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,

Petitioner,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

 B321114

 (Los Angeles County

 Super. Ct. No. BA483528)

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 
2

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

1 Subsequent unspecified statutory references are to the 

Penal Code.

2 Our record does not include the charging document. Our 

description of the charges is derived from the transcript of the 
3

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.)
4

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.) 
5

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).)
6

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-yearold 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” 
7

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.”
8

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.
9

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 
10

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.
11

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 
12

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
13

(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
14

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 
15

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.).)
16

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, 
17

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 
18

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 
19

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.
20

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 
21

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).) 
22

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 
23

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 
24

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. 
25

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.