People v. Svien CA3 ( 2021 )

Filed 4/19/21 P. v. Svien CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089204
Plaintiff and Respondent, (Super. Ct. No. 12F05564)
v.
KENNETH SVIEN,
Defendant and Appellant.
Defendant Kenneth Svien appeals the trial court’s order overruling his demurrer
challenging the trial court’s jurisdiction to consider a probation violation allegation.
Defendant asserts his probationary term expired approximately a year prior to the filing
of the probation violation petition at issue in this appeal and he did not agree to an
extension of the probationary term. The People disagree, arguing defendant agreed to an
extension of his probationary term and is thus estopped from challenging the trial court’s
jurisdiction. We conclude the record is devoid of evidence showing defendant agreed to
extend his probationary term. We thus reverse the trial court’s order overruling the
demurrer and the subsequent order finding defendant in violation of probation.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant entered a plea of no contest to willful infliction of corporal injury in
exchange for being placed on probation for five years. On November 27, 2012, the trial
1
court accepted the plea, suspended imposition of sentence, and placed defendant on
probation for five years subject to various terms and conditions. The parties agree the
five-year term expired by November 27, 2017. Defendant violated his probation several
times during the five-year period. Pertinent to this appeal, a probation violation
allegation was pending before the trial court prior to November 27, 2017. The hearing on
that allegation took place on January 2, 2018.
During the January 2018 hearing, defendant admitted to violating probation in
another case (No. 15F07086). The trial court reinstated probation in that case on the
original terms and conditions and ordered defendant to serve additional days “as a term of
condition of probation.” The trial court then said, “Probation is also reinstated on its
original terms and conditions in case ending 5564” -- i.e., the case before us on appeal.
The trial court asked the prosecution whether it “ha[d] a motion as to that [violation of
probation] petition.” The prosecution “move[d] to dismiss in the interest of justice in
light of the admission.” The trial court granted the motion and asked defendant, “do you
understand and accept all the terms and conditions of probation that you had before in
both of your separate cases including the additional condition that I made today?”
Defendant responded in the affirmative.
A few months later, the probation officer filed another violation of probation
petition. Defendant appeared at the hearing on August 20, 2018, and admitted to failing
to complete the batterer’s treatment program. The trial court sentenced defendant to 60
days in jail, and reinstated defendant’s probation with a referral to an indigent batterer’s
treatment program.
Not long thereafter, the probation officer again filed a violation of probation
petition and defendant appeared for the hearing on November 19, 2018. During that
hearing, defendant admitted to being “placed on five years of felony probation, and . . .
fail[ing] to complete the batterer’s treatment program.” The court ordered probation to
be “reinstated on the original terms and conditions.”
2
On January 2, 2019, the probation officer filed the violation of probation petition
at issue in this appeal. This time, defendant filed a demurrer arguing the trial court was
without jurisdiction to consider the petition. Defendant asserted that, because the trial
court failed to explicitly extend the period of probation during the January 2018 hearing,
his probationary term ended well before the filing of the probation violation petition. It
appears the prosecution did not file an opposition to the demurrer because the record does
not contain one. At the hearing on the demurrer in March 2019, defendant’s counsel
argued: “[E]ven if there was an estoppel argument beyond the 2017 date, on January
2nd, 2018, the date had not been extended, and it could not have been because of the
maximum five year grant. In addition, there were no further dates set after that. So I
believe at that point the court lost jurisdiction. [¶] . . . [Probation] expired November
27th, 2017, or January 2nd, 2018, when there were no further review dates set. So it’s
just my position at this time that in the [instant] case he be deemed probation having been
expired or terminated.” The prosecution responded “the estoppel argument applies under
these circumstances.”
The trial court ruled: “[I]t appears that prior to the expiration of the original
probation date, probation was revoked on September 14th. So when it crossed that line
approximately November 27th, it was in revoke status, and it was in revoke status until
he came back on January 2nd of 2018. At that time, [defendant] agreed to a deal where
he would be continued on the original terms and conditions of probation in exchange for
a dismissal of the violation of probation. [¶] . . . [S]imilar to the Griffin (ph.) matter, had
the People believed that there was no further -- there was not further time available on
any violation of probation, it seems reasonable that that might not have been the offer in
order to allow him to continue to come back and do his batterer’s treatment. [¶]
Interjection have been delayed (ph.), at this time I am prepared to terminate probation
today, but I do believe that based upon the estoppel analysis that the People are entitled to
3
an adjudication on this violation of probation as a final termination. [¶] So I will deny
the motion on those grounds.”
