Ruiz v. Superior Court CA2/1

Filed 2/2/23 Ruiz v. Superior Court CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ANTHONY RUIZ, B321114

Petitioner, (Los Angeles County
v. Super. Ct. No. BA483528)

THE SUPERIOR COURT OF
LOS ANGELES COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

ORIGINAL PROCEEDINGS in mandate. Mary Lou Villar,
Judge. Petition denied.
Ricardo D. Garcia, Public Defender, Albert J. Menaster,
Jacob Stromin, Julianne Prescop and Nick Stewart-Oaten,
Deputy Public Defenders for Petitioner.
No appearance for Respondent.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill, David Glassman and Steven E.
Mercer, Deputy Attorneys General for Real Party in Interest.

_________________________________

In October 2020, Anthony Ruiz (Ruiz) pleaded no contest
to two counts of elder abuse. (Pen. Code, § 368, subd. (b)(1).)1
The court sentenced him to three years in prison, suspended the
sentence, and placed him on probation for five years.
In May 2022, after the Legislature amended section 1203.1
to limit, generally, felony probation terms to two years, Ruiz filed
a motion to amend the probation order to shorten the probation
period to two years. The trial court denied the motion, and Ruiz
sought review before us by petition for writ of mandate. We
issued an order to show cause and have received briefing and
heard argument. For the reasons given below, we deny the
petition.

FACTUAL AND PROCEDURAL SUMMARY
A. Ruiz’s Plea Agreement and Sentence
In December 2019, the District Attorney charged Ruiz
with one count of assault with a deadly weapon (count 1; § 245,
subd. (a)(1)), two counts of elder abuse against Carmen R.
(counts 2 and 4; § 368, subd. (b)(1)), and two counts of making
a criminal threat (counts 3 and 5; § 422, subd. (a)).2

1Subsequent unspecified statutory references are to the
Penal Code.
2Our record does not include the charging document. Our
description of the charges is derived from the transcript of the

2
 On October 8, 2020, pursuant to a plea agreement, Ruiz
pleaded no contest to two counts of elder abuse. The court found
a factual basis for the plea based on counsels’ stipulation and
its “review of the probation officer’s report.” The probation
report states that the victim, Carmen R., “is the defendant’s
grandmother.”
The court accepted the plea and found Ruiz guilty of
two counts of elder or dependent abuse (counts 2 and 4). In
accordance with the plea agreement, the court dismissed the
remaining counts. The court sentenced Ruiz to three years in
prison on count 2, and 18 months on count 4, to run concurrent
to the sentence on count 2.3 The court then suspended execution
of the sentence and placed him on probation for five years.
The prosecutor advised Ruiz that if he violated the terms and
conditions of probation, he “could be sent to prison for an amount

plea hearing and minute orders included in our record. It does
not appear that the court held a preliminary hearing in the case.
3 The sentence on count 4 appears to be erroneous and
unauthorized. The sentencing triad for violating section 368,
subdivision (b)(1) is two, three, or four years. The court stated
that it sentenced Ruiz on count 4 to 18 months in prison, which
it described as “one-third the midterm,” to be served “concurrent
with the principal term.” There are two problems with this
sentence. First, one-third of the three-year midterm, is one year,
not 18 months. Second, when, as here, the court states that one
term shall run concurrent to another term, it must impose a
full-term sentence on both terms; a sentence equal to one-third of
the midterm is imposed only when a subordinate term is to run
consecutive to the principal term. (People v. Quintero (2006) 135
Cal.App.4th 1152, 1156, fn. 3.) We will direct that the sentence
be modified accordingly. (See ibid.)

3
of time up to and including [the] maximum sentence” of
five years.4
The terms and conditions of Ruiz’s probation include,
among others, that Ruiz serve 157 days in jail (and he was
credited the same number of days), and that he participates in
a one-year “residential treatment program,” including an anger
management program. The court also issued a protective order
pursuant to section 136.2, subdivision (i)(1), prohibiting Ruiz
from coming within 100 yards of, or having any in-person contact
with, Carmen R. and Antonio R.5 The protective order also
requires that he “not harass, strike, threaten, assault . . . , follow,
stalk, molest, . . . disturb the peace, keep under surveillance, or
block movements of ” Carmen R. or Antonio R.
The court ordered Ruiz to pay a restitution fine (§ 1202.4,
subd. (b)), a probation revocation restitution fine (§ 1202.44), and
certain assessments (§ 1465.8, subd. (a)(1); Gov. Code, § 70373).

