PEOPLE v. LEIVA












Filed 3/1/11





CERTIFIED FOR PUBLICATION





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 judgments of the Superior Court of Los Angeles County, Barbara M. Scheper, Judge. Affirmed.
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.

Defendant Jose Leiva appeals from judgments entered following separate findings that he violated the terms and conditions of his grant of probation.[1] His principal contention is the trial court lacked jurisdiction to revoke probation on either occasion because probation had expired by operation of law. He also asserts there is insufficient evidence to support the court's findings and the court considered inadmissible evidence. We conclude that defendant's claims lack merit and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 28, 2000, defendant and another individual were jointly charged in a 10-count complaint that alleged they committed the crimes of grand theft from a vehicle, burglary and attempted burglary of a vehicle, and tampering with a vehicle. (Pen. Code, §§ 487, subd. (a), 459, 664/459, Veh. Code, § 10852.)[2] On that same day, defendant pled no contest to three counts of burglary of a vehicle. At sentencing on April 11, defendant was placed on probation for three years. Included in the terms and conditions of probation were orders that defendant: (1) serve 365 days in the county jail; (2) report to his probation officer within one business day of his release from custody; (3) not reenter the country illegally if deported; (4) report to the probation officer within 24 hours of his return to the country and present documentation proving that he was in the United States legally; and (5) pay restitution to all of the victims.
On September 21, 2001, due to defendant's failure to report to his probation officer and to make restitution payments, probation was summarily revoked and a bench warrant was issued for his arrest.
On November 10, 2008, defendant appeared in court after his arrest on the outstanding warrant. According to a supplemental probation report, defendant was the subject of a traffic stop and a warrant check revealed the outstanding bench warrant. The probation officer also wrote that defendant had never reported to the probation department and had failed to pay court-ordered restitution. As a result of the November proceeding, the warrant for defendant's arrest was recalled, his probation remained revoked, and the case was set for a December 1 hearing.
On December 1, defendant's attorney asked that another probation report be prepared to determine whether defendant was deported after his release from custody. Counsel suggested that defendant may have failed to report to probation due to his deportation. Another supplemental report was ordered and the matter was continued several times. A probation violation hearing was conducted on February 13, 2009.
At the February 13 hearing, defendant's counsel argued that the court could not reinstate defendant's probation because the term had expired by operation of law. On the merits, counsel conceded the court could consider defendant's statement that he was deported to El Salvador after his release in 2001 and remained there until he returned to the United States in February 2007, but urged there was insufficient evidence establishing that any failure to report to probation was willful. The court found defendant in violation of probation for failing to report, relying on his statement that he had returned to the country in February 2007. Probation was reinstated on the original terms and conditions, with defendant receiving credit for time served. Defendant filed a timely appeal.
On May 14, 2009, defendant's case was called. He was not present, but was represented by the same attorney who previously had appeared on his behalf. According to the minute order, the court received a supplemental probation report stating that defendant had been deported to El Salvador and had not reported to his probation officer. The court was also provided with a letter defendant had written to the probation department, explaining that he was deported to El Salvador in March 2009 and was trying to contact his probation officer by telephone. On June 9, 2009, defendant's probation was revoked and a warrant for his arrest was issued.
On September 17, 2009, defendant appeared in court after being arrested on the warrant after his return to this state. His counsel again argued that the court had no jurisdiction because defendant's probationary term had expired. This was so, she asserted, because the original three-year term began on April 11, 2000, and defendant did not willfully violate any of the terms and conditions of probation in the ensuing three years. Counsel stated that the prior court order extending probation was being appealed. Noting that it had to assume the prior order was valid pending appeal, the court ordered that probation remain revoked. Defendant was retained in custody, a supplemental report was ordered, and the case was continued.
On October 9, 2009, a probation violation hearing was held. Terrence Rachel, a deportation officer with Immigration and Customs Enforcement (ICE) testified. He had held different positions with that department (or its predecessor) since 2001. Over defendant's hearsay and Sixth Amendment objections, Rachel identified the following certified copies of documents: (1) a September 23, 2005 order issued by an immigration judge ordering the removal of â€