The trial court terminated defendant’s probation on March 26, 2019, and
sentenced him to 120 days in jail. Defendant timely filed a notice of appeal on March 28,
2019.
DISCUSSION
If properly revoked during the probationary period, a trial court maintains its
jurisdiction after the expiration of the probationary period to consider a violation of
probation that occurred during the probationary period. (People v. Leiva (2013) 56
Cal.4th 498, 517-518.) A trial court may then “adjudicate, in a subsequent formal
probation violation hearing, whether the probationer violated probation during, but not
after, the court imposed probationary period.” (Id. at p. 502.) During this hearing, “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.’ ” (Id. at p. 516; see also Pen. Code,
§ 1203.2, subd. (e).) Otherwise, “ ‘the court loses jurisdiction or power to make an order
revoking or modifying the order suspending the imposition of sentence or the execution
thereof and admitting the defendant to probation after the probationary period has
expired.’ ” (In re Griffin (1967) 67 Cal.2d 343, 346.) “Once probation ends . . . a court’s
power is significantly attenuated. Its power to impose a sentence over the defendant
ceases entirely -- a result embodying the ideal that a court may not dangle the threat of
punishment over a former probationer indefinitely.” (People v. Chavez (2018) 4 Cal.5th
771, 782.)
Defendant argues: (1) the trial court lost jurisdiction to find defendant in violation
of probation when it dismissed the pending violation of probation in January 2018;
(2) the probationary period was not extended by the automatic tolling provision in Penal
Code section 1203.2, subdivision (a); (3) because the trial court never extended
4
defendant’s probationary term, it expired on January 2, 2018; and (4) defendant is not
estopped from challenging the trial court’s acts in excess of its jurisdiction.
The People raise only one argument in response. They assert defendant is
estopped from challenging the trial court’s jurisdiction to adjudicate the January 2019
probation violation petition because “he consented to extensions when he appeared in
court and admitted probation violations on January 2, 2018; August 20, 2018; and
November 19, 2018,” relying on Griffin. (Citing In re Griffin, supra, 67 Cal.2d at
p. 348.)
In sum, the parties do not dispute that defendant’s probationary term ended before
the January 2018 hearing, but the trial court had jurisdiction over defendant at that
hearing because probation had been revoked pending an adjudication of a probation
violation petition alleging a violation within the probationary term. The sole question
before us is whether defendant agreed to an extension of his probationary term during the
January 2018 hearing or thereafter such that he should be estopped from challenging the
trial court’s jurisdiction to adjudicate the January 2019 probation violation petition. We
have reviewed the record for each of the three hearings from January 2018 through the
filing of the subject petition and find no basis for concluding defendant agreed to an
extension of his probationary term.
We begin with the January 2018 hearing. The People argue defendant “agreed to
and received the benefit of his bargain, i.e., a dismissal of the alleged probation violation
in this case” and thus “should be estopped from questioning the court’s authority to
reinstate him on probation.” We note the following as to that hearing: (1) there was no
finding made that defendant had violated probation in this case; (2) the court reinstated
probation on the original terms and conditions; (3) there was no mention of extending,
and thus no agreement to extend, defendant’s probationary term in this case; (4) there
was no discussion of an agreement or the terms of any such agreement between defendant
and the prosecution; and (5) the court set no further hearing dates in this case. That the
5
prosecution moved to dismiss the petition in this case “in the interest of justice in light of
the admission” does not evidence an agreement between the prosecution and defendant
that defendant’s probationary term would be extended.
Reinstatement of probation on the original terms and conditions is also not the
same as extending the probationary term. And, here, the trial court in fact had no
authority to extend the probationary term in this case because there was no finding of a
probation violation in this case. (People v. Leiva, supra, 56 Cal.5th at p. 516 [“[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’ ”].) In the absence of an extension of the
probationary term, the trial court’s jurisdiction over defendant terminated at the
conclusion of the January 2018 hearing. (Ibid.; People v. Chavez, supra, 4 Cal.5th at
p. 782.) To infer defendant consented to an unspoken and undefined extension of his
probationary term under the facts presented “would raise both ‘serious due process
concerns’ and fears of nullifying statutory provisions limiting the period of probation.”
(Chavez, at p. 782.)
