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Name: People v. Cervantes
Case #: B209350
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 06/25/2009

A trial court abuses its discretion by revoking probation if the probationer did not willfully violate the terms and conditions of probation. Appellant was convicted of felony spousal abuse and false imprisonment. Despite knowledge that appellant was an undocumented immigrant, subject to deportation, the court granted him probation and set a review hearing. After appellant failed to appear for the hearing because he was in the custody of the Immigration and Customs Enforcement agency (ICE), the court, while acknowledging that appellant had not willfully violated his probation, revoked probation and sentenced him to prison. Revoking probation without evidence that probationer’s conduct was a willful violation of the terms of probation is an abuse of discretion. Although the court may consider immigration status in initially determining whether defendant is eligible for probation, it may not thereafter base revocation on deportation over which defendant has no control. Here, by imposing a prison sentence on the basis of the deportation, the error cannot be deemed harmless and must be reversed with direction to the court to modify the terms and conditions of probation.