Filed 12/18/13 P. v. Corral CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. DELILAH DAWN CORRAL, Defendant and Appellant. H038608 (Santa Clara County Super. Ct. No. CC318537)

Defendant Delilah Dawn Co rral pleaded guilty to cons piracy to commit identity theft. (Pen. Code, §§ 530.5, subd (a), 182, subd. (a)(1).) 1 She admitted an enhancement alleging the value of the property taken ex ceeded $50,000. (§ 12022.6, subd. (a)(1), Stats. 1998, ch. 454, § 2.) On October 29, 2004, the tria l court placed defendant on a five-year grant of probation, in cluding 89 days in county jail as a cond ition of probation. As another condition of probati on, the court ordere d defendant jointly and severally liable for $50,411.76 in restitution. The court al so imposed a restituti on fine of $330, and $632.50 in other fees. In 2007, the trial court re voked defendant’s pr obation for willful failure to make regular payments on the restit ution and the restitution fine . Defendant continued to appear in court and made some restituti on payments, but the pr obation department alleged further violations in 2011. After defendant admitted the violations, the court

1 All statutory references are to the Penal Code.2 reinstated probation and imposed a nine-month term in co unty jail as a condition of probation. In 2012, the court also extende d the term of probation to 2016 pursuant to section 1203.2, subdivision (a). On appeal, de fendant argues the court lacked authority to extend her probation. After defendant filed her opening brief, the California Supreme Court issued People v. Leiva (2013) 56 Cal.4th 498 ( Leiva ), construing the tolling provision of section 1203.2, subdivision (a). 2 Under Leiva , the tolling provision preserves the court’s authority to adjudicate only those probation violations that occur during the original probationary period. ( Id. at p. 518.) Defendant’s original probationary term e xpired October 29, 2009. But several of the violations underlying the trial court’s probation reinst atement order occurred in 2011, after expiration of the original probationary pe riod. The dates of the remaining violations were neither alleged nor found. The record thereby shows that the court reinstated probation, at least in part, based on violati ons that occurred after defendant’s original probationary term had expired. Leiva now makes clear that a trial court does not have authority to reinstate probation based on post-probationary period violations. 3 Because the court’s five-year extension of proba tion in 2012 was premised on its order of reinstatement, which in turn was based at least in part on a number of probation
violations that occurred afte r defendant’s probationary period had expi red, we will reverse the judgment and will remand this matte r to the trial court w ith instructions to adjudicate only the alleged prob ation violations that occurre d before October 29, 2009.
I. F ACTUAL AND P ROCEDURAL B ACKGROUND A 31-count felony complaint charged de fendant and five codefendants with conspiring to steal credit cards, checks, and pe rsonal identifying information to purchase

2 We requested supplemental briefing on the effect of Leiva in this case. 3 Leiva had not yet been decided when the trial court reinstated defendant’s probation.3 merchandise and open additional credit card acco unts. The record on appeal lacks any facts showing defendant’s role as a conspi rator in committing iden tity theft. The probation report states police searched a ho tel room occupied by defendant and her boyfriend, codefendant Carlos Chavez. Po lice found “illegal items such as personal information and possibly some drugs” in the room. Defenda nt told probation her only connection to the conspiracy “amounted to benefitting from the ongoing criminal activity that Chaves [ sic ] was involved in.” He r admitted benefits included receiving “meals and
entertainment dates.” She de nied knowing Chavez was engage d in illegal activity at the time. The probation report described de fendant’s role in the conspiracy as “undetermined” but stated, “ it seems unlikely that the defe ndant was completely unaware of the illegal activities engaged in by the codefendants.” In 2003, defendant pleaded guilty to conspiracy to commit identity theft and admitted the value of the property taken exce eded $50,000. (Pen. Code, §§ 530.5, subd (a), 182, subd. (a)(1), 12022. 6, subd. (a)(1), Stats. 1998, ch. 454, § 2.) On October 29, 2004, the trial court imposed a five-yea r term of probation, including 89 days in county jail, deemed served, as a condition of proba tion. The court also ordered restitution payments as a conditio n of probation and imposed a re stitution fine of $330, in addition to $632.50 in other f ees. After a restitution hearing, the court ordered defendant jointly and severally liable fo r $50,411.76 in restitution. On December 18, 2006, the probation de partment petitioned fo r modification of probation based on defenda nt’s willful failure to make re gular restitution payments and pay the restitution fine. On February 15, 20 07, defendant admitted the violations, and the court revoked probation without imposing a prison term. 4 Over the next four years, defendant regularly appeared in court for repeated hearings designated in the minutes as “sentencing on violation of prob ation”. The minutes show sh e made payments of $25 to

