>P. v. Salas

 

 

 

 

 

 

Filed 8/14/13  P. v. Salas CA2/8

Opinion following remand

 

 

 

 

>NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
EIGHT

 

 
>

THE PEOPLE,   Plaintiff and Respondent,                           v.   PEDRO RAMIREZ SALAS,   Defendant and Appellant.

B237003         (Los Angeles County        Super. Ct. No. BA284803)

 

 

            APPEAL
from the orders of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Rand S. Rubin,
Judge.  Reversed and remanded.

 

            Jolene
Larimore, under appointment by the Court of Appeal, for Defendant and
Appellant.

 

Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Nima Razfar,
Deputy Attorneys General, for Plaintiff and Respondent.

 

 

* *
* * * * * * * *

Defendant and
appellant Pedro Ramirez Salas appeals from the execution of a suspended
sentence on a 2005 robbery conviction following a probation revocation hearing
in 2011.  Defendant contends the summary
revocation of probation in 2006 on the ground he had absconded was unlawful
since he had been deported and did not willfully fail to report to
probation.  Since the summary revocation
of probation was unlawful, he claims, the probationary period was not
tolled.  He further argues his 2011
assault conviction, suffered after his return to this country, occurred after
probation expired in the 2005 case, so the court lacked jurisdiction to execute
sentence on the 2005 robbery conviction solely on the basis of that new
conviction.  In his opening brief before
this court, defendant principally relies on People
v. Tapia (2001) 91 Cal.App.4th 738 (Tapia)
and its interpretation of the tolling provision contained in Penal Code section
1203.2, subdivision (a).href="#_ftn1"
name="_ftnref1" title="">^[1] 

We initially
affirmed, declining to follow Tapia
and concluding the tolling provision in section 1203.2, subdivision (a)
operated to toll the expiration of the 2005 probationary term, preserving the
court’s jurisdiction in 2011 to execute the suspended sentence.  Subsequent to our decision, the Supreme Court
issued its decision in People v. Leiva
(2013) 56 Cal.4th 498 (Leiva) in
which it held the tolling provision in section 1203.2, subdivision (a)
“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.”  (Leiva,
at p. 502.)

We reject
defendant’s contention the summary revocation of probation was unlawful.  The court had authority to summarily revoke
probation and issue a bench warrant on the grounds that defendant never
reported to probation and never made arrangements to pay the court-ordered
fees, fines and restitution.  However, it
does not appear that the court executed the suspended sentence on those grounds.  The court executed the suspended sentence
because of the violent 2011 assault which inflicted serious brain injury on the
victim.  Since Leiva holds that the suspended sentence cannot be executed for
conduct that occurred after expiration of the initial five-year term of
probation, we now reverse.

FACTUAL AND
PROCEDURAL BACKGROUND

            In
June 2005, defendant was charged with one count of second degree robbery
(§ 211).  It was also specially
alleged defendant personally used a knife in the commission of the robbery (§
12022, subd. (b)(1)).  The charges arose
from an incident in which defendant confronted a man, threatened him with a
knife, and forcibly took money and a necklace from him.  Defendant pled no contest to the robbery
charge and admitted the personal use of a dangerous weapon allegation.  The court, in accordance with the plea
agreement, imposed a sentence of four years in state prison, consisting of the
mid-term of three years on the substantive offense, and a consecutive one-year
term for the special allegation.  The
court then suspended execution of sentence and granted defendant five years’
probation on the condition, among others, that he serve 180 days in county
jail.  The court also imposed the
standard terms of probation requiring defendant to report to probation within
48 hours of release from custody and to keep probation informed at all times of
his home and work addresses and telephone numbers.  The court ordered defendant to pay various
fines and restitution.  Defendant was
awarded custody credits and remanded to serve the time remaining on the county
jail sentence. 

In January 2006,
the probation officer assigned to defendant’s case reported to the court that
defendant had never reported to probation, had never paid any of the fees,
fines or restitution, and had apparently been deported to Guatemala
about six weeks after defendant’s scheduled release from custody.  The court summarily revoked defendant’s
probation and issued a bench warrant for defendant’s arrest. 

            Defendant
returned to the United States, and
new charges were filed against him arising from an incident in May 2011 in
which defendant assaulted two brothers outside of a liquor store.  Defendant pushed one of the brothers to the
ground with such force that he struck his head on the pavement and suffered
severe brain injury.  Following
defendant’s arrest on the new charges in the 2011 case, the court recalled and
quashed the bench warrant issued in 2006, and set a formal probation revocation
hearing to follow trial in the 2011 case. 
Defendant was convicted by jury of assault on one of the brothers (§
240) and acquitted of the other charges. 
The court sentenced defendant to 180 days in county jail and imposed
various fines and penalties.  Defendant
was awarded custody credits and released in the 2011 case for time served.  At the continued probation revocation
hearing, the court found defendant was in violation of probation.  The court revoked probation and executed the
suspended four-year sentence with custody credits.  This appeal followed.

            In
a published decision, we affirmed. 
Defendant petitioned the Supreme Court for review.  Following issuance of its decision in >Leiva, the Supreme Court issued an order
in this case, on June 19, 2013,
transferring the matter back to this court with directions to vacate our
decision and to reconsider the case in light of Leiva.  We invited the
parties to submit supplemental briefing. 
Defendant filed a supplemental brief arguing that Leiva, which approved of the analysis in Tapia, mandates a reversal in this case.  Respondent filed a brief arguing this case is
factually distinct from Leiva on the
grounds the court below found defendant had failed to report, failed to notify
his probation officer of his whereabouts and failed to pay any fines or
restitution during the original probationary term, thus rendering revocation of
probation and imposition of sentence in 2011 proper. 

