People v. Hernandez CA2/2

Filed 6/24/22 P. v. Hernandez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B315945

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA073803)
v.

SERGIO HERNANDEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County. Shannon Knight, Judge. Affirmed.
Aurora Elizabeth Bewicke, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne and Allison H.
Chung, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
 Appellant Sergio Hernandez appeals the order denying his
motion to terminate probation two years after sentencing.
Appellant contends that his probation terminated in June 2020
by operation of law based on the retroactive application of Penal
Code1 section 1203.1, subdivision (a) (as amended by Assem. Bill
No. 1950 (2019–2020 Reg. Sess.)), which limits the term of
probation in most cases to two years. According to appellant,
because the trial court’s jurisdiction over appellant’s case
terminated at the latest in June 2020, the trial court’s August
2020 summary revocation of his probation and all subsequent
orders must be vacated. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 10, 2018, around 8:15 a.m., C.R. came home to find
appellant standing in her driveway. Appellant and C.R. had
previously been married for about 14 years, and C.R. had an
active restraining order against appellant. Appellant had
recently come to C.R.’s home on multiple occasions in violation of
the restraining order. C.R. told appellant to leave and not to
enter the house. Appellant responded that she could “ ‘[c]all the
cops,’ ” but he was going inside and the police would have to get
him out. Appellant then broke a window with a stick and entered
the house through the broken window. He went upstairs to the
master bedroom and locked himself inside. Law enforcement
arrived and took appellant into custody. The cost to replace the
damaged window was about $400.
On May 24, 2018, appellant waived his rights to a
preliminary hearing and trial, and entered a plea of no contest to
one count of felony vandalism. (§ 594, subd. (a).) The trial court

1 Undesignated statutory references are to the Penal Code.

2
found a factual basis for the plea in the police reports. At
sentencing on June 14, 2018, the trial court stated it had
reviewed the probation report and observed that appellant had a
pending misdemeanor in Los Angeles County Superior Court
(LASC) case No. 8AN02353 for an alleged violation of the
domestic violence protective order issued in LASC case No.
6AN02363. In the latter case (6AN02363), appellant was on
probation following a conviction for infliction of corporal injury on
a spouse or cohabitant in violation of section 273.5. The court
remarked that the felony vandalism charge in the instant case
would also constitute a violation of the protective order in LASC
case number 6AN02363.
After reciting the facts underlying the felony vandalism
charge set forth in the probation report, the trial court declared it
would “very reluctantly go along with the proposed disposition in
the felony matter.” The court suspended imposition of sentence
and placed appellant on five years’ formal probation with 180
days in county jail. The terms and conditions of probation
included a 10-year criminal protective order for the victim and
payment of a $500 domestic violence fee pursuant to
section 1203.097.
Two years later, in accordance with the probation
department’s request, the trial court scheduled a probation
violation hearing for August 24, 2020. On that date, defense
counsel appeared, but appellant did not; the trial court
summarily revoked probation and issued a bench warrant for
appellant’s arrest. Appellant appeared for the bench warrant
hearing on September 20, 2021 and a probation violation hearing
was set.

3
 Prior to the hearing, appellant filed a motion to terminate
probation retroactively to June 13, 2020, pursuant to Penal Code
section 1203.1, subdivision (a), as amended by Assembly Bill No.
1950. At the probation violation hearing on October 26, 2021,
appellant argued the trial court lacked jurisdiction to revoke
probation on August 24, 2020, because Assembly Bill No. 1950
applied retroactively to limit his term of probation to two years,
and his conviction for felony vandalism did not qualify for the 36-
month probationary term required for domestic violence cases
under Penal Code section 1203.097. The trial court rejected
appellant’s argument, concluding that application of the 36-
month probationary term under section 1203.097 is not
determined by the specific offense of which the defendant stands
convicted, but whether the victim of that offense is a person
defined in Family Code section 6211. (Pen. Code, § 1203.097,
subd. (a).) Because a three-year probationary term would not
have expired until June 13, 2021, the August 2020 revocation of
appellant’s probation occurred during the valid probationary
term, and the trial court retained jurisdiction to address any
violations that occurred prior to revocation.
In light of the trial court’s denial of the motion and its
determination that it had jurisdiction to adjudicate the probation
violations, appellant admitted violating probation. The trial
court terminated probation and sentenced appellant to the low
term of 16 months in county jail. This appeal followed.2

