People v. Valdez CA2/5

Filed 11/16/23 P. v. Valdez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B322392

Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. BA469165,
v. LA085432, PA086980)

HUGO VALDEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of the
County of Los Angeles, Michael Terrell, Judge. Reversed, in part,
and remanded with directions.
Jeffrey Manning-Cartwright and John L. Staley, under
appointment by the Court of Appeal, for Plaintiff and
Respondent.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Stephan D. Mathews and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.

________________________________________

I. INTRODUCTION

Defendant Hugo Valdez appeals from the trial court’s
judgment sentencing him to prison following revocation of
probation in three separate cases. We reverse, in part, affirm, in
part, and remand with directions.

II. PROCEDURAL BACKGROUND

A. Three Probation Cases

1. PA086980 (the theft case)

On July 11, 2017, following defendant’s plea of nolo
contendere to grand theft in violation of Penal Code section 487,
subdivision (a)1 in the theft case, the trial court suspended
imposition of sentence and placed defendant on formal probation
for three years with certain terms and conditions, including that
he obey all laws and orders of the court.

1 All further statutory references are to the Penal Code
unless otherwise indicated.

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 2. LA085432 (the ammunition case)

On November 15, 2017, following defendant’s plea of nolo
contendere to unlawful possession of ammunition in violation of
section 30305, subdivision (a)(1) in the ammunition case, the trial
court suspended imposition of sentence and placed defendant on
formal probation for three years with certain terms and
conditions, including that he obey all laws and orders of the
court.

3. BA469165 (the fraud case)

On September 4, 2018, defendant pleaded guilty in the
fraud case to aid by misrepresentation (over $950) in violation of
Welfare and Institutions Code section 10980, subdivision (c)(2).
The trial court suspended imposition of sentence and placed
defendant on formal probation for five years on the condition that
he, among other things, obey all laws and orders of the court,
perform 425 hours of community service, and pay $25,812 in
restitution.

B. Probation Violation (the drug case)

On December 26, 2019, Los Angeles police officers arrested
defendant for transportation of a controlled substance in violation
of Health and Safety Code section 11379.

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C. Probation Revocation Proceedings

1. Hearings Before Commissioner Harris

On December 31, 2019, the trial court in the fraud case—
Commissioner H. Elizabeth Harris, presiding—held a hearing on
defendant’s “possible violation” of his probation in that case. The
court noted that although charges had not been filed in the drug
case, the probation officer had placed a “no-bail hold” on
defendant until March 10, 2020, when defendant was scheduled
to appear for a progress hearing. The court advised defendant
that it would keep the March 10 hearing date on calendar,
reminded him that he owed 425 hours of community service,
reinstated his probation, and ordered him to make progress on
his community service hours before the next hearing. The court
then released defendant on his own recognizance.
On January 29, 2020, the Los Angeles County District
Attorney filed charges against defendant in the drug case
(PA094112).
On February 26, 2020, at defendant’s request,
Commissioner Harris held another hearing. Defendant’s counsel
explained that he requested the hearing because defendant now
had a new case pending and counsel anticipated that a “no-bail
hold” warrant would have issued for defendant, who was on
probation. According to counsel, defendant wished to act
preemptively “to address the court regarding the progress
[defendant had] made on this case. We were hoping that the
court would violate and reinstate him on this case.”
In response to counsel’s suggestion, the trial court queried,
“Why would I violate him?”, and counsel replied, “Because he got

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a new case.” The court then explained: “Ours is a little different
matter. . . . [¶] . . . [¶] . . . [T]his particular group of crimes,
we’re not interested in locking [defendant] up. We’re interested
in getting $29,000 from him, which he probably doesn’t have, but
he can start making payments on those and show a good-faith
effort.” The court clarified that it was “aware of [the drug case]
and [it would] not violate [defendant] based upon it. And if they
say they want our case, tell them that it is a special rule that on
the welfare fraud cases, we keep our cases. [¶] . . . [¶] Unless
they’re going to give him prison on it, then I’ll send it to them.
But other than that, we keep our cases because we have to keep
track of the accounting. He has to keep paying [restitution].”2

