PEOPLE v. LEIVA

Appellant's Petition for Review

Cal.April 12, 2011

SUPREME COURT OF THE STATE OF CALIFORNIA Crim. THE PEOPLE OF THE STATE OF CALIFORNIA, No. B214397 (Los Angeles Co. Superior Ct PA035556) Plaintiff and Respondent, Vv. JOSE LEIVA, Defendant and Appellant. N e e e e e e e e e e e e e e e e e e e e e my ben wr es ae ater) 4 .-000- mrecence K, Chinen Clerk Deouty APPELLANT'S PETITION FOR REVIEW : HONORABLE BARBARA M. SCHEPER, JUDGE, PRESIDING LOS ANGELES COUNTY SUPERIOR COURT MEREDITH J. WATTS, #78520 Attorney at Law P.O. Box 14346 San Francisco, CA 94114 (415) 252-0170 WattsLaw@gmail.com Attorney for Appellant JOSE LEIVA, (By appointmentof the Court of Appeal) TABLE OF CONTENTS Pages PETITION FOR REVIEW . . . Lo . 1 NECESSITY FOR REVIEW . . . . . . 2 QUESTIONS PRESENTED . . . ; . 3 STATEMENT OF THE CASE AND FACTS . . ; 5 A. Introduction. . . . . . . 5 B. Procedural outline . . . . 5 C. The appellate court Majority’s opinion on the primary issue regarding “endlesstolling,” in which it disagrees with Tapia and the Dissent. 10 D. Presiding Justice Norman Epstein’s Dissent, disputing the Majority’s “endlesstolling” interpretation. . . . . . . 13 ARGUMENT . . . . ; . , . 17 I. THE DISSENT HAS THE BETTER ARGUMENTIN THIS CASE: PEOPLE V. TAPIA WAS CORRECTLY DECIDED AND THE TRIAL COURT LACKED JURISDICTION HERE TO FIND A FORMAL VIOLATION OF PROBATION, FOR AN ACTION THAT TOOK PLACE OUTSIDE THE ORIGINAL PROBATIONARY PERIOD _. . . 17 A. Appellant references and adopts the Dissent’s reasoningin toto. . . . . . 17 B. The Majority misunderstood People v. Lewis. . 17 il C. Application to the case at hand: the prosecutor proved nowillful violation during the original term of probation, and therefore the courts had no jurisdiction to readmit appellant or send him to prison in 2009. . . . ° 21 Il. ITWASA VIOLATION OF APPELLANT’S RIGHTS TO DUE PROCESS UNDER MORRISSEY, GAGNON, AND BLACK TO REVOKE HIS PROBATION BASED ON AN ADMISSION REPORTED BY THE PROBATION OFFICER, UNSUPPORTED BY TESTIMONY OR OTHER EVIDENCE _. . . . . 29 I]. THE TESTIMONY OFFERED BY A DEPORTATION OFFICER BASED ON I.C.E. DOCUMENTS PRODUCEDFOR THIS HEARING VIOLATED APPELLANT’S FOURTEENTH AMEND- MENT DUE PROCESS RIGHTS TO CONFRONT AND CROSS- EXAMINE WITNESSES AGAINSTHIM.. . . 30 CONCLUSION . . . . . . . . 33 CERTIFICATE OF WORD COUNT. . . . . 34 iii TABLE OF AUTHORITIES Cases Black v. Romano (1985) 471 U.S. 606 4,29,31 Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354 31,32 Gagnonv. Scarpelli (1973) 411 U.S. 778 4,29,31 In re Dearo (1950) 96 Cal.App.2d 141 28 Melendez-Diaz v. Massachusetts (2009) 097 U.S. ___, 129 §.Ct. 2527 4,31,32 Morrissey v. Brewer (1972) 408 U.S. 471 4,14,15,19,23,25,28,31 People v. Baeske (1976) 58 Cal.App.3d 775 28 People v. Brown (1952) 111 Cal.App.2d 406 23 People v. Buford (1974) 42 Cal.App.3d 975 25 People v. Campos (1988) 198 Cal.App.3d 917 21 People v. DePaul (1982) 137 Cal.App.3d 409 10,23,24 People v. Galvan (2007) 155 Cal.App.4th 978 14,26 iv People v. Hawkins (1975) 44 Cal.App.3d 958 People v. Jackson (2005) 134 Cal.App.4th 929 People v. Lewis (1992) 7 Cal.App.4th 1949 People v. Pipitone (1984) 152 Cal.App.3d 1112 People v. Rodriguez (1990) 31 Cal.3d 437 People v. Smith (1970) 12 Cal.App.3d 621 People v. Tapia (2001) 91 Cal.App.4th 738 People v. Trujillo (2006) 40 Cal.4th 165 People v. Vickers (1972) 8 Ca.3d 451 People v. Zaring (1992) 8 Cal.App.4th 362 United States v. Martinez-Rios (5Cir. 2010) 595 F.3d 181 22 12-13 -11,16-20 15,24,25 26 27,28 1-3, Passim 28 14,15,24,31 25,26 32 Constitutions, Statutes, Rules, and Other United States Constitution, Fourteenth Amendment Evidence Code, section 1200 Penal Code section 246 Penal Code section 1203.2, subd.(a) California Rules of Court, rule 8.500 vi 4,25,29,31 28 21 1-3, Passim 1 SUPREME COURT FOR THE STATE OF CALIFORNIA Crim. THE PEOPLE OF THE STATE OF CALIFORNIA, No. B214397 (Los Angeles Co. Superior Ct PA035556) Plaintiff and Respondent, — Vv. JOSE LEIVA, Defendant and Appellant. TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: Appellant Jose Leiva petitions this Court for review of the above-titled matter after a published opinion rendered by the Court of Appeal, Second Appellate District, filed March 1, 2011.’ Nopetition for rehearing wasfiled in this case. Review is sought pursuantto California Rules of Court, rule 8.500, et seq., to resolve a legal conflict between this published opinion and People v. Tapia (2001) 91 Cal.App.4th 738 (“Tapia”). The question involves the interpretation of the “summary revocation” language in Penal Code section 1203.2, subdivision (a). The majority in this case found that a summary revocation tolled the probationary period for all purposes, without end. The eloquent dissent by Presiding Justice Norman Epstein agrees with Tapia that it does not. " The Court of Appeal's opinion is attached to this petition as Exhibit A. NECESSITY FOR REVIEW This case and Tapia present the same fact pattern — an individual was granted probation for a minor offense, and then immediately deported after serving his county jail term. In both this case and in Tapia, the individual was unable to report to the probation department in person as ordered, and probation was summarily revoked and a bench warrant issued within a year. Both men came to the attention of the authorities again long after their original probationary terms were completed. In both cases, the superior court found the individual in violation of the old probation, which it believed had been “endlessly tolled” under Penal Code section 1203.2, subdivision (a). The appellate court in Tapia reversed the formal finding of violation of probation in that case, reasoning that the probationer’s failure to report during the probationary period wasnot willful, because he was deported against his will. Since there was no proof of any other violation during the probationary period, the superior court was without jurisdiction to revoke that probation years after it expired by operation of law after its own three-year term. (Tapia, supra, 91 Cal.App.4th at p. 741.) The Majority in this case disagrees, and states thatit finds Tapia was wrongly decided. (Exh A, Majority at p. 6.) It interprets the tolling provision in Penal Code section 1203.2, subdivision (a) -- which attaches to a summary revocation on assertion only -- as a complete tolling of the probationary period for all purposes, conceivably for ? All further code section references are to the Penal Code unless otherwise indicated. decades (“endlesstolling.”) Applying that conclusion here, it found that this appellant violated his 2001 probation by illegally reentering the country in 2007 andfailing to report to probation, four years after his original three-year probationary term had expired by its own terms. In other words, the Majority espoused the concept of “endless tolling.” The well-reasoned dissent by Presiding Justice Norman Epstein agrees with Tapia and finds that the Legislative history of the amendmentresulting in this provision, together with commonsense statutory interpretation, defeat the Majority’s literal and mechanistic readingof thetolling provision. Justice Epstein finds that the Majority’s interpretation would result in the “absurd consequences” of “endless tolling.” In conclusion, Justice Epstein explains that a summary revocation of probation is merely a “placeholder” for the court to “retain the jurisdiction to adjudicate a claim that defendant has violated a term of probation.” (Exh A, Dissent at pp. 4-6.) In this case, review by this Court is necessary to reconcile these different interpretationsof law. -000- QUESTIONS PRESENTED (1) Whether thetolling provision of Penal Code section 1203.2, subdivision (a) tolls probation for all purposes, makingit possible for a person to be found in violation of probation for acts taken years after the original probationary period has run by operation of law, or whether summary revocation undersection 1203.2, subdivision (a) merely preserves the court’s jurisdiction to adjudicate whether the probationer violated his probation while it wasin effect. 3 (2) Whether a court retains jurisdiction to find a probationer in violation of probation based on the following facts: The defendantis placed on probation in 2000, then deported. A warrantis issued for his arrest, based on the assertion that he hasfailed to report to the probation department, in 2001. In formal hearings on thatalleged violation in 2009, the court does notfind that violation true, but rather finds the probationerin violation for conduct that occurred in 2007, three years after probation would have expired? (Tapia, supra.) (3) Whether appellant’s due processrights to a fair hearing under Morrissey, Gagnon, and Black *were violated whenthecourtrelied on the uncorroborated statement in the probation report that he had admitted reentering the country illegally in 2007, at either the February, 2009 hearing or the October, 2009 hearing? (4) Whether the documentsoffered through a deportation officer who had nopersonal involvementin their creation, and which were created for the purposesoflitigation, violated appellant’s rights of confrontation and cross-examination at a probation violation hearing, under the Due Process Clause of the Fourteenth Amendmentto the United States Constitution, and underthe principles expressed in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___, [129 S.Ct. 2527] ° Morrissey v. Brewer (1972) 408 U.S. 471, 482; Gagnon v. Scarpelli (1973) 411 U.S. 778, 782 ; Black v. Romano (1985) 471 U.S. 606, 611-612. 4 STATEMENT OF THE CASE AND FACTS A. Introduction. Appellant respectfully refers the Court to the “Factual and Procedural Background” section of the appellate court’s opinion. (Exhibit A, Majority, at pp. 2-4.) B. Procedural outline. In addition, appellant offers here an outline of the procedural facts for the Court’s convenience. Original entry of plea and sentencing. On March 28, 2000, appellant agreed to plead no contestto counts one, two, andsix, all vehicle burglaries. (1CT 9.) In a probation report filed at the time, appellant indicated to the officer that he was in this country legally with a Green Card, or temporary work permit. (1CT 16.) Appellant was 21 years of age in the year 2000. (1CT 10.) He had no juvenile or adult criminal record. (1CT 14, 18.) On April 11, 2000, appellant entered his plea to three counts of auto burglary. (1CT 21-23.) Imposition of sentence was suspended, and he was placed on formal probation for three years on each count, to run concurrently, conditioned on a county jail term. (1CT 21-23.) Further conditions of probation included the requirement that appellant report to the Probation Officer within “1 business day” of his release from custody. (1CT 22.) He wasalso advised that, if he left the country voluntarily or was deported, he “shall not return unlesslegally entitled to do so.” (1CT 22.) The balance of the charges was dismissed, in the interest of justice. (1CT 22.) Appellant was ordered to makerestitution to “all victims” as determined by the probation department (amount not specified), as well as to pay a restitution fine of $200. (1CT 21-22.) | Issuance of Bench Warrant. . On September 21, 2001, the court called the matter ona report of possible violation of probation, and appellant did not appear. The court found appellant in violation, and a bench warrant issued. (1CT 24.) First 2008 Probation Hearing and First Supplemental Report. On November10, 2008, after a period of over seven years, appellant was back in custody in Los Angeles County, having been arrested on the bench warrant after a traffic stop. The case wascalled for a probation violation hearing. The court ordered a supplemental probation report, and delayed setting the matter for evidentiary hearing. Appellant was retained in custody. (1CT 25-26; Supp.1RT A-2.) The supplemental probation report filed December 1, 2008, noted that appellant had no criminal record at ali since his last appearance before the court, that is, since he wasadmitted to probation. (1CT 27.) It stated that appellant had failed to report to the probation department “monthly,” as is apparently normally required, “on