4 The stated maximum term of five years is presumably
calculated by adding the upper term of four years on a primary
count and a consecutive one year (one-third of the midterm
of three years) on the subordinate count. (§§ 368, subd. (b)(1),
1170.1, subd. (a).)
5 The version of section 136.2, subdivision (i)(1) in effect
when the court issued its protective order authorized a protective
order “[w]hen a criminal defendant has been convicted of a crime
involving domestic violence as defined in Section 13700 or in
Section 6211 of the Family Code, a violation of subdivision (a)
of Section 236.1, Section 261, 261.5, 262, subdivision (a) of
Section 266h, or subdivision (a) of Section 266i, a violation of
Section 186.22, or a crime that requires the defendant to register
pursuant to subdivision (c) of Section 290.” (Former § 136.2,
subd. (i)(1); Stats. 2019, ch. 256, § 6, p. 2736.)

4
The court held these fines and assessments “in abeyance, to be
waived at completion” of probation.

B. Assembly Bill No. 1950, Ruiz’s Motion To
Reduce His Probation Term, and the Instant
Writ Petition
In 2020, the Legislature enacted Assembly Bill No. 1950
(2019−2020 Reg. Sess.) (Assembly Bill No. 1950), which amended
section 1203.1 to shorten the maximum probation term for
most felonies to two years. (§ 1203.1, subd. (a); Stats. 2020,
ch. 328, § 2.)6 The Legislature, however, specified certain
exceptions from the two-year maximum, including “an offense
that includes specific probation lengths within its provisions.”
(Former § 1203.1, subd. (m)(1); Stats. 2020, ch. 328, § 2.)7 The
amendment became effective on January 1, 2021.
In May 2022—approximately one year and seven months
after his five-year probationary period began—Ruiz filed what
he described as a motion “to update [the court’s] records to reflect
the correct date for the expiration of his probation pursuant to
[Assembly Bill No.] 1950.” Ruiz asserted that the ameliorative
changes made by Assembly Bill No. 1950 apply retroactively to

6 Prior to the amendment, the term of probation was
limited to “a period of time not exceeding the maximum possible
term of the sentence.” (Former § 1203.1, subd. (a).)
7 The Legislature subsequently amended section 1203.1
with the effect of placing the exceptions to the two-year
maximum probation terms, previously within subdivision (m),
in subdivision (l) of section 1203.1. (Stats. 2021, ch. 257, § 22.)
For the sake of clarity, we will refer to the current version of
the statute. (See People v. Qualkinbush (2022) 79 Cal.App.5th
879, 893, fn. 12 (Qualkinbush).)

5
him and that he was not convicted of an offense that “ ‘includes
specific probation lengths within its provisions.’ ” He argued that
he is therefore entitled to a reduction of his probationary term to
two years.
Ruiz acknowledged in his motion that “section 1203.097
does contain a longer probation term.” Under section 1203.097,
“[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, the terms
of probation shall include” certain terms, including a “minimum
period of probation of 36 months.” (§ 1203.097, subd. (a)(1).)
Family Code section 6211 defines domestic violence as “abuse
perpetrated against” certain classes of persons, including any
“person related by consanguinity or affinity within the second
degree.” (Fam. Code, § 6211, subd. (f).)
Ruiz argued that section 1203.097 did not apply to
him because he “was not charged with a violation of . . .
section 1203.097, was not convicted [of] (and did not admit)
a violation of section 1203.097, and was not sentenced pursuant
to the terms of section 1203.097.” Ruiz further argued that a
“finding that [he] violated section 1203.097 can only be made
by a jury, unless admitted by [Ruiz].”
The District Attorney opposed the motion. In his written
opposition, the prosecutor argued that section 1203.097 applies in
this case because the victim of Ruiz’s crimes is Ruiz’s “ 75-year-
old grandmother”—a person related by consanguinity within the
second degree—and thus a person defined in section 6211 of the
Family Code. (See Prob. Code, § 13, subd. (b) [“grandchild and
grandparent are related in the second degree”].) The court,
rather than a jury, can make that finding, the prosecutor
explained, because probation “is not an act of punishment”

6
that must be supported by jury findings, “but instead an act
of clemency on the part of the court.” The prosecutor did not
refer to or submit any evidence in support of the opposition.
On May 27, 2022, at the hearing on the motion, the
prosecutor argued that maintaining the five-year probation term
is “appropriate” because Ruiz’s convictions arose from an incident
in which Ruiz “point[ed] a firearm at his grandmother,” and a
grandmother is among the persons described in Family Code
section 6211.
The prosecutor further informed the court that Ruiz
“is asking [the] court” to permit him “to have contact with
his grandparents again,” and that “the grandmother” “is asking
the court to modify the protective order so she can have contact
with her grandson.” Ruiz had recently fathered a child and,
according to the prosecutor, the grandmother stated that she and
her husband “would like to see their grandson as well as their
great-grandson.”
Ruiz’s counsel neither conceded nor denied that
Carmen R.—the victim of Ruiz’s elder abuse crimes—is Ruiz’s
grandmother. Counsel argued that section 1203.097 did not
apply because Ruiz “was not charged with . . . a [domestic
violence] offense,” he “did not admit the relationship, and he
was not given any probationary terms under [section] 1203.097.”
The court acknowledged that Ruiz’s “plea was not
under [section 1203.097],” but stated that it “recognize[d] the
relationship [Ruiz has] with the grandmother,” and denied the
Ruiz’s motion “given the familial relationship.” The court then
issued a modified protective order that allowed Ruiz to have
“peaceful contact with [Carmen R. and Antonio R.] with a third
party present.”

