California

Criminal Procedure

Criminal Procedure

Rule 4.435 – Sentencing on revocation of probation, mandatory supervision, and postrelease community supervision

(a)When the defendant violates the terms of probation, mandatory supervision, or postrelease community supervision or is otherwise subject to revocation of supervision, the sentencing judge may make any disposition of the case authorized by statute. In deciding whether to permanently revoke supervision, the judge may consider the nature of the violation and the defendant’s past performance on supervision.

(Subd (a) amended effective January 1, 2018; previously amended effective January 1, 1991.)

(b) On revocation and termination of supervision under section 1203.2, when the sentencing judge determines that the defendant will be committed to prison or county jail under section 1170(h):

(1)

(1) If the imposition of sentence was previously suspended, the judge must impose judgment and sentence after considering any findings previously made and hearing and determining the matters enumerated in rule 4.433(c). The length of the sentence must be based on circumstances existing at the time supervision was granted, and subsequent events may not be considered in selecting the base term or in deciding whether to strike the additional punishment for enhancements charged and found.

(2) If the execution of sentence was previously suspended, the judge must order that the judgment previously pronounced be in full force and effect and that the defendant be committed to the custody of the Secretary of the Department of Corrections and Rehabilitation or local county correctional administrator or sherifffor the term prescribed in that judgment.

(Subd (b) amended effective January 1, 2018; previously amended effective July 1, 2003, January 1, 2006, January 1, 2007, and January 1, 2017.)

Cal. R. Ct. 4.435

Rule 4.435 amended effective January 1, 2018; amended effective January 1, 2017; adopted as rule 435 effective July 1, 1977; previously renumbered effective January 1, 2001; previously amended effective January 1, 1991, July 1, 2003, January 1, 2006, and January 1, 2007.

Advisory Committee Comment

Subdivision (a) makes it clear that there is no change in the court’s power, on finding cause to revoke and terminate supervision under section 1203.2(a), to continue the defendant on supervision.

The restriction of subdivision (b)(1) is based on In re Rodriguez (1975) 14 Cal.3d 639, 652: “[T]he primary term must reflect the circumstances existing at the time of the offense.”

A judge imposing imprisonment on on revocation of probation will have the power granted by section 1170(d) to recall the commitment on his or her own motion within 120 days after the date of commitment, and the power under section 1203.2(e) to set aside the revocation of probation, for good cause, within 30 days after the court has notice that execution of the sentence has commenced.

Consideration of conduct occurring after the granting of probation should be distinguished from consideration of preprobation conduct that is discovered after the granting of an order of probation and before sentencing following a revocation and termination of probation. If the preprobation conduct affects or nullifies a determination made at the time probation was granted, the preprobation conduct may properly be considered at sentencing following revocation and termination of probation. (See People v. Griffith (1984) 153 Cal.App.3d 796, 801.)While People v. Griffith refers only to probation, this rule likely will apply to any form of supervision.