the following dates: 4/12/00 -8/1/01 jail’ and 9/1/01 - ‘calendared/desertion.” (1CT 28.) This supplemental report also reflected a calculation that probation had been “active” for 529 days. “Should the court reinstate probation on the instant date [in 2008], the new expiration date would be 6/20/10.” (1CT 28.) Appellant was stated to have a “total financial obligation” of $4,510. (1CT 28.) The Probation Officer recommended that appellant be found in violation of probation, and be admonished and readmitted to probation “on the same terms and conditions.” (1CT 29.) Further 2008 Probation Violation Proceedings. At a hearing held December 1, 2008, Public Defender counsel Marya Shahriary for appellant stated that appellant may havefailed to report to Probation initially because he was deporteddirectly after his release from county jail custody. (Supp.1RT B-1-B-2.) She requested a further hearing to determine whether appellant’s failure to report was “willful.” (Supp.RT B-2.) The court stated its indicated sentence would be two years in state prison, since appellant currently was subject to an immigration hold. (Supp.1RT B-3.) The court granted a request for another probation report to address the question whether appellant was deported when released from County Jail in 2000 or 2001, and set a further hearing. (Supp.1RT B-4-B-5.) The court also requested that the report address the circumstancesof appellant’s current presence in the United States. (Supp.1RT B-5.) Formal Probation Violation Hearingon February 13, 2009 (resulting in appeal #B214397). On February 13, 2009, the court announceda formal, contested hearing. TheDistrict Attorney stated that he had been unable to get a representative from the Immigration Service (I.C.E.) to come to testify to appellant’s status in this country, and admitted that he could not proceed on the allegation that appellant wasillegally in the country, without a witness. (1RT 1.) The court suggested it might rely for its findings on appellant’s apparent admission to the Probation Officer, reflected in the Second Supplemental Probation Report (1CT 34), that he had returned to this country illegally from El Salvador in February, 2007, and had been working as a carpenter, The report stated flatly: “His citizenship status is legal.” (1RT 2; 1CT 34.) Appellant’s counsel argued that this would be akin to a “corpusdelicti” problem,if the only evidence of appellant’s immigration status was the hearsay statement in the report. (1RT 3.) The District Attorney contended that the court could rely on the report, and that the “corpus delicti” rule was inapplicable. He pointed out that returning to this country illegally wasitself a violation of probation. (1RT 4.) At the conclusion of the hearing, the court found appellant in violation of probation for illegally reentering the country in 2007 and not immediately reporting. It readmitted appellant to probation, knowing he had a probation hold, and imposed a countyjail term of “time served.” The court then ordered appellant to contact the Probation Officer within 48 hoursof his release from custody. (1RT 4; 1CT 41-42.) Appellant filed a notice of appeal on February 19, 2009, resulting in appeal #B214397. (1CT 43.) second case initiation (#4B220540) and prehearing proceedings. Appellant wrote a letter to the Superior Court dated April 8, 2009, stating that he realized that he was on probation, but was out of the country due to deportation, and could not report in person. He asked for guidance about how to satisfy the reporting requirementsof his probation and “finish” or “clear’ the probation. (2CT 1.) No response was ever received. The Probation Departmentfiled a report, the fifth in this case, on May 14, 2009. Thereport stated that appellant had never reported, had been deported to El Salvador on March 18, 2009, and that this. information was verified by the Immigration and Naturalization Service (now I.C.E.). (2CT 2A.) On June 9, 2009, the court ordered appellant’s probation revoked summarily, and issued a no-bail warrant for his arrest. (2CT 4.) Appellant was duly arrested and detained in county jail pending the outcomeof these proceedings. On September 17, 2009, Ms. Shariary argued that the court’s ruling in thefirst case — that appellant wasin violation, revoking probation, and reinstating probation to expire June 6, 2011 -- was in error becausethe court had been without jurisdiction over appellant. (2RT A-4.) She also argued that the court currently had no jurisdiction to finding appellant to be in violation, because he was no longer under an unexpired grant of probation. (2RT A-5.) The court ordered that probation remain revoked, and also ordered another supplemental probation report. (2CT 5; 2RT A-7.) Formal probation revocation hearing, October 9, 2009. At the close of the hearing, the court found appellant in violation of probation, rejecting counsel’s several arguments. (2CT 8-9.) On November 9, 2009, the court sentenced appellant to prison for two years, the midterm, on count one, and concurrent termsof two years on counts two andsix of the original 2000 complaint. (2RT C-1; 2CT 11-13) The court awarded credits of 607 days. (2RT C-2; 2CT 12.) Notice of appeal wasfiled November 9, 2009. (2CT 16.) C. The appellate court Majority’s opinion on the primary issue regarding “endlesstolling”, in which it disagrees with Tapia and with the Dissent. The Majority recited the facts and holding of the Tapia case. (Exh A Majority at pp. 5-6.) It quoted the Tapia court’s central holding as follows: “[I]t is clear that a summary revocation of probation suspends the running of the probation period and permits extension of the term of probation if, and only if, probation is reinstated based upon violation that occurred during the unextended period of probation.” (Tapia, supra, at p. 741.) The Majority then stated that it found “the reasoning of Tapia unpersuasive, and decline to follow it.” (Exh A Majority at p. 6.) Beginning with the language of section 1203.2, subdivision (a), the Majority noted its amendmentin 1977 to permit a trial court to revoke probation upon the issuance of a warrant for rearrest, and to provide for the tolling of the probation period. It cited People v. DePaul (1982) 137 Cal.App.3d 409, 413 for the proposition that “a revocation of probation suspends the running of the probationary period andif. probation is reinstated, the period of revocation cannot be counted in calculating the expiration date.” In other words, it endorsed the concept of “endless tolling.” (Exh A, Majority at p. 6.) | The Majority reviewed the facts of this case, and applied the “endless tolling” rule to find that when appellant’s probation was 10 reinstated in February 2009, “he had not completed the original three- year term of probation that begin in April 2000.” (Exh A, Majority at p. 7.) The Majority then asserted that Tapia’s interpretation that section 1203.2 subdivision (a) tolling confers a temporary jurisdiction violates basic principles of statutory construction, because in the Majority’s view, the provision is clear and unambiguous, providing that “a [summary] revocation of probation stops the running of the probationary period — nothing more, nothing less.” (Exh A, Majority at p. 8.). The Majority asserted that the Tapia court’s interpretation effectively added language to the statutory provision “that is simply not there,” whenit found that the prosecutor would at a hearing have to prove a violation during the original period. (Exh A, Majority at p. 7.) However, the Majority admitted that the statutory summary tolling provision leaves the question open just when a probationeris finally relieved of his duties under a probationary period that has been endlessly tolled. (Exh A, Majority at p. 8.) The Majority believed the answeris found in People v. Lewis (1992) 7 Cal.App.4th 1949, which wascited in Tapia, and also in appellate counsel’s and amicus’ briefing on appeal. The Majority reviewed the facts and holdings in Lewis, and concluded that the case did not support Tapia or appellant’s position here. It quoted extensively from Lewis emphasizing the court’s reference to the trial court’s power over a probationer during the term of probation, which extended until the probationer was discharged or imprisoned. (Majority at p. 9, citing Lewis at pp. 1954-1955.) li Since appellant was neither discharged from probation nor sentenced to prison before he allegedly reentered the country illegally andfailed to report in 2007, and since appellant’s probation had not expired under the Majority’s “endlesstolling” interpretation of summary revocation, therefore he wasstill bound by the terms of his 2000 probation in 2009 when formal hearings were held. The Majority credited the Lewis case for the holding that thetrial court “had the power”over defendantat the time of the hearings in 2009 to find him in violation. (Exh A, Majority at p. 9.) The Majority also opined that the Tapia Court’s and the Dissent’s interpretation — that summary revocation produces a “placeholder” type ofjurisdictional tolling — is inconsistent with the intent of the statutory provisionsproviding for a grant of probation, “in lieu of a harsher sentence.” (Exh A, Majority at pp. 9-10.) The Majority admits, as it must, that a probationer whois deported before he can report cannot be foundin willful violation of probation under People v. Galvan (2007) 155 Cal.App.4th 978, 984. (Exh A, Majority at p. 10.) However, the Majority continued, that result is inappropriate because a person such as appellant could be deported, be excused from his failure to report, then return to the country illegally after the running of the original probationary term and avoid any obligations imposedin the original grant of probation, such as proving he entered the country legally, or paying the restitution that was ordered.° The Majority ° The Majority’s reference to the unpaid restitution is irrelevant. The court did not violate appellant’s probation for failure to pay restitution. Furthermore, the practice of the courts is to convert restitution awardsto civil judgments that injured victims may pursue once the maximum probation period has been reached. (Section 1203.1, subdivision (a); see People v. Jackson (2005) 134 12 concluded that “[s]uch a result is hardly consistent with the rehabilitative purpose of a grant of probation.” (Exh A, Majority at p. 10.) | In conclusion, the Majority wrote: “Of course, the Legislature may limit a court's authority to modify or terminate probation to cases where a violation occurs during the original unexpired probationary period. Asof yet, it has chosen not to do so. As a result, the trial court had jurisdiction to modify defendant's probation at the violation hearing in February 2009 andto terminate probation in October 2009.” (Exh A, Majority, at p. 10.) D. Presiding Justice Norman Epstein’s Dissent disputing the Majority’s “endless tolling” interpretation. Justice Epstein in his dissent restates the issue as “whether the tolling provision fof § 1203.2, subd.(a)] allows the trial court to revoke probation based on violation occurring after the original period of probation if there had been a summary revocation during that period. I would hold that it does not.” (Exh A, Dissent at p. 1, emphasis in the original.) | After again recounting the basic facts leading up to the current proceedings, Justice Epstein recited the language of section 1203.2, subdivision (a), and then asked the essential question: “Does this mean that where there is no proof at the formal revocation hearing that a probation violation occurred during the original probationary period, the court may rely on conduct which occurredafter that time to find a violation?” The Justice’s answer was no. (Exh A, Dissentat p. 3.) Cal.App.4th 929, 932-933.) 13 Justice Epstein next explicated the facts and holding of Tapia, and stated his agreement with its language and conclusion. (Exh A, Dissent, at pp. 3-4.) He then pointed out the crucial fact that the languageof this statute [§1203.2, subd.