7
 Ruiz’s counsel objected on hearsay grounds to the court’s
finding of a “familial basis” in denying the motion.
On June 23, 2022, Ruiz filed in this court a petition for writ
of mandate directing the superior court “to set a new probation
expiration date of October 7, 2022.” He argues: (1) Under
Assembly Bill No. 1950, his maximum period of probation is two
years because he was not convicted of an offense that includes
specific probation lengths within its provisions; (2) the court’s
finding that section 1203.097 applies based on the Ruiz’s
familial relationship with the victim could only be made by a
jury; and (3) the court’s finding that the victim of Ruiz’s crimes
is a person defined in section 6211 of the Family Code was based
on inadmissible hearsay.8
On October 20, 2022, we issued an order to show cause
why a peremptory writ of mandate should not issue.
We have received and considered the Attorney General’s
return in opposition to the writ, Ruiz’s reply, and supplemental
briefing.
DISCUSSION
A. Sections 1203.1 and 1203.097
Subdivision (a) of section 1203.1, as amended by Assembly
Bill No. 1950, provides in part: “The court, or judge thereof, in
the order granting probation, may suspend the imposing or the

8 Ruiz did not include among the exhibits supporting
his petition the probation report relied on by the court at the
sentencing hearing. We subsequently augmented the record with
the probation report and requested and received supplemental
briefing addressing the impact of the report on the issues in this
case.

8
execution of the sentence and may direct that the suspension
may continue for a period of time not exceeding two years,
and upon those terms and conditions as it shall determine.”
Subdivision (l) of that section, however, provides, as is relevant
here: “The two-year probation limit in subdivision (a) shall not
apply to: [¶] . . . an offense that includes specific probation
lengths within its provisions.” (§ 1203.1, subd. (l)(1).) For
such an offense, the court may grant probation and “suspend
the imposing or the execution of the sentence and may direct that
the suspension may continue for a period of time not exceeding
the maximum possible term of the sentence and under conditions
as it shall determine.” (Ibid.) As the prosecutor informed
Ruiz at his plea hearing, the maximum possible prison term
for convictions of two counts of elder abuse under section 368,
subdivision (b)(1) is five years. (See fn. 4, ante.)
Ruiz contends that the exception to the general, two-year
limitation on probation terms for offenses that include “specific
probation lengths within its provisions” (§ 1203.1, subd. (l)(1))
does not apply to him because he was convicted of violating
subdivision (b)(1) of section 368, and that section does not include
any specific probation length within its provisions. Therefore, he
concludes, the general rule under Assembly Bill No. 1950 limiting
probation to two years applies, and the superior court erred by
failing to reduce his probationary term accordingly.9

9 Whether Assembly Bill No. 1950 applies retroactively to
persons who were placed on probation prior to its effective date
is currently under review by our Supreme Court. (People v.
Prudholme, S271057, Supreme Ct. Mins., Dec. 22, 2021, p. 1784
[order directing parties in Prudholme to brief whether Assembly
Bill No. 1950 applies retroactively and, if so, whether the remand

9
 The Attorney General argues that the pertinent “specific
probation length” is set forth in section 1203.097, which requires
a minimum 36-month probation term in any case in which
“a person is granted probation for a crime in which the victim is a
person defined in Section 6211 of the Family Code.” (§ 1203.097,
subd. (a).) Persons defined in section 6211 of the Family Code
include a “person related by consanguinity or affinity within
the second degree” (Fam. Code, § 6211, subd. (f)), which includes
the relationship of grandchild and grandparent. (Prob. Code,
§ 13, subd. (b).) Thus, even when the statute defining Ruiz’s
crime (here, section 368) does not provide for a specific probation
length, if the victim of the crime is Ruiz’s grandparent, the
specific minimum probation length of 36 months provided in
section 1203.097 applies.
Courts that have considered this issue have agreed
with the Attorney General’s interpretation of Assembly Bill
No. 1950. (See Qualkinbush, supra, 79 Cal.App.5th at p. 895;
People v. Rodriguez (2022) 79 Cal.App.5th 637, 644; People v.
Forester (2022) 78 Cal.App.5th 447, 454.) As the court in
Rodriguez explained, the fact that a statute defining a crime
“does not include a specific probation length is not material,
as the Penal Code often separates the punishment provisions
from the crime. [Citation.] That is purely an issue of form.
Penal 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

procedure of People v. Stamps (2020) 9 Cal.5th 685 applies].) The
parties have not raised this issue in the instant proceeding and,
therefore, we do not consider it.

