Probation Improperly Ended In Felony PC 311 Sex Case

The following summary of a recent Sixth Appellate District Court ruling in People v. Tomoriro Nakano is offered to help our clients and potential clients better understand the legal standard that must be applied for a judge to terminate probation early. 

In Mr. Nakano’s case, the Sixth Appellate District found that the trial court judge did not apply the correct standard.

Penal Code § 1203.3(a), a judge may terminate probation “at any time during the term of probation” when it finds that “the ends of justice will be served” and that the probationer has shown “good conduct and reform.” 

In certain types of cases, such as domestic violence and DUI cases, there is often an issue raised by prosecutors that “at any time” is statutorily barred by offense-specific code sections.  For example, in domestic violence cases, Penal Code § 1203.097 states that the term of probation for domestic violence cases shall be 36 months.  Some prosecutors have argued that this means the Legislature impliedly barred early termination of probation in domestic violence cases, but People v. Killion (2018) 24 Cal. App. 5th 337 addressed this popular prosecution argument and ruled that § 1203.097 did not mean this and allowed termination of formal probation for Ms. Killion after 15 months of 36 months of her probation in her domestic violence case.

In sex offender cases, there is a similar provision.  Penal Code § 1203.067(b)(1) and (2) provide, in relevant part: “(b) The terms of probation for persons placed on formal probation for an offense that requires registration pursuant to Sections 290 to 290.023, inclusive, shall include all of the following . . . (2) a person placed on formal probation after July 1, 2012, shall successfully complete a sex offender management program.  The length of the program shall be not less than one year, up to the entire period of probation . . .”

In Mr. Nakano’s case, San Jose police offices executed a search warrant on Mr. Nakano’s residence after learning that child pornography had been downloaded to an IP address associated with his residence.  Forensic analysis of Nakano’s computer hard drives revealed, at a minimum, several hundred videos tagged as child pornography.  The device also contained nearly two million images, which were not reviewed in detail, but many were of child pornography.

Nakano was then arrested and charged with felony possession of child pornography, Penal Code § 311(c)(1).

Mr. Nakano was a national of Japan and not a U.S. citizen.  On December 7 (Pearl Harbor Day), 2020, Mr. Nakano entered a plea of no contest as charged after the trial court judge, Robert B. Hawk, stated that his indicated sentence would be to grant probation with a 16-month suspended prison sentence.

Judge Hawk stated at the time Nakano’s plea was entered that he had not decided on the terms of probation, but that his “goal in proposing any kind of [probation terms] that they be such that you are able to return in fairly short order to Japan.”

At sentencing on January 14, 2021, Judge Hawk stated that it was “in everyone’s interest in this case for Nakano to be able to return to Japan.”

The judge asked the prosecutor for her opinion on terminating Nakano’s probation upon his leaving the United States.  The prosecutor responded that she opposed that result and stated that she believed Nakano should be sentenced to a year in county jail.

The probation department also expressed its opposition to Nakano leaving the country and recommended that Nakano be required to remain in the county to complete sex offender treatment and register as a sex offender at which point the court could terminate his probation early.

The judge responded that he was “not interested in doing it that way.”

The judge then indicated that upon receipt that Nakano had left the United States, he would consider modifying his probation to end it.  He then ordered Nakano to three years of formal probation with an obligation to complete a sex offender management program “for a period of not less than a year up until the entire term . . . of probation.”

Less than one month later, on February 12, 2021, defense counsel advised the judge that Nakano had left the United States on January 27, 2021, thirteen days after sentencing.  Mr. Nakano had registered as a sex offender and had paid all his court fees before leaving.

The judge then terminated his probation, making comments at the hearing that it was in the public’s best interest not to bear the burden (cost) of supervising Mr. Nakano.

The prosecutor then appealed this ruling to the Sixth Appellate District, which reversed judge Hawk, explaining that he abused his discretion because his ruling did not make a finding that Mr. Nakano had shown “good conduct and reform” before ending his probation.