Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Super. Ct. No. 03CF2640, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6.) Petition granted.
Joshua C. Needle for Petitioner.
Tony Rackauckas, District Attorney, and Craig McKinnon, Deputy District Attorney, for Real Party in Interest.
OPINION
IKOLA, J.
Juan Carlos Cortez Lozado, deported to Mexico in 2004 following a brief jail term in Orange County, petitions for a writ of mandate, directed to the trial court, to set aside its October 2008 denial of Lozado’s motion requesting the court to: (1) vacate its prior summary revocation of probation; (2) recall and quash a previously issued “‘probation violation [and] arrest warrant’”; and (3) terminate Lozado’s probation. We grant the petition. Lozado’s deportation to Mexico prevented him from complying with the terms of probation which were a part of his 2003 criminal conviction. The trial court abused its discretion in refusing to provide the relief requested. (See People v. Galvan (2007) 155 Cal.App.4th 978, 984-985 (Galvan) [failure to comply with probation reporting condition due to deportation is not willful and therefore it is an abuse of discretion to revoke probation on that basis].)
FACTS
Lozado pleaded guilty in 2003 to various crimes relating to his possession with intent to sell stolen prescription drugs. Following acceptance of the plea agreement, the court suspended imposition of sentence and placed Lozado on three years formal probation on conditions, inter alia, that he spend 180 days in the Orange County jail and that he “report to probation officer within 72 hours of [his] release [date].” The probation department executed a warrant declaration on February 5, 2004, which stated: “[Lozado] was ordered by the Court to report to the probation officer within 72 hours of release from Orange County Jail. He was released on January 10, 2004 to Immigration and Naturalization Service but failed to report as directed.” Federal immigration authorities deported Lozado to Mexico after he entered their custody.
Despite knowing Lozado had been delivered to federal authorities for deportation, the probation department sought relief from the court based on Lozado’s failure to report following his release. On March 1, 2004, after reviewing documentation submitted by the probation department, the court ordered Lozado’s probation “‘revoked’” and issued an arrest warrant.
There is no indication in the record that Lozado has ever returned to the United States since his deportation. In 2008, Lozado filed a motion through counsel seeking an order to set aside the court’s revocation of probation nunc pro tunc, recall and quash the arrest warrant issued in his name, and terminate probation. Lozado’s efforts to legally emigrate to Canada are being stymied by the outstanding arrest warrant issued by the court.
The court denied Lozado’s motion, stating: “You are right in one respect: No illegal alien should ever be placed on probation when the authorities know that they are going to be deported and can’t comply with the terms of probation, and everyone should go to prison and serve a term and be deported.... [¶] Now, not having surrendered your client, your relief is denied.” In essence, it appears the court refused to reach the merits of Lozado’s motion on the grounds Lozado had not personally appeared and because the court believed Lozado should have received a prison term rather than probation.
DISCUSSION
Lozado claims the court should not have summarily revoked his probation and issued a bench warrant for his arrest in March of 2004. He further claims the court below should have granted his motion to set aside the prior erroneous ruling.
A court “may revoke and terminate... 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 such offenses, regardless whether he or she has been prosecuted for such offenses.” (Pen. Code § 1203.2, subd. (a).) A summary revocation of probation, as occurred in this case, tolls the running of the probationary period so a court can later conduct a formal disposition proceeding (i.e., provide the probationer with the opportunity to answer the probation officer’s allegations and determine whether probation should be revoked). (Ibid. [“The revocation, summary or otherwise, shall serve to toll the running of the probationary period”]; see People v. Mosley (1988) 198 Cal.App.3d 1167, 1173-1175.) A revocation of probation may be “set aside for good cause” shown by the probationer. (§ 1203.2, subd. (e).)
All further statutory references are to the Penal Code.
Neither party discusses in their respective briefs whether Lozado’s motion was timely under section 1203.2, subdivision (e). We therefore assume without deciding that Lozado’s motion was timely.
Our review is guided by Galvan, supra, 155 Cal.App.4th 978, and People v. Tapia (2001) 91 Cal.App.4th 738 (Tapia). In Tapia, the defendant Tapia was deported to Mexico in late 1996, after serving time in county jail pursuant to a suspended sentence and grant of formal probation. (Tapia, at pp. 739-740.) His probation term ran through July 1999, and included the following relevant terms: He should report to the probation department “‘within 24 hours of [his] release’; if he left the Country, he was not to re-enter illegally; if he did return, he was ‘to report to the probation officer within 24 hours of [his] return and present documentation that [he was] in the Country legally.’” (Id. at p. 740.) In 1997, the court summarily revoked Tapia’s probation based on his failure to report to the probation department. (Ibid.) Tapia was arrested in California in September 2000; at a formal disposition hearing, Tapia admitted he had not reported to his probation officer within 24 hours of returning to the United States. (Ibid.) The trial court revoked Tapia’s probation, then reinstated and extended his probation term. (Ibid.)
