Time during which probation was summarily revoked can be tacked on to the term when probation is reinstated

People v. Ornelas (Cal. Ct. App., Jan. 30, 2023, No. A165333) 2023 WL 1097221, at *1–2

Summary: Ornelas was placed on probation in July 2021 for the maximum statutory term of two years. He failed to report to probation,  his probation was summarily revoked, and a bench warrant was issued for his arrest. He was  arrested and admitted to violating the terms of his probation. In April 2022—still within his original two-year probationary term—the trial court reinstated him on probation, but this time with a new termination date in November 2023 to account for the days he had been “in warrant status” and his probation had been summarily revoked.

On appeal, Ornelas contends that the trial court exceeded its jurisdiction by extending his probation to November 29, 2023, which Ornelas argued is beyond the two-year maximum probationary period authorized by statute. The Court of Appeal ruled that when probation has been summarily revoked and then reinstated within the initial probationary term, the trial court has discretion to extend probation to account for the time when probation was summarily revoked so long as the total period of probationary supervision does not exceed the statutory maximum. Even with an extension to November 2023, Ornelas’s term of probation, not including the time he was on warrant status and his probation was summarily revoked, is less than two years.

Facts: In February 2021, Ornelas agreed to plead no contest to an amended felony count of offering to give away a controlled substance,  conditioned on two years of felony probation and dismissal of the remaining charges. The trial court accepted the plea, and at the sentencing hearing on July 23, 2021, suspended imposition of sentence and placed Ornelas on two years of formal probation with a termination date of July 23, 2023.

On October 26, 2021, the trial court summarily revoked Ornelas’s probation and issued a bench warrant for his arrest, based on a report from the probation department that Ornelas had failed to report to probation in September and was out of compliance for October. Ornelas was arrested on November 15, 2021, and did not appear in court on November 24, 2021 and again on March 15, 2022. The trial court recalled the warrant at a hearing on March 17, 2022, and probation remained summarily revoked.

The trial court found Ornelas in violation, and reinstated probation. The probation officer informed the court that Ornelas had been “in warrant status for 129 days,” and on that basis asked for a new probation termination date of November 29, 2023, which is 129 days after the previous termination date of July 23, 2023.The trial court granted the request.

Ornelas  appealed.

Probation Law

Probation is “the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.” (Pen. Code,2 § 1203, subd. (a))

Probation is a creature of statute. (In re Oxidean (1961) 195 Cal.App.2d 814, 817.)

Here, the trial court had the authority to order probation for a period not exceeding two years, and “upon those terms and conditions as it shall determine.” (§ 1203.1, subd. (a).)

Under section 1203.2, subdivision (b)(1), the trial court may “modify” an order of probation upon appropriate notice to the probationer. The power to modify includes the power to extend the term of probation, up to the statutory maximum. (People v. Cookson (1991) 54 Cal.3d 1091, 1094-1095.)

If a probation officer has probable cause to believe that a probationer is violating any term or condition of the probationer’s supervision, the court has authority to issue a warrant for the person’s arrest. (§ 1203.2, subd. (a).) Upon issuance of the warrant, “the court may revoke and terminate the supervision of the person 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 their supervision ….”

Section 1203.2, subdivision (a), further provides that “[t]he revocation, summary or otherwise, shall serve to toll the running of the period of supervision.” Our Supreme Court has held that this so-called “tolling provision … focuse[s] on preserving jurisdiction,” giving a trial court “authority to adjudicate a claim that the defendant violated a condition of probation during the probationary period” even if a formal violation hearing cannot be held before probation expires.

The tolling provision does not “stop” probation and relieve the defendant from complying with the conditions imposed by the court and does not operate to automatically “extend” the conditions of probation beyond the expiration of the probationary term. Where a formal violation hearing is held after the original probationary term has expired, section 1203.2, subdivision (a), preserves jurisdiction so that “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.’ ”

The legislature believed that a  two year period of supervision provides a length of time that would be sufficient for a probationer to complete any counseling or treatment that is directed by a sentencing court. To the extent that a probationer is not complying with the treatment or counseling directed by the court during a probationary period, the court can revoke the defendants’ probation until the defendant is back in compliance. The period while probation is revoked tolls the running of time towards the end point of the probationary period. That tolling process would effectively extend the probationary period for individuals that are not in compliance with the conditions of their probation.

in passing AB 1950, the Legislature intended that when a warrant was issued and probation was revoked during the initial two-year term, if probation was later reinstated, the period during which the defendant was on warrant status could be tacked on to the probationary period. Summary revocation does not automatically extend the probationary period. At a formal revocation hearing, if the trial court finds a violation, it has discretion to reinstate and extend the probationary term to account for the period of revocation.Here, the trial court exercised its discretion to extend the expiration date, while ensuring that the time Ornelas was supervised by the probation department was not greater than the two-year maximum term of felony probation set forth in section 1203.1, subdivision (a).

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