1

Filed 1/30/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

RODRIGO ESCOBAR ORNELAS,

Defendant and Appellant.

 A165333

 (Sonoma County

 Super. Ct. No. SCR7413021)

A few months after defendant Rodrigo Escobar Ornelas was placed on 

probation in July 2021 for the maximum statutory term of two years, he 

failed to report to probation as directed, his probation was summarily 

revoked, and a bench warrant was issued for his arrest. He was eventually 

arrested and admitted to violating the terms of his probation. In April 

2022—still within his original two-year probationary term—the trial court 

reinstated him on probation, but this time with a new termination date in 

November 2023 to account for the days he had been “in warrant status” and

his probation had been summarily revoked. 

On appeal, Ornelas contends that the trial court exceeded its 

jurisdiction by extending his probation to November 29, 2023, which Ornelas 

argues is beyond the two-year maximum probationary period authorized by 

statute. We find no error here. When probation has been summarily revoked 

and then reinstated within the initial probationary term, the trial court has 

discretion to extend probation to account for the time when probation was 
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summarily revoked so long as the total period of probationary supervision 

does not exceed the statutory maximum. Even with an extension to 

November 2023, Ornelas’s term of probation, not including the time he was 

on warrant status and his probation was summarily revoked, is less than two 

years. 

FACTUAL AND PROCEDURAL BACKGROUND

Ornelas was charged with possessing methamphetamine for sale and

unlawfully transporting it, offering to sell it, selling it, or giving it away.

(Health & Saf. Code, §§ 11378, 11379, subd. (a).) In February 2021, Ornelas

agreed to plead no contest to an amended felony count of offering to give 

away a controlled substance (ibid.), conditioned on two years of felony 

probation and dismissal of the remaining charges. The trial court accepted 

the plea, and at the sentencing hearing on July 23, 2021, suspended 

imposition of sentence and placed Ornelas on two years of formal probation 

with a termination date of July 23, 2023. 

On October 26, 2021, the trial court summarily revoked Ornelas’s

probation and issued a bench warrant for his arrest, based on a report from 

the probation department that Ornelas had failed to report to probation in 

September and was out of compliance for October. Ornelas was arrested on 

November 15, 2021, and promised to appear in court on November 24, 2021.

When he did not appear on that date, another bench warrant was issued. 

Ornelas was arrested again on March 15, 2022. The trial court recalled the 

warrant at a hearing on March 17, 2022, and probation remained summarily 

revoked. 

At a hearing on April 6, 2022, Ornelas admitted that he had violated 

the terms of his probation by failing to report. The trial court accepted the 

admission, found Ornelas in violation, and reinstated probation. The 
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probation officer informed the court that Ornelas had been “in warrant status 

for 129 days,” and on that basis asked for a new probation termination date 

of November 29, 2023, which is 129 days after the previous termination date 

of July 23, 2023.1 The trial court granted the request, stating that it was 

doing so “over the defense objection.” The record does not reveal what 

objection the defense made. 

Ornelas timely appealed. 

DISCUSSION

A. Applicable Law and Standard of Review

Probation is defined in the Penal Code as “the suspension of the 

imposition or execution of a sentence and the order of conditional and 

revocable release in the community under the supervision of a probation 

officer.” (Pen. Code,2 § 1203, subd. (a), italics added.) 

Probation is a creature of statute. (In re Oxidean (1961) 195 

Cal.App.2d 814, 817.) We describe the statutes pertinent to Ornelas’s appeal. 

Based on the felony count to which Ornelas pled guilty, the trial court

had the authority to order probation for a period not exceeding two years, and 

“upon those terms and conditions as it shall determine.”3 (§ 1203.1, subd. 

(a).) 

1 Ornelas does not contest the Attorney General’s representation that 

he was “in warrant status” for 129 of the 162 days during which his probation 

was revoked. 

2 All subsequent statutory references are to the Penal Code. 

3 Subject to exceptions not applicable here, and effective on January 1, 

2021, the maximum term of probation for a person convicted of a felony is two 

years. (Stats. 2020, ch. 328, § 2.) The maximum term of probation for a 

person convicted of a felony had previously been the length of the maximum 

possible prison term of the sentence, or five years if the maximum prison 

term was five years or less. (Stats. 2010, ch. 178, § 75.) 
4

Under section 1203.2, subdivision (b)(1), the trial court may “modify” 

an order of probation upon appropriate notice to the probationer. The power 

to modify includes the power to extend the term of probation, up to the 

statutory maximum. (People v. Cookson (1991) 54 Cal.3d 1091, 1094-1095.) 