10
with a separate sentencing statute—separate in form, but
not in function—is exempt from Assembly Bill [No.] 1950’s
probation limits.” (Rodriguez, supra, at p. 644.) Moreover,
Ruiz’s interpretation “would mean that the Legislature
intended to draw a distinction between offenses that separate
the punishment provisions from the crime and offenses that
do not.” (Ibid.) We, like the Rodriguez court, “are unpersuaded
that the Legislature intended to create a new scheme in which
persons convicted of offenses that happen to have a separate
sentencing provision would benefit from a reduced probation
term under Assembly Bill [No.] 1950, while those convicted under
a scheme in which a minimum probation is self-contained within
the same statute do not.” (Rodriguez, supra, at pp. 644–645;
see generally Couzens et al., Sentencing California Crimes (The
Rutter Group 2022) § 8:18 [“[b]ecause of 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 section 1203.1, subdivision ([l])(1)”].) We agree with these
authorities and reject Ruiz’s argument to the contrary.

B. Applicability of Apprendi
Ruiz further contends that, even if section 1203.097,
subdivision (a) provides an exception to the two-year limit under
section 1203.1, subdivision (a), when the victim is a person
described in Family Code section 6211, the victim’s status as
such must be found by a jury beyond a reasonable doubt. Ruiz
relies primarily on Alleyne v. United States (2013) 570 U.S. 99
(Alleyne). Alleyne is among a line of United State Supreme Court
and California Supreme Court cases, beginning with Apprendi v.
New Jersey (2000) 530 U.S. 466, 490 (Apprendi), establishing

11
the rule that any fact, other than the fact of a prior conviction,
that increases the minimum or maximum penalty for a crime
must be either admitted by the defendant, established by the
defendant’s guilty plea, or submitted to a jury and proved
beyond a reasonable doubt. (See, e.g., Alleyne, supra, 570 U.S. at
pp. 103, 108; Cunningham v. California (2007) 549 U.S. 270, 281
(Cunningham); United States v. Booker (2005) 543 U.S. 220, 244;
Blakely v. Washington (2004) 542 U.S. 296, 303; Ring v. Arizona
(2002) 536 U.S. 584, 609 (Ring); Apprendi, supra, 530 U.S. at
p. 490; People v. Gallardo (2017) 4 Cal.5th 120, 124 (Gallardo).)
Here, the fact upon which the court based its decision is the
victim’s relation to Ruiz as Ruiz’s grandparent—a fact disclosed
in a presentence probation report. As Ruiz points out, he did not
admit this fact and it was neither established by his plea nor
found by a jury. He contends that, under Apprendi and Alleyne,
the court could not make a factual finding that allows the court
to impose a probationary term longer than a term the court could
impose in the absence of that fact. We reject the contention.
Although the longer probation term constitutes a longer
restriction on Ruiz’s liberty, it does not constitute a criminal
penalty or punishment for purposes of the Apprendi rule.
The Apprendi rule has been applied to judicial factfinding
that results in increased maximum or minimum prison sentences
(Apprendi, supra, 530 U.S. at pp. 468–469; Alleyne, supra, 570
U.S. at pp. 103, 108), criminal fines (Southern Union Co. v.
United States (2012) 567 U.S. 343, 346 (Southern Union)), the
imposition of a “new mandatory minimum prison term” upon
the revocation of conditional release (United States v. Haymond
(2019) 588 U.S. ___ [139 S.Ct. 2369, 2380, 204 L.Ed.2d 897, 907]
(Haymond) (plur. opn. of Gorsuch, J.)), and death sentences

12
(Ring, supra, 536 U.S. at pp. 588–589). It does not appear
that the question presented here—whether the rule applies to
a factual finding that increases a term of probation—has been
addressed in any published opinion.
The Apprendi rule is founded on the Sixth Amendment
right to trial by jury. (Alleyne, supra, 570 U.S. at p. 111;
Apprendi, supra, 530 U.S. at p. 477.) The Supreme Court has
stated that, in applying Apprendi to particular circumstances,
it is appropriate to “examine the historical record, because ‘the
scope of the constitutional jury right must be informed by the
historical role of the jury at common law.’ ” (Southern Union,
supra, 567 U.S. at p. 353; see Cunningham, supra, 549 U.S. at
p. 281 [the Apprendi “rule is rooted in longstanding common-law
practice”]; Oregon v. Ice (2009) 555 U.S. 160, 168 [to guard
against “legislative encroachment on the jury’s traditional
domain,” the court “consider[s] whether the finding of a
particular fact was understood as within ‘the domain of the
jury . . . by those who framed the Bill of Rights’ ”].)
Our review of common law practices concerning probation
does not support Ruiz’s position. In contrast to the “centuries”
of “common law” practices supporting the requirement that
juries make the findings upon which courts fix the term of
a criminal penalty (Apprendi, supra, 530 U.S. at p. 477), the
history of probation reveals a history of discretionary judicial
decision-making without jury involvement. Although, at the
time the Constitution was adopted, “there was no such thing as
probation” per se (Friedman, Crime and Punishment in American
History (1993) 38), courts employed various theories to allow
those convicted of crimes to avoid incarceration conditioned upon
their “good behavior.” (Grinnell, The Common Law History of

