People v. Superior Court

Real party John Joseph Kirby was convicted by jury trial of conspiracy to pimp (Pen. Code, §§ 182, 266h) and conspiracy to pander (Pen. Code, §§ 182, 266i). The probation department determined that Kirby would be a suitable candidate for probation if he was eligible for probation. Respondent the Superior Court of Santa Clara County concluded that Kirby was eligible for probation: “I’ve never seen a more suitable candidate for probation . . . .” The trial court suspended imposition of sentence and granted Kirby probation conditioned on service of one year in jail.

Petitioner the People of the State of California seek a writ of mandate requiring the trial court to deny probation and impose a state prison term. The People argue that Kirby is ineligible for probation under Penal Code sections 182, subdivision (a) and 1203.065. We conclude that these statutes do not preclude probation for conspiracy to pimp or conspiracy to pander and therefore deny the writ petition.

I. Analysis

The sole issue is one of statutory construction. If Kirby is statutorily ineligible for probation, then the People are entitled to relief. If, on the other hand, he is not statutorily ineligible…