If a probation officer has probable cause to believe that a probationer is 

violating any term or condition of the probationer’s supervision, the court has 

authority to issue a warrant for the person’s arrest. (§ 1203.2, subd. (a).) 

Upon issuance of the warrant, “the court may revoke and terminate the 

supervision of the person if the interests of justice so require and the court, in 

its judgment, has reason to believe from the report of the probation . . . officer 

or otherwise that the person has violated any of the conditions of their 

supervision . . . .” (Ibid.) 

Section 1203.2, subdivision (a), further provides that “[t]he revocation, 

summary or otherwise, shall serve to toll the running of the period of 

supervision.” Our Supreme Court has held that this so-called “tolling 

provision . . . focuse[s] on preserving jurisdiction,” giving a trial court 

“authority to adjudicate a claim that the defendant violated a condition of 

probation during the probationary period” even if a formal violation hearing 

cannot be held before probation expires. (People v. Leiva (2013) 56 Cal.4th 

498, 515 (Leiva).) The tolling provision does not “stop” probation so as to 

relieve the defendant from complying with the conditions imposed by the 

court (id. at p. 508), nor does it operate to automatically “extend” the 

conditions of probation beyond the expiration of the probationary term. (Id.

at p. 509.) Instead, where a formal violation hearing is held after the original 

probationary term has expired, section 1203.2, subdivision (a), preserves 

jurisdiction so that “a trial court can find a violation of probation and then 

reinstate and extend the terms of probation ‘if, and only if, probation is 
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reinstated based upon a violation that occurred during the unextended period 

of probation.’ ” (Id. at p. 516, quoting People v. Tapia (2001) 91 Cal.App.4th 

738, 747 (Tapia) [cited with approval in Leiva, supra, 56 Cal.4th at pp. 515-

516 & fn. 5, and disapproved on another point in People v. Wagner (2009) 45 

Cal.4th 1039, 1061, fn. 10].)

Here there is no issue of preserving jurisdiction to adjudicate a 

probation violation because Ornelas’s violation hearing was held in April 

2022, long before his original two-year term expired. But apart from 

preserving jurisdiction, courts have concluded that when probation has been 

summarily revoked and when, at a hearing held during the initial period of 

probation, a violation has been found, “the period of tolling can be tacked onto 

the probationary period if probation is reinstated.” (Tapia, supra, 91 

Cal.App.4th at p. 741.) As we shall explain, this is what happened in 

Ornelas’s case.

We review the trial court’s ruling de novo. (See People v. Prunty (2015) 

62 Cal.4th 59, 71 [questions of statutory interpretation are reviewed de novo]; 

People v. Rosbury (1997) 15 Cal.4th 206, 209 [propriety of sentence is “purely 

legal matter” that is reviewed de novo].)

B. Analysis

Ornelas argues that in reinstating his probation with a new 

termination date, the trial court acted in excess of its jurisdiction by 

extending his probation beyond two years. Ornelas claims that the time 

during which his probation was revoked and he was on warrant status must 

be counted toward the statutory maximum period. Under the circumstances 

here, this is not correct. To the contrary, the court had authority to tack on 

the additional time. 
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Probation is “an act of clemency in lieu of punishment . . ., and its 

primary purpose is rehabilitative in nature.” (People v. Howard (1997) 16 

Cal.4th 1081, 1092.) Supervision by a probation officer is a crucial 

component of the probationer’s rehabilitation. (See People v. Moran (2016) 1 

Cal.5th 398, 406 [“probation officers’ awareness of probationers’ whereabouts 

facilitates supervision and rehabilitation and helps ensure probationers are 

complying with the terms of their conditional release”]; see also Leiva, supra, 

56 Cal.4th at p. 519 (conc. opn. of Baxter, J.) [“Imposition of probation for a 

specified period contemplates that the probationer will be subject to 

supervision by the court and probation authorities for that entire amount or 

length of time . . . . Supervision for the entire probationary period, as agreed 

between the probationer and the court, is a fundamental prerequisite to the 

successful and lawful completion of a grant of supervised probation”].) 

