People v. Jimenez-Jaimes CA1/3 ( 2023 )

Filed 6/12/23 P. v. Jimenez-Jaimes CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A164618
v.
(Sonoma County
SALVADOR JIMENEZ-JAIMES, Super. Ct. No. SCR7352881)
Defendant and Appellant.
In June 2020, defendant Salvador Jimenez-Jaimes pleaded no
contest to felony grand theft from a person and misdemeanor
dissuading a witness, for which he was placed on three years formal
probation. In July 2020, defendant’s probation was summarily revoked
for failing to report to probation. A bench warrant was issued for his
arrest, placing him in warrant status.
Penal Code section 1203.1, subdivision (a) was amended effective
January 1, 2021, with the result that probation terms for most felony
offenses are reduced from a maximum of five years to a maximum of
two years. In February 2022, defendant was reinstated to probation,
with a new end date in January 2024 based on the exclusion of the
period of time he was in warrant status. Defendant’s probation term,
not counting when he was in warrant status, is less than the statutory
two-year maximum.
1
We conclude the trial court acted within its statutory discretion
when it extended the end date of defendant’s term of probation based
upon a calculation that excluded the period of time he was in warrant
status. Therefore, we affirm.
BACKGROUND
After defendant pleaded no contest to felony grand theft from a
person (Pen. Code, § 487, subd. (c))1 and misdemeanor dissuading a
witness (§ 136.1, subd. (b)(1)), the trial court placed him on three years
formal probation on June 24, 2020. Less than a month later, on
July 17, the trial court summarily revoked defendant’s probation and
issued a bench warrant for his arrest based on a probation report that
he had absconded from probation supervision.
On January 1, 2021, while defendant was still in warrant status,
Assembly Bill No. 1950 (2019–2020 Reg. Sess; AB 1950) became
effective, which amended section 1203.1 “to limit the maximum
probation term a trial court is authorized to impose for most felony
offenses (including grand theft) to two years.” (People v. Sims (2021) 59
Cal.App.5th 943, 946; see § 1203.1, subds. (a)(l); Stats. 2020, ch. 328,
§ 2.)2
Within two years of being placed on probation, defendant was
arrested on the outstanding warrant. On February 17, 2022, he
admitted he had violated his probation. Over defense counsel’s
objection, which was based on People v. Leiva (2013) 56 Cal.4th 498(Leiva), the trial court reinstated probation and extended the end date
1 All further statutory references are to the Penal Code.
2 Section 1203.1 was subsequently reenacted by Stats. 2021,
ch. 257, § 22, eff. September 23, 2021, operative January 1, 2022. The
reenacted statute does not affect our resolution of this appeal.
2
of probation to January 17, 2024 to account for the 572 days defendant
was in warrant status.
It is not disputed that defendant had been on probation for 23
days, from June 24, 2020 to July 17, 2020, before his probation was
summarily revoked. The reinstatement of probation from
February 17, 2022, to January 17, 2024, added 699 days, for a total
probation term of 722 days. Therefore, the total probation term is less
than the two-year maximum allowed under section 1203.1,
subdivision (a).
DISCUSSION
The parties do not dispute that when AB 1950 became effective
on January 1, 2021, defendant’s probation term was effectively reduced
to two years, resulting in an end date of June 24, 2022. (See, e.g.,
People v. Quinn (2021) 59 Cal.App.5th 874, 878, 879–885 [section
1203.1 as amended by AB 1950 applied retroactively to reduce the
defendant’s probation term from three years to two years].)
Defendant contends it was error for the trial court to extend the
end date of his probation to January 17, 2024 based on a calculation
that excluded the 572 days he was in warrant status. According to
defendant, those days must be counted in calculating the statutory two-
year maximum for his felony probation. We disagree and conclude that
People v. Ornelas (2023) 87 Cal.App.5th 1305 (Ornelas), decided by our
colleagues in Division Two, is directly on point and dispositive.3
In Ornelas, supra, 87 Cal.App.5th 1305, Ornelas was placed on
two years formal probation. (Id. at p. 1309.) Before the two years
3 Because Ornelas, supra, 87 Cal.App.5th 1305, was decided after
the initial briefing in this case was completed, the parties were given
the opportunity to address the case in supplemental letter briefs.
