Brian E. Hill, Judge Superior Court County of Santa Barbara (Super. Ct. No. 1329409) (Santa Barbara County)
The opinion of the court was delivered by: Gilbert, P.J.
CERTIFIED FOR PUBLICATION
Penal Code section 1210.12, subdivision (a) states that the county's chief probation officer shall have the "sole discretion," consistent with the terms and conditions of probation, to decide which persons shall be supervised using a global positioning system (GPS).*fn1
If a trial judge places a defendant on probation on conditions that he not associate with certain people or go near a certain location, the section permits the probation officer to order the defendant to wear a GPS device.
Consider these facts: The trial judge places a defendant on probation with the same conditions, but specifically orders that the defendant not wear a GPS device.
Now for an easy question. May the chief probation officer nevertheless order the defendant to wear a GPS device? The obvious answer--of course not. The California Constitution requires that here we take the word "sole" with a grain of salt. To the extent the statute purports to deprive the trial court of authority over the terms and conditions of probation, it violates the separation of powers clause of the Constitution. (Cal. Const., art. III, § 3.) We affirm the trial court's decision that defendant Augustine Cruz, Jr. was not in violation of his probation for refusing to wear a GPS monitoring device ordered by his probation officer.
On February 5, 2010, Cruz pled no contest to felony vandalism (§ 594, subd. (b)(1)) and admitted the special allegation that the offense was committed for the benefit of or at the direction of or in association with a criminal street gang (§ 186.22, subd. (b)(1)).
Pursuant to a plea agreement, Cruz was placed on three years of supervised probation. The probation order includes the conditions: obey all laws, do not associate with known criminals, follow all orders of the probation officer, do not change place of residence or leave the county or state without permission of the probation officer, do not drink nor possess any alcoholic beverages and stay out of places where they are the chief item of sale, do not associate with gang members, and stay away from the 2001 Clothes store and Westside Market.
On April 5, 2010, Cruz reported to the probation department's electronic monitoring office. There he agreed to be fitted with a GPS device. On April 9, 2010, Cruz told his probation officer that he was refusing further participation in GPS monitoring and would rather complete his sentence in state prison. The probation officer arrested Cruz for violating his probation.
At the probation violation hearing, the trial court refused to order Cruz to participate in GPS monitoring. The court opined that section 1210.7 only authorized probation to recommend GPS monitoring to the court. The court further opined that if the section authorized probation to require GPS monitoring, it would be unconstitutional.
The People contend the trial court erred in concluding the probation officer can only recommend GPS monitoring to the trial court. The People argue the Legislature intended to give the county's chief probation officer sole discretion to decide which persons shall be supervised using a GPS device.
Section 1210.7, subdivision (a) provides: "Notwithstanding any other provisions of law, a county probation department may utilize continuous electronic monitoring to electronically monitor the whereabouts ...