Court Cannot Violate Probationer for Conduct Occurring After Original Period of Probation Has Elapsed


The California Supreme Court has settled a split between two appellate court districts regarding the tolling provision relating to court-imposed probation.  California Penal Code § 1203.2(a) states in relevant part that, at any time during the period of probation, a defendant’s probation status may be revoked, and he may be brought before a court for a hearing if law enforcement or the court believes the defendant has violated the terms of supervision.  The section also states, “The revocation, summary or otherwise, shall serve to toll the running of the period of supervision.”  The appellate courts disagreed on exactly what that tolling provision meant.

Jose Leiva pled no contest to three counts of vehicle burglary and was placed on a three year grant of probation on April 11, 2000.  Included in the terms of Leiva’s probation was that he report to the Probation Department within one business day of his release from custody, and that he not re-enter the United States illegally if he were to leave the country or be deported.  Because Leiva was in the country illegally, he was deported to El Salvador upon his release from custody, obviously making it impossible for him to report to Probation within one business day.  When he failed to report, a probation violation was alleged and a hearing was set for September 21, 2001.  Still in El Salvador, Leiva did not appear at that hearing.  Apparently unaware Leiva had been deported, the court summarily revoked his probation and issued a warrant for his arrest.

Leiva did not re-appear in the California court system again until he was brought to court on November 10, 2008, following his arrest on the warrant.  The court set a hearing on the matter for February 13, 2009.  This was more than five years after his term of probation would have initially expired on April 11, 2003.

Prior to the hearing, the court received a report indicating Leiva had been deported upon his release from jail and subsequently re-entered the country illegally in February 2007.  At the hearing, the prosecution acknowledged that Leiva could not be found to have violated his terms of supervision by failing to report to probation upon his release, since he had been deported and did not willfully absent himself.  However, the prosecution contended that Leiva had violated his terms of supervision by illegally re-entering the country.  They did not allege any other probation violations between Leiva’s release from jail in April 2000 and his arrest in November 2008.

The court agreed with the prosecution’s allegations, summarily revoked and reinstated Leiva’s probation, and extended the term to June 6, 2011.  Leiva appealed the order.  With the appeal pending, Leiva was again released from custody and deported to El Salvador.  Once again, Leiva did not report to probation, a violation of his terms of supervision was alleged, and a warrant was issued for his arrest.

Leiva re-appeared in court in September 2009 when he was arrested on the warrant.  Once again, the prosecution alleged a probation violation for Leiva re-entering the country illegally in 2009.  This time, the court revoked Leiva’s probation and sentenced him to two years in prison based on the original burglary counts.

Leiva again appealed, arguing that the court lacked authority to terminate probation because he had not committed any violations of his terms of supervision during the original probationary term from 2000 to 2003.  The Court of Appeals disagreed with Leiva’s contention and upheld the trial court’s decision.  Leiva appealed to the California Supreme Court.

The Supreme Court was faced with a jurisdictional split between the appellate court in this case and the appellate court which had decided People v. Tapia (2001)91Cal.App.4th 738.  The court in Tapia held that under the tolling provision, “the jurisdiction retained by the [trial] court is to decide whether there has been a violation during the period of probation and, if so, whether to reinstate or terminate probation.”  Following that reasoning, the court in Leiva’s case would have lacked jurisdiction over the alleged violations related to his illegal re-entry into the country.  It was an uncontested fact that those re-entries occurred well after his probation would have expired in 2003.

The appellate court in Leiva’s case, however, interpreted the tolling provision differently.  This court held that, “since defendant’s probationary term had not expired because of the tolling provision, he was still bound by the conditions of probation.”  Under this interpretation, Leiva’s illegal re-entries clearly would be within the court’s jurisdiction.

In making its decision, the California Supreme Court considered the plain meaning of the words in the statute, the legislative intent, and public policy.  The prosecution contended the word “toll” was unambiguous and meant “extend”.  Under that interpretation, the terms and conditions of probation would remain in effect indefinitely from the time of summary revocation until the eventual hearing.  The defense disagreed, insisting the term is ambiguous and that to follow the prosecution’s interpretation would result in absurd consequences that the Legislature did not intend.  They insisted the Tapia court had correctly interpreted the meaning of the statute to extend only the court’s jurisdiction to decide allegations alleged to have occurred during the original term of probation.  The California Supreme Court concluded that the word “toll” had latent ambiguity as related to this statute and looked primarily to public policy.

The California Supreme Court overturned the appellate court and followed the Tapia Court, holding that the only authority retained by the court was to decide whether there had been a violation during the initial unextended period of probation.  They opined that this would permit the defendant, if he were to prevail at the hearing, the benefit of finding there was no probation violation.  It would also permit the prosecution, if they were to prevail at the hearing, to prove that there was a violation of probation during the probationary period.  The California Supreme Court called this a decision that would not unduly prejudice or benefit either the prosecution or the defendant.  They reversed the appellate court and remanded the matter for further proceedings consistent with their decision that the trial court lacked jurisdiction over the alleged violations which occurred after the end of the initial probationary period.


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