People v. Caban

In People v. Caban (1983) 148 Cal.App.3d 706, the allegation the defendant admitted was an absolute bar to a grant of probation. (Caban, supra, 148 Cal.App.3d at p. 709.) The court held that "preclusion from probation consideration" was a direct consequence of the admission, and thus that an advisement as to that preclusion was required. (Id. at p. 711.) The defendant had pleaded guilty to robbery with personal use of a firearm ( 12022.5). The gun use allegation, which the court lacked power to strike, rendered the defendant ineligible for probation. (Former 1203.06, subd. (a)(1)(iii).) Caban was not informed of this ineligibility at his change of plea hearing. Instead, he was expressly told that he could apply for probation, which would result in the preparation of a probation report the court would consider before sentencing, and that by pleading guilty he was waiving any objection to the terms and conditions of probation. (Caban, supra, at pp. 708-709.) The probation report noted that Caban requested probation and would be a good candidate for probation, but probation was precluded because of his firearm use admission. (Id. at p. 709.) The trial court denied Caban's request for probation-while noting it would have been granted but for the statutory ineligibility-and sentenced him to two years in prison. (Ibid.) On appeal, the court held that the failure to advise Caban of the probation ineligibility consequence of his plea was error. (Id. at p. 711.) In Caban, the defendant was affirmatively misled, because he was told he could apply for probation and there was apparently no mention of a minimum prison sentence. Implicitly, therefore, he was led to believe probation was possible, while the reality was that he was precluded from probation as a matter of law.