People v. Ornelas

Filed 1/30/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A165333
v.
RODRIGO ESCOBAR ORNELAS, (Sonoma County
Super. Ct. No. SCR7413021)
Defendant and Appellant.
A few months after defendant Rodrigo Escobar Ornelas was placed on
probation in July 2021 for the maximum statutory term of two years, he
failed to report to probation as directed, his probation was summarily
revoked, and a bench warrant was issued for his arrest. He was eventually
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
argues is beyond the two-year maximum probationary period authorized by
statute. We find no error here. 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
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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.
FACTUAL AND PROCEDURAL BACKGROUND
Ornelas was charged with possessing methamphetamine for sale and
unlawfully transporting it, offering to sell it, selling it, or giving it away.
(Health & Saf. Code, §§ 11378, 11379, subd. (a).) In February 2021, Ornelas
agreed to plead no contest to an amended felony count of offering to give
away a controlled substance (ibid.), 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 promised to appear in court on November 24, 2021.
When he did not appear on that date, another bench warrant was issued.
Ornelas was arrested again on March 15, 2022. The trial court recalled the
warrant at a hearing on March 17, 2022, and probation remained summarily
revoked.
At a hearing on April 6, 2022, Ornelas admitted that he had violated
the terms of his probation by failing to report. The trial court accepted the
admission, found Ornelas in violation, and reinstated probation. The
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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. 1 The trial court granted the request, stating that it was
doing so “over the defense objection.” The record does not reveal what
objection the defense made.
Ornelas timely appealed.
DISCUSSION
A. Applicable Law and Standard of Review
Probation is defined in the Penal Code as “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), italics added.)
Probation is a creature of statute. (In re Oxidean (1961) 195
Cal.App.2d 814, 817.) We describe the statutes pertinent to Ornelas’s appeal.
Based on the felony count to which Ornelas pled guilty, 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.” 3 (§ 1203.1, subd.
(a).)
Ornelas does not contest the Attorney General’s representation that
1
he was “in warrant status” for 129 of the 162 days during which his probation
was revoked.
2 All subsequent statutory references are to the Penal Code.
Subject to exceptions not applicable here, and effective on January 1,
3
2021, the maximum term of probation for a person convicted of a felony is two
years. (Stats. 2020, ch. 328, § 2.) The maximum term of probation for a
person convicted of a felony had previously been the length of the maximum
possible prison term of the sentence, or five years if the maximum prison
term was five years or less. (Stats. 2010, ch. 178, § 75.)
3
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 . . . .” (Ibid.)
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. (People v. Leiva (2013) 56 Cal.4th
498, 515 (Leiva).) The tolling provision does not “stop” probation so as to
relieve the defendant from complying with the conditions imposed by the
court (id. at p. 508), nor does it operate to automatically “extend” the
conditions of probation beyond the expiration of the probationary term. (Id.
at p. 509.) Instead, 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
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reinstated based upon a violation that occurred during the unextended period
of probation.’ ” (Id. at p. 516, quoting People v. Tapia (2001) 91 Cal.App.4th
738, 747 (Tapia) [cited with approval in Leiva, supra, 56 Cal.4th at pp. 515-
516 & fn. 5, and disapproved on another point in People v. Wagner (2009) 45
Cal.4th 1039, 1061, fn. 10].)
Here there is no issue of preserving jurisdiction to adjudicate a
probation violation because Ornelas’s violation hearing was held in April
2022, long before his original two-year term expired. But apart from
preserving jurisdiction, courts have concluded that when probation has been
summarily revoked and when, at a hearing held during the initial period of
probation, a violation has been found, “the period of tolling can be tacked onto
the probationary period if probation is reinstated.” (Tapia, supra, 91
Cal.App.4th at p. 741.) As we shall explain, this is what happened in
Ornelas’s case.
We review the trial court’s ruling de novo. (See People v. Prunty (2015)
62 Cal.4th 59, 71 [questions of statutory interpretation are reviewed de novo];
People v. Rosbury (1997) 15 Cal.4th 206, 209 [propriety of sentence is “purely
legal matter” that is reviewed de novo].)
