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People v. Black (Cal. Ct. App. - July 31, 2009)

By Shaun Martin

Let's see what you think.

Iris Black got someone else's bank account information and used it to make six purchases that total $377.99. She admitted the offense when questioned by police and pled guilty. She didn't really have any significant criminal history, so back in 2005, she's sentenced to 90 days in jail and three years of probation.

A year after she gets out, she violates her probation by not showing up for required drug testing and not keeping her address updated. She again admits everything, was sentenced to (and served) some more jail time, and probation was continued on some harsher conditions.

Another year passes, and again she gets violated when she admits that she's relapsed into drugs. Her probation is revoked and she's sentenced to drug rehab. In January 2008 her probation gets reinstated but extended until 2010.

Then, in early 2008, she gets violated again, this time for having meth in her apartment and having credit cards -- in her own name, apparently, but that's in violation. What do you do at that point?

California Rule of Court 4.435(b)(1) provides: "On revocation and termination of probation . . . when the sentencing judge determines that the defendant will be committed to prison: . . . The length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term." There's no way she'd have been sentenced to years in prison back in 2005 for pimping $377.99; moreover, she's already spent additional jail time and incurred other penalties for her violation. On the other hand, clearly probation isn't working out, so she's going in.

Assume that back in 2005, if you decided not to sentence her to probation, you'd have sentenced her to a year in prison. (This seems a quite reasonable assumption given the facts of this particular case, by the way.) What do you do now? Give her the year? Feel constrained to do so by Rule 4.435, which says that you can only take into account events existing at the time probation was granted? Give her the middle term of two years in light of her violations, which is what the probation office currently recommends? Or go to the extreme and give her the aggravated term of three years?

The trial court chooses the last of these options. And the Court of Appeal unanimously affirms.

Whatchathink?

Full post as published by California Appellate Report on July 31, 2009 (boomark / email).