2. Hearings Before Commissioner Harkavy

On March 3, 2020, the trial court—Commissioner Jeffrey
Harkavy, presiding—held a hearing on “possible viol[ations] of
probation” in the theft and ammunition cases. Defendant’s
counsel advised the court that defendant “would like to plead not
guilty” in the drug case. According to counsel, once defendant
learned that a case had been “filed here,” he retained private
counsel, became “proactive,” and appeared before Commissioner
Harris “both to surrender [defendant] and also address any
probation hold issues;” and “she allowed him to proceed on his
own recognizance . . . .”

2 The minute order for the February 26, 2020, hearing
provided that the “court does not find . . . defendant in violation
of probation” and set a progress hearing on restitution for
September 2, 2021.

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 Commissioner Harkavy then sought to clarify whether
Commissioner Harris made an order that defendant “remain free
on his own recognizance” or whether “he was just not tak[en] into
custody in order to be here in this court today for this court to
decide on the bail issue.” In response, defendant’s counsel
suggested that the court could “verify that Commissioner Harris
did just release [defendant] for all purposes of addressing this
case, but she made it clear on the record that the purpose of her
courtroom was to make sure that [defendant] stay[ed] out [of
custody] so he can continue with the terms of his probation and
that she was not issuing any kind of hold.”
Commissioner Harkavy indicated that he would accept
counsel’s representations and reasoned that “a defendant [is]
entitled to . . . one bail review hearing, absent a change in
circumstances, and from [defense counsel’s] representation, that
sound[ed] like that hearing took place, that a decision was made
by another bench officer that he be O.R. on his probation matters
and this court feels bound by that decision [made] by that other
judge. [¶] Normally, I would be remanding him on [a] no bail
hold on all three probation violations, but since a hearing, from
[defense counsel’s] representation, took place and it was not the
order of the court to simply have him be O.R. so he can appear in
court and for this court to decide the bail issue on the probation
matters, but, rather, affirmatively for reasons stated, ordered
that [defendant] remain free on his own recognizance to appear
here in court with full knowledge that . . . criminal charges had
been filed. [¶] This court feels bound to the decision of a co-equal
bench officer from the same jurisdiction to uphold those orders by
another judge of the Los Angeles [County] Superior Court.”

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 Commissioner Harkavy next entered a not guilty plea in
the pending drug case and ordered a pre-plea report. The court
then scheduled the matter for a probation violation setting, bail
review, and progress hearing for April 7, 2020. The court also
scheduled April 7, 2020, for a preliminary hearing setting in the
drug case.
The minute order in the fraud case for the March 3, 2020,
hearing noted as follows: “The court requests that the above
matter [the fraud case] be ordered and placed on calendar as a
potential probation violation. Department 47 [Commissioner
Harris] is contacted and will not allow the above matter [the
fraud case to] be released. On February 26, 2020, Department 47
was notified regarding . . . defendant’s new case number
PA094112 [the drug case] and did not find defendant in
violation.” The minute orders in the theft and ammunition cases
stated, “Probation revoked.”
At the April 7, 2020, hearing on probation violation setting,
bail review, and preliminary hearing setting in the drug case,
Commissioner Harkavy explained: “I think we can take the bail
review off calendar in light of the new bail schedule. This would
be an O.R. release on everything.” The minute orders in the theft
and ammunition cases for that hearing stated, “Probation
remains revoked.” and the minute order in the fraud case for that
hearing stated, “Probation revoked.”