The Tapia appellate court reversed. (Tapia, supra, 91 Cal.App.4th at pp. 740-742.) The only evidence in the record supporting revocation was that Tapia had failed to report within 24 hours of entering the country; the prosecution did not present evidence to prove its allegations that Tapia had failed to report to the probation department within 24 hours of his release from custody in 1996 or that he had entered the country illegally prior to July 1999. (Ibid.) Thus, no violation of probation during the term of probation was proven. Tapia’s probation expired in July 1999 and the summary revocation order finding Tapia to be in violation of probation was deemed void. (Id. at p. 742.) The Tapia court did not explicitly address the question of whether it was a violation of Tapia’s probation for him to fail to report to the probation officer within 24 hours of his release when he was in fact delivered to federal authorities and deported. But the Tapia court did explain and emphasize the purpose of the summary revocation proceeding (and concomitant issuance of a bench warrant) that was utilized in Tapia and the case before us: It is a device to bring the defendant before the court to determine whether a probation violation has occurred, and not a final determination of whether it was proper to revoke probation. (Id. at p. 741.)
In Galvan, the court suspended execution of sentence and placed defendant Galvan on probation, which included 365 days in county jail. (Galvan, supra, 155 Cal.App.4th at p. 980.) One of Galvan’s probation conditions was to contact a probation officer within 24 hours of his release from custody. (Id. at pp. 980-981.) Galvan was deported to Mexico following his release from jail. (Id. at p. 981.) Galvan never reported to a probation officer. (Ibid.) The court issued a bench warrant for the arrest of Galvan based on his failure to appear for a probation hearing. (Ibid.) The next year, Galvan was arrested in the United States and the court revoked his probation and sentenced him to prison on the underlying offenses. (Ibid.)
The Galvan appellate court reversed. (Galvan, supra, 155 Cal.App.4th at pp. 982-985.) It explained that a trial court’s decision to revoke probation is discretionary, but must be based on evidence supporting a conclusion that the probationer’s conduct constituted a willful violation of the terms and conditions of probation. (Id. at p. 982.) The trial court abused its discretion in revoking probation because Galvan’s immediate deportation to Mexico precluded him from reporting to the probation officer within 24 hours of his release from state custody and because the record was devoid of evidence establishing a separate probation violation. (Id. at 983-984.) “We believe a reasonable person in Galvan’s position would have understood [his reporting obligations] to require a personal appearance before the probation officer.... Galvan’s deportation obviously prevented him from reporting in person. We also believe a reasonable person in Galvan’s position would have assumed that, in these circumstances, the 24-hour reporting requirement would be excused.” (Id. at p. 985.)
Turning to the case before us, we conclude Lozado is entitled to the relief he seeks in his petition. The facts presented in this action are nearly identical to those presented in the Galvan and Tapia cases. The sole difference is the procedural posture of the various cases. In Galvan and Tapia, the defendants had been arrested after returning to the United States and appealed punishments they received as a result of their alleged probation violations. Here, Lozado has not returned to the United States, and proactively seeks relief from outside of the country in order to clear his name. The court, deeming Lozado a “fugitive,” refused to even consider granting relief. But the court’s conclusion assumes the issue that must be decided — in other words, Lozado is only a “fugitive” if he violated the terms of his probation.
The People suggest section 977, subdivision (b)(1), requires Lozado to personally appear in court to receive the relief requested in his motion. Section 977, subdivision (b)(1), requires “the accused” to “be present” in “all cases in which a felony is charged” at the “preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence[,]” as well as “all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present....” But this statutory provision protects the rights of the defendant, by requiring his or her presence at all stages of felony proceedings absent a written waiver by defendant. It would be unfair and contrary to the purpose of section 977, subdivision (b)(1), to apply it to a deported individual’s attempt from his native country to set aside an improperly granted summary revocation of probation and the bench warrant accompanying it. Case law authorizes courts to summarily revoke probation in the absence of the defendant to facilitate the defendant’s appearance (through his arrest on a bench warrant) at a formal hearing on the issue of probation revocation. (See People v. Vickers (1972) 8 Cal.3d 451, 458-461.) If a summary revocation of probation can occur in the absence of the defendant (despite section 977, subdivision (b)(1)), it follows that the summary revocation can be undone in the absence of the defendant.
