Is a finding that a defendant is ineligible for probation equivalent to an increase in penalty?

In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], the United States Supreme Court stated that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Id. at p. 490 [147 L.Ed.2d p. 455].) Defendant cites People v. Lo Cicero (1969) 71 Cal.2d 1186, in which the court stated that denying the opportunity for probation is equivalent to an increase in penalty.³ (Id. at p. 1193.)

However, in People v. Benitez (2005) 127 Cal.App.4th 1274, the court concluded that probation is an act of clemency on the part of the trial court; thus, finding a defendant ineligible for probation is not a form of punishment. (Id. at p. 1278.) We agree.