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D. Probation Violation Proceedings

1. Motions to Terminate Probation

On January 10, 2022, the trial court—Judge Michael
Terrell, presiding—held a hearing on: (1) defendant’s request to
terminate probation in the theft and ammunition cases under
Assembly Bill No. 1950 (2019–2020 Reg. Sess.) (AB 1950); and
(2) his alternative request, in the event the court did not
terminate probation, that the formal probation violation hearing
in those two cases be held after the jury trial in the drug case.
The court noted that defendant’s probation in the theft and
ammunition cases had been revoked on March 3, 2020, and
probation in the fraud case was revoked on April 7, 2020. It
therefore concluded that defendant “was in revoked status at the
time that [AB] 1950 went into effect.” Citing the Supreme
Court’s decision in People v. Leiva (2013) 56 Cal.4th 498 (Leiva),
the court denied defendant’s motion to terminate probation and
his request that the probation violation hearing be held following
the jury trial in the drug case.
On April 6, 2022, at a pretrial conference in the drug case,
Judge Terrell addressed defendant’s renewed request to
terminate probation on all three cases based on recent case law
and defendant’s assertion that probation in the three cases had
not been validly revoked. On the issue of whether probation had
been revoked, the court acknowledged the discrepancy between
the minute orders for the March 3 and April 7, 2020, hearings—
which provided that probation had been revoked—and the
transcripts of those hearings—which did not include a statement
that probation had been revoked. The court conceded that

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Commissioner Harkavy did not say “the words ‘probation is
revoked,’” as recited in the minute order, but then pointed to the
commissioner’s discussion of bail and ensuing statement that
“‘[n]ormally I would be remanding him on all three of these
probation violations.’” The court reasoned, “you don’t set bail or
you don’t leave someone on O.R. unless you revoke his probation.
If probation was never revoked, there would be no discussion of
bail . . . .”
Judge Terrell then analyzed the April 7, 2020, hearing
transcript, explaining, “Commissioner Harkavy again does not
mention or does not say the words ‘probation revoked,’ but this
was on calendar initially for [a] bail review [hearing], and what
Commissioner Harkavy says [is]: [¶] ‘I think we can take the
bail review off calendar in light of the new bail schedule. This
would be an O.R. release on everything.’ [¶] . . . [¶] You don’t
make orders releasing someone on a probation case unless you
violate probation, so I think that that can be harmonized . . . with
the [April 7] minute order that says probation has been revoked.”
Following argument by the parties, Judge Terrell ruled:
“Let me just state clearly for the record that this court after doing
its analysis finds that the probation matters that [defendant] had
when [the drug] case was filed, that those were revoked on
March 3rd, or for the [fraud] case, at the latest on April 7th. In
any event, they were revoked before AB 1950 went into effect and
that per [Kuhnel v. Superior Court (2022) 75 Cal.App.5th 726,
review granted June 1, 2022, S274000 (Kuhnel)], this court has
jurisdiction over the probation violation matters. [¶] So this
court is going to reaffirm its January 10th decision to deny . . .
defendant’s motion to terminate probation . . . .” The court set

9
the matter for a probation violation hearing on May 12, 2022, and
confirmed that probation remained revoked until then.

2. Violation Hearing

At the May 12, 2022, probation violation proceeding,
defendant admitted that he was in possession of a controlled
substance in violation of Health and Safety Code section 11366.8,
and the trial court (Judge Terrell) therefore found him in
violation of probation because he had failed to obey all laws.
On the issue of whether defendant should be remanded into
custody pending the probation violation sentencing hearing, the
trial court explained: “The court tries to be consistent in how it
deals with probation violations, and when someone is in violation
for committing a crime as opposed to some technical violation, it’s
the court’s standard practice to always have some custody time
imposed. What that custody time is I’m not going to decide until
I hear from both counsel, but it’s essentially a hundred percent of
the time I impose custody time. [¶] But when someone is found
in violation, even if I don’t sentence on the day of the finding, the
court’s standard practice is to remand pending the sentencing
date, and I don’t see a reason to deviate from that. I try to be
consistent. [¶] . . . [¶] Okay. So I’m going to be consistent with
what I typically do with violations, I’m going to order that he be
remanded and that we have a sentencing date on Monday . . . .”
Defense counsel then asked if the court would consider bail in
lieu of a custody remand, and the court replied, “As I said, . . .
this is the kind of situation where the court almost a hundred
percent of the time imposes a custody sentence, so there is no

10
reason . . . not to start that now because he’s already been found
in violation.”

