What is the test for revoking a probationer's probation, even if the probationer has committed a new crime?

California, United States of America


The following excerpt is from People v. Toney, C056102 (Cal. App. 11/17/2008), C056102 (Cal. App. 2008):

Probation violationseven alleging new crimesneed be proved only by a preponderance of the evidence, and we review the trial court's finding that a violation occurred only for abuse of discretion causing a miscarriage of justice. (People v. Rodriguez (1990) 51 Cal.3d 437, 442-443.) "`[P]robation may be revoked despite the fact that the evidence of the probationer's guilt may be insufficient to convict him of the new offense.' [Citation.]" (Id. at p. 442.)

Where the trial court resolves conflicting evidence to determine whether a probationer willfully violated probation, review on appeal is based on the substantial evidence test. (People v. Kurey (2001) 88 Cal.App.4th 840, 842, 848.) "Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence . . . support[ing] the trial court's decision." (Id. at p. 848.)

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