13
Probation—An Illustration of the Equitable Growth of Criminal
Law (1941−1942) 32 J. Crim. L. & Criminology 15, 17−23
(Grinnell); Webster, The Evolution of Probation in American
Law (1952) 1 Buff. L.Rev. 249, 251 (Webster); 2 U.S. Dept. of
Justice, The Attorney General’s Survey of Release Procedures
(1939) pp. 3−7 (2 U.S. Dept. of Justice Survey).) Before and
after the nation’s founding, courts, with or without statutory
authorization, exercised discretion independent of the jury’s
verdict to suspend a sentence on the court’s terms and conditions.
(See, e.g., Ex parte United States (1916) 242 U.S. 27, 44 [under
“the common law . . . courts possessed and asserted the right
to exert judicial discretion . . . to temporarily suspend either the
imposition of sentence or its execution when imposed to the end
that pardon might be procured”]; People ex rel. Forsyth v. Court
of Sessions (N.Y. 1894) 36 N.E. 386, 388 [the power to suspend
sentence after conviction is inherent in “courts at common
law” and “an ordinary judicial function”]; Commonwealth v.
Dowdican’s Bail (1874) 115 Mass. 133, 136 [recognizing the
judicial practice of suspending a criminal sentence “upon such
terms as the court in its discretion may impose”]; Estes v. State
(1842) 21 Tenn. 496, 498 [the practice of “ ‘binding to the good
behavior’ [a predecessor to probation] was a discretionary
judgment, at the common law, given by a court of record”]; see
generally, Webster, supra, 1 Buff. L.Rev. at p. 251 [“[i]n early
days of American jurisprudence, . . . many courts held that they
had the inherent power to suspend the sentence of a criminal
before them”]; 2 U.S. Dept. of Justice Survey, supra, p. 2
[“probation is almost universally a matter of judicial discretion”];
3 Wright & Miller, Federal Practice and Procedure (5th ed. 2022)
§ 547 [historically, the “sentencing court had broad latitude to

14
prescribe reasonable conditions for probation”].) Ruiz has not
referred us to any authority suggesting that juries had a role
in the setting of probation terms.
Haymond, supra, 588 U.S. ___ [139 S.Ct. 2369] is
instructive. In that case, the United States Supreme Court
addressed the constitutionality of a federal statute that requires
a trial court, upon finding that a defendant violated a condition of
supervised release, to impose a “new mandatory minimum prison
term” that exceeds the minimum prison term authorized by the
jury’s verdict. (Id. at p. ___ [139 S.Ct. at p. 2380] (plur. opn. of
Gorsuch, J.).)10 A four-justice plurality, together with Justice
Breyer’s separate concurrence, held that the statute was
unconstitutional under Alleyne.
Justice Gorsuch, writing for the plurality, distinguished
the statute at issue from laws governing parole and probation.
(Haymond, supra, 588 U.S. at p. ___ [139 S.Ct. at pp. 2381−2382]
(plur. opn. of Gorsuch, J.).) Parole and probation, Justice
Gorsuch explained, provide defendants with “a period of
conditional liberty as an ‘act of grace,’ ” which does “not
usually implicate the historic concerns of the Fifth and Sixth
Amendments.” (Haymond, supra, 588 U.S. at p. ___ [139 S.Ct.

10 According to the Haymond plurality, the statute at
issue in Haymond—18 U.S.C. section 3583(k)—operates as
follows: “[I]f a judge finds by a preponderance of the evidence
that a defendant on supervised release committed one of
several enumerated offenses, including the possession of child
pornography, the judge must impose an additional prison term
of at least five years and up to life without regard to the length
of the prison term authorized for the defendant’s initial crime
of conviction.” (Haymond, supra, 588 U.S. at p. __ [139 S.Ct.
at p. 2374] (plur. opn. of Gorsuch, J.).)