2 We advised the parties pursuant to Government Code
section 68081 that we were considering dismissal of the appeal on
the ground that appellant had failed to seek or obtain from the
trial court a certificate of probable cause for the instant appeal in

4
 DISCUSSION
Appellant contends that retroactive application of the two-
year limitation on probation established by Assembly Bill
No. 1950’s amendments to section 1203.1 requires the reduction
of his term of probation from five years to two years, and the trial
court erred in denying his motion to terminate probation.
Therefore, according to appellant, the summary revocation of
probation in August 2020 and all subsequent orders must be
reversed because the trial court lost jurisdiction over the case
when appellant’s probation terminated by operation of law in
June 2020.
The People do not dispute that Assembly Bill No. 1950
applies retroactively to defendants who were serving a term of
probation when the legislation became effective on January 1,

accordance with Penal Code section 1237.5, subdivision (b). In
response, appellant cited this court’s prior order limiting the
appeal to issues that do not require a certificate of probable
cause, including the denial of appellant’s motion to terminate
probation pursuant to Assembly Bill No. 1950.
An appeal from an order denying a motion for termination
of probation is authorized under section 1237, subdivision (b), as
an appeal from an order after judgment affecting the substantial
rights of the party. (In re Bine (1957) 47 Cal.2d 814, 817 [order
modifying probation appealable]; People v. Romero (1991) 235
Cal.App.3d 1423, 1425–1426 [order denying motion for early
termination of probation and relief under section 1203.3, subd. (a)
appealable]; People v. Chandler (1988) 203 Cal.App.3d 782, 787
[order denying relief under section 1203.4, subd. (a) appealable].)
In light of the limitation of the issues to the denial of appellant’s
motion to terminate probation under Assembly Bill No. 1950, a
certificate of probable cause is not required in this case.

5
2021.3 Respondent maintains, however, that because appellant’s
conviction for felony vandalism involved domestic violence as set
forth in section 1203.097, and such crimes carry a 36-month
minimum term of probation, appellant does not qualify for the
ameliorative benefits of Assembly Bill No. 1950. The trial court
thus properly denied appellant’s motion to terminate probation.
We agree.
1. Assembly Bill No. 1950
Effective January 1, 2021, Assembly Bill No. 1950 amended
section 1203.1 to limit the length of probation in most felony
cases to two years. (§ 1203.1, subd. (a); People v. Saxton (2021)
68 Cal.App.5th 428, 431 (Saxton).) But the two-year limit does
not apply to all offenses: Exempt from the limit is any “offense

3 We have no quarrel with this proposition either. In In re
Estrada (1965) 63 Cal.2d 740, our Supreme Court “held that an
amendatory statute lessening punishment for a crime was
presumptively retroactive and applied to all persons whose
judgments were not yet final at the time the statute took effect.”
(People v. Frahs (2020) 9 Cal.5th 618, 624; People v. Conley (2016)
63 Cal.4th 646, 657 [“The Estrada rule rests on an inference that,
in the absence of contrary indications, a legislative body
ordinarily intends for ameliorative changes to the criminal law to
extend as broadly as possible, distinguishing only as necessary
between sentences that are final and sentences that are not”].)
Here, the ameliorative nature of Assembly Bill No. 1950 “places
it squarely within the spirit of the Estrada rule” (Frahs, at
p. 631), and the only reasonable inference to draw from the
legislative history of the amendment is that the shorter term of
probation “now deemed to be sufficient should apply to every case
to which it constitutionally could apply.” (Id. at pp. 627–628;
People v. Quinn (2021) 59 Cal.App.5th 874, 883.)

