People v. Leiva

Filed 4/8/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
) S192176
Plaintiff and Respondent, )
) Ct.App. 2/4 B214397
v. )
)
JOSE LEIVA, )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. PA035556
___________________________________ )

At the relevant times, Penal Code former section 1203.2, subdivision (a) (as
amended by Stats. 1989, Ch. 1319, § 1, p. 5305; (section 1203.2(a))1, provided, in part,
that the revocation of probation, “summary or otherwise, shall serve to toll the running of
the probationary period.” We granted review to resolve whether, once probation has
been summarily revoked, this tolling provision 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. For the reasons stated below,
we hold that section 1203.2(a)‟s 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.2

1 All further statutory references are to the Penal Code.
2 As part of the criminal justice realignment, the Legislature recently amended
section 1203.2. The sentence regarding tolling now reads as follows: “The revocation,
summary or otherwise, shall serve to toll the running of the period of supervision.”
(§ 1203.2(a), as amended by Stats. 2012, ch. 43, § 30; see Legis. Counsel‟s Dig., Sen.

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 BACKGROUND
In March 2000, defendant Jose Leiva was charged with breaking into several cars
and stealing property from them. Pursuant to a plea agreement, he pleaded no contest to
three counts of burglary of a vehicle. (§ 459.) On April 11, 2000, the trial court
suspended imposition of sentence and placed defendant on formal probation for a period
of three years, which meant that probation would expire on April 11, 2003. Included in
the terms and conditions of probation were orders that defendant report to his probation
officer within one business day of his release from custody and not reenter the country
illegally if he left voluntarily or was deported. Because defendant was not a legal
resident of the United States, he was deported to El Salvador on the day he was released
from jail.
On September 21, 2001, defendant failed to appear at a scheduled probation
violation hearing based on an allegation that he had failed to report to the probation
department. The trial court summarily revoked defendant‟s probation based on the
failure to report and issued a bench warrant for defendant‟s arrest. It appears that neither
the probation department nor the trial court knew that the reason defendant had failed to
report or to appear in court was that he had been deported.
Seven years later, on November 10, 2008, defendant appeared in the trial court
after his arrest on the outstanding warrant, following a traffic stop. The trial court re-
called the warrant and ordered that probation remain summarily revoked and that
defendant be remanded into custody. It calendared a formal probation violation hearing
for February 13, 2009.
Before that date, the trial court received a supplemental probation report that
indicated defendant had been unable to report for probation supervision because he was

Bill No. 1023 (2011-2012 Reg. Sess.).) This change in the statutory language has no
effect on the issue presented in this case.

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not a legal resident of the United States and had been deported. The report included
defendant‟s statement that he illegally had returned to the United States in February 2007.
At the February 13, 2009 formal violation hearing, the district attorney, after
acknowledging that the trial court could not find defendant in violation of probation
unless the violation was willful, conceded the People could not prove that defendant‟s
failure to report in 2001 had been “willful.” Defendant‟s counsel contended “probation
must be terminated” because the court had no authority to reinstate defendant‟s
probation as of 2007 when there was no evidence of a “willful failure to report,” or any
other probation violation, before “the termination of the natural period of probation.”
The trial court found defendant had violated probation. It did not rely on the
allegation that had led to the summary revocation on September 21, 2001, nor did it find
any other violation of probation during the three-year probationary period imposed on
April 11, 2000. Instead, the court found defendant violated his probation in 2007 when
he failed to report to probation following his return to the United States. It relied on
defendant‟s statement that he had been back in the United States since February 2007.3
The court reinstated probation and ordered it extended until June 6, 2011. It additionally
ordered that, if defendant voluntarily left the country again or was deported, he must
report to his probation officer within 24 hours of his return to the United States and
present proof that he was in the country legally. Defendant appealed the order reinstating
and extending probation.
Defendant was deported again, this time in March 2009. On May 14, 2009, during
the period of probation challenged on appeal in case No. B21437, the trial court
calendared a violation hearing based on a supplemental probation report stating that
defendant had not reported to his probation officer and had been deported to El Salvador.

3 Although the People urged the trial court to find a violation of probation on the
basis that defendant “was in [the] country illegally,” the trial court chose not rely on
defendant‟s “citizenship status since I think more would be required to establish that.”

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Defendant was not present, but the court considered his letter to the probation department
explaining that he had been deported in March 2009, and that he was trying to contact his
probation officer by telephone. At the June 9, 2009 hearing, after noting that defendant
had been deported, the court summarily revoked defendant‟s probation based on his
failure to report to his probation officer, and a bench warrant issued for his arrest.
Thereafter, defendant returned to California and was arrested on the outstanding
warrant. On September 17, 2009, he appeared in the trial court. His counsel argued the
court lacked the authority to reinstate or terminate probation because defendant‟s
probationary term had expired three years after it began on April 11, 2000, and defendant
had not willfully violated any condition of probation during those three years. Assuming
its prior order reinstating and extending probation was valid pending appeal, the court
ordered that probation remain summarily revoked and that defendant remain in custody.
On October 9, 2009, the trial court held a formal probation violation hearing and
found that defendant had violated his probation “for re-entering the country illegally” in
2009. On November 9, 2009, the court ordered that probation remain revoked and
sentenced defendant to two years in state prison based on one of the burglary counts to
which defendant had pleaded no contest in 2000. Defendant filed a timely appeal from
this order.
In each of his two appeals, defendant contended the trial court erred by finding a
violation of probation based on conduct that had occurred after the expiration of the
original court-imposed three-year probationary period. The Court of Appeal rendered a
split decision. The two-justice majority upheld the trial court‟s orders. The dissenting
justice agreed with defendant‟s position. We granted review.
DISCUSSION
Section 1203.3, subdivision (a), empowers the trial court “at any time during the
term of probation to revoke, modify, or change its order of suspension of imposition or
execution of sentence.” This power includes the power to extend the probationary term.