During the 129 days that Ornelas was in warrant status, he was not 

“under the supervision of a probation officer.” (§ 1203, subd. (a).) He had 

absconded, and his absence kept the probation officer from facilitating and 

monitoring his rehabilitation. In reinstating Ornelas’s probation and moving 

the termination date to account for the 129 days in which Ornelas had been 

in warrant status and not under the supervision of a probation officer, the 

trial court did not increase the term beyond the statutory maximum of two 

years; instead, the court exercised its discretion to adjust the termination 

date to provide Ornelas with approximately two years of probationary 

supervision, as Ornelas had agreed to when he accepted the terms of 

probation, and in keeping with the July 2021 sentencing order. The court 

was within its authority under section 1203.2, subdivision (b), in taking this 

step. 
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The case of People v. Jackson (2005) 134 Cal.App.4th 929 (Jackson), 

provides an example of how time during which probation was summarily 

revoked can be tacked on to the term when probation is reinstated within the 

original probationary period, as happened here.4 In Jackson, the defendant 

pleaded guilty in August 1996 and the court imposed a probationary term of 

five years, the maximum term under section 1203.1, subdivision (a), at the

time. (Id. at p. 931.) Jackson’s term was therefore scheduled to expire in 

August 2001. (Id. at p. 932.) In March 1999, Jackson’s probation was 

summarily revoked for desertion. (Id. at p. 931.) In November 1999, Jackson

admitted she had violated probation, and the trial court found her in 

violation and reinstated her probation. (Ibid.) But the trial court imposed a 

new five-year probationary term and extended the probation to November 

2004, which the Court of Appeal concluded was error. (Ibid.) Upon 

reinstating probation in November 1999, the trial court was “free to 

recalculate the date of expiration of [defendant’s] probationary term,” such 

that the term would expire in May 2002, 263 days after the original 

expiration date, to account for the 263 days during which her probationary 

period had been tolled by the revocation of her probation under section 

1203.2, subdivision (a). (Id. at p. 932.) But the trial court had no authority to 

extend her probation to November 2004, which, by imposing a new five-year 

term on top of the probationary period that ran from August 1996 to March 

1999, resulted in a term that exceeded the statutory five-year maximum. 

(Ibid.) 

4 When probation is reinstated after the original probationary period 

has expired, different rules apply under section 1203.2, subdivision (e), as we 

discuss below.
8

Our Legislature intended that cases involving probation revocation and 

reinstatement like Ornelas’s could result in probationary terms that in effect 

extend beyond the original two-year period. In 2020, when the Legislature 

passed AB 1950, which reduced the maximum term of felony probation to two 

years, the question arose whether limiting probation to two years (subject to 

exceptions not present here) would interfere with the policy goals of 

probation. The Legislature recognized that the revocation of probation could 

result in extension to allow two full years of supervision, as reflected in this 

excerpt from an analysis of the proposed law by the Assembly Committee on 

Public Safety: “Is . . . two years a sufficient amount of time to meet the 

objectives of probation? . . . [¶ Probation supervision can serve to connect 

defendants to community based organizations and resources which can 

provide support and assistance. Probation can help defendants connect to 

resources to assist with needs like housing and job training. [¶] A two year 

period of supervision would likely provide a length of time that would be 

sufficient for a probationer to complete any counseling or treatment that is 

directed by a sentencing court. To the extent that a probationer is not 

complying with the treatment or counseling directed by the court during a 

probationary period, the court can revoke the defendants’ probation until the 

defendant is back in compliance. The period while probation is revoked tolls 

the running of time towards the end point of the probationary period. That 

tolling process would effectively extend the probationary period for 

individuals that are not in compliance with the conditions of their probation.” 

(Assem. Com. on Public Safety, Analysis of Assem. Bill No. 1950 (2019-2020 

Reg. Sess.) as amended May 6, 2020, p. 6 (AB 1950).)5 

5 Pursuant to Evidence Code sections 452, subdivision (c) and 459, 

subdivision (c), we take judicial notice of the legislative history of AB 1950
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Accordingly, in passing AB 1950, the Legislature intended that when a 

warrant was issued and probation was revoked during the initial two-year 

term, if probation was later reinstated, the period during which the 

defendant was on warrant status could be tacked on to the probationary 

period. Notably, summary revocation does not automatically extend the 

probationary period. Rather, at a formal revocation hearing, if the trial court 

finds a violation, it has discretion to reinstate and extend the probationary 

term to account for the period of revocation. (Leiva, supra, 56 Cal.4th at p. 

