Opinion
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106 Cal.App.4th 653e ___Cal.Rptr.2d___ In re DAVID NISSAN MEHDIZADEH on Habeas Corpus. B161117 California Court of Appeal, Second District, Seventh Division February 27, 2003[Modification of opinion (105 Cal.App.4th 995; 130 Cal.Rptr.2d 98) on denial of petition for rehearing.]
This modification requires editorial changes to headnotes (1a-1c) and (3) of the advance report. Headnote (1a-1c) will be renumbered (1a-1d) and headnote (3) will be renumbered (4). A new headnote (3) will be added on page 996. This modification also requires the movement of text affecting pages 997-1007 of the bound volume report.
OPINION
Before Perluss, P. J., Johnson, J., and Woods, J.
The opinion filed January 29, 2003, is modified as follows:
(1) On page 7, in second full paragraph [105 Cal.App.4th 1001, advance report, 2d full par.], consisting of one sentence, change the word "three" to "four."
(2) On page 9, following the first full paragraph [105 Cal.App.4th 1002, advance report, last par.], insert the following new paragraph and footnotes and renumber succeeding
In a related vein, the People contend the trial court must be able to summarily revoke probation, when there is probable cause to believe a drug-related condition of probation has been violated, in order to toll the probation period and maintain jurisdiction over a defendant whose probationary term is about to expire. We acknowledge a case occasionally may arise where a defendant whose probation time is almost up stops testing or tests positive and there is a danger the probation period may run out before a formal revocation proceeding can be held. We do not believe, however, summary revocation of probation is the only means available to avert this unintended result. Rather, in such a case the trial court could temporarily suspend the defendant's probation under its inherent power to preserve its jurisdiction. The inherent power of a court to act "to secure or preserve the fruits and advantages of a judgment or decree rendered therein, is well
See People v. Tapia (2001) 91 Cal.App.4th 738, 741 [110 Cal.Rptr. 2d 747]; People v. DePaul (1982 137 Cal.App.3d 409, 412-413 [187 Cal.Rptr. 82].
See Code of Civil Procedure section 128, subdivision (a) (5); People ex rel. S. F. Bay etc. Com. v. Town of Emeryville (1968) 69 Cal.2d 533, 538 [72 Cal.Rptr. 790].
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settled." We emphasize such a temporary suspension of probation may be used only to preserve the trial court's jurisdiction pending a formal revocation proceeding, not as a means to incarcerate the probationer for a first time drug-related probation violation.
Local Loan Co. v. Hunt (1934) 292 U.S. 234, 239 [54 S.Ct. 695, 78 L.Ed. 1230].
(3) On page 10, at line 11 of the first full paragraph [105 Cal.App.4th 1003, advance report, 3d par., line 13], insert the following footnote at the conclusion of the sentence ending with the word "others" and renumber the succeeding
21We note at one time a bill to amend section 1210.1 contained this very language. (Sen. Bill No. 223, § 3 (2001-2002 Reg. Sess.) as amended Apr. 5, 2001.) The language was subsequently dropped from the bill and was not included in the chaptered version. (Sen. Bill No. 223, § 3 (2001-2002 Reg. Sess.) as amended May 15, 2001; Stats. 2001, ch. 721, § 3.) "The rejection of a specific provision contained in an act as originally introduced is 'most persuasive' that the act should not be interpreted to include what was left out...." (Wilson v. City of Laguna Beach (1992) 6 Cal.App.4th 543, 555 [7 Cal.Rptr.2d 848], citations omitted.) The legislative history of Senate Bill No. 223 is less persuasive, however. Proposition 36 was the "original act" and there is no evidence the "only if" language was ever included in a draft of Proposition 36 itself. Senate Bill No. 223 was a legislative attempt to clarify some of the provisions of Proposition 36 and even so the "only if" language was not part of the bill as originally introduced. It appeared in an amendment to the bill one month and the next month it was gone. Under these circumstances we find the legislative history of Senate Bill No. 223 to be of little value in interpreting the provisions of section 1210.1.
These modifications do not constitute a change in the judgment.
The petition for rehearing is denied.