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(Ex Parte Sizelove (1910) 158 Cal. 493, 494.) Under section 1203.2(a), a court “may
revoke and terminate such probation 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 his or her probation, has become
abandoned to improper associates or a vicious life, or has subsequently committed other
offenses, regardless whether he or she has been prosecuted for such offenses.”
Under section 1203.2, the court is authorized to summarily revoke a defendant‟s
probation “ „if the interests of justice so require and the court . . . has reason to believe
from the report of the probation officer or otherwise‟ that grounds for revocation exist.
(§ 1203.2, subd. (a).) Such summary revocation gives the court jurisdiction over and
physical custody of the defendant and is proper if the defendant is accorded a subsequent
formal hearing in conformance with due process. [Citation.] [¶] Therefore, after the
summary revocation, the defendant is entitled to formal proceedings for probation
revocation. The purpose of the formal proceedings is not to revoke probation, as the
revocation has occurred as a matter of law; rather, the purpose is to give the defendant an
opportunity to require the prosecution to prove the alleged violation occurred and justifies
revocation. [Citation.]” (People v. Clark (1996) 51 Cal.App.4th 575, 581.)
“A change in circumstances is required before a court has jurisdiction to extend or
otherwise modify probation. As we held in In re Clark (1959) 51 Cal.2d 838, „An order
modifying the terms of probation based upon the same facts as the original order granting
probation is in excess of the jurisdiction of the court, for the reason that there is no factual
basis to support it.‟ (Id. at p. 840, italics added.)” (People v. Cookson (1991) 54 Cal.3d
1091, 1095.)
When the trial court summarily revoked defendant‟s probation in 2001, section
1203.2(a) provided, in part, that “[t]he revocation, summary or otherwise, shall serve to
toll the running of the probationary period.”

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 In this consolidated appeal, defendant contends the trial court lacked the authority
to reinstate and extend his probation as of 2007, after the expiration of the original three-
year probationary period, because the noticed basis for revocation was not sustained and
no other violation was proved to have occurred during the three-year probationary period.
In turn, defendant contends that, because the February 13, 2009 order extending
probation was invalid, the trial court lacked authority to impose a prison sentence in 2009
based on conduct that occurred later in 2009. The People contend the tolling provision of
section 1203.2(a) gave the trial court jurisdiction to reinstate and later terminate
probation in the 2009 hearings based solely on conduct that occurred after April 11, 2003,
when the initially imposed period of probation would have ended.
Defendant‟s interpretation of the effect of section 1203.2(a)‟s tolling provision
was adopted in People v. Tapia (2001) 91 Cal.App.4th 738 (Tapia), which held that “a
summary revocation of probation suspends the running of the probationary 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,
91 Cal.App.4th at p. 741.) The court in Tapia reasoned that, under the tolling provision
at issue in the present case, “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.” (Id. at p. 742.) The People‟s contrary view was
adopted by the Court of Appeal in defendant‟s case. Disagreeing with Tapia, the
majority concluded the trial court had the authority to first reinstate and later to terminate
probation and impose a prison sentence based on defendant‟s conduct that occurred after
the court-imposed probation would have expired. It reasoned that, “[s]ince defendant‟s
probationary term had not expired because of the tolling provision, he was still bound by
the conditions of probation.” The dissenting justice, Justice Epstein, found the reasoning
in Tapia persuasive. We granted defendant‟s petition for review to resolve this conflict.

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 1. Statutory Construction
In construing section 1203.2(a)‟s tolling provision to determine whether it gives
the trial court authority to reinstate or terminate probation on the basis of conduct that
occurred after expiration of the period of probation, we seek “ „ “to ascertain the intent of
the enacting legislative body so that we may adopt the construction that best effectuates
the purpose of the law.” ‟ ” (City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905,
919.)
“When interpreting statutes, we begin with the plain, commonsense meaning of
the language used by the Legislature. [Citation.] If the language is unambiguous, the
plain meaning controls.” (Voices of the Wetlands v. State Water Resources Control Bd.
(2011) 52 Cal.4th 499, 519.) We consider first the words of the statute because “ „ “the
statutory language is generally the most reliable indicator of legislative intent.” ‟ ”
(People v. King (2006) 38 Cal.4th 617, 622.) “[W]henever possible, significance must be
given to every word [in a statute] in pursuing the legislative purpose, and the court should
avoid a construction that makes some words surplusage.” (Agnew v. State Bd. of
Equalization (1999) 21 Cal.4th 310, 330.) However, section 7 cautions that “words and
phrases must be construed according to the context . . . .” (§ 7, subd. (16.) Accordingly,
we have held that words in a statute “ „ “should be construed in their statutory
context” ‟ ” (People v. King, supra, 38 Cal.4th at p. 622), and that “we may reject a literal
construction that is contrary to the legislative intent apparent in the statute or that would
lead to absurd results” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 27),
or “would result in absurd consequences that the Legislature could not have intended.”
(In re J.W. (2002) 29 Cal.4th 200, 210.) Additionally, we adhere to “the precept „that a
court, when faced with an ambiguous statute that raises serious constitutional questions,

