Does a finding by us that the probation violation was not willful require us to reinstate probation?

Hopkins argues that a conclusion by us that the probation violation was not willful requires us to reinstate probation because it is too late to contest the legality of the plea deal. He argues that the sentence was imposed in excess of jurisdiction, but not without fundamental jurisdiction, and hence neither party should be allowed to " 'trifle with the courts' " by attempting to "better the bargain" through the appellate process. (People v. Flood (2003) 108 Cal.App.4th 504, 508.)

Neither party here has attempted to trifle with the court since we, on our own initiative, raised the question whether probation was properly imposed. Nonetheless, we conclude that we may not tamper with the original sentence at this juncture. The imposition of probation was approved by the trial court, and the time to challenge it on appeal has long since expired. Thus, the judgment granting probation is final and cannot be challenged by either party on appeal from a subsequent revocation of probation. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1423-1428.)

Page 10