Opinion
A150934
12-11-2017
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO C. CARO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 17001762)
Following a contested parole revocation hearing, the trial court revoked defendant's parole and sentenced him to 120 days in jail. Defendant contends the trial court was without jurisdiction to revoke his parole status. Because defendant is estopped from asserting the court lacked jurisdiction, we affirm.
I. BACKGROUND
Defendant was sentenced in June 2003 to a seven-year state prison sentence for committing a lewd act on a child under the age of 14 years. (Pen. Code, § 288, subd. (a).) After being paroled, defendant signed a "Notice and Conditions of Parole" form in May 2015 acknowledging enumerated conditions of parole including a no contact with minors clause.
On February 9, 2017, the California Department of Corrections and Rehabilitation filed a petition to revoke defendant's parole after defendant's parole agent was contacted by a San Francisco police sergeant to alert him to defendant's contact on several occasions with a 14-year-old boy at the Van Ness and Powell Muni stations. Defendant on one occasion offered the minor money and stared at him two other times.
San Francisco Municipal Railway (Muni).
Defendant was arraigned on February 10 on the petition. The court did not summarily revoke probation.
On February 16 and 17, the court held a contested probable cause hearing and found probable cause as to the allegations set forth in the petition for revocation of parole. The matter was then continued by the court to March 8, 2017 for an evidentiary revocation hearing. At the conclusion of the contested hearing, the court found defendant in violation of his parole terms, revoked parole, and reinstated defendant on modified parole terms and conditions and imposed a 120-day jail sentence.
Defendant filed a timely appeal.
II. DISCUSSION
Defendant asserts that on March 8, 2017, the date of the contested parole revocation hearing, the trial court lacked jurisdiction to find him in violation of his conditions of parole because his parole expired prior to the hearing on February 27, 2017. We conclude, however, defendant is estopped from challenging the trial court's jurisdiction to revoke his parole because he agreed to setting the parole revocation hearing on March 8.
The Attorney General does not dispute defendant's parole expired on February 27, 2017.
Because the trial court did not summarily revoke defendant's parole, the parole period was not subject to tolling.
Before addressing the application of estoppel to the facts of this case, we must first examine what transpired on February 17, 2017, at the conclusion of the probable cause hearing. After the court found probable cause, a discussion ensued regarding the setting of an evidentiary revocation hearing. The court was mistakenly under the impression a hearing was "required within 45 days of arrest." After being informed 45 days was March 19, the court stated to the deputy public defender, "Ms. Boyce-Smith, you wanted the evidentiary hearing after Ms. Bull returns." Ms. Boyce-Smith responded, "Yes. [¶] Also, the other issue is so that we can have the opportunity to conduct any investigation that we need to as well whether I continue to handle it or goes back to Ms. Bull. So I don't know what the Court's routine is to set it on the regular parole date." The court answered, "I don't have a routine yet. Why don't we set it on March 8 and that way if it needs to be continued because there's additional evidence, it can go over to the 15th or later in the week. [¶] So March 8 at 1:30. Let's try to keep that calendar, the normal calendar, very light that day. [¶] How long do you think the evidentiary hearing is going to take?" The deputy district attorney then gave the court a time estimate. Importantly, the deputy public defender never objected to setting the contested revocation hearing on March 8.
Nonetheless, on March 8, Deputy Public Defender Bull appeared on behalf of defendant and for the first time argued that because defendant's parole discharge date was February 27, 2017, the court was now without jurisdiction to consider the petition to revoke parole. The court indicated it would go forward with the evidentiary hearing to accommodate the witnesses and then hear argument from the parties.
Following argument, the trial court found defendant was estopped from raising lack of jurisdiction because Ms. Boyce-Smith "requested and consented" to the revocation hearing date "specifically for Ms. Bull to return," and she "also stated that there was additional investigation that the defense wanted to do."
Our Supreme Court has addressed the issue presented here in the context of expiration of a term of probation. In People v. Ford (2015) 61 Cal.4th 282 (Ford), the defendant contended the trial court lacked jurisdiction to conduct a restitution hearing because his term of probation, including the condition of restitution, had expired before the hearing date. The court held: "We need not decide whether a trial court retains jurisdiction to modify the amount of restitution once a defendant's term of probation has expired. So long as a court has subject matter jurisdiction—and both parties agree the trial court had it here—then a party seeking or consenting to action beyond the court's power may be estopped from complaining that the resulting action exceeds a court's jurisdiction. [Citation.] By agreeing to a continuance of the restitution hearing to a date after his probationary term expired, defendant impliedly gave his consent to the court's continued exercise of jurisdiction. He is therefore estopped from challenging it." (Id. at pp. 284-285.)
Ford is controlling here. Defendant does not assert the trial court lacked subject matter jurisdiction. Indeed, we must conclude the trial court did have subject matter jurisdiction. (Ford, supra, 61 Cal.4th at pp. 286-287 [a trial court "lacks jurisdiction in a fundamental sense when it has no authority at all over the subject matter," and "it is well settled that the expiration of a probationary period does not terminate a court's fundamental jurisdiction"]; see In re Bakke (1986) 42 Cal.3d 84, 89 [neither the probation statutes nor the cases applying them support a holding that expiration of the probationary period terminates the court's jurisdiction of the subject matter].)
Moreover, like Ford, defendant here consented to setting the parole revocation hearing to a date after his parole term expired. Defendant's counsel, Ms. Boyce-Smith, indicated to the court she wanted an evidentiary hearing set after Ms. Bull returned, and she needed the opportunity to conduct an investigation and to determine whether she or Ms. Bull would handle the case.
Though as defendant argues, he did not specifically request a later date or ask for a continuance past the hearing date, we find even if he did not expressly consent, he did impliedly consent to the March 8 hearing date by failing to object. Our conclusion finds support in Ford in which the defendant did not seek a continuance, but the court nevertheless determined estoppel "can also apply to a party who merely consents to a continuance to a date beyond the court's ordinary authority to act." (Ford, supra, 61 Cal.4th at p. 288.) The court also noted that a "failure to object can constitute implied consent to an act in excess of the court's jurisdiction." (Ibid.)
Defendant also asserts a finding of estoppel would be contrary to statutory authority and procedural guidelines and result in prejudice to defendant. Because defendant has failed to cite to any authority in support of this assertion, we reject it. --------
Defendant therefore is estopped from challenging the trial court's jurisdiction because he consented to the setting of a date beyond the expiration of his parole term.
The judgment is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.