the court explained, "A probation violation does not automatically call for revocation of probation and imprisonment. [Citation.] A court may modify, revoke, or terminate the defendant's probation upon finding the defendant has violated probation. [Citation.] The power to modify probation necessarily includes the power to reinstate probation. [Citations.] Thus, upon finding a violation of probation and revoking probation, the court has several sentencing options. [Citation.] It may reinstate probation on the same terms, reinstate probation with modified terms, or terminate probation and sentence the defendant to state prison. [Citations.] [] If the court decides to reinstate probation, it may

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