In Re Bolley

Opinion

REYNOSO, J.

At issue in this proceeding on petition for writ of habeas corpus is whether a trial court may require, as a condition of probation, a criminal defendant to waive the statutory maximum period of probation. We hold that it may not. Accordingly, we issue a writ of habeas corpus directing the trial court to vacate its decision denying petitioner’s application for probation and to grant petitioner a new hearing on his application for probation.

Petitioner Gary Calvin Bolley was charged with various felony counts arising out of alleged sexual activity with his adopted daughters. He was convicted by plea of guilty of one count of lewd and lascivious con

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duct with a child. (Pen. Code, § 288.) Petitioner was committed to the Department of Corrections for a diagnostic evaluation pursuant to Penal Code section 1203.03. Upon his return to court petitioner was sentenced to state prison for the upper base term of five years for his offense, subject to recall under the provisions of Penal Code section 1170, subdivision (d). The Department of Corrections determined that petitioner was a fit candidate for probation and recommended recall.

Upon recall a lengthy sentencing hearing was held after which the trial court indicated that it would grant probation for the maximum possible period, which it was informed was five years. After further unrelated discussion the court stated that it would “try something” to extend the period of probation. The court asked petitioner to submit to a period of probation for 15 years. Although petitioner indicated assent, his counsel refused and the court ordered that the state prison sentence be executed.

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Penal Code section 1203.1 provides, inter alia, that a court or judge may grant probation and suspend the imposition or execution of sentence for a period of time not exceeding the maximum possible term of such sentence, except when the maximum possible term is five years or less in which case the period of probation may continue for five years. The power of the court with regard to probation is strictly statutory, and the court cannot impose a condition of probation which extends beyond the maximum statutory term of probation.