P. v. Acosta

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Filed 8/8/13  P. v. Acosta CA4/2

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 

 
>

THE PEOPLE,               Plaintiff and Respondent,   v.   DAVIE DAMIEN ACOSTA,               Defendant and Appellant.

E055857               (Super.Ct.No. RIF146508)               OPINION

 

            APPEAL
from the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside
County.  Becky Dugan,
Judge.  Affirmed.

            Patrick
Morgan Ford, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood and
Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

            Defendant
and appellant Davie Damien Acosta appeals from an order revoking his
probation.  He contends that the trial
court had lost jurisdiction to revoke probation because the probationary period
had expired.  We affirm. 

FACTS AND
PROCEDURAL HISTORY

            Defendant
was charged in a felony complaint with one count of href="http://www.mcmillanlaw.com/">residential robbery (Pen. Code, §§ 211,
212.5) and one count of misdemeanor battery of a spouse or cohabitant (Pen.
Code, § 243, subd. (e)(1)).  On
December 17, 2008, the prosecutor added a charge of felony grand theft.  (Pen. Code, § 487, subd. (a).)  On the same day, defendant pleaded guilty to
the misdemeanor battery and the felony
grand theft charges.  The robbery charge
was dismissed.

            Under
the terms of the plea agreement, defendant was admitted to a three-year term of
probation.  That term would ordinarily
have naturally expired on December 16, 2011. 
Among other terms of probation, defendant was ordered to serve 150 days
in custody (with credit for 85 days already served), to perform 20 hours of
community service, and to enroll in and complete a 52-week (one-year) domestic
violence program.

            In
February 2011, the third year of his probation, a petition was filed alleging
that defendant had violated his probation. 
Defendant had never started the domestic violence program, and he had
not performed his community service.  On
February 14, 2011, defendant admitted the violation and his probation was
revoked.  Probation was reinstated the
next day.  The order reinstating
probation ordered defendant to complete his domestic violence program by June
15, 2012, a time beyond the original expiration date of defendant’s
probationary period.

            On
December 20, 2011, a new petition was filed alleging that defendant again
failed to enroll in the domestic violence
program.  On December 28, 2011, defendant
was to be arraigned on the probation violation petition, but he filed a
peremptory challenge to the trial judge. 
(Code Civ. Proc., § 170.6.) 
The matter was assigned to a new judge on the next day, and calendared for
a new arraignment hearing on January 5, 2012.

            Defendant
then moved to terminate probation, contending that the trial court lacked
jurisdiction over him, because the three-year probationary period had
expired.  In March 2012, defendant
admitted the probation violation, but reserved his right to file an appeal on
the ground that probation had already terminated.

            Defendant
filed a timely notice of appeal, and obtained a certificate of probable cause
from the trial court on the issue whether the trial court lacked jurisdiction
to revoke, modify, or extend his probation after December 28, 2011.

ANALYSIS

I.       
The Trial Court Had Jurisdiction to Revoke
Defendant’s Probation on

December 29, 2011

            Penal
Code section 1203.2, subdivision (a),href="#_ftn1" name="_ftnref1" title="">^>[1]
provides that the trial court may revoke probation when a probation officer or
other officer has probable cause to believe the probationer has violated a term
or condition of probation, and initiates the procedure for revocation.  The last sentence of subdivision (a) provides
for tolling of the probationary period while probation is revoked:  “The revocation, summary or otherwise, shall
serve to toll the running of the [probationary] period . . . .”  (Pen. Code, § 1203.2,
subd. (a).) 

            Penal
Code section 1203.2, subdivision (b),href="#_ftn2" name="_ftnref2" title="">^>[2]
provides that the trial court may modify, revoke or terminate probation, either
on its own motion, or by petition of the probationer, the probation officer, or
the district attorney.  However, the
court must exercise its power to revoke, modify or terminate probation within
the probationary period.  “It is also
settled that an order revoking probation, to be valid, must be made within the
period fixed in the order of probation.  If
not revoked within that period, the probation terminates automatically on the
last day.  [Citations.]”  (People
v. Smith (1970) 12 Cal.App.3d 621, 625.) 