E. Sentencing

At the May 16, 2022, sentencing hearing, following
argument from the parties, the trial court first addressed
whether probation should be reinstated, explaining: “These are
always difficult decisions to make because it’s not a clear-cut,
black-and-white type situation, but I need to look at what the
purpose of probation is. [¶] The purpose of probation is to . . .
give a person an opportunity to try to straighten things out and
get on track and prove to the court and to the community as a
whole that he or she is going to stay free of problems.
[Defendant] has been given multiple chances to do that and has
not been able to do it. [¶] Given his criminal history, I do not
think that he’s earned yet another chance. I think that
reinstating probation, given the overall history here, is not
supported by the record. [¶] Now, the court, at least in my
opinion, cannot consider things like immigration consequences. I
don’t think I can treat Person A and Person B differently because
one has immigration issues and one does not. That’s not fair. I’m
not going to consider that. [¶] I’m also not going to consider the
issue of community labor and community service. There have
been no admissions of a violation here. We had a hearing. The
[prosecution] did not present any evidence at that hearing of
failure to do community labor or community service or pay
restitution, so I’m making my decision based on what was proven
up at the hearing, and what was proven was possession of
methamphetamine. [¶] The court, though, is going to consider

11
the criminal history and the fact he’s been given numerous
chances to do what probation is designed to do, which is get on
track, stay on track, and prove to everyone he can do that. He’s
not done that, and I don’t think he’s earned yet another shot at
probation, so the court’s decision is to find him in violation for the
misdemeanor offense and to terminate probation on all three
cases.”
On the appropriate sentence to impose for the violations,
the trial court reasoned as follows: “Now, the next question is,
what’s the appropriate sentence? [The prosecutor] was arguing
for a grand total of 32 months: 16 months on whatever the
principal case is, plus eight months consecutive, plus eight
months consecutive, for 32 months. [¶] As I said before, this is
not an open-and-shut issue. There’s a lot of gray here. I think
the 32 months is too much. In the court’s view, the appropriate
sentence would be two years, which is the mid-term on the
principal, and then the other two would be concurrent.” The
court ordered that defendant serve his sentence in prison and
added, “I know this is not the decision that [defendant] or his
family wanted, but I think I have to look at the totality of [the]
circumstances. I think that it’s the appropriate solution, given
the total record that I’ve been presented.” Following
pronouncement of sentence, the court dismissed the drug case.

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 III. DISCUSSION

A. Revocation of Probation in the Grand Theft and
Ammunition Cases

Defendant contends that AB 1950 requires reversal of his
sentences in the theft and ammunition cases. According to
defendant, the statute operated retroactively to limit his
probation in those cases to two years. Because the alleged
violation and revocation both occurred more than two years after
the grant of probation, defendant concludes that the trial court
lacked jurisdiction to find a violation and impose sentence.
AB 1950 codified at section 1203.1 and enacted effective
January 1, 2021, reduced the maximum probationary term for
most felonies from five years to two years. (People v. Jackson
(2023) 93 Cal.App.5th 207, 210, review granted, Sept. 13, 2023,
S281267.) We consider here the extent of the retroactive
application of the statute, that is, whether under these
circumstances it operated to deprive the trial court of jurisdiction
to find a violation and sentence defendant. The parties agree
there is a split in authority on the issue;3 but they disagree on
which of those cases controls the result here.

