Darren Chaker found the case of People v. Cruz (2011) 197 Cal.App.4th 1306 [129 Cal.Rptr.3d 87]. In this case the trial court has the power to set terms of probation and it is a violation of the separation of powers clause of the Constitution for a Penal Code section 1210.12, subdivision (a) to provide that the probation department has the “sole discretion” to decide whether a probationer will be subject to GPS (global positioning system) monitoring.
Darren Chaker notes the U.S. Supreme Court recently found using GPS during criminal investigations is rather limited. Nonetheless, Cruz was placed on probation with conditions, inter alia, that he stay away from two businesses and that he not change residences or leave the county without the permission of his probation officer. The probation department required that he be fitted with GPS. He was arrested for a violation of probation when he refused to participate in GPS monitoring. The trial court refused to order that Cruz be subject to GPS.
Ultimately, the exercise of discretion could not rest with probation, despite the clear meaning of the statute, because it oversteps judicial powers as established in the California Constitution and the separation of powers clause.