Resolving a Probation Violation While in Prison?

It is very common for an inmate in state prison to have a probation violation from the conviction that landed him or her in prison. A probation officer who knows that a person has been sent to prison has a duty, within a reasonable period of time, to notify the person of a pending probation violation charge and the right to resolve it. People v. Young (1991) 228 Cal. App. 3d 171, 175 278 Cal. Rptr. 784; but see People v. Madrigal (2000) 77 Cal. App. 4th 1050, 1053-1054, 92 Cal. Rptr. 2d 205(no duty to give notice of probation violation charge where probation officer did not know of person’s imprisonment due to person absconding from probation).

There are two ways to resolve such charges during the current term. One is the process set forth in Penal Code § 1203.2a, which is meant to give people an opportunity to serve sentences on probation violations fully concurrent with their current prison terms. Pompi v. Superior Court (1982) 139 Cal. App. 3d 503, 507, 189 Cal. Rptr. 52.

Section 1203.2a, it should be noted, applies even when the prison commitment is for a parole violation rather than for a new conviction. In re Klein (1961) 197 Cal. App. 2d 58, 62, 17 Cal. Rptr. 71.

Section 1203.2a also applies to people on probation in California who are in prison in another state or in any federal prison. People v. Broughton (2003) 107 Cal. App. 4th 307, 320, 133 Cal.Rptr.2d 161 (abrogated on other grounds by People v. Wagner (2009) 45 Cal. 4th 1039, 1056 90 Cal. Rptr. 3d 26.

The Penal Code § 1203.2a process is also available to people serving felony sentences in county jails. People v. Mendoza (2015) 241 Cal. App.4th 764, 194 Cal. Rptr. 3d 273.

However, it does not to apply when a person is serving a jail term for a misdemeanor conviction. People v. Blanchard (1996) 42 Cal. App. 4th 1842, 1847-1848, 50 Cal.Rptr.2d 614.

The other option to resolve a probation violation is the Penal Code § 1381 procedure wherein one serves a written demand for a speedy trial under § 1381.

The procedure to demand resolution of a probation violation charge under Penal Code § 1203.2a is simple. Prison staff can provide a CDCR Form 616 Request for Disposition of Probation, Waiver of Appearance and Right to Attorney. The inmate must fill out the form and present it to case records staff, who should verify the request and fill in information about the current sentence and release date. Form 616 requires the person in prison to waive (give up) the right to an attorney and to be present at the probation violation proceedings.

Some courts in the past suggested that Penal Code § 1203.2a may violate due process because it allows probation revocation in cases where sentence has previously been imposed without a formal revocation hearing or representation by a lawyer. Those courts also held that any constitutional problem cannot be used to deprive a person of the benefit of requesting resolution pursuant section 1203.2a. In re Flores (1983) 140 Cal. App. 3d 1019, 1025, 190 Cal. Rptr. 388; People v. Timmons (1985) 173 Cal. App. 3d 1000, 1006, 219 Cal. Rptr. 611.

The case records staff should then send the form to the probation officer and the court by certified mail. Penal Code § 1203.2a; DOM § 72040.6.1.

Courts vary as to whether they require strict compliance with § 1203.2a procedure to trigger the disposition timelines. Some courts have allowed leeway. People v. Murray (2007) 155 Cal. App. 4th 149, 65 Cal. Rptr.3 d 731 (letter sent to probation officer by CDCR was valid demand for disposition, even though it did not have inmate’s signature or waiver of rights to formal revocation hearing and counsel; People v. Carr (1974) 43 Cal. App. 3d 441, 445-446, 117 Cal. Rptr. 714 (court with “actual knowledge” of fact of probation and prison commitment must act within time limits). Others have been less accommodating to the inmate. People v. Hall (1997) 59 Cal. App. 4th 972, 69 Cal. Rptr. 2d 826 (timelines not triggered by notice to probation officer that defendant was “transferred” to prison); People v. Como (1975) 49 Cal. App. 3d 604, 609 123 Cal. Rptr. 86 (court did not lose jurisdiction where it was only reported to the court that defendant was sentenced on a new charge but not that defendant was sent to prison). See also People v. Bethea (1990) 223 Cal. App. 3d 917, 922, 272 Cal. Rptr. 903 (person in Nevada prison who signed form requesting disposition of California probation violation without a specific waiver of rights did not waive rights to counsel or to appearance at revocation hearing).

A probation officer who receives a § 1203.2a demand must notify the court about the new prison commitment within 30 days. The same 30-day timeline applies if the probation officer receives a notice of the commitment from the inmate, their attorney, or prison officials, even if the inmate has not filed a formal § 1203.2a request for disposition.

After the probation officer timely notifies the court of a § 1203.2a demand, the court must act quickly to resolve the case. If the case is one in which a sentence was previously imposed but execution was suspended, the court must order execution of sentence (or make some other final order resolving the charge) within 60 days. If the case is one in which no sentence was previously imposed, the court must impose sentence within 30 days. Failure to meet either of these timelines means that the court will lose jurisdiction over the charge and cannot find a probation violation or execute or impose a sentence. Penal Code § 1203.2a; In re Hoddinott, supra, at 999.

This article would not be possible without reference to the California Prison and Parole Law Handbook, written and published by the Prison Law Group in Folsom, California. We thank them.