B. Analysis
Ornelas argues that in reinstating his probation with a new
termination date, the trial court acted in excess of its jurisdiction by
extending his probation beyond two years. Ornelas claims that the time
during which his probation was revoked and he was on warrant status must
be counted toward the statutory maximum period. Under the circumstances
here, this is not correct. To the contrary, the court had authority to tack on
the additional time.
5
Probation is “an act of clemency in lieu of punishment . . ., and its
primary purpose is rehabilitative in nature.” (People v. Howard (1997) 16
Cal.4th 1081, 1092.) Supervision by a probation officer is a crucial
component of the probationer’s rehabilitation. (See People v. Moran (2016) 1
Cal.5th 398, 406 [“probation officers’ awareness of probationers’ whereabouts
facilitates supervision and rehabilitation and helps ensure probationers are
complying with the terms of their conditional release”]; see also Leiva, supra,56 Cal.4th at p. 519 (conc. opn. of Baxter, J.) [“Imposition of probation for a
specified period contemplates that the probationer will be subject to
supervision by the court and probation authorities for that entire amount or
length of time . . . . Supervision for the entire probationary period, as agreed
between the probationer and the court, is a fundamental prerequisite to the
successful and lawful completion of a grant of supervised probation”].)
During the 129 days that Ornelas was in warrant status, he was not
“under the supervision of a probation officer.” (§ 1203, subd. (a).) He had
absconded, and his absence kept the probation officer from facilitating and
monitoring his rehabilitation. In reinstating Ornelas’s probation and moving
the termination date to account for the 129 days in which Ornelas had been
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, as Ornelas had agreed to when he accepted the terms of
probation, and in keeping with the July 2021 sentencing order. The court
was within its authority under section 1203.2, subdivision (b), in taking this
step.
6
The case of People v. Jackson (2005) 134 Cal.App.4th 929 (Jackson),
provides an example of how time during which probation was summarily
revoked can be tacked on to the term when probation is reinstated within the
original probationary period, as happened here. 4 In Jackson, the defendant
pleaded guilty in August 1996 and the court imposed a probationary term of
five years, the maximum term under section 1203.1, subdivision (a), at the
time. (Id. at p. 931.) Jackson’s term was therefore scheduled to expire in
August 2001. (Id. at p. 932.) In March 1999, Jackson’s probation was
summarily revoked for desertion. (Id. at p. 931.) In November 1999, Jackson
admitted she had violated probation, and the trial court found her in
violation and reinstated her probation. (Ibid.) But the trial court imposed a
new five-year probationary term and extended the probation to November
2004, which the Court of Appeal concluded was error. (Ibid.) Upon
reinstating probation in November 1999, the trial court was “free to
recalculate the date of expiration of [defendant’s] probationary term,” such
that the term would expire in May 2002, 263 days after the original
expiration date, to account for the 263 days during which her probationary
period had been tolled by the revocation of her probation under section
1203.2, subdivision (a). (Id. at p. 932.) But the trial court had no authority to
extend her probation to November 2004, which, by imposing a new five-year
term on top of the probationary period that ran from August 1996 to March
1999, resulted in a term that exceeded the statutory five-year maximum.
(Ibid.)
4When probation is reinstated after the original probationary period
has expired, different rules apply under section 1203.2, subdivision (e), as we
discuss below.
7
Our Legislature intended that cases involving probation revocation and
reinstatement like Ornelas’s could result in probationary terms that in effect
extend beyond the original two-year period. In 2020, when the Legislature
passed AB 1950, which reduced the maximum term of felony probation to two
years, the question arose whether limiting probation to two years (subject to
exceptions not present here) would interfere with the policy goals of
probation. The Legislature recognized that the revocation of probation could
result in extension to allow two full years of supervision, as reflected in this
excerpt from an analysis of the proposed law by the Assembly Committee on
Public Safety: “Is . . . two years a sufficient amount of time to meet the
objectives of probation? . . . [¶ Probation supervision can serve to connect
defendants to community based organizations and resources which can
provide support and assistance. Probation can help defendants connect to
resources to assist with needs like housing and job training. [¶] A two year
period of supervision would likely provide 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.”
(Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1950 (2019-2020
Reg. Sess.) as amended May 6, 2020, p. 6 (AB 1950).) 5
5Pursuant to Evidence Code sections 452, subdivision (c) and 459,
subdivision (c), we take judicial notice of the legislative history of AB 1950
8
Accordingly, 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. Notably, summary revocation does not automatically extend the
probationary period. Rather, 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. (Leiva, supra, 56 Cal.4th at p.
516; see also People v. Braud (2020) 56 Cal.App.5th 962, 968-969 (Braud)
[discussing cases, including Leiva, that “conclude[ ] a trial court has
discretion to extend the expiration date when supervision is revoked and
reinstated; it just does not happen automatically”].) In Ornelas’s case, 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). This was not error.
The leading treatise on California criminal sentencing supports our
conclusion that the trial court did not err in extending Ornelas’s probation:
“[T]here is a limited right to extend probation to account for the period when
defendant’s probation has been summarily revoked.” (Couzens et al.,
Sentencing Cal. Crimes (The Rutter Group 2022) ¶ 8:22 (Couzens).) The
limitation is that “the total term of active probation . . . must not exceed the
limits set by AB 1950” (ibid.), which for Ornelas, is two years. 6
(2019-2020 Reg. Sess.) on our own motion, having previously notified the
parties of our intent to do so.
6 Couzens provides an example illustrating how a court might exercise
its discretion to tack on time when a probationer was in warrant status and,
in effect, “extend” the probationary term. (Couzens, supra, ¶ 8:21.) Consider
9
Ornelas’s arguments do not persuade us that the trial court erred.
Ornelas argues that none of the time when his probation was revoked
can be “tacked on” after the original expiration date of his probation because
to do so would be to extend his probation beyond the maximum term, which is
allowable only under circumstances set forth in section 1203.2, subdivision
(e), a statutory provision that he argues does not apply here. That section
provides that “[i]f an order setting aside the judgement, the revocation of
probation, or both is made after the expiration of the [initial] probationary
period, the court may again place the person on probation for that period and
with those terms and conditions as it could have done immediately following
the conviction.” 7 (§ 1203.2, subd. (e).) We agree that this is not Ornelas’s
a defendant sentenced before the effective date of AB 1950 to a felony
probation term of three years. After a year on probation, the defendant
violates probation, probation is summarily revoked, and the defendant
remains in warrant status for six months. AB 1950 takes effect before the
warrant is executed. “At sentencing on the violation, the court could
reinstate the defendant on the remaining period of probation and exercise its
discretion” to treat the time in warrant status as counting toward the
probationary term, in which case, the remaining period is limited to six
months, given the two-year limit imposed by AB 1950. (Ibid.) “Alternatively,
the court could order the six months during which the defendant was in
warrant status does not apply against the remaining probation term—in this
way the defendant will have a full year of active supervision remaining on his
reinstated probation. Such an order has the effect of ‘extending’ the term of
probation to account for the time lost while the defendant was in warrant
status, but the total length of active probation has been adjusted to meet the
limits set by AB 1950.” (Ibid.)
7 The Couzens treatise explains that section 1203.2, subdivision (e)
provides “a very limited exception” that allows a term of probation to be
extended beyond the time provided in § 1203.1, subd. (a). (Couzens, supra,
¶ 8:25; see also Jackson, supra, 134 Cal.App.4th at p. 937 [discussing a
possible application of § 1203.2, subd. (e)].)
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situation, so section 1203.2, subdivision (e) does not apply. Nor, based on our
analysis, does it render what the trial court did here erroneous. 8
Ornelas also argues that the days that accrued while his probation was
revoked must count toward the two-year maximum term, based on Leiva and
People v. Johnson (2018) 29 Cal.App.5th 1041 (Johnson), cases which he
contends “teach that the period of time during which probation is revoked
counts towards the statutory maximum period of probation.”