4 The minutes of the hearing indicate pr obation “remains revoked” but the record shows no prior revocation, summary or otherwise.4 $300 on various dates. Minutes of a June 24, 2008 hearing appear to show the court ordered all payments be made only to re stitution, instead of fines or fees. In April 2011, the probation departme nt again petitioned for modification of defendant’s probation. The petition alleged ei ght violations. Four of the violations occurred on or after February 10, 2011. The other four violations—willful failure to pay restitution in full, willful failure to pay fines, failure to submit proof of enrollment in drug counseling, and failure to submit proof of employment—were undated. The petition alleged defendant had paid $1,432 towards re stitution, leaving a balance of $48,979.76 outstanding. On June 2, 2011, defend ant admitted the violations . The court reinstated probation, imposed nine months in county jail as a condition of probation, and made defendant eligible for the Re gimented Corrections Program. She completed the first phase of the program in county jail on August 17, 2011, whereupon sh e was released and transitioned to the second phas e in community housing. Defendant appeared before the court agai n on October 18, 2011, having completed the first two phases of the Regimented Corre ctions Program. Defendant then entered the third phase of the program, allowing her to seek employment. The court ordered her to make payments of $25 per month. On January 24, 2012, defe ndant appeared be fore the court again for a review hearing. Defendant was current on her re stitution payments, but had failed to find employment. The court ordered her to c ontinue monthly payments of $25. The prosecution noted that $48, 879 in restitution remained outstanding and expressed
dissatisfaction with defendant’s efforts. Her codefendants were either in prison or deceased. One codefendant, defe ndant’s deceased relative, had paid $1,265 in restitution
as ordered. Defendant appeared before the court ye t again for a review hearing on July 10,
2012. She had been la te with some restitution payments , but she was current on the total5 amount due at $25 per month. Defendant was wo rking in small, part-time jobs for about $150 per month. She also received $316 in welfare support for a total monthly income of about $466. She lived in Section 8 housing and had mont hly expenses of about $200. She supported two children, 8 and 17 years old, but received no child support. The prosecutor, complaining that defendant’s efforts to find employment were “willfully inadequate,” argued probation should be revoked. The court extended defendant’s probationary period to June 2, 2016, five years from the prior date of reinstatement. De fendant argued the extension was too long because she only had a year a nd a half of her original pr obationary period remaining. The prosecutor responded that the court co uld impose a new five-y ear period because her original five-year period would have expired in 2009. The court reaffirmed its order extending probation and ordered restitution payments of $50 per month to be monitored by the probation department. The prosecutor objected to the order on the ground that without court monitoring, the probation officer would allow the probationary period to expire before defendant had paid the en tire amount of restitution outstanding. The probation department noted that, at the rate defendant was able to make payments, she would remain on calendar “for quite a substantial amount of time.” 5
II. D ISCUSSION Because this appeal primarily presents an issue of statutory construction, we independently review the trial court’s order. ( In re Corrine W. (2009) 45 Cal.4th 522, 529.) In her opening brief, defendant argued th e court lacked auth ority to extend her probationary period because her original five-year prob ationary period had not yet expired. Defendant contended the original deadline—October 29, 2009, five years after the court first imposed probation in 2004— was tolled when the court revoked probation

