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Name: People v. Mendoza
Case #: H032314
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 03/06/2009

The trial court has no authority to modify a jail sentence imposed as a condition of probation once the sentence has been served but while defendant is still on probation, so that probationer may avoid immigration consequences. Defendant/respondent, a permanent legal resident of the United States, was convicted of felony grand theft and granted five years probation with a condition requiring him to serve 365 days in jail. At sentencing, the court advised respondent that it would consider a reduction in the jail term once restitution of $26,867 was paid. Respondent did not pay the restitution in full, served the jail term, and was taken into custody pending deportation. He then sought a reduction in the jail term, representing that some of the restitution had been paid. Agreeing to permit appellant to waive conduct credits, the court modified the jail term by striking the conduct credits to make the time served 250 days. The trial court stressed that it took the action to better the victim’s chances at obtaining restitution rather than to better appellant’s chances at avoiding deportation. The appellate court reversed, finding that the trial court had no authority to grant a change in a sentence that had been intended, imposed, and served. To permit the court to do so violates the Legislature’s intent that a conviction can be used for future enhancement purposes and rulings by the federal courts that convictions can be used for immigration purposes.