6
that includes specific probation lengths within its provisions.”4
(§ 1203.1, subd. (l)(1); People v. Rodriguez (June 7, 2022,
No. A160994) ___Cal.App.5th___ [2022 Cal. App. LEXIS 494, at
p. *4] (Rodriguez); Forester, supra, 78 Cal.App.5th at p. 452;
Saxton, at p. 431.)
Whether appellant’s case falls under this exemption
presents an issue of statutory interpretation which we review
independently. (Rodriguez, supra, 2022 Cal.App.LEXIS 494, at
p. *4; Saxton, supra, 68 Cal.App.5th at p. 431.) In doing so, we
adhere to the well-established rules of statutory construction,
beginning with the premise that “the language used in a statute
or constitutional provision should be given its ordinary meaning,
and ‘[i]f the language is clear and unambiguous there is no need
for construction, nor is it necessary to resort to indicia of the
intent of the Legislature (in the case of a statute) or of the voters
(in the case of a provision adopted by the voters).’ ” (People v.
Valencia (2017) 3 Cal.5th 347, 357.) Of course, “ ‘[t]he words of
the statute must be construed in context, keeping in mind the
statutory purpose, and statutes or statutory sections relating to
the same subject must be harmonized, both internally and with
each other, to the extent possible.’ [Citation.] [And] ‘[w]here
uncertainty exists consideration should be given to the
consequences that will flow from a particular interpretation.’ ”

4 Section 1203.1, subdivision (a)’s felony probation
limitation also does not apply to violent felonies listed in section
667.5, subdivision (c) (§ 1203.1, subd. (l)(1)), or certain crimes
involving grand theft, embezzlement, or making false financial
statements (§ 1203.1, subd. (l)(2)). (People v. Forester (2022) 78
Cal.App.5th 447, 452 (Forester).)

7
(Valencia, at pp. 357–358, quoting Dyna-Med, Inc. v. Fair
Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)
2. The mandatory minimum probationary term for domestic
violence offenses under section 1203.097
Penal Code section 1203.097, subdivision (a)(1) requires a
36-month minimum period of probation “[i]f a person is granted
probation for a crime in which the victim is a person defined in
Section 6211 of the Family Code.”
Family Code section 6211, subdivision (a) defines domestic
violence as abuse that is perpetrated against “[a] spouse or
former spouse.” Under the Domestic Violence Prevention Act
(Fam. Code, § 6200 et. seq.), of which Family Code section 6211 is
a part, “[a]buse is not limited to the actual infliction of physical
injury or assault” (Fam. Code, § 6203, subd. (b)), but includes
“any behavior that has been or could be enjoined pursuant to
Section 6320.” (Fam. Code, § 6203, subd. (a)(4).) Family Code
section 6320 in turn states in relevant part that “[t]he court may
issue an ex parte order enjoining a party from . . . destroying
personal property, contacting, . . . coming within a specified
distance of, or disturbing the peace of the other party.”
Penal Code section 1203.097 is not limited in its application
to particular offenses. (Forester, supra, 78 Cal.App.5th at p. 453.)
Rather, the statute applies to “defendants convicted of any crime
of ‘abuse’ so long as the victim is a person identified in Family
Code section 6211.” (People v. Cates (2009) 170 Cal.App.4th 545,
550 [Pen. Code, § 1203.097 applies to a violation of Pen. Code,
§ 245, subd. (a)(1) where the assault involves a victim defined in
Family Code section 6211]; id., at p. 548 [Penal Code “[s]ection
1203.097 applies to any person placed on probation for a crime if
the underlying facts of the case involve domestic violence, even if

