P.
v. Salgado
Filed
7/17/14 P. v. Salgado CA 6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
EDIE LILY SALGADO,
Defendant and
Appellant.
H038981
(Santa
Clara County
Super. Ct.
No. FF509618)
Defendant
Edie Lily Salgado appeals from an order reinstating and extending her probation. She contends the trial court lacked
jurisdiction to do so because her maximum probationary term had already expired. Alternatively, she argues her trial counsel
was ineffective for failing to object to the extension as an act in excess of
the court’s jurisdiction.
The People
concede the trial court lacked
jurisdiction to extend Salgado’s probation, and we agree the concession is appropriate.
We will
therefore reverse the trial court’s order
reinstating probation and direct the trial court to discharge Salgado from
probation.
I. Factual and Procedural Background
A. Initial sentencing
In November
2005, Salgado pleaded no contest to one count of driving under the influence
with a blood-alcohol level
of 0.08 percent or more (Veh. Code, § 23153, subd. (b)) and one count of felony
hit and run (id., § 20001, subds.
(a), (b)(1)) and admitted an allegation she personally inflicted great
while driving under the influence. At
her sentencing hearing on January 9,
2006, the trial court suspended imposition of sentence and placed
Salgado on probation for six years conditioned, in part, on serving one year in
county jail. As one of several probation
conditions, Salgado was ordered to pay restitution to the victim.
On August 30, 2007, after Salgado missed
a restitution payment, the trial court held a hearing on her probation
status. This was not a formal
admit violating her probation, but the trial court nonetheless revoked her
probation and directed her to “keep on paying.â€
From
September 2007 through August 2011, Salgado made regular monthly payments, many
of which exceeded the minimum payment due. At each restitution hearing, however, the
trial court continued Salgado in revoked probationary status.
On August 16, 2011, Salgado asked the court to reinstate
probation based on her consistent payment record. The court ordered Salgado to continue paying
$150 per month for the next six months and to provide the probation department
with a current financial history to evaluate if she could increase the payment
amount. The trial court expressed its
intent to reinstate probation at the February 2012 hearing and extend probation
for the maximum allowable period.
At the February 2012 probation
status hearing, the trial court indicated Salgado still owed $37,440 in
restitution and could not recall why it may have previously considered
reinstating probation. The trial court
advised it would review its notes and revisit the issue at the next hearing. The case was continued with Salgado in
revoked status.
On October 16, 2012, a further probation status hearing was
held. Salgado, who still owed $36,032 in
restitution, renewed her request that probation be reinstated due to her
consistent payment history. The trial
court denied Salgado’s request and set another hearing for November
2, 2012. The trial court stated it would reconsider
reinstating probation at the next hearing after giving the victim an
opportunity to be heard.
At the November 2012 hearing,
Salgado again asked to have probation reinstated. The People argued that Salgado should be kept
on revoked status until she pays the full amount of restitution owed. However, even if Salgado’s probation were
reinstated, the People contended her probationary period was tolled during the
time probation was revoked and the court could extend probation for an
additional five year period.
Salgado disagreed, arguing that she
had never admitted violating probation and there had not been a formal
probation revocation hearing.
Furthermore, her probationary period could not be extended past her
maximum sentence of six years eight months which would expire on September
9, 2013.
The trial court agreed with the
People’s argument and reinstated Salgado’s probation, extending her probation
period an additional five years to November 11, 2017. Salgado was directed to make monthly restitution
payments of $150 and complete a new financial history form.
Salgado timely appealed.
II. Discussion
On appeal,
Salgado argues the trial court was without jurisdiction to reinstate and extend
her probationary period for any length of time because her maximum term of
probation (six years eight months) had expired nearly two months before the
November 2012 hearing. We agree.
In
16, we held that a trial court is without jurisdiction to reinstate probation
where a defendant has been placed in revoked status, without the benefit of a
formal revocation hearing, for years beyond the expiration of the maximum
probationary period. We expressly
concluded in Freidt that summary revocation
and Penal Code section 1203.2, subdivision (a)’s tolling provision did not
permit trial courts to indefinitely retain jurisdiction to modify or extend a
probationary term. In so holding, we
relied on the California Supreme Court’s reasoning in People v. Leiva (2013) 56
Cal.4th 498 that giving trial courts such power “would be contrary to our
statutes that authorize the courts to grant probation for a period not to
exceed a specified time.†(
Here, the
court summarily revoked Salgado’s probation based on an apparent concession
that she had failed to pay restitution. No formal hearing was held to determine whether
her failure to pay was willful or not. Regardless,
her probation remained summarily revoked for more than five years, beyond the expiration
of the maximum probationary period of six years eight months. The court then reinstated and extended her
probation an additional five years to November 2017. In doing so, the court reasoned it could do so
because Salgado’s probationary term had been tolled since August 2007 pursuant
to Penal Code section 1203.2, subdivision (a). This was error.
Because the
court neither found a willful failure to pay restitution, nor formally revoked
Salgado’s probation, it lacked the authority to extend probation once her
maximum probationary term expired in September 2012.
The order
reinstating probation is reversed. The
trial court is directed to discharge Salgado from probation.
Premo,
Acting P.J.
WE CONCUR:
Elia, J.
Mihara,
J.
name="_ftn1" title="">[1]
We therefore need not reach Salgado’s alternative argument that she received
ineffective assistance of counsel.
name="_ftn2" title="">[2]
The victim, a passenger in the car driven by Salgado, was seriously injured in
the crash. Her pelvis was broken, her
left leg was fractured in several places, both lungs were punctured and one of
her vertebra was fractured. She also
suffered multiple lacerations to her right leg, right arm and forehead. Salgado waived her right to a restitution
hearing and stipulated that she owed restitution to the victim in the amount of
$55,346.40.
