Filed 12/18/13 P. v. Corral CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

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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 Corral pleaded guilty to conspiracy 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 exceeded $50,000. (§ 12022.6, subd. (a)(1), 

Stats. 1998, ch. 454, § 2.) On October 29, 2004, the trial court placed defendant on a 

five-year grant of probation, including 89 days in county jail as a condition of probation. 

As another condition of probation, the court ordered defendant jointly and severally liable 

for $50,411.76 in restitution. The court also imposed a restitution fine of $330, and 

$632.50 in other fees. 

 In 2007, the trial court revoked defendant’s probation for willful failure to make 

regular payments on the restitution and the restitution fine. Defendant continued to 

appear in court and made some restitution payments, but the probation 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 county jail as a condition of 

probation. In 2012, the court also extended the term of probation to 2016 pursuant to 

section 1203.2, subdivision (a). On appeal, defendant 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 expired October 29, 2009. But several of 

the violations underlying the trial court’s probation reinstatement order occurred in 2011, 

after expiration of the original probationary period. 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 violations 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 probation 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 after defendant’s probationary period had expired, we will 

reverse the judgment and will remand this matter to the trial court with instructions to 

adjudicate only the alleged probation violations that occurred before October 29, 2009. 

I. FACTUAL AND PROCEDURAL BACKGROUND

 A 31-count felony complaint charged defendant and five codefendants with 

conspiring to steal credit cards, checks, and personal 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 accounts. The record on appeal lacks any 

facts showing defendant’s role as a conspirator in committing identity theft. The 

probation report states police searched a hotel room occupied by defendant and her 

boyfriend, codefendant Carlos Chavez. Police found “illegal items such as personal 

information and possibly some drugs” in the room. Defendant told probation her only 

connection to the conspiracy “amounted to benefitting from the ongoing criminal activity 

that Chaves [sic] was involved in.” Her admitted benefits included receiving “meals and 

entertainment dates.” She denied knowing Chavez was engaged in illegal activity at the 

time. The probation report described defendant’s role in the conspiracy as 

“undetermined” but stated, “it seems unlikely that the defendant 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 exceeded $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-year term of probation, including 89 days in 

county jail, deemed served, as a condition of probation. The court also ordered 

restitution payments as a condition of probation and imposed a restitution fine of $330, in 

addition to $632.50 in other fees. After a restitution hearing, the court ordered defendant 

jointly and severally liable for $50,411.76 in restitution. 

 On December 18, 2006, the probation department petitioned for modification of 

probation based on defendant’s willful failure to make regular restitution payments and 

pay the restitution fine. On February 15, 2007, 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 probation”. The minutes show she made payments of $25 to 

 4

 The minutes of the hearing indicate probation “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 restitution, instead of fines or fees. 

 In April 2011, the probation department again petitioned for modification of 

defendant’s probation. The petition alleged eight 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 restitution, leaving a balance of $48,979.76 

outstanding. 

 On June 2, 2011, defendant admitted the violations. The court reinstated 

probation, imposed nine months in county jail as a condition of probation, and made 

defendant eligible for the Regimented Corrections Program. She completed the first 

phase of the program in county jail on August 17, 2011, whereupon she was released and 

transitioned to the second phase in community housing. 

 Defendant appeared before the court again on October 18, 2011, having completed 

the first two phases of the Regimented Corrections 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, defendant appeared before the court again for a review 

hearing. Defendant was current on her restitution payments, but had failed to find 

employment. The court ordered her to continue 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, defendant’s deceased relative, had paid $1,265 in restitution 

as ordered. 

 Defendant appeared before the court yet again for a review hearing on July 10, 

2012. She had been late with some restitution payments, but she was current on the total 
5 

amount due at $25 per month. Defendant was working 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 monthly 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. Defendant argued the extension was too long 

because she only had a year and a half of her original probationary period remaining. 

The prosecutor responded that the court could impose a new five-year 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 entire 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. DISCUSSION

 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 the court lacked authority to extend her 

probationary period because her original five-year probationary 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 require 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, shall 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 revocation of probation, or 

both is made after the expiration of the probationary period. . . .”6

 (Italics added.) When 

the court reinstated probation on June 2, 2011, it implicitly set aside the revocation order 

from February 15, 2007. But defendant argued that since the original expiration date had 

been tolled, the court did not issue an order 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 lacked authority to extend 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 operation 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. The prosecution acknowledged it could not prove 

defendant’s failure to report was willful, since 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, subdivision (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 reinstated Leiva’s probation and ordered it 

extended until 2011. (Id. at p. 503.) 

 The high court reversed, holding the tolling provision of section 1203.2, 

subdivision (a), allowed the trial court to adjudicate only probation violations that 

occurred during the original 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 section 1203.2, subdivision (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 her original probationary term had not expired—fails. 