3 The Supreme Court has granted review in several cases
dealing with related retroactivity issues under AB 1950:
Compare People v. Faial (2022) 75 Cal.App.5th 738, review
granted May 18, 2021, S273840 (Faial); Kuhnel, supra, 75
Cal.App.5th 726; People v. Butler (2022) 75 Cal.App.5th 216,
review granted June 1, 2022, S273773; People v. Canedos (2022)
77 Cal.App.5th 469, review granted June 29, 2022, S274244
(Canedos); People v. Jackson, supra, 93 Cal.App.5th 207.

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 Defendant urges us to follow Canedos, supra, 77
Cal.App.5th 469, in which the court held that AB 1950 operated
retroactively to deprive the trial court of jurisdiction over the
probation violation there, which defendant committed more than
two years after the court granted probation, but before the
effective date of AB 1950. The court in Canedos explained, “[W]e
see no principled basis for denying retroactive relief to
defendants in Canedos’s position. Although Canedos had violated
the terms of his probation before [AB] 1950 became effective,
neither the trial court’s finding of a violation nor his original
conviction was yet final for purposes of retroactivity under [In re]
Estrada [(1965) 63 Cal.2d 740]. [Citations.] Unless the
Legislature specifies otherwise, it is a matter of ‘presumed
legislative intent’ that an ameliorative criminal statute applies
retroactively to all defendants whose convictions were not yet
final when the law became effective. [Citation.] We see no
indication in the text or legislative history of [AB] 1950 that the
Legislature meant to limit its retroactive application. Under the
new law, Canedos’s probation expired in 2018, more than a year
before he committed the violation. Thus, the court no longer had
the authority to revoke Canedos’s probation and sentence him to
prison.” (Id. at p. 473–474.)
The Attorney General asserts that the issue is controlled
by, among others, the decision in Faial, supra, 75 Cal.App.5th
726 in which the court held that AB 1950 did not apply when the
revocation of probation occurred after defendant had served two
years of his probationary term, but before the effective date of the
statute. (Id. at p. 746.)
Our Supreme Court will resolve the conflict in the
authorities. In the meantime, we agree the result in Canedos,

14
supra, 77 Cal.App.5th 469 should obtain here because defendant
committed the offending conduct more than two years after the
court granted probation but before his sentence had been
executed following revocation and termination of his probation.
We therefore reverse the sentences in both cases.

B. Revocation of Probation in the Fraud Case

Defendant maintains that the sentence in the fraud case
should also be reversed because: (1) Commissioner Harris
ordered that probation in that case should not be revoked, and
Commissioner Harkavy thus had no authority to overrule that
order;4 (2) because there was no valid summary revocation, his
probationary period was not tolled (see § 1203.2, subd. (a)5);
Leiva, supra, 56 Cal.4th at p. 505); (3) under AB 1950, that period
expired in September 2020, two years after it was granted; and
(4) the trial court therefore had no jurisdiction to hold the formal
violation hearing in the fraud case on May 12, 2022.
“Section 1203.3, subdivision (a), empowers the trial court
‘at any time during the term of probation to revoke, modify, or
change its order of suspension of imposition or execution of
sentence.’ . . . [¶] Under section 1203.2, the court is authorized
to summarily revoke a defendant’s probation ‘“if the interests of

4 Defendant assumes, for this argument only, that
Commissioner Harkavy issued an order in April 2020 revoking
defendant’s probation in the fraud case.

5 Under section 1203.2, subdivision (a), an order summarily
revoking probation “shall serve to toll the running of the period of
supervision.”

