Opinion
A152942
06-13-2018
THE PEOPLE, Plaintiff and Respondent, v. VANESSA McCOY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR303305)
Defendant Vanessa McCoy was placed on probation for three years after pleading no contest to one felony count of causing injury while driving with a blood alcohol content of .08 percent or more and admitting the allegation that she caused bodily injury to more than one victim. More than three years later, the trial court extended probation, believing that an intervening six-week period when it was revoked did not count as part of the three-year term. On appeal, McCoy claims, and the Attorney General concedes, that the court lacked jurisdiction to extend probation because the three-year term had expired. We agree and direct the court to discharge McCoy from probation.
The conviction was under Vehicle Code section 23153, subdivision (b), and the multiple-victim admission was under Vehicle Code section 23558.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The facts underlying the offense are not relevant to the issues on appeal. On July 31, 2014, McCoy entered her no contest plea. The trial court suspended imposition of the sentence and placed her on formal probation for three years, subject to various terms and conditions.
Over the next few years, McCoy's probation was revoked and reinstated four times: in the fall of 2014, based on an alleged violation that was later dismissed; in early 2015, based on an alleged violation McCoy never admitted or denied; in mid-2015, based on a violation she admitted; and in early 2016, based on an alleged violation that was later dismissed. As to the mid-2015 instance, the trial court revoked probation on June 22, and then reinstated it on the "same terms and conditions" six weeks later, on August 3.
Probation was originally set to expire on July 31, 2017. Shortly after that date, however, the probation department asked the trial court to extend probation for two years so that McCoy could pay off a balance of a few thousand dollars in outstanding fines and fees. In doing so, the department took the position that probation would not expire until September 11. At the August 14 hearing on the department's request, McCoy argued that the court lacked jurisdiction to extend probation because the probation period had already expired. The court disagreed, finding that the six-week revocation in mid-2015 had "extended . . . probation even though it continues to be a three-year probation when probation was revoked." The court then extended probation until September 11, 2019.
On September 19, 2017, McCoy filed a written motion to dismiss her probation on the same grounds she had raised at the hearing the previous month. At the October 25 hearing on the motion, the prosecutor stated he was "actually fine with whatever the Court does" because McCoy had "in [his] mind completed probation successfully." The trial court denied the motion, stating that it did not want "to set a bad precedent."
II.
DISCUSSION
A. McCoy Filed a Timely Notice of Appeal from the October 25, 2017 Order.
We begin by addressing whether we have jurisdiction over the appeal. (See People v. Zarazua (2009) 179 Cal.App.4th 1054, 1062 [noting "appellate court's inherent authority to determine, on its own motion, whether it has jurisdiction in a case"].) On November 8, 2017, McCoy filed a notice of appeal from the trial court's "order modifying probation over defense objection" dated September 19 (in fact, this was the date she filed her motion to dismiss). We granted her unopposed motion to construe the notice of appeal to include the October 25, 2017 order denying her motion to dismiss.
The parties agree that McCoy did not timely appeal from the August 14, 2017 order extending probation. McCoy argues that she can nevertheless challenge the extension of probation in this timely appeal from the October 25 order because her continued probation constitutes an unauthorized sentence, which "is subject to judicial correction whenever the error comes to the attention of the reviewing court." (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.) While the Attorney General agrees that we can consider the appeal because the sentence is unauthorized, he contends that the notice of appeal was untimely.
We disagree with the Attorney General on the timeliness of the notice of appeal. We have construed the appeal to be from the October 25, not the August 14, order, and that order is an appealable one. (People v. Romero (1991) 235 Cal.App.3d 1423, 1424-1426 [order denying motion to terminate probation]; see also Pen. Code, § 1237.) In addition, we agree with the parties that despite failing to appeal from the August 14 order, McCoy did not waive her argument that her probation had expired and could not be extended. Therefore, we have jurisdiction over this appeal, and we proceed to address the merits of her claim.
All further statutory references are to the Penal Code.
B. The Period of Revocation Did Not Extend the Probation Period.
McCoy claims that her three-year probation term was not extended by the six-week-long revocation of her probation in mid-2015, and the trial court therefore did not have jurisdiction to extend the term after it expired on July 31, 2017. We accept the Attorney General's concession that the term expired on that date.
Under section 1203.2, subdivision (a) (section 1203.2(a)), a trial court "may revoke and terminate . . . [probation] if the interests of justice so require, and the court . . . has reason to believe . . . that the person has violated any of the conditions of his or her supervision. . . . The revocation, summary or otherwise, shall serve to toll the running of the period of supervision."
In People v. Leiva (2013) 56 Cal.4th 498 (Leiva), the Supreme Court addressed whether section 1203.2(a)'s tolling provision permitted the trial court to find the defendant had violated probation based on an act committed while probation was summarily revoked but after the probationary period had expired. (Leiva, at pp. 502-503.) The Supreme Court rejected the People's position that the word "toll" in section 1203.2(a) means "extend," so that probation "continue[s] indefinitely from the time of summary revocation until the defendant is brought before the [trial] court for a formal revocation hearing." (Leiva, at p. 507.) Noting that " '[a] change in circumstances is required before a court has jurisdiction to extend or otherwise modify probation,' " the Supreme Court held that the tolling provision merely "allow[s] 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." (Id. at pp. 505, 518, italics omitted.)
"Although the central issue in Leiva involved an attempt to establish a probation violation that occurred after the court-imposed probationary period had elapsed, the reasoning of Leiva extends further in recognizing that tolling following summary revocation is a procedural mechanism for preserving the [trial] court's jurisdiction to adjudicate whether a probation violation has occurred during the previously imposed probationary period[,] . . . not a mechanism for extending that probationary period beyond its statutory time limits." (People v. Sem (2014) 229 Cal.App.4th 1176, 1192.) Indeed, in a footnote, Leiva disapproved "the conclusion of the court in People v. DePaul [(1982)] 137 Cal.App.3d [409, 415], that 'if probation is reinstated the period of revocation cannot be counted in calculating the expiration date.' " (Leiva, supra, 56 Cal.4th at p. 518, fn. 7.) In other words, when probation is reinstated, the period during which it was revoked counts toward, and does not extend, the original term.
Footnote 7 of Leiva is dispositive here. As the Attorney General points out, after revoking probation in June 2015, the trial court reinstated it on the same terms and conditions six weeks later. Therefore, under Leiva, this six-week period did count toward the three-year term, and McCoy's probation expired before the court purported to extend it.
III.
DISPOSITION
The October 25, 2017 order denying McCoy's motion to dismiss is reversed. On remand, the trial court is directed to discharge McCoy from probation.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.