Griffin does not require a contrary result. In that case, the trial court revoked
probation during the probationary period. (In re Griffin, supra, 67 Cal.2d at p. 344.) At a
hearing that took place within the probationary period, the petitioner moved for a
continuance of the hearing to a date after the end of the probationary term. (Id. at p. 345.)
The petitioner then argued the court lacked jurisdiction at the subsequent hearing. (Id. at
p. 346.) Rejecting the petitioner’s argument, our Supreme Court explained “[w]hen, as
here, the court has jurisdiction of the subject, a party who seeks or consents to action
beyond the court’s power as defined by statute or decisional rule may be estopped to
complain of the ensuing action in excess of jurisdiction.” (Id. at p. 347.) Specifically,
“[a] litigant who stipulated to a procedure in excess of jurisdiction may be estopped to
question it when ‘To hold otherwise would permit the parties to trifle with the courts.’ ”
6
(Id. at p. 348.) Here, the record is devoid of any evidence defendant sought or consented
to action beyond the trial court’s jurisdiction during the January 2018 hearing.
Next, the People argue that, because defendant admitted he violated probation
during the August 2018 hearing and agreed to re-referral to a batterer’s treatment
program and jail time, defendant consented to reinstatement of probation on the original
terms and conditions via his conduct. (Citing In re Bakke (1986) 42 Cal.3d 84.) The
People make no argument, however, addressing the pertinent question at issue -- how
defendant’s voluntary appearance at and consent to jurisdiction during the August 2018
hearing affected the trial court’s jurisdiction to adjudicate the January 2019 petition. We
say “voluntary” because the trial court’s jurisdiction over defendant terminated after the
January 2018 hearing, as explained ante. (See People v. Chavez, supra, 4 Cal.5th at
p. 782 [once probation ends, a trial court’s power to impose a sentence over the defendant
ceases entirely].) The trial court’s reinstatement of probation on the original terms and
conditions during the August 2018 hearing thus had no practical effect.
We further note that Bakke is distinguishable. In that case, our Supreme Court
said “[a] probationer may by his conduct . . . consent to the continuance of a proceeding
to a time beyond that within which a statute requires the court to act.” (In re Bakke,
supra, 42 Cal.3d at p. 89.) But, here, defendant did not request a continuance, nor did he
agree to any continuance proposed by the trial court. We see no similarity between this
case and Bakke.
Finally, the People argue that, at the November 2018 hearing, defendant “admitted
a probation violation in exchange for a re-referral to the batterer’s treatment program, 16
days in custody, and reinstatement on probation,” thus actively seeking and consenting to
“reinstatement of his probation with the original terms and conditions, including the
condition that he complete the batterer’s treatment program, which he had still not yet
done.” The People assert that, based on the foregoing, defendant should be estopped
from challenging the trial court’s “authority to reinstate him on probation,” relying on
7
Griffin and Ford. (Citing In re Griffin, supra, 67 Cal.2d at p. 243; People v. Ford (2015)
61 Cal.4th 282.) This argument need not detain us long given our analysis and discussion
ante. As previously discussed, Griffin does not support the People’s position. Ford does
not support the People’s position either.
In Ford, the court set out to determine whether “the trial court lacked jurisdiction
to conduct . . . [a] hearing prescribing the amount of restitution [defendant] owed because
his term of probation -- including the condition of restitution -- had expired.” (People v.
Ford, supra, 61 Cal.4th at p. 284.) The court concluded that, “[b]y agreeing to a
continuance of the restitution hearing to a date after his probationary term expired,
defendant impliedly gave his consent to the court’s continued exercise of jurisdiction. He
[wa]s therefore estopped from challenging it.” (Id. at p. 285.) We fail to see how this
case is pertinent to the November 2018 hearing. Ford is simply inapposite.
In short, we agree with defendant that the trial court’s jurisdiction for purposes of
adjudicating probation violation allegations ended after the January 2018 hearing and
there is no evidence in the record to support the trial court’s estoppel finding.
DISPOSITION
The orders overruling defendant’s demurrer and finding defendant violated his
probation based on the January 2019 petition are reversed. The matter is remanded to the
trial court with directions to set aside its order overruling defendant’s demurrer and to
enter an order sustaining the demurrer and dismissing the probation violation petition.
/s/
Robie, Acting P. J.
We concur:
/s/
Duarte, J.
/s/
Hoch. J.
8