(a)] is not at all clear and unambiguous, because it apparently provides for “endless tolling,” which is illogical and impractical, and cannot be what the Legislature meant. Therefore, it is susceptible of construction to give it a sensible meaning, and not the absurd one that a summary revocation, based on allegations by a probation officer and nothing more, can produce “endlesstolling” for all purposes. (Exh A, Dissent at pp. 3-4.) | Because no hearing is required for the issuance of a summary revocation, it may be based on unsound grounds, such asin this case, where appellant was asserted to have failed to report, but the failure could not be held against him because it was the result of deportation, and therefore not willful. (People v. Galvan (2007) 155 Cal.App.4th 978 (Exh A, Dissentat p. 4.) Then, Justice Epstein did something the Majority studiously avoided — he reviewed thelegislative history of this provision, and notes that it was passedto solve a particular problem. The notes of the Assembly Committee on Criminal Justice point out that the Legislature had to addressajurisdictional gap. The cases Morrissey v. Brewer (1972) 408 U.S. 471 and People v. Vickers (1972) 8 Cal.3d 451, had both come down, and they required that a certain amountof due process be provided in revocation of probationhearings. But, in those circumstances where probation revocation proceedings are found to have been conductedin an illegal or unconstitutional manner, and the matter is reversed on appeal, unless jurisdiction was somehow 14 maintained, the lower court would not have any way to take the matter up again on remand. Clearly, a “summary revocation,” not issued with any sort of due processat all, would not comport with Morrissey or Vickers to provide for actual formal revocation of probation. The committee was askingitself, “Should this section [1203.2] be amended to provide more detail?” (Exh A, Dissent, at p. 5.) Justice Epstein concludes that the Legislature’s intent in drafting the amendments made in 1977 was directed at making certain that when probation is summarily revoked, “the probationary period is tolled so that the court can proceed with a formal revocation hearing [upon remand], even though the original period of probation has expired.” In other words, summary revocation does not comport with due process, and cannotbe “endless tolling” for all purposes. Rather,it is in the nature of a “placeholder by which the court retains jurisdiction to adjudicate a claim that the defendant had violated a term of probation.” (Exh A, Dissent,at p. 6.) Justice Epstein cited a case in support of his thesis that is never mentioned by the Majority, even in its footnote responding to the Dissent®: “As the court noted in People v. Pipitone (1984) 152 Cal.App.3d 1112 [201 Cal.Rptr. 18] [parallel citation omitted], summary ‘revocation’ of probation following thefiling of a petition ‘cannot affect a grant of probation orits conditions,...’( Id., at p. 1117 [201 Cal.Rptr. 18}].) Rather, ‘... it is simply a device by which the defendant may be brought before the court and jurisdiction retained before formal revocation proceedings commence.[Citation.] If probation is restored there has ° Exh A, Majority at p. 8, fn. 3. 15 been in effect, no revocation atall.’ ( Ibid.) Thus, in the context of the statutory scheme governing probation, the term ‘revocation’ has a meaning quite different from other contexts.” (Exh A, Dissent, at p. 6.) Justice Epstein further noted the irrefutable fact that the languageof cases and statutes is not always as clear as could be desired. The Lewis opinion, for example, stands for the following proposition: “The term ‘reinstatement of probation’ suffers from this same misunderstandingof the context in which this phrase is used.” (People v. Lewis, supra, 7 Cal.App.4th at p. 1955.) In that regard, the term is different from “termination” of probation, or a “discharge” from probation, acts which require that judgment be pronouncedif no | sentence was imposed whenprobation was granted. (Ibid.) (Exh A, Dissent, at p. 6.) . Addressing the Majority’s worry that appellant could getoff “scot free,” Justice Epstein stated that he cannot,if it is shown at a formal revocation of probation hearing comporting with due processthat he violated probation during the original probationary period. Justice Epstein concluded that: “It is undisputed that defendant's probation was revoked in June 2009 and in October 2009, but that neither revocation was based on a violation within the original period of probation. The court lacked jurisdiction to revoke probation based on conduct occurring after probation expired, and its orders doing so should therefore be reversed.” (Exh A, Dissent, at pp. 6-7.) 16 ARGUMENT I. THE DISSENT HAS THE BETTER ARGUMENTIN THIS CASE: PEOPLE V. TAPIA WAS CORRECTLY DECIDED AND THE TRIAL COURT LACKED JURISDICTION HERE TO FIND A FORMAL VIOLATION OF PROBATION, FOR AN ACTION THAT TOOK PLACE OUTSIDE THE ORIGINAL PROBATIONARY PERIOD A. Appellant references and adopts the Dissent’s reasoningin toto. The Dissent has made appellant’s argumentfor him in this case, more eloquently than undersigned counsel ever could, and therefore, appellant wholeheartedly adopts and references the Dissent as if it were reproduced herein in toto. B. The Majority misunderstood People v. Lewis. As is recited above, the Majority found supportforits interpretation of section 1203.2, subdivision (a), in People v. Lewis (1992) 7 Cal.App.4th 1949. The Majority quoted extensively from Lewis, replicated above, but the part it omitted in the ellipses contradictsits conclusions. The omitted portion in the middle of the quoted section reads: “Just as the felon sentenced to state prison pursuant to the determinate sentence statutes is informed at judgmentof the specific maximum period of incarceration he or she will suffer, those statutes that 17 provide for the alternate grant of probation require the terms and conditions of probation be enforced during the specifically imposed length of term of probation. For instance, section 1203.2, subdivision (a), states “At any time during the probationary period of a person released on probation ... if any probation officer or peace officer has probable causeto believe that the probationeris violating any term or condition of his or her probation or conditional sentence, the officer may, without warrant or other process and at any time until the final disposition of the case, rearrest the person and bring him or her before the court....” (Italics added.) Andsection 1203.3, subdivision (a) states: “The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. ...” (Italics added by the Lewis court.)” (Ibid at pp. 1954- 1955; bold emphasis added.) The principle that the Majority purports to extract from Lewis is at best dicta, and is taken out of context. The Majority’s view of Lewis is not consonant with that court’s opinion as a whole. The Lewis court was focused on the lower court’s jurisdiction to continue to enforce the terms and conditions of probation “during the specifically imposed length of term ofprobation.” (Lewis at p. 1955, emphasis added.) This makes internal sense, because the Lewis court had a very specific problem to solve. The court summed upits issue as follows: “The single issue in this case is a determination as to whether probation terms are enforceable during the period subsequent to the violation of probation hearing [pursuant to Vickers, supra] and prior to the court formally proceeding to a disposition thereon.” (Lewis, 7 18 Cal.App.4th at p. 1951.) In brief, defendant Lewis was placed on probation pursuant to a plea agreement, and required to report to the probation department. Whenhe failed to report as directed, his probation was summarily revoked. At the formal violation of probation hearing, Mr. Lewis admitted the probation violation, and sentencing was continued for one month.It wasthe court’s jurisdiction during this one-month hiatus in proceedings that waslater challenged. During that month, Mr. Lewis was again arrested and accusedof a new offense. But at the scheduled sentencing proceeding on the probation violation, his original probation was reinstated. The district attorney subsequently filed a petition to revoke probation based uponthearrest for the new offense committed during the month in question. The trial court found defendantin violation of his probation again based on the new offense, and sentenced him to two yearsin state prison. (Lewis at p. 1950-1951.) The Court of Appeal affirmed, holding that the terms and conditions of probation do not lapse or become unenforceable between the violation ofprobation hearing and the reinstatement ofprobation. (See Lewis, at pp. 1953-1954.) The trial court had not lost its probation supervision jurisdiction over Mr. Lewis. This was a narrow issue, one of the wrinkles that needed to be ironed out in the wake of Morrissey and Vickers, which required .certain kinds of due processprotections at probation revocation hearings. Mr. Lewis’s lawyer thoughtto assert that after the “Vickers” hearing and before the sentencing, he was not subject to probation supervision and could not be found in violation for another act during 19 that month. Critically, the appellate court found continuing jurisdiction on the part of the lower court, because all of these events fell within the original period of probation, “during the specifically imposed length of term ofprobation.” (Lewis at p. 1955, emphasis added.) The Lewis court had no occasion to address what would happen to the court’s jurisdiction if the new offense happened years after the “specifically imposed length of term of probation” had run. The Lewis court had no reason to contemplate, nor did it endorse, the “endlesstolling” of the terms and conditions of probation as found by the Majority here. In fact, the Tapia court and the Dissent have the better interpretation of Lewis. A summary revocation of probation suspends the running of the probation period and permits extension of the term of probation if, and only if, probation is reinstated based upon a violation that occurred during the unextendedperiod of probation. (See People v. Lewis, supra, 7 Cal.App.4th at p. 1955 --summary revocation is simply a device by which the defendant may be brought before the court and jurisdiction retained before formal revocation proceedings commence;if probation is restored, there has,in effect, been no revocationatall].) "Just as the restoration of probation erases the summary revocation, so too doesthe court's failure to find a violation within the period of probation. Put another way, the jurisdiction retained by the court is to decide whether there has been a violation during the period of probation and, if so, whether to reinstate or terminate probation." (People v. Tapia, supra, 91 Cal.App.4th at pp. 741-742.) 