7
should endeavor to construe the statute in a manner which avoids any doubt concerning
its validity.‟ ” (Young v. Haines (1986) 41 Cal.3d 883, 898.)
Here, the parties dispute what constitutes the plain, commonsense meaning of the
word “toll,” and they dispute what the phrase “toll the running of the probationary
period” means as used in section 1203.2(a). The Attorney General contends that, in the
context of summary revocation, the word “toll” in the phrase “toll the running of the
probationary period” is unambiguous and means “extend.” She therefore claims that,
under section 1203.2(a)‟s tolling provision, the terms and conditions of probation in
effect during the original probationary period continue indefinitely from the time of
summary revocation until the defendant is brought before the court for a formal
revocation hearing. Defendant disagrees that the word toll means “extend” and contends
the statutory phrase is ambiguous in the context of summary revocation of probation
because “the statute states only that a summary revocation serves to toll the running of
the probationary period, leaving open the question of, for what purpose? Is it tolled for
the purpose of preserving jurisdiction to adjudicate the basis for the summary revocation,
or is it tolled for all possible purposes?” Defendant also argues that reading the tolling
language of section 1203.2(a) as extending indefinitely the terms and conditions of
probation until a defendant is brought to court for a formal probation revocation “could
produce absurd consequences that the Legislature did not or could not have intended.”
We first discuss the meaning of the word “toll.” We conclude, as we have
previously, that the most common understanding of the term “toll” in a legal context is
“ „to stop the running of; to abate . . . .‟ (Black‟s Law Dict. (8th ed. 2004) p. 1535.)”
(Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 674.) Several
dictionaries similarly define “toll” in the legal context as to “stop from running,” “to
abate,” or to “suspend.” (See, e.g., Webster‟s New World Law Dict. (2006) p. 257 [“stop
from running”]; Garner‟s Dict. of Legal Usage (3d ed. 2011) p. 897 [“ „abate‟ ” or “ „stop
the running of‟ ”]; Mellinkoff‟s Dict. of American Legal Usage (1992) p. 616

8
[“suspend[]”]; West‟s Legal Thesaurus/Dictionary (1986) p. 750 [“suspend or stop
temporarily”]; Ballentine‟s Law Dict. (3d ed. 1969) p. 1282 [“suspend or interrupt the
running of”].) In the context of the tolling of a statute of limitations, we have noted that
“tolling” is properly analogized to the stopping and restarting of a clock. (Pearson
Dental Supplies, Inc. v. Superior Court, supra, 48 Cal.4th at pp. 674-675 [rejecting
defendant‟s position that, when the time period in which to initiate contractual arbitration
is statutorily tolled, what was being tolled was the “deadline” to request arbitration, i.e.,
that the limitations period continued to run]; see also Woods v. Young (1991) 53 Cal.3d
315, 326-327 & fn. 3 [construing a statute as “tolling,” rather than “extend[ing],” the
statute of limitations for filing a medical malpractice action].)
However, assuming the plain meaning of toll is to “abate” or “stop the running
of,” we are confronted by the fact that a literal application of “toll” to section 1203.2(a)‟s
tolling provision “would result in absurd consequences that the Legislature could not
have intended.” (In re J.W., supra, 29 Cal.4th at p. 210.) Such a literal application
would require the abatement or suspension of compliance with the terms and conditions
of probation once a trial court ordered summary revocation; it would not simply extend
the date on which those probationary conditions would expire. A defendant‟s duty of
compliance with the terms and conditions of probation would “stop” or “abate” upon the
trial court‟s entry of an order summarily revoking probation, and only start again after the
formal hearing and decision on the alleged probation violation. For example, if “toll” is
read to mean “abate,” had the defendant in this case illegally returned to the United States
at any time between the date of summary revocation and April 11, 2003, when his
original probationary period would have ended, he would not have been in violation of
his probation because the terms and conditions of his probation would have been
suspended until he was brought to court. Such a literal application of “toll” in the context
of section 1203.2(a) would give the defendant a “free pass” until the formal hearing and
decision on the alleged probation violation, a decision which could be reached months or

9
years after the summary revocation, and it would free a defendant from continuing
compliance just when there is reason to believe the defendant is not following the court‟s
orders and needs supervision. We are convinced the Legislature could not have intended
to automatically release a defendant from further compliance with the terms and
conditions of probation when a trial court summarily revokes probation because it has
found probable cause to believe the defendant is in violation of probation. We therefore
agree with People v. Lewis (1992) 7 Cal.App.4th 1949, 1954 (Lewis), that there is “no
„window‟ during the probationary term which allows the probationer to be free from the
terms and conditions originally imposed or later modified . . . .”4
We next consider the Attorney General‟s position that the word “toll” is
“unambiguous” and means “extend.” In light of the overwhelming weight of authority
that defines “toll” in the legal context as to “abate” or “stop the running of,” rather than
“to extend,” we reject the claim that “toll” unambiguously means to “extend.” However,
we do note that, although Garner‟s Dictionary of Legal Usage first states in large print
that “[i]n the context of time limits—especially statutes of limitation—toll means „to
abate‟ or „to stop the running of (the statutory period ),‟ ” in smaller print the dictionary
quotes a law review article that observes that “ „[a] tolling rule can affect a statute of
limitations in one of three ways—it can suspend the running of the limitations period; it
can extend the limitations period; or it can renew or revive the limitations period.‟ Carli
McNeill, Seeing the Forest, 85 Notre Dame L. Rev. 1231, 1250 (2010).” (Garner‟s Dict.
of Legal Usage, supra, p. 897.) We remain convinced that the commonsense, plain
meaning of “toll” in the context of legal time limits is “to abate” or “to stop the running
of.” However, assuming the word “toll” can mean “to extend,” we nevertheless would

4 Accordingly, in the context of the case before us, in which defendant was deported
before he could report to probation, if he illegally had returned to the country after
summary revocation but before his probation would have expired in April 2003, the trial
court could have relied on the illegal reentry and subsequent failure to report to the
probation department as a basis for finding that he had violated his probation.

