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Name: People v. Leiva
Case #: B214397
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 03/01/2011
Subsequent History: 6/15/11 rev. granted (S192176)
Summary

A summary revocation of probation suspends the running of the probation term in all cases not only in those cases in which it is subsequently proven that a probationer violated the terms of probation during the original probationary term. In April 2000, the court placed appellant on probation for three years. This case involves the tolling provision in Penal Code section 1203.2, subdivision (a), which states in pertinent part, “The revocation, summary or otherwise, shall serve to toll the running of the probationary period.” In 2001, the court summarily revoked probation because appellant failed to report to the probation officer. He appeared in court again in 2008. At a revocation hearing in 2009 appellant explained he was deported after his release in 2001 and only returned to the country in 2007. The court found appellant violated his probation by failing to report after his return in 2007. Defense counsel had argued that by that time, the three-year probation term had expired by operation of law. Relying on People v. Tapia (2001) 91 Cal.App.4th 738, which had facts “virtually identical to those in the present case”, appellant argued on appeal that the court lacked jurisdiction to revoke probation because the probationary term had already expired. The Tapia court held that unless a probation violation during the original probationary term is proven, then a summary revocation of probation will not have suspended the running of the probation term and will not permit its extension. This court rejected Tapia’s interpretation of the tolling provision finding it unsupported by the statutory language. If Legislature had so intended, then the statute would read: The revocation, summary or otherwise, shall serve to toll … the probationary period, if, and only if, it is proven that the probationer violated the terms of probation during the period of the original probationary term. The trial court did have jurisdiction.