516; see also People v. Braud (2020) 56 Cal.App.5th 962, 968-969 (Braud)

[discussing cases, including Leiva, that “conclude[ ] a trial court has 

discretion to extend the expiration date when supervision is revoked and 

reinstated; it just does not happen automatically”].) In Ornelas’s case, the 

trial court exercised its discretion to extend the expiration date, while 

ensuring that the time Ornelas was supervised by the probation department 

was not greater than the two-year maximum term of felony probation set 

forth in section 1203.1, subdivision (a). This was not error.

The leading treatise on California criminal sentencing supports our 

conclusion that the trial court did not err in extending Ornelas’s probation: 

“[T]here is a limited right to extend probation to account for the period when 

defendant’s probation has been summarily revoked.” (Couzens et al., 

Sentencing Cal. Crimes (The Rutter Group 2022) ¶ 8:22 (Couzens).) The 

limitation is that “the total term of active probation . . . must not exceed the 

limits set by AB 1950” (ibid.), which for Ornelas, is two years.6

(2019-2020 Reg. Sess.) on our own motion, having previously notified the 

parties of our intent to do so. 

6 Couzens provides an example illustrating how a court might exercise 

its discretion to tack on time when a probationer was in warrant status and, 

in effect, “extend” the probationary term. (Couzens, supra, ¶ 8:21.) Consider 
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Ornelas’s arguments do not persuade us that the trial court erred. 

Ornelas argues that none of the time when his probation was revoked 

can be “tacked on” after the original expiration date of his probation because 

to do so would be to extend his probation beyond the maximum term, which is 

allowable only under circumstances set forth in section 1203.2, subdivision 

(e), a statutory provision that he argues does not apply here. That section 

provides that “[i]f an order setting aside the judgement, the revocation of 

probation, or both is made after the expiration of the [initial] probationary 

period, the court may again place the person on probation for that period and 

with those terms and conditions as it could have done immediately following 

the conviction.”7 (§ 1203.2, subd. (e).) We agree that this is not Ornelas’s 

a defendant sentenced before the effective date of AB 1950 to a felony 

probation term of three years. After a year on probation, the defendant 

violates probation, probation is summarily revoked, and the defendant 

remains in warrant status for six months. AB 1950 takes effect before the 

warrant is executed. “At sentencing on the violation, the court could 

reinstate the defendant on the remaining period of probation and exercise its 

discretion” to treat the time in warrant status as counting toward the 

probationary term, in which case, the remaining period is limited to six 

months, given the two-year limit imposed by AB 1950. (Ibid.) “Alternatively, 

the court could order the six months during which the defendant was in 

warrant status does not apply against the remaining probation term—in this 

way the defendant will have a full year of active supervision remaining on his 

reinstated probation. Such an order has the effect of ‘extending’ the term of 

probation to account for the time lost while the defendant was in warrant 

status, but the total length of active probation has been adjusted to meet the 

limits set by AB 1950.” (Ibid.)

7 The Couzens treatise explains that section 1203.2, subdivision (e) 

provides “a very limited exception” that allows a term of probation to be 

extended beyond the time provided in § 1203.1, subd. (a). (Couzens, supra, 

¶ 8:25; see also Jackson, supra, 134 Cal.App.4th at p. 937 [discussing a 

possible application of § 1203.2, subd. (e)].)
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situation, so section 1203.2, subdivision (e) does not apply. Nor, based on our 

analysis, does it render what the trial court did here erroneous.8 

Ornelas also argues that the days that accrued while his probation was 

revoked must count toward the two-year maximum term, based on Leiva and 

People v. Johnson (2018) 29 Cal.App.5th 1041 (Johnson), cases which he 

contends “teach that the period of time during which probation is revoked 

counts towards the statutory maximum period of probation.” 