10
reject the Attorney General‟s reading of the tolling provision of section 1203.2(a), as
allowing a trial court, through summary revocation, to extend indefinitely the conditions
and terms of probation until a formal revocation proceeding can be held. Construing the
word “toll” as “extend” in the context of section 1203.2(a) would be contrary to our
statutes that authorize the courts to grant probation for a period not to exceed a specified
time, three years in the case of misdemeanors, with certain exceptions (§ 1203a), or five
years or the maximum possible term of sentence, whichever is longer, in the case of
felonies, with certain exceptions (§ 1203.1). It is also contrary to language in section
1203.2 that gives the court authority, when an order setting aside the judgment or the
revocation of probation, or both, is made after the expiration of the probationary period,
to again place the person on probation for the same period of time “as it could have done
immediately following conviction.” (§ 1203.2, subd. (e).) Furthermore, the Attorney
General‟s interpretation of the tolling provision in section 1203.2(a) raises serious due
process concerns because such a reading of the statutory language would extend a
defendant‟s probationary term indefinitely without notice or a hearing as to the propriety
of such an increase. (See Griffin v. Wisconsin (1987) 483 U.S. 868, 874 [probationers
have only conditional liberty dependent on the observance of restrictions].) In accord
with rules of statutory construction that mandate us to construe statutory language in its
statutory context (People v. King, supra, 38 Cal.4th at p. 622), and to endeavor to
construe such language to avoid doubts concerning its constitutional validity (Young v.
Haines, supra, 41 Cal.3d at p. 898), we do not adopt the Attorney General‟s position that
the word toll means “extend” or her position that the tolling provision of section
1203.2(a) extends the conditions of probation after a summary revocation beyond the
expiration of the court-imposed probationary period to the date of the formal probation
revocation hearing, held in compliance with Morrissey v. Brewer (1972) 408 U.S. 471
(Morrissey) and People v. Vickers (1972) 8 Cal.3d 451 (Vickers).

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 Because a plain meaning construction of the word “toll” as “to abate” or “to
extend” in the context of summary revocation and the tolling provision of section
1203.2(a) would result in absurd consequences and present constitutional concerns that
the Legislature could not have intended, we are convinced that, while the statutory phrase
“toll the running of the probationary period” may appear “unambiguous on its face,” it
has been “shown to have a latent ambiguity” (Stanton v. Panish (1980) 28 Cal.3d 107,
115 [language that appears unambiguous on its face may be shown to have a latent
ambiguity when the plain meaning construction would lead to unreasonable results]; see
Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1371).
We additionally note that “the split between the Courts of Appeal reflects
uncertainty” (People v. Indiana Lumbermens Mutual Ins. Co. (2010) 49 Cal.4th 301, 308)
over what the phrase “toll the running of the probationary period” means in the context of
a summary revocation of probation. The split has left uncertain whether the provision
permits a trial court to reinstate or terminate probation based solely on conduct that
occurred after the original period of probation has expired or, alternatively, whether
summary revocation pursuant to section 1203.2(a) is meant to preserve the court‟s
authority to adjudicate whether the probationer violated probation during the court-
specified period of probation. The term “toll” is not specifically defined in section
1203.2(a) or anywhere else in the Penal Code, and, in the context of a summary
revocation, the precise meaning of the phrase “toll the running of the probationary
period” cannot be gleaned from the words themselves. The Fourth District Court of
Appeal, noting the ambiguity of the phrase as used in one of its earlier opinions,
commented that “[i]n an opinion written in 1972, this court stated that „revocation has the
effect of terminating or tolling the running of the probationary period.‟ [Citation.] When
the remark is read in context, however, it is apparent that we were referring only to the
preservation of jurisdiction over the defendant.” (People v. DePaul (1982) 137
Cal.App.3d 409, 413 (DePaul).)

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 When a term or phrase in a statute is unclear or contains a latent ambiguity, we
may “look to a variety of extrinsic aids, including the ostensible objects to be achieved,
the evils to be remedied, the legislative history, public policy, contemporaneous
administrative construction, and the statutory scheme of which the statute is a part.”
(People v. Woodhead (1987) 43 Cal.3d 1002, 1008; see Stanton v. Panish, supra, 28
Cal.3d at p. 115.) Because section 1203.2(a)‟s tolling provision is ambiguous with regard
to its effect in the context of a summary probation revocation, we consider the legislative
history behind the language, the objectives of the statute, and relevant public policy
considerations.
2. Legislative History
After reviewing the legislative history of the tolling provision in section 1203.2(a),
we find no indication that the Legislature intended section 1203(a)‟s tolling provision to
subject a probationer to possible revocation for conduct that occurred after the conclusion
of the court-imposed probationary period. Instead, it appears the Legislature intended
Senate Bill No. 426 (1977-1978 Reg. Sess.) (Senate Bill 426), which amended former
section 1203.2(a) by adding the tolling provision (Stats. 1977, ch. 358, §1, p. 1330), to
address problems that can arise when a formal revocation hearing cannot be held during
the court-imposed period of probation.
Before section 1203.2 was adopted in 1935 (former § 1203.2, added by Stats.
1935, ch. 604, § 3, p. 1709), it had been established that trial courts have the statutory
authority to revoke or modify an order placing defendant on probation at any time during
the term of probation on a showing that defendant had violated the terms and conditions
of probation. As early as 1918, a Court of Appeal held that such statutory authority was
limited to the period of probation, and that the trial court lost “jurisdiction or power to
make an order revoking or modifying the order . . . admitting the defendant to probation
after the probationary period has expired.” (People v. O’Donnell (1918) 37 Cal.App.
192, 196-197.) As long as the order of revocation was entered during the probationary

