What is the test for reinstatement of probation under section 1203, subdivision (e) of the California Criminal Code?

Defendant contends the matter must be remanded for resentencing. According to defendant, the court erred in finding that defendant was ineligible for reinstatement of probation under section 1203, subdivision (e) (hereafter 1203(e)) unless the interests of justice required it. Furthermore, because the court presumed wrongly that defendant had to overcome a nonexistent "presumption of ineligibility," the court failed to understand the scope of its discretion and the decision cannot be upheld. (Cf. People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [["g]enerally," a sentencing decision made in the erroneous belief that the court lacked discretion must be reversed and remanded so that the court can exercise its informed discretion at a new sentencing hearing].) Finally, defendant contends that if this contention is forfeited for failure to raise it below, his trial counsel was ineffective.

The Attorney General concedes that section 1203(e) does not apply on these facts. However, the Attorney General gives two reasons why remand is not required. (1) The trial court expressly based its decision on a different statute that does apply: section 1203.066, subdivision (d) (hereafter 1203.066(d)). While the court did not cite that statute by number, it employed and critically relied on language which appears only therein. Thus, the court actually applied the correct standard. (2) It would be an "idle act" to remand for resentencing (People v. Coelho (2001) 89 Cal.App.4th 861, 869 (Coelho)) because the court's long and exhaustive sentencing statement shows it is not reasonably probable the court would impose a different sentence on remand.