20 Cc. Application to the case at hand: the prosecutor proved no willful violation during the original term of probation, and therefore the courts had no jurisdiction to readmit appellant or send him to prison in 2009. In this case, probation was summarily revoked during the original probationary period under section 1203.2, subdivision (a) on the strength of an allegation in a probation report that appellant had failed to report to his probation officer, as required. (1CT 24.) At the probation violation hearing held February 13, 2009, the People argued appellant should be foundin violation based ona statement in a new probation report that he had admitted reentering the country illegally sometime in February 2007. (1CT 34.) Over counsel’s objection, the court relied on this admission to find appellant in violation of probation. It readmitted appellant to probation and ordered him to report to probation after his release from County custody. (1RT 7; 1CT 41-42.) Based on the hearsay of the probation report, defendant admitted reentering the country without the appropriate documents, which would violate the condition that he obey all laws and the condition that he not reenter the country illegally. (People v. Campos (1988) 198 Cal.App.3d 917, 921.) However, he did not admit reentering the country before hisoriginal probationary period had expired, but only in 2007. Whenappellant appeared again in court on September17, 2009, counsel argued that the prior order reinstating probation was without jurisdiction and that the court now had no powerto find 21 appellant to be in violation, because he was no longer under an unexpired grant of probation, under the authority of People v. Tapia, supra. (2RT A-4 - A-7.) At a subsequent hearing on October 9, 2009, a different Superior Court judge again found appellant in violation of probation for reentering the country illegally in 2007. (2RT B-42; see 2RT B-23 - B-24.) In both instances, the court erred as the Dissentso well demonstrated. The superior court lacked jurisdiction to revoke probation based upon theoffenseofillegal reentry that appellant apparently committed in 2007, because that reentry did not occur within the original probation period. (People v. Tapia, supra, 91 Cal.App.4th at pp. 741-742.) The Tapia court stated: “While the summary revocation of probation does suspend the running of the probationary period so that the court retains jurisdiction to determine at a formal revocation hearing whetherthere has, in fact, been a violation, an unprovedviolation cannot support the conclusion that, after the date on which probation expired underits original terms, a violation occurred upon Tapia's failure to report to the probation department whenhelater returned to the United States.” (Tapia, supra, at p. 741.) The point is, the summary revocation tolls the time during which the court retains jurisdiction to hold a formal hearing, but does not produce “endlesstolling” of all of the terms and conditions of probation. The Tapia court correctly relied on People v. Hawkins (1975) 44 Cal.App.3d 958, 966-967, for the proposition that the point of a 22 summary revocation under Morrissey wasa first step allowing the court to summonthe probationer to appear, and comported with due process only because it was notfinal in andofitself. The Majority asserts that the court in People v. DePaul (1982) 137 Cal.App.3d 409 rejected an interpretation of “tolling” similar to the one adopted by Tapia, and urged here. (Exh A, Majority at p.6.) The Majority has misread the DePaul court’s opinion. When the DePaul court discussed the opinion in People v. Brown (1952) 111 Cal.App.2d 406,it noted that the summary revocation during Brown’s original probation period had preserved the court’s jurisdiction to bring Brown back to court, but at that time the probation laws and rules did not allow the court to do anything other than sentence Mr. Brownto prison. (DePaul at p. 412.) The Legislature responded to the Brown court’s direct plea to revise the law, and under a new version of the probation laws, the court acquired jurisdiction to also readmit a probationer in Brown’s shoesto probation. “The purpose of the amendment...wasto liberalize the rule and permit the court not only to retain the right to impose sentence at a subsequent time, but also to extend the original term of probation to the maximum time for which it could have been originally fixed in lieu of sentencing or, as an alternative, to grant a completely new term of probation without reference to the length of the original term or time served underit.” (Ibid, citations omitted.) Contrary to the Majority’s assertions, the DePaul court’s focus on a review of the Brown court’s decision and the subsequent Legislative actions and court decisions does not in any way conflict with the Tapia court’s conclusions that the terms and conditions of probation 23 expire at the end of the original probationary period. It only specifies that it is within the court’s jurisdiction, whenit calls a probationer back under a warrant issued after a summary revocation, to do a numberof things besides just send the probationerto prison. Undernewly applicable Due Process requirements, the next step is a formal revocation of probation hearing before the court can do anything beyond simply summoningthe probationerto court. | Furthermore, the DePaul court stated specifically that a probationary term continues to run after a summary revocation. “The only case to find a complete interruption or tolling of the probationary period, pushing back the expiration date, was one wherecriminal proceedings had been suspended and the defendant was committed to CRC. The court concluded that the probationary period wastolled for the duration of the commitment.[citation.]” (People v. DePaul, supra, at p. 413.) The Majority’s commentthat all the DePaul court addressed was the probationary term’s “expiration date,” misreads the opinion. The assumption that the term of probation extends beyondtheoriginal probation period is simply not supportedatall by People v. DePaul. (See RB 11.) The Majority completely ignores the case People v. Pipitone (1984) 152 Cal.App.3d 1112, which wascited by appellant in his briefing and referred to by the dissent. (Exh A, Dissent, at p. 6.) The conclusion in Pipitone comports with the thrust of both Tapia and the Dissent: “As a matter of due process, summary revocation cannotaffect a grant of probation or its conditions, given the right to a hearing as set forth in People v. Vickers (1972) 8 Cal.3d 451, 458-459 [citations], except to the extent that probation is suspended pending the hearing.” 24 Clearly, due process considerations expressed in Morrissey and Vickers would not allow a “summary” revocation to extend the probation terms and conditions themselves, according to the Pipitone court. This is not an issue of limited or unlimited jurisdiction over the | probationer — the court may bring the probationer before it on the warrant issued once the summary revocation is found. That is substantial personal jurisdiction. However, that jurisdiction is terminatedif a violation during the original probationary period is not proved at the subsequent formal hearing. -o00- II. - IT WAS A VIOLATION OF APPELLANT’S RIGHTS TO DUE PROCESS UNDER MORRISSEY, GAGNON, AND BLACKTO REVOKEHIS PROBATION BASED ON AN ADMISSION REPORTED BY THE PROBATION OFFICER, UNSUPPORTED BY TESTIMONY OR OTHER EVIDENCE A court may revoke probation “if the interests ofjustice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person hasviolated any of the conditionsofhis or her probation....” (Pen.Code, § 1203.2, subd.(a).) As the language of section 1203.2 would suggest, the determination whether to revoke probation is largely discretionary. (People v. Zaring (1992) 8 Cal.App.4th 362, 378-370.) Although that discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based upon the facts beforeit. (People v. Buford (1974) 42 Cal.App.3d 975, 985.) 25 “(T]he facts supporting revocation of probation may be proven by a preponderanceof the evidence.” (People v. Galvan (2007) 155 Cal.App.4th 978, 982, citing andquoting People v. Rodriguez (1990) 91 Cal.3d 437, 439.) However, the evidence must support a conclusion the probationer's conduct constituted a willful violation of the terms and conditions of probation. (People v. Galvan, supra; see also, Peoplev. Zaring, supra, 8 Cal.App.4th at pp. 378-379 [trial court abused its discretion by revoking probation for a tardy court appearance caused by circumstances beyond probationer's controll.) Whenthe District Attorney stated at the contested hearing on February 13, 2009 that he could not produce a witness competentto testify about appellant’s immigration status, that was an admission that he had noproofof a willful violation of probation by appellant by reentering the country illegally and failed to report after doing so. If there is no competent evidence regarding when appellant returned to this country, a violation for failure to report within a given time frame upon a defendant’s return also cannot be found. (People v. Galvan, supra, at pp. 982-983.) The court attempted to get around the problem of no available witnesses from the Immigration Service by seeking the information necessary to makethe violation determination from the Probation Department. It directly asked Probation to inquire into appellant’s immigration status. (Supp.RT B-5.) In response, the second supplemental probation report contains the somewhatcryptic notation: “On 04-25-00, deportation proceedings were conducted. On 09-16-05, defendant was detained at an immigration check point and was charged with ‘entry of alien at improper time or place misrep.’ Prosecution was 26 declined.” (1CT 33.) It is unclear what the meaning of these entries are, and the probation officer who drafted the report was not producedtotestify about it. Under Galvan, his probation clearly could not be revoked for a failure to report initially, because that failure was presumptively not “willful.” (Galvan, supra, at p.984.) However, this second supplemental probation report also contained a hearsay statement from appellant. (1CT 34.) He purportedly told the probation officer that he had returned to this country illegally from El Salvador in February of 2007, almost two years before the present formal hearing. (1CT 34.) The court decided it could base the finding of a violation on this hearsay, and it did so. (1RT 4.) | Appellant argued on appeal that People v. Smith (1970) 12 Cal. App. 3d 621 stood for the proposition that a probationer could not be violated based on hearsay contained in a probation report. (People v. Smith, supra, at p. 628.) The Majority challenges this by emphasizing that the Smith court found noallegations of fact in the probation report that it could rely on. (Exh A, Majority at p. 11.) Appellant disagrees. On review in Smith, the appellate court assumed that the defendant's failure to make child support payments would constitute a violation of the term of probation directing him to "obey all laws,” but found the mention that he was behindin his payments wasnotsufficient to satisfy the requirements of an allegation of the fact that he had violated the terms of his probation. In that case, the allegation was predicated not on facts knownorverified by the probation officer,but on rank hearsay,i.e., "Recently, we were notified" that the defendant was behind in his support payments. (Smith, supra, 27 at p. 628.) Appellant believes this case is analogous to Smith. Although hearsay may be admissible at a revocation of probation hearing, without testimony from the probation officer who conducted the interview, it is impossible to determineif the evidence is competent and reliable. Appellant speakslittle English, and always uses an interpreter in court. (See 1RT 1.) There is no indication that the probation officer spokeor understood Spanish. With a language barrier, the statements recordedin this report are even less reliable than ordinary hearsay. As the Smith court putit: “. .. an order revoking probationis ineffective if the probation officer's report on which the courtsolely relies has no factual basis. As expressed in In re Dearo [1950] 96 Cal.App.2d 141, 143: The court may act informally but it may not act arbitrarily; to be valid the order of revocation must be based upon a factual showing sufficient to justify an exercise of discretion.” (Smith at p. 627.) The probation report in this case is akin to a police report in a garden-variety criminal case, which is not considered evidence of the truth of the hearsay statements from witnesses and sometimes from the accusedthat it contains. (Evidence Code § 1200; People v. Baeske (1976) 58 Cal.App.3d 775, 780.) A statement by the defendant recounted in a postconviction probation officer's report could not be relied upon to determine whether the offense was a “strike.” (People v. Trujillo (2006) 40 Cal.4th 165, 179.) However, certain due processrights are guaranteed to probationers and parolees facing revocation of their conditional liberty. (Morrissey v. Brewer (1972) 408 U.S. 471, 482.) Certain minimum due process procedures must be observed in the revocation proceeding. (Id. 28 at pp. 488-489.) The following Term, the Court held that these same dueprocess requirements apply to probation revocations. (Gagnonv. Scarpelli (1973) 411 U.S. 778, 782 .) Ten years after Gagnon was decided, the Supreme Court reiterated that: [p]robationers have an obviousinterest in retaining their conditional liberty, and the State also has an interest in assuring that revocation proceedings are based on accurate findings of fact and, where appropriate, the informed exercise of discretion.” (Black v. Romano (1985) 471 U.S. 606, 611-612.) The Black court pointedly referred to a probationer’s right to cross-examine adverse witnesses, unless the hearing body specifically finds good cause for not allowing confrontation. (Black , supra, at p. 612.) Therefore, the Court in Black and Gagnon strengthened the due processrights of probationers facing revocation. Appellant had a right to cross-examine the probation officer who wrote the report asserting that he had admitted reentering the country illegally in 2007. Without that opportunity to confront and cross-examine the witnesses against him, appellant’s fundamental rights under the Due Process Clause of the Fourteenth Amendmentwereviolated, and the revocation was based on insufficient evidence. 