5 At $50 per month, defendant would re quire more than 80 years to pay the amount due.6 on February 15, 2007. Defendant relied on section 1203.2, subdivision (a), providing “[t]he revocation, summary or otherwise, sh all serve to toll the running of the period of supervision.” Section 1203.2, subdivision (e), provides the court with authority to grant a new probation period if “an order setting aside the judgment, the revocati on of probation, or
both is made after the expiration of the probationary period . . . .” 6 (Italics added.) When the court reinstated probation on June 2, 20 11, it implicitly set asid e the revocation order from February 15, 2007. But de fendant argued that since the original expiration date had been tolled, the court did not issue an orde r setting aside revocation “after the expiration of the probation period,” and subdivision (e) therefore did not apply. Subdivision (e) is the only statutory authority for extending probation beyond the initial maximum term. ( People v. Medeiros (1994) 25 Cal.App.4th 1260, 1267.) Defendant argued that, because subdivision (e) did not apply, the court la cked authority to ex tend probation.
1. Application of People v. Leiva After defendant filed her opening brief, our high court issued Leiva, supra, 56 Cal.4th 498, in which it considered the op eration of the tolling provision in section 1203.2, subdivision (a). After the trial court imposed a three- year term of probation in 2000, Leiva was deported to El Salvador and failed to report to the probation department. The trial court, unaware of his circumstances, summarily revoked his probation in 2001. In 2008, Leiva was arrested in the United States and brought before the court for a formal hearing on the probation violation. Th e prosecution acknowledged it could not prove defendant’s failure to report was willful, sinc e he had been deported. Nonetheless, the trial court found Leiva violated probation by failing to report when he reentered the