13
period, the defendant could be arrested and brought before the court after the expiration
of the probationary period. However, the trial court retained jurisdiction in such cases
only to pronounce judgment by imposing sentence if imposition of sentence had been
suspended or, alternatively, by ordering execution of the previously ordered but
suspended sentence. (People v. Williams (1944) 24 Cal.2d 848, 851-854; former
§ 1203.2; former § 1203.3, added by Stats. 1935, ch. 604, § 4, p. 1709.) The fact that the
trial court did not have authority under the statutes, as then written, to reinstate probation
led to the call for legislative amendment of section 1203.2.
In 1957, the Legislature amended former section 1203.2 to add the following
language: “If probation has been revoked either before or after judgment has been
pronounced, the order revoking probation and the judgment, if any, may be set aside for
good cause upon motion made before pronouncement of judgment or, if judgment has
been pronounced, within 30 days after the court has notice that execution of the sentence
has commenced. If an order setting aside the judgment or the revocation of probation or
both is made after the expiration of the probationary period, the court may again place
the defendant on probation for such period and with such terms and conditions as it
could have done immediately following conviction.” (Former § 1203.2, italics added; as
amended by Stats. 1957, ch. 331, § 1, p. 970.) This language has been substantively
retained in section 1203.2, and is now found in subdivision (e) of the section. By
authorizing the trial court to set aside its order revoking probation and to again place the
defendant on probation after expiration of the probationary period, the 1957 amendment
preserved the trial court‟s authority to hold a hearing after expiration of the probationary
term for the purpose of considering a further grant of probation with regard to a violation
that occurred during the probationary period.
We believe the primary purpose and effect of the 1977 amendment, which added
the tolling language in section 1203.2(a), was to respond to the holdings in two appellate
decisions in the mid-1970‟s, namely, People v. Amsbary (1975) 51 Cal.App.3d 75

14
(Amsbary), and People v. Andre (1974) 37 Cal.App.3d 516 (Andre). Those Court of
Appeal decisions had held that a defendant‟s probationary term expires when the trial
court does not validly revoke probation at a hearing complying with Morrissey and
Vickers during the probationary term. Significantly, in terms of understanding the tolling
provision added to former section 1203.2(a) in 1977, both cases held that, once probation
expires, the trial court lacks jurisdiction to hold a new probation hearing complying with
Morrissey and Vickers. In Andre, a probation revocation hearing held on May 29, 1973,
did not comply with Morrissey and Vickers. The appellate court held the action taken by
the trial court at that hearing, revoking probation and sentencing the defendant to one
year in the county jail, “was a nullity,” and that, since the defendant‟s “probationary
period expired on August 7, 1973, no new revocation hearing is permissible. Our
reversal requires his immediate release from all restraint.” (Andre, supra, at p. 524.) In
Amsbary, probation was revoked during defendant‟s period of probation during a
proceeding that violated the Morrissey-Vickers requirements. The trial court instituted a
new proceeding to revoke probation. However, on appeal, the Amsbary court held that,
“[b]y the rule of Andre, no new revocation hearing was permissible since the period of
probation had expired. The hearing having commenced after the date probation expired,
appellant must be released.” (Amsbary, supra, at pp. 78-79.)
The Assembly Committee on Criminal Justice comments to Senate Bill 426
support the conclusion that the Legislature in 1977 was focused on preserving the
jurisdiction of the trial court to hold formal probation violation hearings that met
Morrissey-Vickers requirements after the period of probation had expired. The
Legislature expressed concern that, without Senate Bill 426‟s tolling provision,
jurisdiction to revoke probation would be lost when a probation revocation hearing had
been conducted in an illegal manner and the trial court‟s decision revoking probation had
been reversed on appeal. It additionally expressed concern that former section 1203.2 did
not address the situation in which a trial summarily revoked probation and the defendant

15
did not appear in court on the violation. Senate Bill 426 was considered a “cleanup
measure” (Enrolled Bill Report on Sen. Bill No. 426 (1977-1978 Reg. Sess.) Aug. 16,
1977 (Enrolled Bill Report)), designed to preserve a trial court‟s authority to hold a full
hearing on an alleged probation violation that occurred during the court-imposed
probationary period.
In its analysis of Senate Bill 426, the Assembly Committee on Criminal Justice
stated that the “purpose of this bill is to allow the court to revoke probation after the court
has probable cause to believe that the probationer has violated probation and has not
appeared at the hearing on the violation.” (Assem. Com. on Criminal Justice, analysis of
Sen. Bill No. 426 (1977-1978 Reg. Sess.) as amended May 19, 1977, italics added.) The
Committee then commented: “Should the probationary period be tolled upon revocation
of probation? What does this mean? Upon revocation, the period is terminated. The
proponents of this bill indicate that this „tolling‟ language is necessary in cases where the
revocation proceedings were conducted in an illegal manner and the decision is reversed
upon appeal. Without the tolling language, the period may have expired and the court
would be powerless to act in conducting a new probation revocation hearing. Should this
tolling language be limited to cases in which the revocation decision is appealed?”
(Ibid.)
In its comments to the proposed amendment to section 1203.2(a), the Assembly
Committee on Criminal Justice explained that the due process “principles of Morrissey
[v. Brewer (1972) 408 U.S. 471, 480] and [People v.] Vickers [(1972) 8 Cal.3d 451, 458]
apply to revocation of probation hearings. The probationer must be afforded the
opportunity to confront adverse witnesses and to present testimony. However, there may
be a „summary‟ revocation by the court with later allowance for the full hearing. Section
1203.2 deals with the revocation of probation procedure. However, it does not provide
for the „summary‟ revocation as is required in decisional law. Should this section be
amended to provide more detail?” (Assem. Com. on Criminal Justice, analysis of Sen.