But Leiva addressed a situation different from Ornelas’s. The question 

in Leiva was “whether, once probation has been revoked, [the tolling 

provision in section 1203.2, subdivision (a)] permits a trial court to find a 

violation of probation and then reinstate or terminate probation based solely 

on conduct that occurred after the court-imposed period of probation had 

elapsed.” (Leiva, supra, 56 Cal.4th at p. 502, italics added.) The answer was 

“no”: the “tolling provision preserves the trial court’s authority to adjudicate, 

in a subsequent formal probation violation hearing, whether the probationer 

violated probation during, but not after, the court-imposed probationary 

period.” (Ibid.) But Leiva does not prevent the trial court from exercising its 

discretion to tack on additional days for the period of revocation in Ornelas’s 

case. To the contrary, under Leiva, “[i]f a defendant whose probation has 

been summarily revoked has violated probation during the original 

probationary period,” as Ornelas did here, the defendant “may be subject to 

an additional period whenever a formal probation revocation hearing can be 

8 According to the Attorney General’s calculation, which Ornelas does 

not dispute, before his probation was revoked Ornelas was on probation for 

96 days, from July 23, 2021 until October 26, 2021. The reinstatement of his 

probationary status on April 6, 2022 until November 29, 2023, adds 603 days 

to the term, for a total of 699 days. This is still less than the current twoyear, or 730-day, maximum. 
12

held.” (Id. at p. 517.) And “when the violation and reinstatement both occur 

during the probationary period, Leiva indicates a court may extend it by 

adding the tolled period of revocation.” (Braud, supra, 56 Cal.App.5th at p. 

969.)

Johnson, the other case relied on by Ornelas for this point, presented 

the issue “whether the length of appellant’s postrelease community 

supervision (PRCS) was properly extended when PRCS was revoked and then 

reinstated.” (Johnson, supra, 29 Cal.App.5th at p. 1044.) In Johnson we held 

that “the length of the supervisory period is not automatically extended when 

PRCS is reinstituted after revocation,” which is what happened in that case. 

(Id. at p. 1050, italics added.) There, the trial court had simply assumed that 

the period of revocation extended the period of PRCS. (Id. at p. 1048.) We 

recognized, however, that upon reinstatement, the trial court had discretion 

to extend the original expiration date. (Id. at p. 1050 [where PRCS is 

revoked and reinstated after defendant admitted violating terms by failing to 

abstain from illegal substances, tolling under § 1203.2, subd. (a) does not 

automatically extend the PCRS period, but the trial court may choose to 

extend the expiration date].) 

In sum, Leiva and Johnson do not teach that the period of time during 

which probation is revoked necessarily counts towards the statutory 

maximum period of probation. Instead, they teach that if the trial court 

reinstates probation after a summary revocation, the trial court has 

discretion to count, or not count, the period of revocation toward the total 

probationary term. (Braud, supra, 56 Cal.App.5th at p. 969.) 

Finally, Ornelas argues that comparing the statutory schemes for 

probation and PRCS forces the conclusion that his probation could not be 

extended by adding time to account for the summary revocation. Ornelas 
13

notes that the statutes governing PRCS state that “[t]ime during which a 

person on postrelease supervision is suspended because the person has 

absconded shall not be credited toward any period of postrelease 

supervision.” (§ 3456, subd. (b).) He contends that because there is no 

similar provision for probation, we should presume that the Legislature

intended that time during which a probationer has absconded must be 

credited toward the time of probation, and did not intend to allow the 

extension of a probationary term on the basis of revocation. The argument is 

unpersuasive. The absence of a statutory prohibition against counting 

absconded time toward probation does not require us to infer a requirement 

that absconded time be counted toward probation.

Here, when the trial court reinstated Ornelas’s two-year term of 

probation, it acted within its authority when it exercised its discretion to not 

count a portion of the time when Ornelas’s probation was revoked (the 129 

days when he was in warrant status), and to extend the expiration of his 

probationary term by 129 days.

DISPOSITION

The challenged order is affirmed.
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_________________________

Miller, J.

WE CONCUR:

_________________________

Richman, Acting P.J.

_________________________

Van Aken, J.*

A165333, People v. Ornelas

* Judge of the San Francisco Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.
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Court: Sonoma County Superior Court

Trial Judge: Hon. Robert M. LaForge

Justin Behravesh under appointment by the Court of Appeal, for Defendant 

and Appellant

Rob Bonta, Attorney General; Lance E. Winters, Chief Assistant Attorney 

General; Jeffrey M. Laurence, Assistant Attorney General; Rene A. Chacon, 

Claudia H. Amaral, Deputy Attorneys General, for Plaintiff and Respondent

A165333, People v. Ornelas