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Name: People v. Bolian
Case #: B252794
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 12/02/2014

Remand was required where trial court may have misunderstood the scope of its discretion to reinstate and modify probation for a defendant whose sentence had previously been imposed with execution suspended. Following a grant of probation with a suspended sentence of five years in state prison, appellant tested positive for marijuana on multiple occasions, in violation of the terms of his probation. The probation department recommended that the court find that Bolian had violated probation, but that the court not revoke probation and instead modify his probation so that he serve a suitable time in custody and attend an outpatient drug education program. When defense counsel urged the court to follow this recommendation, the trial court made comments indicating that it believed it was illegal to reinstate and modify probation when a sentence had been imposed but execution suspended. The court found that Bolian had violated probation, revoked probation, and ordered execution of the previously suspended five-year sentence. On appeal, Bolian argued that the court misunderstood its legal authority to reinstate and/or modify probation, and therefore reversal was required for the court to properly exercise its discretion. Held: Reversed. Upon finding that a defendant has violated probation, the court may modify, revoke, or terminate probation. The power to modify includes the power to reinstate probation, and the court may order additional jail time as a sanction. A court still has authority to choose between reinstatement and termination even if the court had previously suspended execution of a sentence. The record here showed that the court was unaware of its discretionary powers, and believed that it would be illegal to not impose the suspended sentence. Therefore, remand was required for the court to exercise its discretion.