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justice so require and the court . . . has reason to believe from the
report of the probation officer or otherwise” that grounds for
revocation exist. (§1203.2, subd. (a).) Such summary revocation
gives the court jurisdiction over and physical custody of the
defendant and is proper if the defendant is accorded a subsequent
formal hearing in conformance with due process.’” (Leiva, supra,
56 Cal.4th at pp. 504–505.)
As a general rule, one trial judge cannot reconsider and
overrule an order of another trial judge. (People v. Riva (2003)
112 Cal.App.4th 981, 991.) We disagree, however, with the
premise of defendant’s argument, namely, that Commissioner
Harkavy overruled an order made by Commissioner Harris. On
February 26, 2020, Commissioner Harris stated that she would
not revoke defendant’s probation in the fraud case and released
him on his own recognizance so he could fulfill the conditions of
his probation, including making restitution. She also refused to
release that case to the court handling the drug case because her
court needed to track and account for the restitution payments
defendant was making. But she expressly conditioned her orders
on whether the court in the drug case decided to “give [defendant]
prison on it,” in which case, she would “send [the fraud case] to
them.”
Given this background, Commissioner Harkavy’s order
revoking defendant’s probation in the fraud case did not
“overrule” Commissioner Harris’s decision to release defendant
without revoking probation. By conceding that the court
handling the drug case could send defendant to prison in the
fraud case and agreeing to release that case for that purpose,
Commissioner Harris tacitly acknowledged that her orders were
not intended to preclude the court handling the drug case from

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revoking defendant’s probation in the fraud case. Commissioner
Harris therefore never reached the issue of whether there was
reason to believe from the probation officer’s report or otherwise
that grounds for revocation existed, choosing instead to leave that
decision to the court handling the drug case.

C. Failure to Expressly State Probation Revoked

Defendant also argues probation was not revoked in the
fraud case because Commissioner Harkavy did not orally
pronounce that he was revoking probation at either the March 3
or April 7, 2020, hearings, and instead deferred to Commissioner
Harris’s ruling releasing defendant on his own recognizance in
the fraud case. As defendant reads the record, probation was
therefore never validly revoked.
In People v. Smith (1983) 33 Cal.3d 596, the court
addressed how an appellate court should resolve conflicts
between a trial court’s oral pronouncements and its written
records of the proceeding. “The People claim that the quoted
excerpts from the reporter’s and clerk’s transcripts are in conflict,
and maintain that the inconsistency must necessarily be resolved
in favor of the reporter’s version. [Citation.] But more recent
cases do not support such a mechanical rule. The correct
approach is outlined in the following passage from In re Evans
(1945) 70 Cal.App.2d 213, 216: ‘It may be said . . . as a general
rule that when, as in this case, the record is in conflict it will be
harmonized if possible; but where this is not possible that part of
the record will prevail, which, because of its origin and nature or
otherwise, is entitled to greater credence [citation]. Therefore
whether the recitals in the clerk’s minutes should prevail as

17
against contrary statements in the reporter’s transcript, must
depend upon the circumstances of each particular case.’
[Citations.]” (Id. at p. 599.)
Here, the reporter’s transcripts and corresponding minute
orders from the relevant hearings demonstrate that the oral
proceedings can be harmonized with the minute order expressly
stating that Commissioner Harkavy revoked probation in all
three cases. At the March 3, 2020, hearing, Commissioner
Harkavy noted that defendant was currently on probation on all
three cases and explained that, but for Commissioner Harris’s
order releasing defendant, he would have remanded him into
custody on a “no bail hold” based on the three violations. But,
due to the prior order releasing him, Commissioner Harkavy did
not retain defendant in custody. He did, however, set the next
hearing for a “probation violation hearing setting” and a bail
review. Those orders demonstrate that the trial court handling
the drug case had decided to go forward with formal violation and
sentencing proceedings in the probation matters. The court
would not have pronounced such a schedule unless it had first
summarily revoked probation, as both the bail review and the
formal violation hearing follow from such revocation. (See Leiva,
supra, 56 Cal.4th at p. 505 [“‘[A]fter the summary revocation,
the defendant is entitled to formal proceedings for probation
revocation. The purpose of the formal proceedings is not to
revoke probation, as the revocation has occurred as a matter of
law; rather, the purpose is to give the defendant an
opportunity to require the prosecution to prove the alleged
violation occurred and justifies revocation’”].)
Moreover, at the April 7, 2020, hearing, Commissioner
Harkavy took the bail review off calendar and ordered “an O.R.