6 In relevant part, section 1203.2, subdiv ision (e) provides: “If an order setting aside the judgment, the revocation of probation, or both is made after the expiration of the 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 conviction.”7 United States in 2007. The trial court re instated Leiva’s probation and ordered it extended until 2011. ( Id. at p. 503.) The high court reversed, holding th e tolling provision of section 1203.2, subdivision (a), allowed the tr ial court to adjudicate only probation violations that occurred during the or iginal three-year probationary term. ( Leiva, supra, at p. 518.) Since Leiva’s failure to report in 2007 occurred more than three years after probation was first imposed, the trial court lacked authority to adjudicate that alleged violation. The high court held the tolling provision in se ction 1203.2, subdivisio n (a), operates only to “preserve the trial court's jurisdiction to determine whether a defendant violated probation during the court-imposed period of probation. . . .” ( Ibid. ) Applying Leiva here, defendant’s argument—that the court lacked authority to extend her probation because he r original probationary te rm had not expired—fails.
Under Leiva , defendant’s probationary period wo uld have expired October 29, 2009; therefore, the trial court had authority to gr ant a new five-year period of probation under section 1203.2, subdivision (e), assuming the order of reinstatement was valid. Indeed,
the Leiva court described the opera tion of subdivision (e) in pr ecisely those terms. “By authorizing the trial court to set aside its order revoking prob ation and to again place the defendant on probation after expiration of th e probationary period, [subdivision (e)] preserved the trial court’s authority to hold a hearing after expiration of the probationary term for the purpose of considering a further gr ant of probation with regard to a violation
that occurred during the probationary period .” ( Leiva, supra, at p. 518.) (Italics added.) The only issues left to resolve, then, are whether the reasoning in Leiva applies to revocations other than summary revocations and, if so, whether the trial court had adjudicated only violations that occu rred during the probationary period. The procedural history of this case differs from Leiva in that defendant’s probation was not summarily revoked in her absence; rather, the trial court formally revoked probation following her admission to th e alleged violations. The court in Leiva did not8 explicitly discuss the operation of the tolli ng provision in circum stances other than summary revocation. Much of the court’s discussion concerns th e consequences of indefinitely extending the conditions of pr obation when a defendant has no opportunity for a formal revocation hearing. No such concern exists here. Nonetheless, the Attorn ey General, relying on Leiva , contends defendant’s original five-year probationary term expi red October 29, 2009. We ag ree. Nothing in the plain language of the tolling prov ision distinguishes summary revocation from revocation following a hearing. To the contrary, subdivision (a) provides that “revocation, summary or otherwise , shall serve to toll the running of the pe riod of supervision.” (Italics added.) This language implies tolling operates uniformly regardless of whether revocation is
summary. The analysis in Leiva supports this conclusion. Firs t, the court construed the word “toll” in subdivision (a) to mean “a bate” or “stop the running of.” ( Leiva, supra, 56 Cal.4th at p. 509.) The court then observed th at if the tolling provis ion operated to abate the conditions of probation up on summary revocation, the result would be absurd, since summary revocation would release a defendant from compliance. ( Id. at p. 508.) Because the Legislature could not have inte nded such an absurd result, the tolling provision could not be construed to abate the conditions of probation. The same logic applies here: it would be absurd if defenda nt, upon violating probation by her own admission, were then freed fro m her obligations, particularly since the court imposed no
custodial term. Second, the court considered whether th e tolling provision coul d be construed to
extend the term of probation without abating a defendant’s obligation to adhere to the conditions of probation. The court concluded this construction woul d conflict with other statutory provisions fixing the maximum length of a probationary term. ( Leiva, supra, 56 Cal.4th at p. 509.) As relevant here, the court also concluded th is construction would conflict with the language of subdivision (e). ( Ibid. ) As defendant concedes, the9 language of subdivision (e) would make no sense if revoca tion tolled expiration of the probationary period. The last sentence of subdivision (e) applies only when “an order setting aside the judgment, the revocation of probation, or both is made after the expiration of the probationary period. . . .” If revocation tolled expiration of the probationary period, it would be impossible to issue an order setting aside revocation after expiration because the period—having been tolled—would never expire. This construction, therefore, would result in lan guage that could never apply. “[W]henever possible, significance must be given to every word in pursuing the legislative purpose,
and the court should avoid a construction th at makes some words surplusage.” ( Agnew v. State Bd. of Equalization (1999) 21 Cal.4th 310, 330.) Th is analysis applies equally to summary and formal revocation. Third, the court considered the legislativ e history of section 12 03.2. “Nothing in the legislative history suggests the Legislatur e intended to permit the trial court to find a violation of probation based on conduct that occurred afte r the probationary period had expired. Instead, the legislative history reve als that the tolling provision was enacted to preserve the trial court’s aut hority to hold a formal probati on violation hearing at a time after probation would have expired with regard to a violation that was alleged to have occurred during the proba tionary period.” ( Leiva, supra, 56 Cal.4th at pp. 514-515.) Defendant points to nothing in the legislativ e history to suggest the Legislature intended the tolling provision to operate differently when revocation is other than summary.
We therefore conclude that the trial c ourt had authority to adjudicate only those probation violations that occu rred after expiration of the orig inal probationary period on October 29, 2009.
2. The Trial Court’s Author ity to Extend Probation Defendant challenges the trial court’s extension of her pr obationary period in
2012. Because the extension to 2016 resulted in a probati onary period longer than the five-year statutory maximum, only section 12 03.2, subdivision (e) could give the court10 authority to impose the extension. ( People v. Medeiros , supra, 25 Cal.App.4th at p. 1267.) Subdivision (e) only allows fo r the imposition of a new probationary period “[i]f an order setting aside the judgment, th e revocation of probation, or both is made after the expiration of the proba tionary period. . . .” Ther e being no order setting aside the judgment, the court could only have relied on an order setting aside the revocation of probation—that is, the court’s reinstatement of probation on June 2, 2011. But if the court lacked authority to reinstate probation in the first place, it could not have relied on
such an order to extend it further. The issue is, therefor e, whether the court had authority to reinstate probation in 2011. As noted above, the trial court could onl y reinstate defendant’s probation based on
violations that occurred befo re expiration of her probati onary period on October 29, 2009. The Attorney General conc edes this point, but argues the court must have done so.
The record does not su pport this claim. The probation department’s petition for m odification is dated April 28, 2011, more than 17 months after expiration of the orig inal probationary term. Defendant made several court appearances and occasional re stitution payments on various dates in the interim. She made her last payment pr ior to the petition on April 5, 2011. Of the eight alleged violations, the petiti on specifies dates for only four: February 10, February 28, February 28, and March 30, 2011. Th e petition lacks dates or time periods for the remaining four vi olations: (1) willful failure “to pay victim restitution as
ordered in full ”; (2) willful failure to pay fines a nd fees; (3) failure to submit proof of enrollment of completion of a su bstance abuse program; and (4 ) failure to submit proof of employment, school or vocational training. (Italics added.) At the June 2, 2011 hearing, defendant entered a generic admission to “the allegations made in the petition.” Neither she nor the court made any reference to any da tes or time periods. Nor did she admit any specific violation as part of the admission. The record, therefore, does not show whether11 the court based its orders on violations occurri ng solely before expiration of the original probationary term. The Attorney General contends the larg e outstanding balanc e of restitution and
fines shows defendant must have been in violation of prob ation during the probationary period. But the petition alleged defendant willfully failed to make these payments. It is possible defendant’s failure to make paymen ts during the probationa ry period resulted from an inability to pay. 7 The record as it stands shows no evidence of a willful violation to make restitution payments dur ing the probati onary period. Generally, we presume trial courts have properly followed the law, absent a showing to the contrary. “It is a basic pres umption indulged in by reviewing courts that the trial court is presumed to have known an d applied the correct statutory and case law in the exercise of its official duties.” ( People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) But the subsequent ch ange in law presented by Leiva requires that we abandon the presumption. Moreover, the record sugg ests both the court and the parties assumed the expiration of defendant’s probationary period had been tolled indefinitely by the revocation. The probation depa rtment’s petition explicitly alle ged four viola tions to have occurred long after October 29, 2009. The cour t, just before reinstating probation, asked the probation department “when probation is due to expire?” The probation department responded, “I don’t know becau se you have to look at the to ll time. [. . .] I don’t know what her toll time would be if her probation is reinstated today.” Nobody objected, and nobody expressed any concern with th e timing of the alleged violations. On this basis, we must conclude the re cord fails to show the court reinstated probation based solely on viol ations that occurred before the expiration of defendant’s