15
at p. 2377] (plur. opn. of Gorsuch, J.).) Thus, although courts are
permitted to make factual findings that result in the revocation
of probation and the execution of defendant’s previously
suspended prison sentence, that “result [is] entirely harmonious
with the Fifth and Sixth Amendments,” so long as the court
does “not imprison [the] defendant for any longer than the jury’s
factual findings [or defendant’s plea] allowed.” (Haymond, supra,
588 U.S. at p. ____ [139 S.Ct. at p. 2382] (plur. opn. of Gorsuch,
J.).)
Justice Breyer concurred in the judgment, providing the
critical fifth vote, but wrote separately to confine the court’s
holding to the “specific provision of the supervised-release
statute” at issue in the case, which, he opined, “is less like
ordinary revocation and more like punishment for a new offense,
to which the jury right would typically attach.” (Haymond,
supra, 588 U.S. at p. __ [139 S.Ct. at p. 2386] (conc. opn. of
Breyer, J.); see United States v. Seighman (3d Cir. 2020) 966
F.3d 237, 242 [“Justice Breyer[’s] . . . opinion is the Court’s
holding because it supplies the narrowest ground supporting
the judgment”].) Justice Breyer explained that he “would not
transplant the Apprendi line of cases to the supervised-release
context.” (Haymond, supra, 588 U.S. at p. __ [139 S.Ct. at
p. 2385] (conc. opn. of Breyer, J.).) Federal courts have followed
this view and declined to extend Haymond or Alleyne to other
provisions of the federal supervised release law that permit
judicial factfinding. (See, e.g., United States v. Garner
(5th Cir. 2020) 969 F.3d 550, 552−553; United States v. Doka
(2d Cir. 2020) 955 F.3d 290, 296−297.)
Although Haymond, which involved a supervised release
revocation and resentencing proceeding, is not directly on point,

16
the court’s rationale cuts against Ruiz’s position here. If, as
all members of the Haymond Court agree, a court may ordinarily
make factual determinations that result in the revocation
of probation and the incarceration of the defendant without
implicating Apprendi or Alleyne, the court should be able to
make the less consequential finding in this case, which did not
result in incarceration and, instead, continues to allow Ruiz
the conditional liberty he enjoys as a probationer. Although
the court’s finding that Ruiz committed his crimes against his
grandmother allowed the court to impose a probationary term
longer than the probationary term that it could impose in the
absence of that finding, even the longer probationary term did
not increase the term of Ruiz’s suspended prison sentence or,
therefore, implicate the “historic concerns of the Fifth and Sixth
Amendments.” (Haymond, supra, 588 U.S. at p. ___ [139 S.Ct.
at p. 2377] (plur. opn. of Gorsuch, J.); see Frank v. United States
(1969) 395 U.S. 147, 148, 150−151 [no Sixth Amendment right to
jury trial for a “ ‘petty’ ” offense resulting in five-year probation
sentence].)
The Haymond plurality’s characterization of probation as
“an ‘act of grace’ ” (Haymond, supra, 588 U.S. at p. __ [139 S.Ct.
at p. 2377] (plur. opn. of Gorsuch, J.)) is consistent with our state
Supreme Court’s view that a “grant of probation is ‘qualitatively
different from such traditional forms of punishment as fines or
imprisonment. Probation is neither “punishment” [citation] nor
a criminal “judgment” [citation]. Instead, courts deem probation
an act of clemency in lieu of punishment [citation], and its
primary purpose is rehabilitative in nature [citation].’ [Citation.]
Accordingly, [our state Supreme Court has] explained that a
grant of probation is an act of grace or clemency, and an offender

17
has no right or privilege to be granted such release. [Citation.]
Stated differently, ‘[p]robation is not a right, but a privilege.’
[Citation.]” (People v. Moran (2016) 1 Cal.5th 398, 402; see
People v. Rodriguez (1990) 51 Cal.3d 437, 445 [“placing a
criminal on probation [is] an act of clemency and grace”].)
Thus, courts may deny a defendant probation based on
facts found by the court without violating the Apprendi rule.
(See In re Varnell (2003) 30 Cal.4th 1132, 1142 (Varnell)
[court’s factfinding that resulted in the denial of probation
did not implicate Apprendi because the denial did not increase
the penalty for defendant’s crime]; People v. Benitez (2005) 127
Cal.App.4th 1274, 1278 [because eligibility for probation “results
in a reduction rather than an increase in the sentence prescribed
for his offenses,” judicial factfinding on the issue is not subject
to the Apprendi rule]; Cal. Rules of Court, rule 4.414(c) [“[i]n
determining the suitability of the defendant for probation,
the court may consider factors in aggravation and mitigation,
whether or not the factors have been stipulated to by the
defendant or found true beyond a reasonable doubt at trial
by a jury or the judge in a court trial”].) Because a court is
permitted to deny probation entirely based on judicial factfinding,
we see no reason why the court may decline to impose a shorter
probationary term based on judicial factfinding that justifies a
longer term. (Cf. People v. Blakely (2014) 225 Cal.App.4th 1042,
1060 [Apprendi and its progeny do not apply to a determination
of eligibility for resentencing under the Three Strikes Reform
Act of 2012]; People v. Solis (2001) 90 Cal.App.4th 1002, 1022
[Apprendi does not apply to judicial factfinding under section 654
because that section is a sentencing reduction statute]; see also
Dillon v. United States (2010) 560 U.S. 817, 828 [sentence