But Leiva addressed a situation different from Ornelas’s. The question
in Leiva was “whether, once probation has been revoked, [the tolling
provision in section 1203.2, subdivision (a)] permits a trial court to find a
violation of probation and then reinstate or terminate probation based solely
on conduct that occurred after the court-imposed period of probation had
elapsed.” (Leiva, supra, 56 Cal.4th at p. 502, italics added.) The answer was
“no”: the “tolling provision preserves the trial court’s authority to adjudicate,
in a subsequent formal probation violation hearing, whether the probationer
violated probation during, but not after, the court-imposed probationary
period.” (Ibid.) But Leiva does not prevent the trial court from exercising its
discretion to tack on additional days for the period of revocation in Ornelas’s
case. To the contrary, under Leiva, “[i]f a defendant whose probation has
been summarily revoked has violated probation during the original
probationary period,” as Ornelas did here, the defendant “may be subject to
an additional period whenever a formal probation revocation hearing can be
8 According to the Attorney General’s calculation, which Ornelas does
not dispute, before his probation was revoked Ornelas was on probation for
96 days, from July 23, 2021 until October 26, 2021. The reinstatement of his
probationary status on April 6, 2022 until November 29, 2023, adds 603 days
to the term, for a total of 699 days. This is still less than the current two-
year, or 730-day, maximum.
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held.” (Id. at p. 517.) And “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.” (Braud, supra, 56 Cal.App.5th at p.
969.)
Johnson, the other case relied on by Ornelas for this point, presented
the issue “whether the length of appellant’s postrelease community
supervision (PRCS) was properly extended when PRCS was revoked and then
reinstated.” (Johnson, supra, 29 Cal.App.5th at p. 1044.) In Johnson we held
that “the length of the supervisory period is not automatically extended when
PRCS is reinstituted after revocation,” which is what happened in that case.
(Id. at p. 1050, italics added.) There, the trial court had simply assumed that
the period of revocation extended the period of PRCS. (Id. at p. 1048.) We
recognized, however, that upon reinstatement, the trial court had discretion
to extend the original expiration date. (Id. at p. 1050 [where PRCS is
revoked and reinstated after defendant admitted violating terms by failing to
abstain from illegal substances, tolling under § 1203.2, subd. (a) does not
automatically extend the PCRS period, but the trial court may choose to
extend the expiration date].)
In sum, Leiva and Johnson do not teach that the period of time during
which probation is revoked necessarily counts towards the statutory
maximum period of probation. Instead, they teach that if the trial court
reinstates probation after a summary revocation, the trial court has
discretion to count, or not count, the period of revocation toward the total
probationary term. (Braud, supra, 56 Cal.App.5th at p. 969.)
Finally, Ornelas argues that comparing the statutory schemes for
probation and PRCS forces the conclusion that his probation could not be
extended by adding time to account for the summary revocation. Ornelas
12
notes that the statutes governing PRCS state that “[t]ime during which a
person on postrelease supervision is suspended because the person has
absconded shall not be credited toward any period of postrelease
supervision.” (§ 3456, subd. (b).) He contends that because there is no
similar provision for probation, we should presume that the Legislature
intended that time during which a probationer has absconded must be
credited toward the time of probation, and did not intend to allow the
extension of a probationary term on the basis of revocation. The argument is
unpersuasive. The absence of a statutory prohibition against counting
absconded time toward probation does not require us to infer a requirement
that absconded time be counted toward probation.
Here, when the trial court reinstated Ornelas’s two-year term of
probation, it acted within its authority when it exercised its discretion to not
count a portion of the time when Ornelas’s probation was revoked (the 129
days when he was in warrant status), and to extend the expiration of his
probationary term by 129 days.
DISPOSITION
The challenged order is affirmed.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Van Aken, J. *
A165333, People v. Ornelas
*Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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Court: Sonoma County Superior Court
Trial Judge: Hon. Robert M. LaForge
Justin Behravesh under appointment by the Court of Appeal, for Defendant
and Appellant
Rob Bonta, Attorney General; Lance E. Winters, Chief Assistant Attorney
General; Jeffrey M. Laurence, Assistant Attorney General; Rene A. Chacon,
Claudia H. Amaral, Deputy Attorneys General, for Plaintiff and Respondent
A165333, People v. Ornelas
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