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The People v. Jose Leiva

April 8, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSE LEIVA, DEFENDANT AND APPELLANT.



Court: Superior County: Los Angeles Judge: Barbara M. Scheper Ct.App. 2/4 B214397 Super. Ct. No. PA035556

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

Los Angeles County

At the relevant times, Penal Code former section 1203.2, subdivision (a) (as amended by Stats. 1989, Ch. 1319, § 1, p. 5305; (section 1203.2(a))*fn1 , provided, in part, that the revocation of probation, "summary or otherwise, shall serve to toll the running of the probationary period." We granted review to resolve whether, once probation has been summarily revoked, this tolling provision permits a trial court to find a violation of probation and then reinstate or terminate probation based solely on conduct that occurred after the court-imposed period of probation had elapsed. For the reasons stated below, we hold that section 1203.2(a)'s tolling provision preserves the trial court's authority to adjudicate, in a subsequent formal probation violation hearing, whether the probationer violated probation during, but not after, the court-imposed probationary period.*fn2

BACKGROUND

In March 2000, defendant Jose Leiva was charged with breaking into several cars and stealing property from them. Pursuant to a plea agreement, he pleaded no contest to three counts of burglary of a vehicle. (§ 459.) On April 11, 2000, the trial court suspended imposition of sentence and placed defendant on formal probation for a period of three years, which meant that probation would expire on April 11, 2003. Included in the terms and conditions of probation were orders that defendant report to his probation officer within one business day of his release from custody and not re-enter the country illegally if he left voluntarily or was deported. Because defendant was not a legal resident of the United States, he was deported to El Salvador on the day he was released from jail.

On September 21, 2001, defendant failed to appear at a scheduled probation violation hearing based on an allegation that he had failed to report to the probation department. The trial court summarily revoked defendant's probation based on the failure to report and issued a bench warrant for defendant's arrest. It appears that neither the probation department nor the trial court knew that the reason defendant had failed to report or to appear in court was that he had been deported.

Seven years later, on November 10, 2008, defendant appeared in the trial court after his arrest on the outstanding warrant, following a traffic stop. The trial court re-called the warrant and ordered that probation remain summarily revoked and that defendant be remanded into custody. It calendared a formal probation violation hearing for February 13, 2009.

Before that date, the trial court received a supplemental probation report that indicated defendant had been unable to report for probation supervision because he was not a legal resident of the United States and had been deported. The report included defendant's statement that he illegally had returned to the United States in February 2007.

At the February 13, 2009 formal violation hearing, the district attorney, after acknowledging that the trial court could not find defendant in violation of probation unless the violation was willful, conceded the People could not prove that defendant's failure to report in 2001 had been "willful." Defendant's counsel contended "probation must be terminated" because the court had no authority to reinstate defendant's probation as of 2007 when there was no evidence of a "willful failure to report," or any other probation violation, before "the termination of the natural period of probation."

The trial court found defendant had violated probation. It did not rely on the allegation that had led to the summary revocation on September 21, 2001, nor did it find any other violation of probation during the three-year probationary period imposed on April 11, 2000. Instead, the court found defendant violated his probation in 2007 when he failed to report to probation following his return to the United States. It relied on defendant's statement that he had been back in the United States since February 2007.*fn3 The court reinstated probation and ordered it extended until June 6, 2011. It additionally ordered that, if defendant voluntarily left the country again or was deported, he must report to his probation officer within 24 hours of his return to the United States and present proof that he was in the country legally. Defendant appealed the order reinstating and extending probation.

Defendant was deported again, this time in March 2009. On May 14, 2009, during the period of probation challenged on appeal in case No. B21437, the trial court calendared a violation hearing based on a supplemental probation report stating that defendant had not reported to his probation officer and had been deported to El Salvador. Defendant was not present, but the court considered his letter to the probation department explaining that he had been deported in March 2009, and that he was trying to contact his probation officer by telephone. At the June 9, 2009 hearing, after noting that defendant had been deported, the court summarily revoked defendant's probation based on his failure to report to his probation officer, and a bench warrant issued for his arrest.