DISCUSSION

The tolling
provision, set forth in the last sentence of section 1203.2, subdivision (a),
provides that “[t]he revocation [of probation], summary or otherwise, shall
serve to toll the running of the probationary period.”href="#_ftn2" name="_ftnref2" title="">^[2]  In Leiva,
our Supreme Court explained the plain language of the tolling provision appears
unambiguous on its face, but contains a latent ambiguity.  (Leiva,
supra, 56 Cal.4th at p. 510.)  Endeavoring to construe the language in its
statutory context and in a manner to avoid doubts as to the provision’s
constitutional validity, the Supreme Court concluded the procedures for summary
revocation of probation operate “in conjunction with section 1203.2(a)’s
tolling provision to allow the trial court to retain the authority to
adjudicate a claim that the defendant violated a term of probation >during the court-imposed period of
probation,” but not after.  (>Leiva, at p. 518.)

Defendant’s
five-year probationary term began in September 2005 and ended in September
2010.  The summary revocation of
defendant’s probation in January 2006 was based on defendant’s failure to
report to probation and failure to pay the court-ordered fees, fines, and
restitution.  The record reflects
defendant was deported to Guatemala
on November 30, 2005,
several weeks after his scheduled release from state custody.  Although the court had discretion to
summarily revoke probation for these reasons in 2006, we are persuaded the
court did not execute the four-year prison sentence for defendant’s failure to
report or pay the court-ordered funds, but because defendant violently
assaulted and catastrophically injured a victim in 2011.

After the jury
returned the assault conviction in 2011, counsel brought to the court’s
attention that the probation violation hearing was still pending in the 2005
robbery case.  Sentencing on the 2011
assault conviction and the probation violation was continued so the court could
consider the sentencing factors.  The
court observed that “even though it’s a simple assault, we have someone that’s
pretty seriously injured, and I’ve got the robbery that I want to take a look
at.”  The court inquired whether, at
sentencing, the defense wanted to offer evidence regarding the probation
violation, saying “I would find the defendant in violation based on his
conviction, but certainly you have an opportunity to put something on if you
want.” 

Before the sentencing
hearing, the prosecution submitted a six-page sentencing memorandum asking the
court to execute the four-year prison sentence for the probation
violation.  In reciting the aggravating
factors and lack of mitigating factors, the sentencing memorandum focused
entirely on the circumstances of the 2011 assault and the catastrophic injury
the defendant caused the victim to suffer. 
In a second brief, the prosecution submitted authorities and argument to
support the position that probation had been validly revoked in 2006 for
defendant’s failure to report to probation and failure to pay the court-ordered
fees, fines, and restitution. 

But the
prosecution never argued the court should execute the suspended prison sentence
for defendant’s failure to report or to pay the court-ordered funds.  The prosecution submitted no evidence or
argument concerning whether defendant was immediately transferred to
immigration authorities upon his release from county jail, or whether he was
free of custody for some days or weeks during which time he could have timely
reported to the probation department or otherwise contacted his probation
officer.  The prosecution submitted no
evidence or argument concerning whether defendant illegally re-entered this
country, nor whether defendant re-entered before the original five-year term of
probation expired in September 2010.  The
prosecution submitted no evidence or argument concerning whether defendant
willfully failed to pay the court-ordered fines, fees and restitution.  In other words, the prosecution submitted no
evidence or argument to prove that defendant willfully violated probation
during the unexpired original five-year term so as to justify execution of the
suspended sentence.

As >Leiva explained, the purpose of a formal
revocation hearing is to provide the defendant with “ ‘an opportunity to
require the prosecution to prove the
alleged violation occurred and justifies revocation.’  [Citation.]” 
(Leiva, supra, 56 Cal.4th at p. 515.) 
The court went on to state that if the prosecution had proved the
defendant had illegally re-entered the United States during the original
probationary period, or had shown that the defendant had the ability to pay
restitution but willfully refused to pay during the probationary period, then a
revocation of probation would have been proper. 
(Id. at p. 516, fn. 6,
517.)  Respondent attempts, in its
supplemental brief, to distinguish Leiva,
arguing the court in this case revoked defendant’s probation based on his
failure to pay restitution and notify his probation officer of his whereabouts
during the original probationary term. 
But at the probation revocation hearing, the prosecution did not present
any evidence proving defendant willfully failed to report or had the ability to
pay the fines, fees and restitution.  We
are persuaded the reason the court executed the suspended sentence was not
based on the failure to report or pay his financial obligations during the
original period of probation, but on the violent assault defendant committed in
2011, after expiration of the original period of probation.href="#_ftn3" name="_ftnref3" title="">^[3]  We are not persuaded by respondent’s attempt
to distinguish Leiva.

            The
record plainly shows defendant willfully engaged in illegal conduct in 2011
upon his return to this country, resulting in his subsequent conviction for
assault.  However, in light of >Leiva, execution of the suspended
sentence in the 2005 case could not be based on conduct occurring after
expiration of the original probationary term. 
(Leiva, supra, 56 Cal.4th at pp. 517-518.)

>DISPOSITION

            The
orders finding defendant in violation of probation and executing the suspended
sentence are reversed and vacated.  The
case is remanded to the superior court for further proceedings consistent with
this opinion.

 

 

                                                                                                GRIMES,
J.

We concur:

 

 

RUBIN,
Acting P.J.                                       FLIER,
J.