(Super. Ct. Nos. 2005006623, 2007005712)(Ventura County). Patricia M. Murphy, Judge.
The opinion of the court was delivered by: Gilbert, P.J.
CERTIFIED FOR PUBLICATION
The trial court knows that defendant is an undocumented alien and agrees it will suspend a state prison term and grant him probation if he pleads guilty to a charged criminal offense. Defendant pleads guilty to the charged offense and receives a grant of probation. He is unable to appear for a 30-day review hearing because he is in the custody of immigration authorities. Under these circumstances, defendant is not in violation of probation.
Jose Navarro Cervantes pled guilty to corporal injury to a former cohabitant (Pen. Code, § 273.5) and false imprisonment (id., § 236). The court suspended imposition of sentence, placed him on formal probation for 48 months and ordered him to serve 60 days in county jail as a condition of probation. Cervantes appeals a judgment entered after the court revoked his probation and sentenced him to an aggregate term of two years eight months in state prison.
Because Cervantes did not violate his probation, we reverse.
After Cervantes pled guilty, the probation report informed the court of the difficulty supervising Cervantes if he were placed on probation because he is an "illegal alien" subject to deportation.
Nevertheless, at the sentencing hearing, on August 31, 2007, the court placed Cervantes on probation for 48 months and ordered him to serve 60 days in county jail. It ordered him to return to court on November 16, for a "30 day review." But on October 12, the sheriff transferred Cervantes to the custody of the federal Immigration and Customs Enforcement agency (ICE).
This created an insurmountable obstacle to Cervantes attending his November 16 review hearing. The probation officer informed the court that Cervantes could not be present because he was in the custody of federal immigration authorities.
The court then scheduled a probation violation hearing at which Cervantes appeared with his counsel Ronald Hamernik. The probation officer had previously reported that Cervantes had not violated probation. The court said, "There are two matters on for [a] violation of probation hearing. That's really not the appropriate term. It's a discussion of the defendant's ability to continue on probation given his immigration status." The court continued the hearing to obtain an updated report from the probation department regarding his immigration status.
The probation department filed a short memo that informed the court that on December 19, 2007, an immigration judge issued a decision ordering that Cervantes be "removed from the United States." But the immigration authorities did not deport him. He remained in "the custody of the INS" until January 20, 2008, when sheriff's deputies took custody to return Cervantes to superior court for the hearing on his alleged probation violation. In her report, the probation officer reported speaking to "INS Agent Soto." But "[n]o further information could be obtained as [Cervantes'] file was not available to Agent Soto."
At a June 19, 2008, probation hearing, no witnesses testified and no evidence was introduced. The court said to Defense Counsel Hamernik, "I have now been made aware that [Cervantes'] immigration status is such that he is no longer suitable for probation. [¶] Is that an accurate assessment, Mr. Hamernik?"
Hamernik: "Yes. And I would like to state, for the record, the fact that there has been no act or omission [or] act by the defendant to violate his probation. He has not failed to do anything. It's simply an issue of the fact that he does not have a permanent residence card."
The court: "Yes. . . . The Court was aware of Mr. Cervantes' resident status at the time he entered the plea. [¶] And at the time he pled and at the time he was sentenced, it was deemed appropriate for him ...