            Defendant
contends that the regular period of probation expired automatically on December
28, 2011, so that it was beyond the trial court’s jurisdiction to revoke his
probation on December 29, 2011.href="#_ftn3"
name="_ftnref3" title="">^>[3] 

            The
People respond, however, that defendant’s contention is incorrect.  Defendant had an earlier violation of
probation in February 2011.  At that
time, less than one year remained of defendant’s original three-year
probationary term.  There would therefore
have been insufficient time for defendant to complete the probation requirement
to attend a 52-week program on domestic violence.  For that reason, the probation report
recommended an extension of defendant’s probation to allow defendant to enroll
in and complete the program. 
Accordingly, at defendant’s probation revocation hearing in February
2011, the court ordered defendant to complete the program by June 15, 2012.  This completion date was beyond the time of
the original probation period, but within the maximum period that defendant
could be supervised on probation.  (See
Pen. Code, § 1203.1.)  Defendant
accepted these modified terms of probation. 
The power to modify the terms of probation includes the power to extend
the probationary period.  (>People v. Cookson (1991) 54 Cal.3d 1091,
1095.) 

            Defendant
was given notice of the plan to extend his probation, because the request was
included in the probation report prepared for the probation violation
hearing.  He was afforded a hearing and
an opportunity to be heard.  (See >People v. Minor (2010) 189 Cal.App.4th
1, 21-23 [due process required in a hearing to extend probation].) > He
presented no arguments why his probationary period should not be extended;
instead, he accepted the new terms and conditions of probation, including
completion of the 52-week domestic violence program by June 15, 2012. 

            Defendant
responds that the People have waived the right to rely on this argument on
appeal, because the court’s retention of jurisdiction was not argued below on
the ground of extension by means of the February 15, 2011 order.  Rather, the matter was argued below on the
ground that defendant had accepted a one-day continuance, from December 28,
2011 to December 29, 2011.  Defendant urges
that the record does not support the claim that he requested or accepted such a
one-day continuance.  Indeed, defense
counsel objected, at the hearing of February 3, 2012, that the minutes
incorrectly reflected a defense request for a continuance.  Counsel stated, “I’m requesting that the
minutes from the December 28th, 2011 hearing be corrected nun[c] pro tunc.  At this point, the minutes are reflecting
that [defense counsel] requested a continuance to the 29th, and, in fact, the
Court has a copy of the transcript.  The
Court continued it to the 29th on its own motion, so I would just ask the Court
to correct that minute order that’s been erroneously entered.”

            We
disagree with defendant’s waiver argument. 
The extension of probation by means of the reinstatement order of
February 15, 2011, was addressed by the parties below.  Defense counsel argued that the trial court
at the violation of probation hearing in February 2011 had merely ordered
defendant to re-enroll in the domestic violence program by May 5, 2011, and to
begin the 52-week program again.  He was
required to submit proof of enrollment in the program to the probation
department by June 15, 2011.  Defense
counsel urged that the court’s oral pronouncements, that defendant must enroll
by May 5, 2011, and show proof of enrollment by June 15, 2011, was “not enough
to extend [defendant’s] probation on this matter without having an opportunity
to be heard regarding extension.”

            The
People responded that defendant was clearly informed, by the program referral
form if nothing else, that he was required to complete the terms of the
domestic violence program by June 15, 2012, “which, as the Court has pointed
out, would be an impossibility if it expired in December of [2011].”

            The
court itself also expressly relied on the extension in February 2011:  “[W]e sentenced him [in February 2011] by
reinstating, so we reinstated his probation and gave him two terms, which
couldn’t have been done in the time left. 
He was ordered to reenroll in the 52-week program.  He was ordered to do community service.  [¶] 
 . . .  [¶]  And so based on the fact that he couldn’t
have possibly done what the Court ordered him to do, and he accepted doing what
the Court ordered him to do and defense didn’t object to it at the time, I find
the Court still retains jurisdiction. . . .”

            The
trial court’s assessment was correct. 
The revocation and reinstatement proceedings in February 2011 at least
implicitly, if not explicitly, extended the term of defendant’s probation until
June 15, 2012.  Defendant was given
express notice, in the probation report on the violation of probation, that the
People were requesting an extension of probation.  The specific orders defendant was given could
not have been completed in the time remaining on defendant’s original
probation.  Defendant was represented by
counsel at the violation and reinstatement hearing, and made no objection to
the requirement that he perform the terms and conditions of his probation beyond
the original period. 

            Because
defendant’s probation had been validly extended until at least June 15, 2012,
the trial court had the power to revoke defendant’s probation on December 29,
2011. 

DISPOSITION

            The
trial court’s order revoking defendant’s probation on December 29, 2011, was
proper and occurred within the properly extended period of defendant’s
probation.  Affirmed. 

            NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

 

McKINSTER                        

                                                Acting P. J.

 

We concur:

 

 

RICHLI                                  

                                             J.

 

 

KING                                     

                                             J.