18
modification procedure, which was a “congressional act of lenity,”
allowed judicial factfinding without implicating Apprendi];
United States v. Lizarraga-Carrizales (9th Cir. 2014) 757 F.3d
995, 999 [Alleyne does not preclude judicial factfinding that
results in the denial of a reduced sentence because the facts
so found did not increase the statutory minimum].)
We recognize that probation has been described as
“punishment” in other contexts. In People v. Delgado (2006) 140
Cal.App.4th 1157, for example, the enactment of section 1203.097
after the defendant committed his crime “increased the measure
of defendant’s punishment” for purposes of ex post facto analysis.
(Delgado, supra, at p. 1170; see also People v. Quinn (2021)
59 Cal.App.5th 874, 882–883 [statutory reduction of probation
term entitled to retroactive application under In re Estrada
(1965) 63 Cal.2d 740, because it made “ ‘ “reduced punishment
possible” ’ ”].) We have not been referred to any case, however,
that describes probation as punishment or a penalty for purposes
of Apprendi analysis. (See Varnell, supra, 30 Cal.4th at p. 1141
[judicial factfinding that rendered defendant “unfit for probation
under a particular provision” was “not the equivalent of an
increase in penalty” that required it be pleaded and proved by
a jury]; State v. Dunlap (N.J.Super.Ct.App.Div. 2020) 225 A.3d
1068, 1079–1080 [Apprendi and its progeny “focus exclusively
on prison sentences and simply do not apply to non-custodial
probationary sentences”].)
For all the foregoing reasons, we conclude that the rule
of Apprendi and Alleyne does not preclude a court from setting a
probationary term based on a fact, found by the court, that was
not found by a jury, admitted by the defendant, or established by
the defendant’s guilty plea.

19
 Ruiz relies principally on Alleyne, which held that the
court’s finding of a fact that increased the minimum prison
sentence that could be imposed on the defendant beyond
the minimum term authorized by the jury’s findings violated
Apprendi. (Alleyne, supra, 570 U.S. at p. 103.) Alleyne did not
involve the terms of probation or analogous procedure. Ruiz
also cites to Gallardo, supra, 4 Cal.5th 120 and People v. Hudson
(2018) 28 Cal.App.5th 196. These cases held that, under
Apprendi, a court, in determining whether a prior conviction was
a “serious felony” for purposes of a sentence enhancement, could
not rely on its own review of the record to determine facts that
underpinned the prior conviction. (Gallardo, supra, 4 Cal.5th
at pp. 123−125; Hudson, supra, 28 Cal.App.5th at pp. 205−207.)
Gallardo and Hudson are inapposite because neither involves
nor addresses whether judicial factfinding is permissible in
determining the length of probation.
Ruiz also relies on Southern Union, supra, 567 U.S. 343,
which extended Apprendi to criminal fines. In Southern Union,
a jury convicted defendant corporation, Southern Union Co., of
violating the Resource Conservation and Recovery Act of 1976
(RCRA) by “unlawfully storing liquid mercury ‘on or about
September 19, 2002 to October 19, 2004.’ ” (Southern Union,
supra, 567 U.S. at p. 347.) Under the RCRA, the defendant
could be subject to criminal penalties, including a “fine of not
more than $50,000 each day of violation, or imprisonment not
to exceed two years . . . , or both.” (42 U.S.C. § 6928(d)(7).)
If the defendant’s violations occurred on each day between
September 19, 2002 and October 19, 2004—a total of 762 days—
the maximum fine would be $38.1 million. (Southern Union,
supra, at p. 347.) The trial court “imposed a fine of $6 million

20
and a ‘community service obligatio[n]’ of $12 million.” (Ibid.)
The question before the Supreme Court was whether Apprendi
applies to criminal fines. (Id. at pp. 347−348.) The court held
“that it does” (id. at p. 346) when the “fine is substantial enough
to trigger [the right to a jury trial under the Sixth Amendment]”
(id. at p. 352).
The Southern Union Court relied on its review of the
English practice with respect to fines and cited “authority
suggesting that English juries were required to find facts that
determined the authorized pecuniary punishment.” (Southern
Union, supra, 567 U.S. at p. 354.) The court’s “review of state
and federal decisions” also disclosed that the “predominant
practice was for such facts to be alleged in the indictment
and proved to the jury.” (Ibid.) By contrast, our review of the
historical treatment of probation, discussed above, reveals no
similar practice with respect to the facts upon which the length
of probation is established.11
In a supplemental brief, Ruiz contends that, in addition
to requiring a minimum three-year term of probation,
section 1203.097 requires the imposition of other conditions not
authorized by his plea. These include “[b]ooking the defendant
within one week of sentencing if the defendant has not already
been booked” (§ 1203.097, subd. (a)(4)), a $500 fee (§ 1203.097,
subd. (a)(5)), “completion of a batterer’s program” (§ 1203.097,

11 Ruiz asserts that the fine imposed in Southern Union
was “a probationary fine.” Nothing in the opinion, however,
suggests that the defendant was placed on probation or that
the fine was imposed as a term of probation. Indeed, the fine
is described in the statute that authorized it as a “[c]riminal
penalt[y].” (42 U.S.C. § 6928(d).)