8
the statute defining the crime does not specifically refer to
domestic violence”].) Thus, Penal Code section 1203.097 applies
to an offense like felony vandalism, where the facts underlying
the offense involve a victim defined in Family Code section 6211.
(See Cates, at p. 550; Forester, supra, 78 Cal.App.5th at p. 450
[Pen. Code, § 1203.097 applied to make stalking conviction
ineligible for two-year limit on felony probation under Pen. Code,
§ 1203.1, subd. (a) where crime was perpetrated against victim of
domestic violence]; Rodriguez, supra, 2022 Cal.App.LEXIS 494,
at p. *8 [Pen. Code, § 1203.097 applied to defendant’s conviction
of assault under Pen. Code, § 245, subd. (a)(4), given the
“ ‘domestic violence nexus’ ” to the offense]; People v. Brown
(2001) 96 Cal.App.4th Supp. 1, 39–40 [probation conditions under
Pen. Code, § 1203.097 applied to defendant’s vandalism
conviction where he smashed windows of wife’s car].)
3. The trial court properly concluded that appellant’s
conviction for felony vandalism involved domestic violence
within the meaning of section 1203.097
Appellant contends his felony vandalism conviction under
section 594 is not exempt from Assembly Bill No. 1950’s two-year
probation limit because the felony vandalism statute does not
contain a specific length of probation. (§ 1203.1, subd. (l)(1).) He
asserts that the trial court engaged in impermissible factfinding
to conclude otherwise, and thus erroneously denied the motion to
terminate probation. We disagree.
While the language of the exemption under section 1203.1,
subdivision (l)(1) appears plain enough when viewed in isolation,
it must nevertheless “be construed in context and harmonized
with other related statutes to the extent possible.” (Rodriguez,
supra, 2022 Cal.App.LEXIS 494, at p. *6, citing Dyna-Med, Inc. v.

9
Fair Employment & Housing Com., supra, 43 Cal.3d at pp. 1386–
1387.) We must therefore “construe the language at issue in
context and harmonize it to the extent possible with other related
statutes regarding probation lengths.” (Rodriguez, at p. *6.)
The Penal Code frequently separates punishment
provisions from the definitions of crimes, including placing
mandatory probation terms in an entirely separate statute from
the statute defining the offense. (Rodriguez, supra, 2022
Cal.App.LEXIS 494, at p. *6; Forester, supra, 78 Cal.App.5th at
pp. 454–455.) Thus, for example, Penal Code section 1203.047
specifies a minimum probationary term of three years (except
where justice requires a shorter term) for a violation of Penal
Code section 502, subdivision (c), defining a range of computer
crimes. If a person is convicted under Vehicle Code section 23152
or 23153 and is granted probation, Vehicle Code section 23600,
subdivision (b)(1) requires a minimum probationary term of three
years. And in the domestic violence context, Penal Code section
273.5 does not itself contain a specific length of probation, “but
requires that if probation is granted to a person convicted under
section 273.5, subdivision (a), the terms of the probation must be
consistent with the provisions of section 1203.097.” (Rodriguez,
at p. *7; Forester, at p. 455.)
As the court in Rodriguez recognized, “[p]enal statutes that
set forth the elements of an offense and the sentencing provisions
that are triggered upon conviction ‘operate in tandem to define
the crime and its consequences.’ [Citation.] Accordingly, a penal
statute that works in tandem with a separate sentencing
statute—separate in form, but not in function—is exempt from
Assembly Bill 1950’s probation limits.” (Rodriguez, supra, 2022
Cal.App.LEXIS 494, at p. *9, citing People v. Saxton, supra, 68

10
Cal.App. 5th at p. 432.) Therefore, “ ‘[b]ecause of [Penal Code]
section 1203.097, a conviction of a crime where the victim is
listed in Family Code section 6211 is an offense “that includes [a]
specific probation length[ ] within its provisions” for the purposes
of the exception under [Penal Code] section 1203.1, subdivision
[(l)(1)]. The underlying crime, however, may not normally carry a
minimum probationary term. For example, probation for a
violation of Penal Code section 245, subdivision (a)(4) [assault by
means of force likely to produce great bodily injury], does not
normally have a minimum term of probation—which means
felony probation is limited to two years. But if the victim is a
person included in Family Code section 6211, [Penal Code]
section 1203.1, subdivision [(l)(1)], provides an exception to the
new limits established by [Assembly Bill No.] 1950.’ (Couzens et
al., Sentencing California Crimes (The Rutter Group 2021) §
8:15.30, pp. 8-20 to 8-21, fn. omitted.)” (Forester, supra, 78
Cal.App.5th at p. 457.)
We find this reasoning persuasive, and as in Forester, “we
conclude that a defendant who is placed on probation for
committing a crime against a victim of domestic violence, as
defined by section 1203.097, has committed ‘an offense that
includes specific probation lengths within its provisions.’
(§ 1203.1, subd. (l)(1).) In such circumstances, and in the absence
of a contrary legislative indication, the two-year felony probation
limitation codified in section 1203.1, subdivision (a) does not
apply.” (Forester, supra, 78 Cal.App.5th at pp. 457–458.)

