Cruz

Penal Code section 1210.12, subdivision (a) states that the county’s chief probation officer shall have the “sole discretion,” consistent with the terms and conditions of probation, to decide which persons shall be supervised using a global positioning system (GPS).

If a trial judge places a defendant on probation on conditions that he not associate with certain people or go near a certain location, the section permits the probation officer to order the defendant to wear a GPS device.

Consider these facts: The trial judge places a defendant on probation with the same conditions, but specifically orders that the defendant not wear a GPS device.

Now for an easy question. May the chief probation officer nevertheless order the defendant to wear a GPS device? The obvious answer—of course not. The California Constitution requires that here we take the word “sole” with a grain of salt. To the extent the statute purports to deprive the trial court of authority over the terms and conditions of probation, it violates the separation of powers clause of the Constitution. (Cal. Const., art. III, § 3.) We affirm the trial court’s decision that defendant Augustine Cruz, Jr., was…