People v. Harrison CA3

DISCUSSION

Defendant argues that the trial court erroneously found him presumptively ineligible for probation because he did not have a qualifying felony conviction under section 1203, subdivision (e)(5). The People agree. We conduct de novo review in deciding whether the trial court properly found the defendant presumptively ineligible for probation. (People v. Nuno (2018) 26 Cal.App.5th 43, 49-50.) “Where a court ‘bases its determination to deny probation in significant part

2 upon an erroneous impression of the defendant’s legal status, fundamental fairness requires that the defendant be afforded a new hearing and “an informed, intelligent and just decision” on the basis of the facts.’ ” (Ibid., quoting People v. Ruiz (1975) 14 Cal.3d 163, 168, italics omitted.) Only if the trial court properly finds defendant ineligible for probation do we consider the trial court’s exercise of discretion in denying probation. (Id. at p. 50.) Section 1203, subdivision (e)(5) establishes presumptive ineligibility for parole for those who have committed specified felonies. Although defendant was on probation for a misdemeanor sex offense, he had no prior felony convictions. Accordingly, the…