21
subd. (a)(6)), and the completion of “appropriate community
service” (§ 1203.097, subd. (a)(8)). We need not address this
contention, however, because, as Ruiz concedes, the court
did not impose these conditions on him and neither he nor
the prosecution objected to their omission below.
Ruiz further contends that the imposition of a probation
term authorized by section 1203.097 and section 1203.1,
subdivision (l) violates due process because he was not charged
with violating section 1203.097. He relies on People v. Anderson
(2020) 9 Cal.5th 946. In Anderson, the charging pleading
did not allege that a particular firearm enhancement applied
to five counts of robbery. (Id. at pp. 949−950.) The trial court
nevertheless instructed the jury on the enhancement, which
the jury found true. (Id. at p. 951.) The court then applied
the enhancement to substantially increase the defendant’s
prison sentence. (Id. at p. 952.) Our Supreme Court reversed,
holding that, as a matter of due process as well as statute, a
“defendant has the ‘right to fair notice of the specific sentence
enhancement allegations that will be invoked to increase
punishment for his crimes.’ ” (Id. at p. 953; see § 1170.1, subd. (e)
[“[a]ll enhancements shall be alleged in the accusatory pleading
and either admitted by the defendant in open court or found to
be true by the trier of fact”]; § 12022.53, subd. (j) [“the existence
of any fact required [to impose certain firearm enhancements]
shall be alleged in the accusatory pleading and either admitted
by the defendant in open court or found to be true by the trier
of fact”].) Anderson, however, did not involve the terms of
probation, and nothing in the opinion supports Ruiz’s assertion
that the charging pleading must allege, and a jury must find,
facts required to impose particular probationary terms or that

22
a court is precluded from determining such facts in setting such
terms. (See People v. Lent (1975) 15 Cal.3d 481, 486 [the validity
of probation conditions depends upon the relationship of the
condition to the crime of which the offender was convicted, the
relationship of the condition “to conduct which is not in itself
criminal,” and whether the condition “requires or forbids conduct
which is not reasonably related to future criminality”].)

C. The Court’s Reliance on Probation Report
Ruiz contends that even if section 1203.097 provides
an exception to the two-year maximum probation term under
section 1203.1, subdivision (a), and the court’s factfinding does
not violate the principles established in Apprendi and Alleyne,
the finding that the victim of Ruiz’s crimes is a person defined in
Family Code section 6211 is unsupported by admissible evidence.
The argument is without merit. “Once guilt has been
determined, evidence which would be inadmissible on the issue of
guilt may nevertheless be received as bearing on the punishment
to be imposed.” (People v. Peterson (1973) 9 Cal.3d 717, 725,
citing Williams v. New York (1949) 337 U.S. 241.) The court
may consider the “whole record in the case” (People v. Fulton
(1979) 92 Cal.App.3d 972, 976) and the probation report, among
other evidence (§ 1170, subd. (b)(4)). Sentencing “courts routinely
rely upon hearsay statements contained in probation reports to
make factual findings concerning the details of the crime” that
“guide the court’s sentencing decision.” (People v. Otto (2001)
26 Cal.4th 200, 212−213; accord, People v. Tran (2015) 242
Cal.App.4th 877, 888, fn. 5 [the sentencing court may “consider
and rely upon hearsay statements contained in a probation
report”]; People v. Baumann (1985) 176 Cal.App.3d 67, 81
[“[p]robation reports are among the permissible sentencing data

23
the court may consider”]; People v. Ingram (1969) 272 Cal.App.2d
435, 439 [in determining whether to grant probation, court may
consider all the facts and circumstances of the case as disclosed
by the evidence and the probation report].) Just as a court may
rely on a probation report to determine defendant’s sentence,
a court may rely on that report to determine the terms of
probation. (§ 1203, subd. (b)(3) [“[a]t the [probation] hearing,
the court shall consider any report of the probation officer”];
Baumann, supra, 176 Cal.App.3d at p. 81.)
Here, during the October 2020 sentencing hearing,
the court, without objection, expressly relied on a probation
report, which states that the victim of defendant’s crime is his
grandmother. Although hearsay within a probation report must
be reliable (People v. Arbuckle (1978) 22 Cal.3d 749, 754−755;
People v. Banda (2018) 26 Cal.App.5th 349, 357), Ruiz never
asserted that any statements in the probation report are
unreliable or denied that the victim is his grandmother. The
court, therefore, could rely on the probation report in determining
that the victim is a person described in Family Code section 6211.

24
 DISPOSITION
The petition for writ of mandate is denied.
The judgment is corrected to reflect that petitioner is
sentenced on count 4 to three years in prison, to run concurrent
to the sentence on count 2. This correction does not affect the
court’s suspension of sentence.
NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.
We concur.

BENDIX, J.

WEINGART, J.

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