On February 5, 2010, Mr. Augustine Cruz was placed on three years of supervised probation on condition that Mr. Cruz does not associate with members of a criminal street gang and stay away from territories that are alleged to be within the boundaries of a criminal street gang. Mr. Cruz agreed to be fitted with a GPS device, but later changed his mind and told his probation officer that he does not want to participate in GPS monitoring. Instead, Mr. Cruz opted to complete his sentence in prison. As a result of failing to participate in GPS monitoring, a probation violation hearing was set for Mr. Cruz. At the probation violation hearing, the trial court refused to order Mr. Cruz to participate in the GPS monitoring and held that Mr. Cruz was not in violation of his probation for refusing to wear a GPS monitoring device.
The Court of Appeal agreed with the trial court, holding that Penal Code section 1210.12, which provides the probation officer with sole discretion regarding use of a GPS monitoring device is unconstitutional because it usurps the Court’s authority to supervise probation conditions. Penal Cod section 1210.12 gives authority to the trial court to authorize the probation department to use GPS monitoring, which in turn gives the probation department the sole discretion to decide who will or will not be subject to GPS monitoring. As such, Penal Code section 1210.12 violates the separation of powers clause of California’s Constitution to the extent the statute deprived the trial court’s authority over the terms of probation. Moreover, the statute interferes with the Court’s power to adequately set terms and conditions of a defendant’s probation.
If you are on probation and participating in a GPS program, it is important that you speak with an experienced criminal defense attorney. Wallin and Klarich has over 30 years of experience in dealing with probation matters and has successfully defended similar individuals. Please call (888) 280-6839 anytime to speak with one our attorneys regarding your matter.