11
 4. The trial court properly relied on the probation reports in
determining that appellant’s conviction for felony
vandalism involved domestic violence within the meaning of
section 1203.097
Appellant contends the trial court violated his fundamental
rights by engaging in “impermissible factfinding” based on
hearsay to determine that appellant’s felony vandalism
conviction constituted a domestic violence offense subject to
section 1203.097. He also asserts that “the facts necessary to
increase the statutory minimum term of probation⎯including the
identification of the property damaged, [to] whom the property
belonged . . . , the relationship of that person to [appellant], and
whether the damaging of the property somehow constituted the
‘abuse’ of a person with a qualifying relationship⎯are all facts
subject to the constitutional requirement[ ]” that any facts
increasing the minimum available punishment “must be either
admitted or proven to a jury beyond a reasonable doubt.”
Appellant’s claim lacks merit.
In imposing sentence, a trial court is not restricted only to
the facts a defendant admits during his plea colloquy, but may
also consider any facts set forth in the probation report, including
the details of the crime itself. (People v. Otto (2001) 26 Cal.4th
200, 212–213 (Otto) [“courts routinely rely upon hearsay
statements contained in probation reports to make factual
findings concerning the details of the crime”]; People v. Tran
(2015) 242 Cal.App.4th 877, 888, fn. 5 [“The court may also
consider and rely upon hearsay statements contained in a
probation report, including the police reports used to prepare the
crime summaries contained in the report”]; see also People v.
Stevens (2015) 62 Cal.4th 325, 335 [“ ‘a probation report is

12
required and must be read and considered by the sentencing
judge’ ”].)
A sentencing court’s reference to the probation report does
not implicate a defendant’s right to confrontation because that
right does not apply in noncapital sentencing hearings. (E.g.,
People v. Arbuckle (1978) 22 Cal.3d 749, 754 (Arbuckle); People v.
Cain (2000) 82 Cal.App.4th 81, 86–87 (Cain).) It also does not
offend due process, which requires the evidence relied upon by a
sentencing court be sufficiently reliable as to comport with
notions of fundamental fairness. (People v. Lamb (1999) 76
Cal.App.4th 664, 683 (Lamb) [due process does not require the
same evidentiary protections for a criminal defendant at
sentencing as at trial; as long as a substantial basis exists to
believe the information is reliable, its consideration by a
sentencing court does not violate fundamental fairness]; People v.
Baumann (1985) 176 Cal.App.3d 67, 81 [“ ‘Due process does not
require a judge to draw sentencing information through the
narrow net of courtroom evidence rules . . . sentencing judges are
given virtually unlimited discretion as to the kind of information
they can consider and the source from whence it comes’ ”].)
It is well-settled that information set forth in probation
reports, including unsworn or out-of-court information pertaining
to the circumstances of a crime, is sufficiently reliable to support
a sentencing court’s determinations about whether to place a
defendant on probation, the level of the defendant’s culpability
for purposes of selecting an appropriate sentence, and the
amount of restitution. (Lamb, supra, 76 Cal.App.4th at p. 683.)
Indeed, as our Supreme Court has declared, “ ‘In every felony
proceeding in the State of California, a probation report is
required and must be read and considered by the sentencing