16
Bill No. 426 (1977-1978 Reg. Sess.) as amended May 19, 1977.)
Because the Legislature was concerned with both the jurisdictional problem that
was created by the holdings in Andre and Amsbary and the situation in which a defendant
does not return to court after summary revocation until after the expiration of probation,
the tolling provision adopted by the Legislature ultimately did not contain language
specifically limiting it to the appellate situation identified above. However, nothing in
the language adopted suggests it was meant to address anything beyond the court‟s
retention of jurisdiction to address violations of probation that had occurred during the
probationary term. This is consistent with the description of the bill as “basically a
cleanup measure” in the enrolled bill report submitted to the Governor. (Enrolled Bill
Report, supra, Aug. 16, 1977.)
A review of the amendments to section 1203.2 from the time it was added to the
Penal Code in 1935 until the 1977 amendment at issue here provides further support for
our conclusion that the tolling provision was focused on preserving jurisdiction, and not
on extending indefinitely the terms and conditions of probation until a formal probation
violation hearing could be held. Those amendments consistently reflect the Legislature‟s
concern with continuing and broadening the court‟s jurisdiction to resolve issues
regarding a defendant‟s noncompliance, during the term of probation, with the terms and
conditions of probation, as well as providing statutory procedures for the exercise of such
jurisdiction. As discussed above, the Legislature in 1957 expanded the authority of the
court to grant probation after expiration of the probationary term. (Former § 1203.2;
Stats. 1957, ch. 331, § 1, p. 970.) In 1969, the Legislature added the option of a
commitment to the Youth Authority upon revocation and termination of probation.
(Former § 1203.2; Stats. 1969, ch. 785, § 1, p. 1602.) In 1970, the Legislature divided
section 1203.2 into its five subdivisions and added procedures for a motion or petition to
modify, revoke or terminate probation. (Former § 1203.2, subds. (a)-(e); Stats. 1970, ch.
333, § 1, pp. 729-730.) In 1976, the Legislature added a requirement for the service of

17
the motion or petition on the district attorney and a procedure for a probationer to agree
to a modification or termination of a specific term of probation. (Former § 1203.2, subd.
(b); Stats. 1976, ch. 287, § 1, pp. 596-597.) The amendments to section 1203.2 support
our conclusion that the legislative intent in enacting the tolling provision in 1977 was
directed at preserving the trial court‟s jurisdiction.
As noted above, the enrolled bill report submitted to the Governor by the Secretary
of Legal Affairs stated that the bill was “basically a cleanup measure”; the report
additionally noted that “[t]he State Public Defender has no objection.” (Enrolled Bill
Report, supra, Aug. 16, 1977.) As Justice Epstein appropriately commented in his
dissenting opinion in the Court of Appeal, “If the tolling provision had the literal
meaning now claimed for it by the majority, it would have been far more than a mere
cleanup measure, and would most certainly have been opposed by the State Public
Defender.”
Nothing in the legislative history suggests the Legislature intended to permit the
trial court to find a violation of probation based on conduct that occurred after the
probationary period had expired. Instead, the legislative history reveals that the tolling
provision was enacted to preserve the trial court‟s authority to hold a formal probation
violation hearing at a time after probation would have expired with regard to a violation
that was alleged to have occurred during the probationary period.
3. Statutory Objectives and Public Policy
Because the statutory language is unclear or contains a latent ambiguity, we “may
also consider the “ „ostensible objects to be achieved‟ ” by the statute as well as the
relevant public policy considerations. (In re M.M. (2012) 54 Cal.4th 530, 536.) Those
objectives and public policy considerations support our conclusion.
Shortly before the Legislature considered Senate Bill 426, a Court of Appeal
rejected a defendant‟s contention that it was improper to summarily revoke probation ex
parte on the last day before the probationary period expired to “preserve jurisdiction

18
when the probationary term would otherwise expire during the period of time necessary
to hold Morrissey hearings” on violations alleged to have occurred during the
probationary term. (People v. Journey (1976) 58 Cal.App.3d 24, 27.) In considering
whether to adopt Senate Bill 426, the Legislature indicated its awareness that the due
process rights set forth in Morrissey and Vickers apply to revocation of probation
proceedings.
Therefore, in the context of a summary revocation, it is reasonable to conclude
that the Legislature intended to reemphasize the following objectives by enacting the
tolling provision. First, the provision would ensure that, once probation was summarily
revoked, the prosecution would have a fair opportunity to prove that a defendant violated
probation during the probationary period even when a formal probation violation hearing
could not be held before probation expired. Second, the provision would ensure a
defendant‟s due process right to a formal hearing in which to litigate the validity of an
allegation that he violated the conditions of probation during the probationary period
whenever such a formal hearing could be held.
In light of these ostensible objectives, we conclude summary revocation of
probation preserves the trial court‟s authority to adjudicate a claim that the defendant
violated a condition of probation during the probationary period. As noted, the purpose
of the formal proceedings “is not to revoke probation, as the revocation has occurred as a
matter of law; rather, the purpose is to give the defendant an opportunity to require the
prosecution to prove the alleged violation occurred and justifies revocation.” (People v.
Clark, supra, 51 Cal.App.4th at p. 581, italics added.) We therefore agree with the court
in Tapia that “the [authority] retained by the court is to decide whether there has been a
violation during the period of probation and, if so, whether to reinstate or terminate
probation.” (Tapia, supra, 91 Cal.App.4th at pp. 741-742.)5 Accordingly, a trial court

