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People v. Burton

August 31, 2009


(Contra Costa County Super. Ct. No. 05-050050-4). Trial Court: Contra Costa County Superior Court Trial Judge: Hon. Leslie G. Landau.

The opinion of the court was delivered by: Ruvolo, P. J.



The trial court summarily revoked appellant's probation on the basis of a petition charging a violation that the prosecution later failed to prove. While the first petition was pending, but before the expiration of appellant's original probation term, a second petition was filed charging appellant with a different violation. After appellant's original probation term expired, the trial court found that he had committed the violation charged in the second petition, and imposed his previously stayed prison sentence.

Appellant contends that the trial court did not have jurisdiction to revoke his probation because the charge in the first petition, which triggered the tolling of his probation period, was not proved. In the published portion of our opinion, we reject this contention, concluding that once the expiration of a probation period is tolled, then as long as a probationer is found to have committed some probation violation during the probation period, as charged in a petition filed during the probation period, the trial court retains jurisdiction to revoke probation after the expiration of the probation term, even if the tolling was based on a violation the prosecution did not ultimately prove.

Appellant also contends that there is insufficient evidence to support the trial court's finding that he violated his probation, and that he did so knowingly and willfully. In the unpublished portion of our opinion, we reject these contentions as well. We affirm the judgment.


On May 17, 2005, appellant pled no contest to one count of corporal injury to his wife. (Pen. Code, § 273.5, subd. (a)*fn2 .) The plea was the result of a negotiated agreement under which appellant waived presentence credit and received a sentence of four years in state prison, suspended, with three years on probation and one year in jail. Appellant was also ordered to attend a 52-week domestic violence program. In addition to sentencing appellant to probation, the court also issued an order requiring appellant to stay away from his wife and her children from a previous marriage. On May 2, 2006, the stay-away order was lifted as to appellant's wife, but not as to her children.

On December 15, 2006, appellant's probation officer filed a petition to revoke his probation for alcohol use and failure to pay fines and restitution. On December 26, 2006, appellant surrendered and was remanded to custody. On February 13, 2007, appellant admitted violating his probation. On July 3, 2007, the court ordered appellant to serve an additional year in jail, with 193 days credit, and to attend 26 additional domestic violence classes.

On November 6, 2007, appellant's probation officer filed another petition to revoke appellant's probation, because he had tested positive for opiates and had not paid his fines and restitution. Appellant told his probation officer that the positive test resulted from his having taken a painkiller prescribed for his mother. On November 13, 2007, the petition to revoke probation was withdrawn, and the trial court reinstated appellant's probation and reduced his restitution obligation to zero.

On January 15, 2008, appellant's probation was modified, and a criminal protective order was issued against him. The terms of the modified probation and the protective order do not appear in the record provided to this court on appeal, but the protective order apparently provided that appellant was not to have any contact with his wife's children.

On March 3, 2008-two and a half months prior to the expiration of appellant's probation term-appellant was again charged with probation violations. The petition to revoke probation (the March 3 petition) alleged that appellant had been arrested by the Hayward Police on March 2, 2008, and that he had been living in his wife's home, with her children from a former marriage, in violation of the restraining order imposed on January 15, 2008. The trial court summarily revoked appellant's probation on March 3, 2008.

On May 1, 2008-just over two weeks before appellant's probation term expired-the probation officer filed a supplemental petition (the May 1 petition) seeking "to continue [appellant's] probation in revoked status," and alleging that appellant had violated his probation in two respects. First, appellant had been charged with several criminal offenses, which had occurred on April 17 and April 24, 2008, for which he was in custody in Alameda County. The offenses consisted of three felonies: corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)); criminal threats (§ 422); and stalking (§ 646.9, subd. (a)); and one misdemeanor, violation of a protective order (§ 273.6, subd. (a)). Second, appellant's "whereabouts ha[d] been unknown since March 3, 2008."

On July 11, 2008, the trial court held a hearing on the probation violations alleged in the March 3 and May 1 petitions. Appellant's wife was not present, and the prosecutor indicated that no subpoena had been served on her, and that at the last minute, she had declined to testify. The prosecutor attempted to have the probation officer testify as to what appellant's wife had told her regarding the probation violation alleged in the March 3 petition, but the trial court ultimately sustained appellant's counsel's hearsay objections to this testimony. Thus, the court considered the ...

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