18
release on everything,” that is, on all three probation matters.
Those orders also were consistent with and logically follow a
summary revocation in all three cases.
In light of the record, we conclude that the transcripts of
the oral proceedings on the revocation issue can be harmonized
with the court’s written records showing that probation had been
revoked. We therefore reject defendant’s contention that the trial
court lacked jurisdiction to proceed with the formal violation
hearing and sentencing in the fraud case.

D. Modification of Sentence in the Fraud Case

Defendant contends that, if we reverse his sentences in the
theft and ammunition cases, but affirm his sentence in the fraud
case, his remaining sentence, if any, must be served in county
jail. According to defendant, if the two sentences requiring state
prison incarceration under section 669, subdivision (d) are
reversed, that section no longer controls and the remaining
crime, the fraud offense, can only be punished by a county jail
sentence. The Attorney General concurs.
We agree with the parties and will therefore remand with
directions to modify defendant’s sentence on the charge in the
fraud case to reflect that any remaining time shall be served in
county jail.

E. Abuse of Sentencing Discretion

Defendant next contends that the trial court abused its
discretion by expressly declaring “a policy of not considering
alternatives to incarceration when, as here, a formal probation

19
revocation hearing results in a finding of a new law violation.”
According to defendant, the court “effectively ruled [defendant’s
request for reinstatement of probation] out of bounds even before
the sentencing hearing and did not consider it . . . .”
“A probation violation does not automatically call for
revocation of probation and imprisonment. [Citation.] A court
may modify, revoke, or terminate the defendant’s probation upon
finding the defendant has violated probation. (§ 1203.2, subds,
(a), (b)(1).) The power to modify probation necessarily includes
the power to reinstate probation. [Citations.] Thus, upon finding
a violation of probation and revoking probation, the court has
several sentencing options. [Citation.] It may reinstate
probation on the same terms, reinstate probation with modified
terms, or terminate probation and sentence the defendant to
state prison. [Citations.] [¶] . . . [¶] The decision whether to
reinstate probation or terminate probation (and thus send the
defendant to prison) rests within the broad discretion of the trial
court. [Citations.]” (People v. Bolian (2014) 231 Cal.App.4th
1415, 1420–1421.)
Contrary to defendant’s assertion, the trial court did not
announce a “blanket” sentencing policy under which it never
considered the option of reinstating probation following a finding
of a new law violation. The court’s comments about imposing a
prison sentence “essentially” or “almost” a 100 percent of the time
following such a finding were not made at the sentencing
hearing; they were made at the end of the May 12, 2022, violation
hearing, in the context of rejecting defendant’s request for release
pending the sentencing hearing. At the sentencing hearing, the
court addressed the option of reinstating defendant’s probation
before deciding to sentence him to prison. The record therefore

20
demonstrates that the court understood its sentencing options,
including the option of reinstatement, and then decided based on
the circumstances of this case—including defendant’s criminal
record and inability to comply with the terms of three prior
probationary grants—not to reinstate probation. Moreover, that
the trial court in this case, as it had in the vast majority of other
cases, imposed a custodial sentence for a probationer who had
committed a new crime, is not “a very extreme case [where] an
appellate court [should] interfere with the discretion of the trial
court . . . .” (People v. Urke (2011) 197 Cal.App.4th 766, 773.) We
find no abuse of discretion.

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 IV. DISPOSITION

The judgment in the theft and ammunition cases is
reversed and remanded with directions to vacate defendant’s
sentences in those cases and to modify his sentence in the fraud
case to reflect that any remaining period of incarceration shall be
served in county jail. The trial court is directed to amend the
abstract of judgment to reflect this modification and to send the
amended abstract of judgment to the Department of Corrections
and Rehabilitation. In all other respects, the judgment is
affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.

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