3
elapsed, his probation was summarily revoked, he was found to have
violated his probation, and the probation term was extended by the
days that he was in warrant status. (Ibid.) The Ornelas court found no
error: “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.” (Id. at p. 1308.)
The Ornelas court reasoned as follows: “Probation is ‘an act of
clemency in lieu of punishment . . ., and its primary purpose is
rehabilitative in nature.’ [Citation.] Supervision by a probation officer
is a crucial component of the probationer’s rehabilitation. [Citations.]
[¶] . . . In reinstating Ornelas’s probation and moving the termination
date to account for the 129 days in which Ornelas was in warrant
status and not under the supervision of a probation officer, the trial
court did not increase the term beyond the statutory maximum of two
years; instead, the court exercised its discretion to adjust the
termination date to provide Ornelas with approximately two years of
probationary supervision . . . . The court was within its authority
under section 1203.2, subdivision (b)[4], in taking this step.” (Ornelas,
supra, 87 Cal.App.5th at pp. 1311–1312.)
Defendant’s reliance on Leiva, supra, 56 Cal.4th 498, is misplaced
as that opinion addressed a different question, namely whether the
4 Section 1203.2, subdivision (b) provides: “Upon its own motion or
upon the petition of the supervised person, the probation or parole
officer, or the district attorney, the court may modify, revoke, or
terminate supervision of the person pursuant to this subdivision,
except that the court shall not terminate parole pursuant to this
section.”
4
tolling provision in section 1203.2, subdivision (a)5 permits a trial court
to find a violation of probation and reinstate probation “based solely on
conduct that occurred after the court-imposed period of probation had
elapsed.” (Leiva, supra, 56 Cal.4th at p. 502, some italics added.) The
answer was no, it does not. (Ibid.) However, “ ‘when the violation and
reinstatement both occur during the probationary period, Leiva
indicates a court may extend it by adding the tolled period of
revocation.’ ” (Ornelas, supra, 87 Cal.App.5th at p. 1315.)
We are not persuaded by defendant’s argument that Leiva
grounded the trial court’s authority to extend the probationary term
solely on its general power to reinstate and extend probation under
section 1203.3.6 As is readily evident, the Leiva court explicitly
referred to section 1203.2: “If a defendant whose probation has been
summarily revoked has violated probation during the original
probationary period, section 1203.2(a)’s tolling provision ensures that
he may be subject to an additional period whenever a formal probation
revocation hearing can be held.” (Leiva, supra, 56 cal.4th at p. 517,
italics added; see Leiva, supra, at p. 516, fn. 5 [citing with approval the
5 Section 1203.2, subdivision (a) provides, in pertinent part, that at
any time during the period of supervision of a person released on
probation under the care of a probation officer, “[t]he revocation [of
probation], summary or otherwise, shall serve to toll the running of the
period of supervision.”
6 Section 1203.3, provides, in pertinent part, that “[t]he court has
the authority at any time during the term of probation to revoke,
modify, or change its order of suspension of imposition or execution of
sentence.”
5
analysis of section 1203.2, subdivision (a)’s tolling provision in People v.
Tapia (2001) 91 Cal.App.4th 738, 741 (Tapia).7)
In sum, for the reasons stated in Ornelas, supra, 87 Cal.App.5th
1305, we conclude that the trial court acted within its discretion when
it reinstated defendant to probation and extended the end of the
probation term to January 17, 2024. Even with this extension,
defendant’s term of probation, not including the time he was in warrant
status, is less than the statutory two-year maximum.
DISPOSITION
The February 17, 2022 order is affirmed.
7 In Tapia, supra, 91 Cal.App.4th 738, the court stated, in
pertinent part, that “when it comes to the tolling contemplated by
Penal Code section 1203.2, subdivision (a) . . ., it is clear that a
summary revocation of probation suspends the running of the
probation period and permits extension of the term of probation if, and
only if, probation is reinstated based upon a violation that occurred
during the unextended period of probation.” (Tapia, supra, at p. 741.)
Tapia was disapproved on another ground. (People v. Wagner (2009) 45
Cal.4th 1039, 1061, fn. 10.)
6
_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Fujisaki, J.
A164618/People v. Jimenez-Jaimes
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