5 In People v. Wagner (2009) 45 Cal.4th 1039, 1061, footnote 10, we disapproved
language “to the contrary” in Tapia, supra, 91 Cal.App.4th 738, that could be

19
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.” (Tapia, supra, 91 Cal.App.4th at p. 741.) This result
fairly gives the defendant, if he prevails at the formal violation hearing, the benefit of the
finding that there was no violation of probation during the probationary period.6
On the other hand, if the prosecution, at the formal violation hearing held after
probation normally would have expired, is able to prove that the defendant did violate
probation before the expiration of the probationary period, a new term of probation may
be imposed by virtue of section 1203.2, subdivision (e), and section 1203.3. This result
fairly gives the prosecution, if it prevails at the formal violation hearing, the benefit of the
finding that there was a violation of probation during the probationary period.

misconstrued as inconsistent with our discussion of the issues raised in that case.
However, we did not disapprove Tapia in its entirety. The context in which footnote 10
appears is one in which the defendant was not subject to the conditions of probation twice
for the number of days between summary revocation and the formal violation hearing
because he was in prison during some of the probationary period. The case involved a
formal revocation based on a proven probation violation, namely, the commission of a
new crime that resulted in the defendant being sentenced to state prison. In such a
situation, the conditions of probation, as well as the jurisdiction of the probationary court,
abated or were tolled, because, as we noted in Wagner, “ „the trial court‟s probationary
jurisdiction did not survive the commitment of [defendant] into the custody of the
executive branch for incarceration.‟ ” (Wagner, supra, 45 Cal.4th at p. 1061.) Footnote
10 in Wagner was intended only to disapprove dicta in Tapia, supra, at the top of page
741, that the period of revocation always can be counted in calculating the expiration of
probation. Tapia‟s analysis of section 1203.2(a)‟s tolling language remains sound.

6 We note that here, although the trial court had ordered defendant to make
restitution to his victims when it suspended imposition of sentence and imposed a three-
year period of probation, the prosecution never alleged a probation violation based on
defendant‟s willful failure to pay the full amount of restitution, nor did the prosecution
offer any evidence that defendant had in fact willfully failed to pay the ordered
restitution. Had the prosecutor alleged such a violation, and had the trial court
determined that defendant willfully failed to pay restitution during the probationary
period and that defendant had had the ability to pay at that time, a violation of probation
based on failure to pay restitution could have been found at the formal probation hearing
held on February 13, 2009. (§ 1203.2(a).)

20
 Our construction of the statutory language does not unduly prejudice or benefit
either the prosecution or the defendant. It is reinforced by consideration of the
unreasonable consequences that would flow from a contrary interpretation, such as the
following example provided by Justice Epstein: “Consider a defendant who is placed on
three years‟ probation, which is summarily revoked during this time period for an alleged
but mistaken claim of violation. Twenty years later, the defendant is stopped for a traffic
violation, and a warrant check reveals the bench warrant from the summary revocation.
The basis of the summary revocation is not sound, and there is no proof of any other
probation violation during the three-year probationary period. But if the tolling language
is read as the [People] would read it, the defendant‟s probationary period never ends”
until a formal revocation hearing takes place. As noted above, such an interpretation of
the statutory language is contrary to our statutes that authorize the courts to grant
probation for a period not to exceed a specified time (§§ 1203a, 1203.1) and contrary to
language in section 1203.2 that gives the court authority, when an order setting aside the
judgment or the revocation of probation, or both, is made after the expiration of the
probationary period, to again place the person on probation for the same period of time
“as it could have done immediately following conviction.” (§ 1203.2, subd. (e).)
Summary revocation of probation cannot reasonably give the prosecution the power to
rely on conduct that could occur decades after the expiration of a court-imposed
probationary period, but before a formal revocation proceeding is held, as the sole basis
for a violation. (Tapia, supra, 91 Cal.App.4th at p. 742.) Accordingly, we reject the
interpretation of the provision adopted by the Court of Appeal majority, namely, that
“[s]ince defendant‟s term had not expired because of the tolling provision, he was still
bound by the conditions of probation” indefinitely, until a formal probation violation
hearing could be held.
The Court of Appeal majority opinion expressed concern that, because a
probationer who is deported when released from custody cannot be found to be in willful

21
violation of probation for failing to report to the probation office (People v. Galvan
(2007) 155 Cal.App.4th 978, 984), “a probationer, such as defendant, who is deported,
returns to this country illegally and is not caught until after the original term of probation
expires, could potentially escape from ever having to comply with his or her probation
conditions.” The concern is unfounded. 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. Here, for example,
had the prosecution proved at the February 13, 2009 probation violation hearing that
defendant illegally entered the United States between his deportation in 2000 and April
10, 2003, the trial court properly could have ordered defendant‟s probation reinstated and
extended based on the allegation that he willfully failed to report to the probation
department during the probationary period.
The Attorney General relies on DePaul, supra, 137 Cal.App.3d 409, and Lewis,
supra, 7 Cal.App.4th 1949, to support her position that a defendant whose probation has
been summarily revoked remains indefinitely bound to the conditions of probation until a
formal probation violation hearing is held. Because we conclude that the Legislature
intended the tolling provision in section 1203.2(a) to preserve the trial court‟s jurisdiction
to determine whether a defendant violated probation during the court-imposed period of
probation, we disapprove People v. DePaul, supra, 137 Cal.App.4th 409, to the extent it
suggests a probation violation can be based solely on conduct that occurs after the
expiration of a court-imposed period of probation.7