7 As to defendant’s fa ilure to pay restitution in full , the record raises serious doubt about whether such a failure could have been willful, given the size of the outstanding balance and defendant’s financial circumstan ces. Furthermore, it appears the court ordered all defendant’s payments be made only to victim re stitution. This raises doubt about the willfulness of her failure to pay the fines and fees.12 probationary period. The reco rd therefore also fails to show the court had authority to extend defendant’s probation based on a valid reinstatement of probation order.
3. Estoppel The Attorney General, relying on People v. Jackson (2005) 134 Ca l.App.4th 929 ( Jackson ), contends defendant is estopped fro m challenging the extension of her probation because she “acquiesced” in the trial court’s order. In Jackson , the defendant pleaded guilty in 1996, at which time the trial cour t imposed a five-year probationary term. ( Id . at p. 931) Three years later, in 1999, the court summarily revoked the defendant’s probation. After admitting the vi olation, the defendant asked the trial court to release her from custody an d extend her probation five year s to 2004. The trial court did so. ( Ibid. ) On appeal, the court acknowledged the trial court lacked authority to extend the defendant’s probation beyond the fi ve-year statutory maximum. But the court held she could not challenge the extension be cause she did not timely appeal. In dicta, the court of appeal also noted that the de fendant would be estopped from challenging the extension on appeal because she was the one who requested it from the trial court. “To hold otherwise would permit [the defendant] to trifle with the courts and the probation system by leading the trial court into error, obtaining the benefit of the court’s error by avoiding incarceration, and then exploiting on appeal the erro r she induced the trial court to commit.” ( Id. at p. 933.)
Jackson is inapposite. Defenda nt did not request the ex tension here; the court imposed it on its own initiative. In fact, defenda nt argued that the le ngth of the extension would exceed the tolled time remaining on he r probationary period. While counsel did not use the word “objection,” her argument ha d the same effect—it put the prosecutor
and the court on notice of the issue at hand. Indeed, the prosecutor responded with her own argument, claiming the court could im pose a new five-year grant of probation “[s]ince we’re passed the court date that woul d have expired. . . .” In no way can13 defendant’s response be construed as “l eading the trial court into error.” ( Jackson, supra, 134 Cal.App.4th at p. 933.) Defendant adequately objected to the probation extension at issue here. Furthermore, the issue concerns th e trial court’s jurisdiction. (See In re Sheena K. (2007) 40 Cal.4th 875, 887 [correction on appeal of defect in a pr obation condition, similar to
the correction of an unauthor ized sentence on appeal, may ensue from a reviewing court’s unwillingness to ignore “correctable legal error” .]) Accordingly, we find no waiver or estoppel.
III. D ISPOSITION The judgment is reversed and this ma tter is remanded to the trial court to adjudicate only probation viola tions that occurred before th e expiration of defendant’s original probationary te rm on October 29, 2009.

_ ____________ ____________ MÁRQUEZ, J.

We concur:

_____________ ____________ RUSHING, P. J.

_____________ ____________ GROVER, J.