13
judge. [Citation.] The Legislature does not require trial court
judges to read and consider “unreliable” documents as a
prerequisite to the imposition of sentence.’ ” (Otto, supra, 26
Cal.4th at p. 213; see Cain, supra, 82 Cal.App.4th at pp. 87–88 [a
probation report is “inherently reliable”], citing Arbuckle, supra,
22 Cal.3d at p. 755.)
Section 1203, subdivision (b) requires a probation officer to
“make a written report to the court containing findings and
recommendations” (§ 1203, subd. (b)(2)(A)) following his or her
investigation into “the circumstances surrounding the crime and
the prior history and record of the [defendant]” (§ 1203,
subd. (b)(1)). Rule 4.411.5(a) of the California Rules of Court
requires that the probation officer’s presentence investigation
report contain (among other things): “(2) The facts and
circumstances of the crime and the defendant’s arrest,” as well as
“(5) Information concerning the victim of the crime, including: [¶]
(A) The victim’s statement or a summary thereof.”
Here, at the sentencing hearing on appellant’s plea and
before placing appellant on five years’ formal probation, the
sentencing court declared it had read the probation report, which
contained the following information: “On May 10, 2018, at
approximately 0815 hours, the officer responded to a domestic
violence call. Upon arrival, he contacted the victim who stated
the following: that she and the defendant had been previously
married for approximately 14 years, and she currently had an
active restraining order against him.”

14
 Without objection,5 the sentencing court recited the facts of
the offense from the probation report. Based on the probation
report, the sentencing court noted an open misdemeanor case
against appellant (LASC case No. 8AN02353) that was an alleged
violation of a domestic violence protective order in LASC case No.
6AN02363. The sentencing court further remarked that the
current felony vandalism case also constituted a violation of that
protective order.
Just as the sentencing court properly relied on the
probation reports in determining the appropriate length of
probation and issuing a domestic violence protective order in
favor of the victim in this case (appellant’s former spouse), the
trial court properly relied on the record of the prior proceedings
to determine the underlying facts of the offense and to make an
informed ruling on appellant’s motion to terminate probation. In
concluding that appellant’s felony vandalism conviction fell
within the purview of section 1203.097, the trial court did not
engage in impermissible factfinding or violate appellant’s
constitutional rights.
Contrary to appellant’s assertion, the trial court’s
determination that his felony vandalism conviction constituted a
domestic violence offense did not implicate the holdings in
Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Alleyne v.

5Appellant does not contend he was ever denied an
opportunity to review and challenge any inaccuracies in the
probation report. (Otto, supra, 26 Cal.4th at p. 212 [“Defendants
are required by statute to have an opportunity to review and
challenge inaccuracies in the presentence report”].)

15
United States (2013) 570 U.S. 99 (Alleyne), and People v. Gallardo
(2017) 4 Cal.5th 120 (Gallardo).6
These cases have nothing to do with a trial court’s decisions
about the length and suitability of probation, and appellant
makes no attempt to explain why or how the rule and analysis of
Apprendi/Alleyne and Gallardo applies in this context. Rather,
declaring simply that “[p]robation is punishment,” appellant
asserts that the trial court used factual findings about the nature
of the offense that had been neither admitted nor proved beyond
a reasonable doubt to increase the mandatory minimum penalty
for his vandalism conviction in violation of his constitutional
rights under Apprendi, Alleyne, and Gallardo. As our Supreme
Court has explained, however, “A grant of probation is
‘qualitatively different from such traditional forms of punishment
as fines or imprisonment. Probation is neither “punishment” (see
§ 15) nor a criminal “judgment” (see § 1445). Instead, courts
deem probation an act of clemency in lieu of punishment
[citation], and its primary purpose is rehabilitative in nature

6 In Apprendi, the United States Supreme Court held that
“[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) In
Alleyne, the high court held the same principle applies to “any
fact that increases the mandatory minimum” sentence for a
crime. (Alleyne, supra, 570 U.S. at p. 103.) And in Gallardo, the
California Supreme Court adopted the Apprendi rule to hold that
any facts giving rise to a conviction that “lead to the imposition of
additional punishment under a recidivist sentencing scheme”
must be found by a jury beyond a reasonable doubt. (Gallardo,
supra, 4 Cal.5th at pp. 123, 134.)