7 We also disapprove the conclusion of the court in People v. DePaul, supra, 137
Cal.App.3d at page 415, that “if probation is reinstated the period of revocation cannot be
counted in calculating the expiration date.” As discussed above, our conclusion is fair to
the prosecution because, upon proof that a defendant did violate probation before the
expiration of the probationary period, probation may be reinstated or a new term may be
granted. (§§ 1203.2, subd. (e), 1203.3.)

22
 “In the end, a court must adopt the construction most consistent with the apparent
legislative intent and most likely to promote rather than defeat the legislative purpose and
to avoid absurd consequences.” (In re J.W., supra, 29 Cal.4th at p. 213.) Accordingly,
here, we conclude summary revocation operates in conjunction with 1203.2(a)‟s tolling
provision to allow the trial court to retain the authority to adjudicate a claim that the
defendant violated a term of probation during the court-imposed period of probation. “If
the Legislature disagrees with our construction” of Penal Code section 1203.2(a), “we
assume it will act to clarify its intent.” (In re J.W., supra, 29 Cal.4th at p. 213.)

CONCLUSION

The judgments of the Court of Appeal are reversed, and the matters are remanded
to that court for further proceedings consistent with our opinion.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
KENNARD, J.
WERDEGAR, J.
CORRIGAN, J.
LIU, J.

23
 CONCURRING OPINION BY BAXTER, J.

Penal Code former section 1203.2, subdivision (a) (§ 1203.2(a)) provided that a
summary revocation of probation “shall serve to toll the running of the probationary
period.” The majority holds that this provision, not substantively changed under current
law, merely preserved the court‟s authority to adjudicate, in a hearing under Morrissey v.
Brewer (1972) 408 U.S. 471 and People v. Vickers (1972) 8 Cal.3d 451
(Morrissey/Vickers hearing) held after the original imposed term of probation, whether a
summary revocation entered during the original probationary term was validly based on
an actual violation of probation committed during that time. Thus, the majority
concludes, the tolling provision does not permit a court to determine, in a
Morrissey/Vickers hearing following a summary revocation, that the probationer
committed a violation of probation after the originally imposed period of probation had
lapsed. The majority applies this rule to a probationer who (1) was deported in 2001, one
year after he received a three-year probationary term and served a county jail term as a
condition thereof; (2) had his probation summarily revoked in 2001 for failure, while
deported, to report to his probation officer; (3) again failed to so report upon his illegal
reentry into the United States in 2007; and (4) was adjudicated in a 2009
Morrissey/Vickers hearing not to be in willful violation for the 2001 failure. Under these
circumstances, the majority determines, the court could not invoke the 2007 failure as
grounds to reinstate and extend the probationary period.

1
 I am willing to agree, for the reasons expressed in detail by the majority, that this
is the current meaning and import of the tolling provision in section 1203.2(a). But I
believe the majority‟s interpretation, as applied to cases like this one, exposes a
significant issue of public policy which the Legislature may wish to address.
Of primary concern is the fact that a summary revocation left unresolved by the
probationer‟s absence interferes with the supervised form of release that probation is
intended to represent. (See, e.g., §§ 1202.8, subd. (a), 1203, subd. (a).) 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, even if he or she commits no violations in the interim. 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.
But when, after a summary revocation, the probationer is deported or is otherwise
beyond the supervision of the court and the probation department, the supervision
contemplated by the original grant of probation cannot occur. During the probationer‟s
absence, the court cannot hold a Morrissey/Vickers hearing to determine whether the
summary revocation should be confirmed, or whether probation should be reinstated on
the same or modified conditions. By the same token, the court and the probation
authorities have no practical ability to monitor the probationer‟s behavior.
Under these circumstances, the probationer should not be absolved of a portion of
the originally contemplated length of supervised release simply because his or her
absence extended beyond the originally imposed calendar period of probation. On the
contrary, whenever the court regains physical custody over the probationer, the period of
his or her absence should not necessarily be counted in determining whether the
probationary time of supervised release has lapsed. If it has not, the court should retain
full authority, in the interests of justice, and within the limits of the relevant statutory
provisions, to determine what probationary consequences should flow from conduct the

2
probationer has committed in the interim. The current version of section 1203.2(a)
should expressly so recognize.
BAXTER, J.

3
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Leiva
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 193 Cal.App.4th 114
Rehearing Granted

__________________________________________________________________________________

Opinion No. S192176
Date Filed: April 8, 2013
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Barbara M. Scheper

__________________________________________________________________________________

Counsel:

Eric R. Larson, under appointment by the Supreme Court, and Meredith J. Watts, under appointment by the Court
of Appeal, for Defendant and Appellant.

Michael P. Judge, Public Defender, Albert J. Menaster and Karen Nash, Deputy Public Defenders, for the Public
Defender of Los Angeles County as Amicus Curiae for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka and Lance E. Winters, Assistant Attorneys General, Stephanie A. Miyoshi, Kenneth
C. Byrne, David C. Cook and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Eric R. Larson
330 J Street, #609
San Diego, CA 92101
(619) 238-5575

Idan Ivri
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-4991