The People also point to section 1203.2, subdivision (b), which allows a probationer to waive his or her right to personally appear at a hearing to modify, revoke, or terminate the probation if he or she consents “in writing to the specific terms of the modification or termination of a specific term of probation.” Although Lozado’s motion clearly provides written confirmation of his agreement (as expressed by his attorney) to the relief requested, the People quibble with the lack of a written “waiver” executed by Lozado in the record. But even if section 1203.2, subdivision (b), requires the probationer’s personal agreement in writing for modifications or terminations proposed by the court, a probation officer, or the district attorney, it would be absurd to apply this requirement to the motion brought by Lozado in this case to reverse a prior summary revocation of probation. Indeed, section 1203.2, subdivision (e), which specifically authorizes motions to set aside revocation of probation, does not require the probationer to execute and file a waiver of the right to personally appear in court. We reject the proposition that Lozado was required to personally appear in court or execute a waiver to seek relief in the circumstances presented.
Lozado describes the court’s demand that he appear personally as a “‘catch-22.’” Lozado’s characterization is accurate. Had Lozado returned to California, he would have been in violation of federal immigration law and (if he had returned prior to the end of his probation term) the conditions of his probation, which require him to comply with all laws. Thus, by the court’s logic, Lozado could only challenge summary revocation of his probation by violating his probation (thereby providing new justification for revocation of probation).
The phrase “catch-22” was coined in a novel of the same name by Joseph Heller. The novel is a satire of bureaucratic irrationality (among other things), which follows the efforts of a World War II bombardier named Yossarian to avoid participation in additional bombing missions. The actual “catch-22” in the novel “Catch-22” was explained by a medical officer to Yossarian. The medical officer indicated that military rules required an insane airman (such as Yossarian’s friend Orr, a pilot) to be grounded if that insane airman asks to be grounded. “There was only one catch and that was Catch-22, which specified that a concern for one’s own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane he had to fly them. If he flew them he was crazy and didn’t have to; but if he didn’t want to he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.” (See People v. Broome (1988) 201 Cal.App.3d 1479, 1489, fn. 2.)
The People do not defend the rationality of a rule denying relief to Lozado based on his failure to appear personally, but instead propose Lozado must accept this irrationality because of his previous wrongdoing: “Any ‘conundrum’ is solely the making of petitioner by a series of his own voluntary actions. Petitioner voluntarily illegally entered the United States. Petitioner chose to commit felony crimes including possession of narcotics for sale that carried a maximum sentence of over five years imprisonment. Petitioner voluntarily entered into a plea bargain in which he avoided a potential five-year prison sentence. He agreed upon a probationary sentence that included notification that his guilty plea would result in his deportation following the completion of the six-month jail confinement condition. Upon petitioner’s deportation he chose not to contact the probation department by telephone or mail to advise them of his whereabouts. The fact that petitioner now suffers a collateral consequence of not being allowed to obtain permanent residence in Canada does not outweigh the events that petitioner brought upon himself.”
We reject the principles espoused by the People in their brief. Lozado served his prescribed time in the county jail and did not willfully violate the terms of his probation. His past conduct is irrelevant to the legal issue before us. We also disapprove of the court’s statement in which it expressed its frustration that Lozado had not served a prison term before being handed over to federal authorities to be deported. The question presented is not whether Lozado deserved the sentence he received in 2003, or whether any illegal immigrant should escape prison time for the commission of a felony. Instead, the question presented is whether Lozado willfully violated the terms of his probation and, if not, whether he is entitled to the relief requested in his motion. Under Galvan, supra, 155 Cal.App.4th at pages 982-985, Lozado did not willfully violate the terms of his probation and he is therefore entitled to the relief he requests.
DISPOSITION
We issue a writ of mandate directed to the Orange County Superior Court, directing it to vacate and set aside its ruling of October 7, 2008, which denied Lozado’s motion for relief, and to enter orders granting the relief requested by Lozado, namely: (1) set aside the court’s prior revocation of probation; (2) recall and quash a previously issued “probation violation and arrest warrant”; and (3) terminate Lozado’s probation.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.