16
[citation].’ (People v. Howard (1997) 16 Cal.4th 1081, 1092.)
Accordingly, we have explained that a grant of probation is an act
of grace or clemency, and an offender has no right or privilege to
be granted such release. (People v. Anderson (2010) 50 Cal.4th
19, 32.) Stated differently, ‘[p]robation is not a right, but a
privilege.’ (People v. Bravo (1987) 43 Cal.3d 600, 608.)” (People v.
Moran (2016) 1 Cal.5th 398, 402.)
We have found no authority that suggests the principle
expressed in Apprendi, Alleyne, Gallardo, and their progeny
applies to a court’s findings in imposing probation. Because a
grant of probation is fundamentally different from the forms of
punishment addressed in this line of cases, we conclude that the
rule that facts used to increase a defendant’s statutory minimum
or maximum sentence must be admitted or proved beyond a
reasonable doubt by a jury has no application to the instant case.
Appellant’s federal constitutional rights were not violated.
5. Appellant got the benefit of his plea bargain
Appellant claims the trial court’s factfinding somehow
deprived him of the benefit of his plea bargain because he “never
agreed to section 1203.097 probation as part of his stipulated
term, no contest plea.”
Although section 1203.097 was never expressly cited when
appellant entered his plea or at sentencing, its requirements
provided the foundation for the five-year term of probation, the
10-year criminal protective order, and the $500 domestic violence
payment ordered pursuant to the plea agreement. Indeed,
nothing in the record suggests there was ever any doubt that
appellant’s offense involved domestic violence and thus came
within the purview of section 1203.097. The court’s issuance of a
criminal protective order for the benefit of the victim plainly

17
designated the offense as a domestic violence matter.7 (Cates,
supra, 170 Cal.App.4th at p. 551; see § 1203.097, subd. (a)(2).)
The court’s imposition of the $500 “domestic violence” fee was
also in accordance with the statutory mandate of section
1203.097, subdivision (a)(5)(A). And appellant’s stipulated five-
year probationary term was two years longer than the mandatory
minimum term of probation under section 1203.097. We fail to
see how the court’s failure to cite section 1203.097, while
following its mandatory provisions in accordance with the parties’
plea agreement, deprived appellant of the benefit of his bargain.8
(See People v. Villalobos (2012) 54 Cal.4th 177, 183 [“a plea
agreement is not violated by imposition of a statutorily mandated
term that was omitted from the agreement”]; People v. Walker
(1991) 54 Cal.3d 1013, 1027, overruled on another ground in

7 In fact, had the victim in this case not been a person
identified in Family Code section 6211, the sentencing court
would have lacked jurisdiction to issue the 10-year domestic
violence protective order in her favor. (People v. Selga (2008) 162
Cal.App.4th 113, 119; Riehl v. Hauck (2014) 224 Cal.App.4th 695,
701.)
8 Appellant claims that the sentencing court’s failure to
require the completion of a batterer’s program as a term of
probation pursuant to section 1203.097, subdivision (a)(6)
precludes application of section 1203.097 following enactment of
Assembly Bill No. 1950. However, the court’s error in omitting
this mandatory term was favorable to appellant and has no
bearing on whether appellant’s offense was one of domestic
violence to which section 1203.097 applies. (See People v. Lee
(1999) 20 Cal.4th 47, 57 [“in the absence of prejudice, a defendant
may not complain of error favorable to the defendant”].)

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Villalobos, at p. 183 [“only a punishment significantly greater
than that bargained for violates the plea bargain”].)
Finally, in order to prevail on his claim, appellant bears the
burden of showing he would not have entered his no-contest plea
if he had been aware the conviction would be subject to section
1203.097. Given that appellant agreed to a probationary term
well in excess of the minimum term required under section
1203.097, subdivision (a)(1), and he understood and accepted the
terms and conditions of probation, including the criminal
protective order and the domestic violence fee under section
1203.097, subdivision (a)(2) and (5)(A), appellant fails to establish
any prejudice.
Appellant’s offense constituted a crime of domestic violence
within the meaning of section 1203.097 and he was placed on
probation for an offense that includes a specific probation length
with its provisions. The two-year felony probation limitation
under section 1203.1, subdivision (a) is therefore inapplicable,
and the trial court properly denied appellant’s motion to
terminate probation pursuant to Assembly Bill No. 1950.

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 DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.

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