29 I. THE TESTIMONY OFFERED BY A DEPORTATION OFFICER BASED ON I.C.E. DOCUMENTS PRODUCED FOR THIS HEARING VIOLATED APPELLANT’S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS TO CONFRONT AND CROSS-EXAMINE WITNESSES AGAINST HIM The District Attorney presented the testimony of Terrence Rachel, a Deportation Officer for Immigration and Customs(I.C.E.), formerly known as the INS. (2RT B-6-B-8.) Mr. Rachel testified about exhibits in evidence over a continuing objection from the defense based on hearsay, the Sixth and Fourteenth Amendments,lack of personal knowledge, and foundation. (2RT B-9- B-16.) The documents from I.C.E.files on appellant indicated appellant was deported in September of 2005, and again in February, 2009. (2RT B-20-B-21.) One of the documents, a warrant for removal for deportation, referred to appellant’s reentry into the United States in 2007. (2RT B-23 B-24.} The document also indicated that appellant was removed again March, 2009. (2RT B- 25.) Mr. Terrencealso testified he could find no record of permission for appellant to legally re-enter the United States. (2RT B- 26.) On cross-examination, counsel established that the witness had not participated in any way in preparing any of these documents. Nor had he been present when they were prepared, signed, or scanned into the computer. Nor had he spoken before this hearing with any of 30 the people who prepared or signed the documents. (2RT B-28 - B-35.) Mr. Terrence also testified that these documents were preparedto enforce consequencesofillegal reentry, which involves court proceedings. (2RT B-35 - B-36.) He also agreed that the Departmentof Justicerelies on these documents to determine whether someoneis legally orillegally in this country. (2RT B-37.) Appellant argues here that the testimony of Mr. Terrence violated appellant’s Fourteenth Due Processrights to confront and cross- examine witnesses against him. (Morrissey v. Brewer, supra, Gagnon v. Scarpelli, supra, Black v. Romano, supra, People v. Vickers, supra.) In this proceeding, the District Attorney presented a witness from I.C.E. whotestified about documents that he had no personal knowledge of, had not prepared, had not signed, and had not produced. They were retrieved from I.C.E. computers by the agency’s “trial attorney” who wasnotidentified. (2RT B-13.) The opportunity to cross-examine the authorsof these documents was denied appellant. Therefore, the presentation of a random deportation officer’s testimony about documents he had never seen before, but that were producedbyhis office’s trial attorney for a court proceeding,fails to satisfy defendant's due processright to confrontation. (See Crawford v. Washington (2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 ( Crawford).) Although these documents are not scientific forensic reports, as were the subject of Melendez-Diaz v. Massachusetts (2009) 557 U.S. ----, 129 S.Ct. 2527, 174 L.Ed.2d 314 ( Melendez-Diaz ), the rule of that case, which is merely an interpretation of Crawford, should apply by analogy here. Under Melendez-Diaz, there is no substitute for 31 cross-examination of the creator of a scientific report. Here, defendant had noeffective means to challenge whether any of the information entered into his recordsat I.C.E. wascorrect. The opportunity for cross-examination is essential to the protection guaranteed by the confrontation clause, because “ ‘the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands,not that evidencebe reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.’ ” (Melendez-Diaz, supra, 557 U.S. at p. ----, 129 S.Ct. at p. 2536, quoting Crawford, supra, 941 U.S. at pp. 61-62, 124 S.Ct. 1354.) Melendez-Diaz rejected the contention that evidenceof scientific testing is inherently reliable, noting that “[florensic evidenceis not uniquely immune from the risk of manipulation.” ( Melendez-Diaz, supra, 557 U.S.at p. ----, 129 S.Ct. at p. 2536.) The court noted that many forensic laboratories are, in effect, subsidiaries of the law enforcement agencies they serve, creating this risk of manipulation. (Ibid) , Appellant asserts that the same analysis applies here. Documents kept by I.C.E. but only retrieved for litigation by trial attorney are testimonial documents,retrieved for litigation purposes, and subject to human error and manipulation. Therefore, trial counsel’s objections were correct and to the point, and the court should have rejected the exhibits provided by the District Attorney, as well as the testimony of Mr. Terrence. ( See also, United States v. Martinez-Rios (5% Cir. 2010) 595 F.3d 181; 186 - Martinez-Rios was unable to cross-examine the person who had prepared a testimonial statement to 32 be used against him attrial. Therefore, the district court erred in admitting I.C.E. documents without providing the testimony of the records analyst who prepared them.) -o0o- CONCLUSION Appellant prays this court to accept review in this case to decide whether People v. Tapia, supra, and the Dissent are correct that section 1203.2 does not create endlesstolling of a probationer’s term, and that it is merely a placeholder that permits the court to return him to court to determine if he violated his probation during the term as specifically prescribed. Respectfully submitted, Meredith J. Watts, #78520 Attorney for Appellant — JOSE LEIVA April 11, 2011 33 -o00- STATEMENT OF WORD COURT APPELLANT'S PETITION FOR REVIEW I certify, under penalty of perjury, that the openingbrief submitted in this matter by priority mail to the court andfirst class mail to the service list on April 11, 2011 contains 8,307 words. This word count is provided in accordance with the Rules of Court, and is based on the word count provided by my computer word processing program. Respectfully submitted, ud, db Wot Meredith J. Watts, #78520 Attorney for Appellant JOSE LEIVA April 11, 2011 34 EXHIBIT A CERTIFIED FOR PUBLICATION ¢ IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, B214397 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA035556) v. - _.GURT OF APPEAL - SECOND DIS” JOSE LEIVA, i r tL 1S 1D) Defendant and Appellant. MAR 1 2011 PTDL! AE ANT Clark Daputy Clerk APPEALSfrom judgmentsofthe Superior Court of Los Angeles County, Barbara M.Scheper, Judge. Affirmed. Meredith J. Watts, under appointment by the Court ofAppeal, for Defendant and Appellant. EdmundG.Brown,Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent. Michael P. Judge, Public Defender, Albert J. Menaster and Karen Nash, Deputy Public Defenders, for the Public Defender ofLos Angeles County as Amicus Curiae. Defendant Jose Leiva appeals from judgments entered following separate findings that he violated the terms and conditions ofhis grant ofprobation.’ His principal contentionis the trial court lacked jurisdiction to revoke probation on either occasion because probation had expired by operation of law. Healso asserts there is insufficient evidence to support the court’s findings and the court considered inadmissible evidence. Weconclude that defendant’s claims lack merit and affirm. FACTUAL AND PROCEDURAL BACKGROUND On March 28, 2000, defendant and another individual were jointly charged in a 10-count complaintthat alleged they committed the crimes of grand theft from a vehicle, burglary and attempted burglary of a vehicle, and tampering with a vehicle. (Pen. Code, §§ 487, subd. (a), 459, 664/459, Veh. Code, § 10852.) On that same day, defendant pled no contest to three counts ofburglary of a vehicle. At sentencing on April 11, defendant wasplaced on probation for three years. Included in the terms and conditions of probation were orders that defendant: (1) serve 365 days in the county jail; (2) report to his probation officer within one business day ofhis release from custody; (3) not reenter the country illegally if deported; (4) report to the probation officer within24 hours ofhis return to the country and present documentation proving that he wasin the United States legally; and (5) pay restitution to all of the victims. On September 21, 2001, due to defendant’s failure to report to his probation officer and to makerestitution payments, probation was summarily revoked and a bench warrant wasissued forhisarrest. On November10, 2008, defendant appearedin court after his arrest on the outstanding warrant. According to a supplemental probation report, defendant was the i Defendantfiled an appeal after each hearing (B214397 & B220540). We ordered the appeals consolidated. ? All further statutory references are to the Penal Code. subject of a traffic stop and a warrant check revealed the outstanding bench warrant. The probation officer also wrote that defendant had neverreported to theprobation department and had failed to pay court-orderedrestitution. As a result of the November proceeding, the warrant for defendant’s arrest wasrecalled, his probation remained revoked, and the case was set for a December1 hearing. On December1, defendant’s attorney asked that another probationreport be prepared to determine whether defendant was deportedafter his release from custody. Counsel suggested that defendant may havefailed to réport to probation dueto his deportation. Another supplemental report was ordered and the matter was continued several times. Aprobation violation hearing was conducted on February 13, 2009. At the February 13 hearing, defendant’s counsel argued that the court could not reinstate defendant’s probation because the term had expired by operation of law. On the merits, counsel conceded the court could consider defendant’s statement that he was deported to El Salvadorafter his release in 2001 and remainedthere until he returned to the United States in February 2007, but urged there wasinsufficient evidence establishing that any failure to report to probation was willful. The court found defendant in violation ofprobation for failing to report, relying on his statementthat he had returnedto the country in February 2007. Probation was reinstated on the original terms and conditions, — with defendant receiving credit for time served. Defendantfiled a timely appeal. On May 14, 2009, defendant’s case was called. He wasnot present, but was represented by the same attorney who previously had appeared on his behalf. According to the minute order, the court received a supplemental probation report stating that defendant had been deported to El Salvador and had notreported to his probation officer. The court was also provided with a letter defendant had written to the probation department, explaining that he was deported to El Salvador in March 2009 and wastrying to contact his probation officer by telephone. On June 9, 2009, defendant’s probation wasrevoked and a warrantfor his arrest was issued. On September 17, 2009, defendant appeared in court after being arrested on the warrant after his return to this state. His counsel again argued that the court had no jurisdiction because defendant’s probationary term had expired. This wasso, she asserted, because the original three-year term began on April 11, 2000, and defendantdid not willfully violate any of the terms and conditions ofprobation in the ensuing three years. Counselstated that the prior court order extending probation was being appealed. Noting that it had to assumethe prior order was valid pending appeal, the court ordered