P. v. Leiva

 

 

 

 

 

 

 

 

 

 

 

 

Filed 7/23/13  P. v. Leiva CA2/4

Opinion on remand from Supreme Court

 

 

 

 

 

NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND APPELLATE DISTRICT

 

DIVISION FOUR

 

 

 

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   JOSE LEIVA,               Defendant and Appellant.

B214397         (Los Angeles County       Super. Ct. No. PA035556)

 

 

 

            APPEALS
from orders of the Superior Court of href="http://www.mcmillanlaw.com/">Los Angeles County,
Barbara M. Scheper, Judge. 
Reversed.

            Meredith
J. Watts, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Edmund G.
Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi
and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.

            Michael
P. Judge, Public Defender, Albert J. Menaster and Karen Nash, Deputy Public
Defenders, for the Public Defender of Los Angeles County as Amicus Curiae.

            This matter was remanded by our
Supreme Court.  Consistent with that
opinion, we conclude that defendant’s probation had expired by operation of law
and reverse the trial court’s findings that he was in violation following two
separate hearings. 

 

>FACTUAL AND PROCEDURAL BACKGROUND

> 

            We take the
following from the Supreme Court’s opinion.

            “In
March 2000, defendant Jose Leiva was charged with breaking into several name="sp_7047_637">name="citeas((Cite_as:_56_Cal.4th_498,_*502,_2">cars and stealing property from
them.  Pursuant to a plea agreement, he
pleaded no contest to three counts of burglary
of a vehicle.  ([Pen. Code,] §
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 reenter 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.

name="sp_999_1">“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.

name="sp_4040_503">“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 href="http://www.adrservices.org/neutrals/frederick-mandabach.php">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.’

name="sp_999_2">“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.>[href="#_ftn1" name="_ftnref1" title="">[1]name=F00332030314298>>]  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 returnname="SDU_873"> to the United States and present proof that he was in the
country legally.  Defendant appealed the
order reinstating and extending probation.

name="citeas((Cite_as:_56_Cal.4th_498,_*503,_2">“Defendant
was deported again, this time in March 2009. 
On May 14, 2009, during the period of probation challenged on appeal in
case No. B214397, the trial court calendared a violation hearing based on a
supplemental probation report stating thatname="sp_7047_638"> 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 name="citeas((Cite_as:_56_Cal.4th_498,_*504,_2">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.”  (People
v. Leiva (2013) 56 Cal.4th 498, 502-504.)

In
our original opinion, a majority of this court found that the tolling provision
in Penal Code section 1203.2, subdivision (a) (section 1203.2 (a)) served to
suspend the running of defendant’s probationary period.href="#_ftn2" name="_ftnref2" title="">>[2]  Thus, we held the trial court had the
jurisdiction to reinstate and extend defendant’s probation in 2009 because the
2001 summary revocation tolled the running of the probationary period.  The Supreme Court granted defendant’s
petition for review.

 

DISCUSSION

 

The
Supreme Court examined the statutory language of section 1203.2(a) and the
legislative history and concluded “summary revocation of probation preserves
the trial court’s authority to adjudicate a claim that the defendant violated a
condition of probation during the probationary period.”  (People
v. Leiva, supra, 56 Cal.4th at p.
515.)  As a result, “a trial court can
find a violation of probation and then reinstate and extend the terms of
probation ‘if, and only if, probation is reinstated based upon a violation that
occurred during the unextended period of probation.’  [Citation.]” 
(Id. at p. 516.)

As
discussed above, defendant’s original probationary term ran from April 2000 to
April 2003.  Defendant’s probation was
originally reinstated and extended following a 2009 violation hearing, during
which the court found defendant had illegally entered the country in 2007.  However, because the trial court did not find
defendant had violated probation during the original three-year term, it was
without jurisdiction to reinstate probation in 2009.  Probation had already expired by operation of
law six years earlier.  It stands to
reason, the court also lacked jurisdiction to find defendant in violation
during the November 2009 hearing as well. 


 

>DISPOSITION

> 

The
trial court’s orders finding defendant in violation of probation in February
2009 and November 2009 are reversed.

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

                                                                                    SUZUKAWA,
J.

We concur:

            EPSTEIN,
P. J.                                               WILLHITE,
J.