Thereafter, defendant returned to California and was arrested on the outstanding warrant. On September 17, 2009, he appeared in the trial court. His counsel argued the court lacked the authority to reinstate or terminate probation because defendant's probationary term had expired three years after it began on April 11, 2000, and defendant had not willfully violated any condition of probation during those three years. Assuming its prior order reinstating and extending probation was valid pending appeal, the court ordered that probation remain summarily revoked and that defendant remain in custody.

On October 9, 2009, the trial court held a formal probation violation hearing and found that defendant had violated his probation "for re-entering the country illegally" in 2009. On November 9, 2009, the court ordered that probation remain revoked and sentenced defendant to two years in state prison based on one of the burglary counts to which defendant had pleaded no contest in 2000. Defendant filed a timely appeal from this order.

In each of his two appeals, defendant contended the trial court erred by finding a violation of probation based on conduct that had occurred after the expiration of the original court-imposed three-year probationary period. The Court of Appeal rendered a split decision. The two-justice majority upheld the trial court's orders. The dissenting justice agreed with defendant's position. We granted review.

DISCUSSION

Section 1203.3, subdivision (a), empowers the trial court "at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence." This power includes the power to extend the probationary term. (Ex Parte Sizelove (1910) 158 Cal. 493, 494.) Under section 1203.2(a), a court "may revoke and terminate such probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses."

Under section 1203.2, the court is authorized to summarily revoke a defendant's probation " 'if the interests of justice so require and the court . . . has reason to believe from the report of the probation officer or otherwise' that grounds for revocation exist. (§ 1203.2, subd. (a).) Such summary revocation gives the court jurisdiction over and physical custody of the defendant and is proper if the defendant is accorded a subsequent formal hearing in conformance with due process. [Citation.] [¶] Therefore, after the summary revocation, the defendant is entitled to formal proceedings for probation revocation. The purpose of the formal proceedings is not to revoke probation, as the revocation has occurred as a matter of law; rather, the purpose is to give the defendant an opportunity to require the prosecution to prove the alleged violation occurred and justifies revocation. [Citation.]" (People v. Clark (1996) 51 Cal.App.4th 575, 581.)

"A change in circumstances is required before a court has jurisdiction to extend or otherwise modify probation. As we held in In re Clark (1959) 51 Cal.2d 838, 'An order modifying the terms of probation based upon the same facts as the original order granting probation is in excess of the jurisdiction of the court, for the reason that there is no factual basis to support it.' (Id. at p. 840, italics added.)" (People v. Cookson (1991) 54 Cal.3d 1091, 1095.)

When the trial court summarily revoked defendant's probation in 2001, section 1203.2(a) provided, in part, that "[t]he revocation, summary or otherwise, shall serve to toll the running of the probationary period."

In this consolidated appeal, defendant contends the trial court lacked the authority to reinstate and extend his probation as of 2007, after the expiration of the original three-year probationary period, because the noticed basis for revocation was not sustained and no other violation was proved to have occurred during the three-year probationary period. In turn, defendant contends that, because the February 13, 2009 order extending probation was invalid, the trial court lacked authority to impose a prison sentence in 2009 based on conduct that occurred later in 2009. The People contend the tolling provision of section 1203.2(a) gave the trial court jurisdiction to reinstate and later terminate probation in the 2009 hearings based solely on conduct that occurred after April 11, 2003, when the initially imposed period of probation would have ended.

Defendant's interpretation of the effect of section 1203.2(a)'s tolling provision was adopted in People v. Tapia (2001) 91 Cal.App.4th 738 (Tapia), which held that "a summary revocation of probation suspends the running of the probationary period and permits extension of the term of probation if, and only if, probation is reinstated based upon a violation that occurred during the unextended period of probation." (Tapia, supra, 91 Cal.App.4th at p. 741.) The court in Tapia reasoned that, under the tolling provision at issue in the present case, "the jurisdiction retained by the [trial] court is to decide whether there has been a violation during the period of probation and, if so, whether to reinstate or terminate probation." (Id. at p. 742.) The People's contrary view was adopted by the Court of Appeal in defendant's case. Disagreeing with Tapia, the majority concluded the trial court had the authority to first reinstate and later to terminate probation and impose a prison sentence based on defendant's conduct that occurred after the court-imposed probation would have expired. It reasoned that, "[s]ince ...


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