that probation remain revoked. Defendant was retainedin custody, a supplementalreport was ordered, and the case was continued. | . On October 9, 2009,a probation violation hearing was held. Terrence Rachel, a deportation officer with Immigration and Customs Enforcement (ICE)testified. He had held different positions with that department(orits predecessor) since 2001. Over defendant’s hearsay and Sixth Amendmentobjections, Rachel identified the following certified copies of documents: (1) a September 23, 2005 order issued by an immigration judge ordering the removal of “Jose Mario Leiva-Gomez”from the United States; (2) a warrant ofremoval for the same individual that.also was issued on September 23, 2005, and stated that he was physically removed from the country and returnedto El Salvador on October 26, 2005; (3) a warrant ofremoval for “Jose Mario Leiva-Gomez”issued on February 19, 2009,that stated heillegally entered the country in February 2007; and (4)a deportation orderstating that “Jose Mario Leiva-Gomez” was removedfrom the country and returned to El Salvador on March 18, 2009. Rachel said there was no record in the immigration system that Jose Mario Leiva-Gomez hadreceived a waiver allowing him to legally reenter the country following his deportation in 2005. Thus, the 2005 removal order barred Leiva-Gomezfrom legally reentering the country for 20 years. The court found defendantviolated his probation by entering the country illegally, and on November9, 2009, he was sentenced to two years in prison. Defendantfiled a timely appeal. After defendantfiled his opening briefs (he filed separate briefs prior to our consolidation order), we granted the Los Angeles County Public Defender’s request to file a brief as amicus curiae. DISCUSSION I. The Trial Court Had Jurisdiction to Revoke Probation Relying on People v. Tapia (2001) 91 Cal.App.4th 738 (Tapia) (disapproved on another ground in People v. Wagner (2009) 45 Cal.4th 1039, 1061, fn. 10), defendant contends thetrial court lacked jurisdiction to find him in violation ofprobationateither. the February 2009 or October 2009 hearing. Hearguesthat due to the prosecution’s failure to establish he violated a condition ofprobation during the original three-year probationary term that began in April 2000, probation expired in April 2003.. The facts in Tapia are virtually identical to those in the present case. In July 1996, Tapia pled guilty to one count ofrobbery and wasplaced on probation for three years. Among other conditions,he was ordered to report to the probation department within 24 hoursofhis release from custody, to not reenter the country illegally, and if he did return, to report to the probation officer within 24 hours ofhis return with documentation that he was in the country legally. (Tapia, supra, 91 Cal-App.4th at pp. 739-740.) | Uponhisrelease from custody in late 1996, Tapia was deported to Mexico. In March 1997, the trial court was informedthat he had failed to report to the probation department. Tapia’s probation was summarily revoked and a bench warrant wasissued. In September 2000, Tapia was arrested on the warrantafter he returned to California. At the probation violation hearing, he admitted that he did notreport to his probation officer upon his return and show proofthat he wasin the country legally. The court found Tapia in violation of probation, reinstated probation, and extendedits term to March 2003. Tapia appealed, arguing the trial court lacked jurisdiction to extend the term ofprobation. (Tapia, supra, 91 Cal.App.4th at p. 740.) The appellate court noted that the basis for the 1997 revocation of Tapia’s probation,his alleged failure to report to the probation department upon his release from custody, was never proven. “Since that violation wasnot proved, the term of probation expired in July 1999—before Tapia reentered the United States. Since his probation had expired by the time he did reenter in September 2000,thetrial court had no jurisdiction to extend the period ofprobation.” (Tapia, supra, 91 Cal.App.4th at p. 740.) | The Attorney General argued that the trial court’s March 1997 summary revocation of Tapia’s probation tolled the running of the probationary term,citing the language in Penal Code section 1203.2, subdivision (a). That provisionstates in relevant part: “The revocation, summary or otherwise, shall serve to toll the running of the probationary period.” The Tapia court responded,“while weagreethat the periodis tolled by summary revocation, and that the period of tolling can be tacked onto the probationary period ifprobation is reinstated, we do not agree that these rules apply where, as here, there is no proof or admission ofa violation during the period of probation.” (Tapia, supra, 91 Cal.App.4th at p. 741.) The court concluded: “[I]t is clear that a summary revocation ofprobation suspendsthe running of the probation period and permits extension of the term ofprobation if, and onlyif, probationis reinstated based upon a violation that occurred during the unextended period ofprobation.” (/bid.) For the reasons set forth below,we findthe reasoning of Tapia unpersuasive and decline to follow it. | Webegin with the language ofthe tolling provision in section 1203.2, subdivision (a). It was added by a 1977 amendmentthataltered subdivision (a) in two respects. The first change alloweda trial court to revoke probation upon “the issuance of a warrant for rearrest.” (Stats. 1977, c. 358, § 1, p. 1330.) The second change addedthe last sentence ofthe subdivision: “The revocation, summary or otherwise, shall serveto toll the running ofthe probationary period.” (Ibid.) The languageaddressesa single aspect of the probationary term—its expiration date. As explained bythe court in People v. DePaul (1982) 137 Cal.App.3d 409, 413 (DePaul), prior to the 1977 amendment, nothing in subdivision (a) prevented the probationary period from continuing to run despite revocation. The court interpreted the plain language of the tolling provision and said succinctly “that a revocation ofprobation suspends the running of the probationary period and ifprobation is reinstated the period ofrevocation cannot be countedin calculating the expiration date.” (Jd. at p. 415.) Applying that rule here, the period between the September 21, 2001 summary | revocation of defendant’s probation andthe trial court’s February 13, 2009 reinstatement of his probation does not count in calculating the expiration date of his probation. Put simply, when defendant’s probation was reinstated in February 2009, he had not completed the original three-year term ofprobation that began in April 2000. Tapia’s conclusion that a revocation ofprobation leads to a temporary tolling ofthe probationary period that expires upona failure to prove a violation during the original probationary term is not supported by the statutory languageorthe interpretation of the DePaulcourt. Thereis nothing in the statute to suggest the tolling provision operates undercertain circumstances and does not underothers. | | | Indeed, Tapia’s interpretation ofthe tolling provision violates basic principles of statutory construction. “In construing a statute, ourrole is to ascertain the Legislature’s intent so as to effectuate the purposeof the law. [Citation.] In determining intent, we mustlook first to the words of the statute because they are the mostreliable indicator of legislative intent. [Citation.] If the statutory language is clear and unambiguous,the plain meaning ofthe statute governs. [Citation.]” (People v. Lopez (2003) 31 Cal.4th 1051, 1056.) “{I]n construing this, or any statute, we may not broaden or narrow the scope ofthe provision by readinginto it language that does not appearin it or reading out ofit language that does. ‘Ouroffice . . ..“is simply to ascertain and declare” whatis in the relevant statutes, “not to insert what has been omitted, or to omit what has been inserted.” [Citation.] “““[A] court... may not rewrite the statute to conform to an assumedintention which does not appear from its language.’” [Citation.]” (Doev. City ofLos Angeles (2007) 42 Cal.4th 531, 545.) The Tapia court’s reading of section 1203.2, subdivision (a) adds languageto the statute that is simply not there. If the Tapia panel is correct, the tolling provision should read: The revocation, summary or otherwise, shall serveto toll the running of the probationary period, if, and only if, it is proven that the probationerviolated the termsofhis or herprobation during the periodofthe original probationary term. If the Legislature intended to restrict the application ofthe tolling provision to violations that occurred during the original probationary term, it knows how f to use language clearly expressing that intent. (See People v. Jackson (2005) 129 Cal.App.4th 129, 169.)° . In ourview, the languageofthe tolling provision is clear. It states that a revocation ofprobation stops the running ofthe probationary period—nothing more, nothing less. The statute does not address. the substantive issue presentedin this appeal: Whenis a probationerrelieved ofhis or her obligation to abide by the terms and conditions of the probationary grant? We haveto look beyond the languageofsection 1203.2, subdivision (a) to find the answer. Interestingly, the answer is located in a case relied on in Tapia, People v. Lewis (1992) 7 Cal.App.4th 1949 (Lewis). A close reading of the case, however, demonstrates that it does not support the Tapia holding. In Lewis, the defendant admitted a probation violation on March 1, 1991, sentencing on the violation was continued until April 1, and he wasreleased from custody. On April 1, the court reinstated and extended probation. On May1, 1991, the prosecution filed a petition seeking to revoke the defendant’s probation based on a March 29, 1991 arrest. After the probation violation hearing, the defendant was found in violation and sentencedto state prison. On appeal, he argued that he wasnot subject to the termsofhis probation between his March 1 admission and the April | sentencing hearing. (/d. at pp. 1951-1952.) 3 The dissent contends we should not interpret the statutory languageliterally because it would lead to unreasonable consequences that the Legislature could not have intended. (Dis. opn., post, at p. 4.) It states the Assembly Committee on Criminal Justice’s analysis of the 1977 amendmentinformsus of the Legislature’s intent. (/d.at pp. 4-5.) The Committee wrote that the proponents ofthe bill concluded the tolling provision was necessary to allow trial courts to conduct a new probation violation hearing in the event a prior revocation order was reversed on appeal. Whateverthe proponents of the bill may have intended, the language ofthe tolling provision makesit clear that the Legislature’s intent was much broader. As wenoted above, the court in DePaul concludedthat a revocation ofprobation suspends the running of the probationary period in all cases, not simply those on appeal. In any event, the Assembly Committee’s report offers little assistance in resolving the issue presented in this appealas it did not address whether a probationeris obligated to comply with the terms and conditions of probation during the entire period of revocation. In rejecting the defendant’s contention, the Lewis court wrote: “There is no ‘window’ during the probation term which allows the probationer to be free from the terms and conditions originally imposed or later modified, nor during the interim period at issue in this case. Further, the trial court has the power over the defendantatall times during the term ofprobation until the defendant is discharged from probation or the court loses jurisdiction upon the defendant being sentencedto prison.... [§] ... [§] Thus, the terms and conditions imposed upon the defendant placed on probation may be enforced at any time during the term ofprobation, and the proceduresutilized to enforce the termsand conditions ofprobation donottoll or suspend for any periodoftime the terms and conditions ofthe probation grant. The defendantis not free of these restrictions until the probation period has terminated or he or she has been discharged by law from the probationary term. [Fn. omitted.]” (Lewis, supra, 7 Cal.App.4th at pp. 1954-1955.) The court then pointed out in a footnote that, “However, ‘[t]he revocation, summary or otherwise, shall serve to toll the running of the probationary period.’ (§ 1203.2, subd. (a), italics added.)” (/d. at p. 1955, fn. 4.) | There is no dispute that the running of Leiva’s probationary term was tolled when the court summarily revoked probation in September 2001. Lewis holdsthatthetrial court “[had] the power” over defendantuntil he was “discharged from probation or the court [lost] jurisdiction upon [his] being sentencedto prison.” (Lewis, supra, 7 Cal.App.4th at p. 1954.) Neither event occurred prior to defendant reentering the country in February 2007 andfailing to report to his probation officer with documentation establishing he washerelegally. Since defendant’s probationary term had not expired becauseofthe tolling provision, he was still bound by the conditions ofprobation. Ourinterpretation of the tolling provision comports with another maxim of statutory construction. We are to construe a statute in a mannerthat is harmonious with its legislative purpose. (Starbucks Corp. v. Superior Court (2008) 168 Cal.App.4th 1436, 1449.) We mustnotlose sightof the factthat section 1203.2 is part of the statutory schemesetting forth the court’s authority to grant probation in lieu of a harsher sentence. “A grant of probation is intended to afford the defendant an opportunity to demonstrate . over the prescribed probationary term that his or her conduct has reformed to the degree that punishment for the offense may be mitigated or waived.” (People v. Feyrer (2010) 48 Cal.4th 426, 439.) Where, as here, a probationer is deported upon his release from custody, he cannot be found to be in willful violation of his probation for failing to report to the probation department. (People v. Galvan (2007) 155 Cal.App.4th 978, 984.) That being the case, ifprobation were to expire absent proofofa violation during the original probationary term, a probationer, such as defendant, whois deported, returnsto this country illegally and is not caught until after the original term ofprobation expires, could potentially escape from ever having to comply with his or her probationary conditions. Concluding that defendant, whoillegally reentered this country, chose not to report to his probation officer upon returning with proofthat he washere legally, and failed to pay his financial obligations, has demonstrated that his conduct “has reformed to the degree that punishment for the offense may be mitigated or waived”flies in the face of common sense. Defendant, who committed a string of acts that violated the conditions of his probation, would receive the same benefit as one who complied with all the termsofhis or her probationary grant—avoidance ofa more severe sentence by successfully completing probation. Such result is hardly consistent with the rehabilitative purpose of a grant of probation. © Weconclude, as Lewis did, that until a probationary term expires or probationis terminated, a defendantis required to comply with the conditions ofprobation. Pursuant to section 1203.2, subdivision (a), the court’s September 2001 revocation of defendant’s probation continued his probationary term until the court took further action either discharging him from the obligations of his probationary grant or sentencing him to prison. This interpretation gives full effect to the plain language ofthetolling provision. Of course, the Legislature may limit a court’s authority to modify or terminate probation to cases where a violation occurs during the original unexpired probationary period. As of yet, it has chosen not to do so. As result, the trial court had jurisdiction to modify defendant’s probation at the violation hearing in February 2009 andto terminate probation in October 2009. 10 II. Sufficient Evidence Supports the February 13, 2009 Finding Defendant contends the single hearsay statement from the supplemental probation report upon which the court relied is insufficient to prove that he failed to report to probation or reentered the country illegally. We are not persuaded. The court found “that Mr. Leivais in violation ofprobation for [failing] to report to probation. I am relying on his statement that he has been back in the United States since February of 2007, and nothis citizenship status since I think more would be required to establish that.” Thus, the court determined that defendant violated his probation by reentering the country and failing to report to his probation officer within 24 hours of his return with proof that he washerelegally. The court considered information contained in the supplemental probation report. Defendant did not challenge the admissibility of the information in that report during the hearing and does not do so on appeal. Thereport included defendant’s admission that he returned to this country in 2007 andalso informed the court that defendant had never reported to his probation officer, a fact that is not in dispute. In the face ofnothing to the contrary, the probation report contained sufficient evidence supporting the court’s finding that defendant reentered the country and did not report to the probation department within 24 hoursofhis return, an express condition of his grant ofprobation. The case defendant cites, People v. Smith (1970) 12 Cal.App.3d 621, does not alter our conclusion. Contrary to defendant’s contention, the case does not holdthat a court may not rely on information contained in a probation report to find a probationerin violation. Instead, the Smith court stated, “We fail to find in the special report any allegation offact from which the court could reasonably find that the appellant had violated the termsofhis probation.” (/d. at p. 627.) In other words, the report contained insufficient evidence establishing a violation. That is not the case here. Defendant claimsthe court’s reliance on his uncorroborated statementto the probation officer violated his right to due process. Heis incorrect. In the context of a probation violation hearing, a probationer must be provided counsel, written notice of the 1] alleged violation ofprobation, and an opportunity to be heardin person,including the rightto present evidence and cross-examine adverse witnesses. (Peoplev. Vickers (1972) 8 Cal.3d 451, 457-462.) Defendant had an opportunity to contest the accuracy of the statementin the report that was attributed to him. He declined to do so. Due process requires no more. lif. The Evidence Underlying the October 2009 Finding Was Admissible | Asdiscussed, in October 2009, the prosecution alleged defendant hadviolatedhis probation byreentering the country illegally. A deportation officer employed by ICE was shownvarious documents andtestified they established that defendant had been removed from the country in October 2005 and March 2009and did not have a right to return. Defendant contends the documentary evidence received by the court violated his right to confrontation as interpreted by the United States Supreme Court in Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [174 L-Ed.2d 314, 129 S.Ct. 2527]. The principles set forth in that case do not apply here. “Revocation ofprobation is not part of a criminal prosecution, and therefore the full panoply ofrights due in a criminaltrial does not apply to probation revocations.” (People v. Stanphill (2009) 170 Cal.App.4th 61, 72.) The cases of the United States Supreme Court, most recently Melendez-Diaz, which bar testimonial hearsay in criminal prosecutions wherethe declarant is unavailable and the defendant did not-have a prior opportunity to cross-examinethe declarant are inapplicable to probation revocation proceedings. This is so “because the Sixth Amendmentconfrontation clause applies only to ‘criminal prosecutions,’ and a probation revocation hearingis not a ‘criminal prosecution.’ [Citations.]” (/d. at p. 78; People v. Gomez (2010) 181 Cal.App.4th 1028, 1039 [‘{T]he confrontation clause is inapplicable to the probation revocation context.”].) Defendantrepeats his due process argument. Again, we reject it. During the October 2009 hearing, defendant had an opportunity to cross-examinethe witness against him andthe evidencepresented consistedof certified copies ofofficial government records,the type of reliable documents that may serve as substitutes for live testimonyat 12 probation violation hearings. (See Gagnon v. Scarpelli (1973) 411 U.S. 778, 782, fn. 5; People v. Maki (1985) 39 Cal.3d 707, 716-717.) Defendant was afforded the due process protection to which he wasentitled. DISPOSITION The judgmentsare affirmed. CERTIFIED FOR PUBLICATION SUZUKAWA,J. I concur: WILLHITE,J. 13 EPSTEIN,P.J. I respectfully dissent. . Penal Code section 1203.2, subdivision (a),' provides for revocation ofprobation at any time during the probationary period. The statute also provides that revocation of probation, whether summary or otherwise, tolls the running of the probationary period. The issue in this case is whether the tolling provision allowsthetrial court to revoke probation based ona violation occurring after the original period of probationifthere had been a summary revocation during that period. I would hold that it does not. And for the reasons that follow, I do not believe the case ofPeople v. Tapia (2001) 91 Cal.App.4th 738, was wrongly decided on this issue. . As recounted in the majority opinion, after a car burglary crime spree, defendants Jose Mario Leiva and Yashi Valmir Lima were charged on March 31, 2000 with 10 felony counts of vehicle burglary and related crimes. Defendant pled nolo contendereto three counts of second degree burglary of a vehicle in violation of section 459. Hetold the probation officer that he had emigrated from El Salvador and wasin the United States legally on a temporary work permit. On April 11, 2000, imposition of sentence was suspended, and defendant wasplaced on formalprobation for three years on each count, to run concurrently, under the condition that he serve 365 days in county jail, make restitution to the victims, and pay restitution fine. The remaining counts were dismissed. Defendant’s conditions ofprobation included reporting to his probation officer within one business day after release from custody, and, if he left the country voluntarily or was deported, that he “not return unless legally entitled to do so.” The court further orderedthat, ifhe did return, he wasto report to the probation department within one business day and present documentation proving that he wasin the country legally. All statutory references are to the Penal Code. On September21, 2001, the case was called for a probation violation hearing basedonanallegation that defendantfailed to report to his probation officer as required. The court summarily revoked probation and issued a benchwarrant. In November 2008, defendant was stopped for talking on a cell phone while driving. A warrant check revealed the September 2001 warrant, and defendant was arrested. At the November 10, 2008 hearing, the court continued the matter to December| for a supplemental probation report. _ According to the supplemental report, defendant hadfailed to report to his probation officer and failed to make any restitution payments. Expressing the hopethat defendant would respond to admonishment from the court, the report recommended finding a probation violation and continuing probation on the sametermsand conditions. At the December1, 2008 hearing,the court noted that defendant had not suffered any new arrests or convictions since being placed on probation. Defense counsel argued the reason defendant did not report might be that he was deported. The court ordered another supplemental probation report to address the circumstances of defendant’s arrest and determine whether defendant was deported after his release from custody. According to the second supplemental report, dated December12, 2008, defendant told the probation officer that he had been deportedto El Salvadoruponhis release from jail. He remained in El Salvador from 2001 to 2007, when he returned to the United States illegally. Section 1203.2, subdivision (a), providesthat “[a]t any time during the probationary period ofa personreleased on probation . . . if any probation officer or peaceofficer has probable causeto believe that the probationer is violating any term or condition ofhis or her probation or conditional sentence, the officer may, without warrant or other process and at any timeuntil the final disposition of the case, rearrest the person and bring him orher before the court or the court may,in its discretion, issue a warrant for his or her rearrest. Upon suchrearrest, or upon the issuance of a warrant for rearrest the court may revokeand terminate such probationif the interests ofjustice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person hasviolated any of the conditions ofhis or her probation, has becomeabandoned to improperassociates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses. ... The revocation, summary or otherwise, shall serve to toll the running ofthe probationaryperiod.” (Italics added.) Doesthis mean that wherethereis no proofat the formal revocation hearing that a probation violation occurred during the original probationary period, the court may rely on conduct which occurred afterthat time to find a violation? Defendant’s three-year probationary period wasset to expire in April 2003. Probation was summarily revoked and a bench warrant issued in September 2001. Defendant wasnot arrested on the warrant until November 2008. At the formal revocation hearing in February 2009, no proof waspresentedthat a violation ofprobation had occurred during the original three-year probationary period. Instead, the court relied on defendant’s statement to his probation officer that he reentered the country in February 2007, and found defendantin violation for failure to report to his probation officer within 48 hours ofhis return. Defendantarguesthat absentproofthat he violated probation during the original probationary period, his probation expired by operation of law in April 2003. Direct support for this conclusion is found in People v. Tapia, supra, 91 Cal.App.4th 738,a case in which,as stated by the majority, the facts are similar to those presented here. On appeal, the People argued that under thelanguageof section 1203.2, subdivision (a), the summary revocation tolled the running ofthe probationary period and preserved the court’s jurisdiction over the defendant. Thus, they claimed, the trial court had jurisdiction to find a violation based on the defendant’s proven violation, committed after what would otherwise have beenthe natural expiration of probation. The appellate court rejected that argument: “While the summary revocation ofprobation does suspend the running of the probationary periodso that the court retains jurisdiction to determine at.a formal revocation hearing whether there has, in fact, been a violation, an unproved violation cannot support the conclusion that, after the date on which probation expired underits original terms, a violation occurred upon Tapia’s failure to report to the probation department whenhelater returned to the United States. ... [W]hile we agree that the periodis tolled by summary revocation,andthat the periodoftolling can be tacked onto the probationary periodifprobationis reinstated, we donot agree that these rules apply where,as here, there is no proof or admission of a violation during the period ofprobation.” (Tapia, supra, 91 Cal.App.4that p. 741.) The majority here concludes that Tapia was wrongly decided becauseit is inconsistent with the plain language ofthe statute. Generally, where the language of a statute is clear and unambiguous,there is no need for construction or resort to indicia of legislative intent, but “courts will not give statutory languagea literal meaningif doing so would result in absurd consequencesthat the Legislature could not have intended.” (Jn re J.W. (2002) 29 Cal.4th 200, 210.) Ifthe tolling language were appliedliterally, once a defendant’s probation was summarily revoked, the probationary period would never expire until the formal revocation hearing is conducted, even though it turned out there had been no violation during the probationary period set by the court. Unreasonable consequences would flow from this interpretation. Consider a defendant whois placed on three years probation, which is summarily revoked during this time period for an alleged but mistaken claim of violation. Twenty yearslater, the defendant is stopped for a traffic violation, and a warrant check reveals the bench warrant from the summary revocation. The basis of the summary revocation is not sound, and there is no proof of any other probation violation during the three-year probationary period. Butif the tolling language is read as the majority would readit, the defendant’s probationary period never ends. With the benefit of the legislative materials, I would reach a different conclusion from that reached by the majority in this case. Thereis no indication the Legislature intendedthe tolling provision to subject a probationerto possible revocation for conduct occurring after the conclusion ofthe probationary period. Instead it appears from the analysis of the measure, which amended section 1203.2, subdivision (a) adding this tolling provision (Stats. 1977, ch. 358, p. 1330, §1), that the provision was necessary to address an insular problem which could arise when a revocation decision is reversed on appeal. The Assembly Committee on Criminal Justice stated in its analysis ofthe bill:? “Should the probationary period be tolled upon revocation ofprobation? Whatdoes this mean? Uponrevocation, the period is terminated. The proponents ofthis bill indicate that this ‘tolling’ languageis necessary in cases wherethe revocation proceedings were conducted in an illegal mannerand the decision is reversed upon appeal. Without the tolling language, the period may have expired and the court would be powerlessto act in conducting a new probation revocation hearing.” (Assem. Com. on Criminal Justice, Rep. on Sen. Bill No. 426 (1977-1978 Reg. Sess.) as amended May 19, 1977.) Theenrolled bill report submitted to the Governor by the Secretary ofLegal Affairs stated that the bill was “basically a cleanup measure” and “[t]he State Public Defender has noobjection.”Ifthe tolling provision hadtheliteral | meaning now claimedforit by the majority, it would have been far more than a mere cleanup measure, and would mostcertainly have been opposed by the State Public Defender. But whatis significant about these reports is that they focus on the problem the bill was designedto solve. In its commentsto the proposed amendmentto section 1203.2, the Assembly Committee on Criminal Justice explained: “The principles ofMorrissey [Morrisey v. Brewer (1972) 408 U.S. 471, 480] and Vickers [People v. Vickers (1972) 8 Cal.3d 451, 458] . . . apply to revocation ofprobation hearings. The probationer must be afforded the opportunity to confront adverse witnessesand to present testimony. However, there may be a ‘summary’revocation by the court with later allowance forthe full hearing. Section 1203.2 deals with the revocation ofprobation procedure. However, it does not provide for the ‘summary’revocation as is required in decisional law. Should this sectionbe amended to provide more detail?” (Assem. Com. on CriminalJustice, Rep. on Sen. Bill No. 426 (1977-1978 Reg. Sess.) as amendedMay 19, 1977.) The Legislature provided statutory authority for the summary revocation procedure approved by the courts. ? Legislative Committee reports and analyses and enrolled bill reports are proper subjects ofjudicial notice. (See People v. Epps (2001) 25 Cal.4th 19, 24 & fn. 2, 25; Elsner v. Uveges (2004) 34 Cal.4th 915, 934, fn. 19.) . I agree with the observation that we should consider whetherthe“literal application ofthe wordsofthe statute comports with its purpose. [Citation.]” (People v. Meyer (2010) 186 Cal.App4th 1279, 1283.) What the Legislature intended, and what the Tapia court understood, is that when probation is summarily revoked,the probationary period is tolled so that the court can proceed with a formal revocation hearing even though the original period ofprobation has expired. Despite the imprecise language,the statute cannot reasonablybe readto mean that conductoccurringafter the expiration of that original period can be the basis of a probation revocation. This is particularly true when,as in this case, the basis for summary revocationis ultimately unproven. As “[T}he languageofthe cases andstatutes is not always as precise as could be desired, requiring usto examineclosely the actual effects of a court’s probation orders rather than simply relying on the court’s language. Asthe court noted in People v. Pipitone (1984) 152 Cal.App.3d 1112 [parallel citation omitted], summary ‘revocation’ of probation followingthe filing of a petition ‘cannotaffect a grant of probationorits conditions, ...” (/d., at p. 1117.) Rather, ‘. . . it is simply a device by which the defendant may be broughtbefore the court andjurisdiction retained before formal revocation proceedings commence. [Citation.] If probation is restored there has been in effect, no revocation at all.’ (/bid.) Thus, in the context of the statutory scheme governing probation, the term ‘revocation’ has a meaning quite different from other contexts. The term ‘reinstatement of probation’ suffers from this same misunderstanding of the context in whichthis phrase is used.” (People v. Lewis (1992) 7 Cal.App.4th 1949, 1955.) In that regard, the term is different from “termination”ofprobation, or a “discharge” from probation, acts which require that judgment be pronouncedifno sentence was imposed whenprobation was granted. (/bid.) Summary probationis, thus, in the nature of a placeholder by which the court retainsjurisdiction to adjudicate a claim that the defendant had violated a term ofprobation. The majority opinion argues that unless its construction of the statutory schemeis accepted, “a probationer, such as defendant, who is deported, returnsto this country illegally and is not caught until after the original term ofprobation expires, could potentially escape from ever having to comply with his or her probation conditions.” (Maj. opn. ante, at p. 9.) To the contrary, if the defendant committed a new offense during the original probation period — suchas willfully failing to report to a probation officer, failing to pay a fineorrestitution, or illegally entering the United States — he or she would be subject to revocation ofprobation at any time. And ifhe or she committed a new crime during orafter that period, he or she would be subject to prosecution for that crime, like anyoneelse. It is undisputed that defendant’s probation was revoked in June 2009 andin October 2009, but that neither revocation was based on violation withinthe original period ofprobation. The court lacked jurisdiction to revoke probation based on conduct occurring after probation expired, and its orders doing so should therefore be reversed. EPSTEIN,P.J. Certificate of Service The undersigned herebycertifies that copies of the foregoing Petition for Review in the case People v. Leiva, # B214937, were mailed on this date, first class, with postage prepaid in the United States mail in San Francisco, California, to the following: Joseph A. Lane, Clerk (TWO COPIES) California Court of Appeals Second Appellate District (DIV. 4) 300 So. Spring St., 2d Floor Los Angeles, CA 90013 David C. Cook, Esq. Deputy Attorney General 300 So. Spring Street, 5th Floor Los Angeles, CA 90013 (Representing the People) Maria Morrison, Esq. California Appellate Project 520 So. Grand Ave., 4th Floor Los Angeles, CA 90071 Jose Leiva Current address Los Angeles County . Karen Nash, Esq. District Attorney’s Office Deputy Public Defender 111 No. Hill Street 210 West Temple St. Los Angeles, CA 90012 Los Angeles, CA 90012 Criminal Appeals Clerk Los Angeles County Superior Court Attn: The Honorable Sanjay T. Kumar 210 West Temple St. Los Angeles, CA 90012 I certify under penalty of perjury that the foregoing is true and correct. Executed on April 11, 2011, at San Francisco, California. hudWath” Mereldith J. Watts, #78520