Under Leiva, defendant’s probationary period would have expired October 29, 2009; 

therefore, the trial court had authority to grant 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 operation of subdivision (e) in precisely those terms. “By 

authorizing the trial court to set aside its order revoking probation and to again place the 

defendant on probation after expiration of the 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 grant 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 occurred 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 the alleged violations. The court in Leiva did not 
8 

explicitly discuss the operation of the tolling provision in circumstances other than 

summary revocation. Much of the court’s discussion concerns the consequences of 

indefinitely extending the conditions of probation when a defendant has no opportunity 

for a formal revocation hearing. No such concern exists here. 

 Nonetheless, the Attorney General, relying on Leiva, contends defendant’s original 

five-year probationary term expired October 29, 2009. We agree. Nothing in the plain 

language of the tolling provision 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 period of supervision.” (Italics added.) 

This language implies tolling operates uniformly regardless of whether revocation is 

summary. 

 The analysis in Leiva supports this conclusion. First, the court construed the word 

“toll” in subdivision (a) to mean “abate” or “stop the running of.” (Leiva, supra, 56 

Cal.4th at p. 509.) The court then observed that if the tolling provision operated to abate 

the conditions of probation upon 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 intended 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 defendant, upon violating probation by her own 

admission, were then freed from her obligations, particularly since the court imposed no 

custodial term. 

 Second, the court considered whether the tolling provision could 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 would 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 this construction would 

conflict with the language of subdivision (e). (Ibid.) As defendant concedes, the 
9 

language of subdivision (e) would make no sense if revocation 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 language 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 that makes some words surplusage.” (Agnew v. 

State Bd. of Equalization (1999) 21 Cal.4th 310, 330.) This analysis applies equally to 

summary and formal revocation. 

 Third, the court considered the legislative history of section 1203.2. “Nothing in 

the legislative history suggests the Legislature intended to permit the trial court to find a 

violation of probation based on conduct that occurred after the probationary period had 

expired. Instead, the legislative history reveals that the tolling provision was enacted to 

preserve the trial court’s authority to hold a formal probation violation hearing at a time 

after probation would have expired with regard to a violation that was alleged to have 

occurred during the probationary period.” (Leiva, supra, 56 Cal.4th at pp. 514-515.) 

Defendant points to nothing in the legislative history to suggest the Legislature intended 

the tolling provision to operate differently when revocation is other than summary. 

 We therefore conclude that the trial court had authority to adjudicate only those 

probation violations that occurred after expiration of the original probationary period on 

October 29, 2009. 

2. The Trial Court’s Authority to Extend Probation 

 Defendant challenges the trial court’s extension of her probationary period in 

2012. Because the extension to 2016 resulted in a probationary period longer than the 

five-year statutory maximum, only section 1203.2, subdivision (e) could give the court 
10 

authority to impose the extension. (People v. Medeiros, supra, 25 Cal.App.4th at 

p. 1267.) Subdivision (e) only allows for the imposition of a new probationary period 

“[i]f an order setting aside the judgment, the revocation of probation, or both is made 

after the expiration of the probationary period. . . .” There 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, therefore, whether the court had authority 

to reinstate probation in 2011. 

 As noted above, the trial court could only reinstate defendant’s probation based on 

violations that occurred before expiration of her probationary period on October 29, 

2009. The Attorney General concedes this point, but argues the court must have done so. 

The record does not support this claim. 

 The probation department’s petition for modification is dated April 28, 2011, more 

than 17 months after expiration of the original probationary term. Defendant made 

several court appearances and occasional restitution payments on various dates in the 

interim. She made her last payment prior to the petition on April 5, 2011. 

 Of the eight alleged violations, the petition specifies dates for only four: February 

10, February 28, February 28, and March 30, 2011. The petition lacks dates or time 

periods for the remaining four violations: (1) willful failure “to pay victim restitution as 

ordered in full”; (2) willful failure to pay fines and fees; (3) failure to submit proof of 

enrollment of completion of a substance 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 dates or time periods. Nor did she admit any 

specific violation as part of the admission. The record, therefore, does not show whether 
11 

the court based its orders on violations occurring solely before expiration of the original 

probationary term. 

 The Attorney General contends the large outstanding balance of restitution and 

fines shows defendant must have been in violation of probation during the probationary 

period. But the petition alleged defendant willfully failed to make these payments. It is 

possible defendant’s failure to make payments during the probationary period resulted 

from an inability to pay. 7 The record as it stands shows no evidence of a willful violation 

to make restitution payments during the probationary period. 

 Generally, we presume trial courts have properly followed the law, absent a 

showing to the contrary. “It is a basic presumption indulged in by reviewing courts that 

the trial court is presumed to have known and 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 change in law presented by Leiva requires that we abandon 

the presumption. Moreover, the record suggests both the court and the parties assumed 

the expiration of defendant’s probationary period had been tolled indefinitely by the 

revocation. The probation department’s petition explicitly alleged four violations to have 

occurred long after October 29, 2009. The court, just before reinstating probation, asked 

the probation department “when probation is due to expire?” The probation department 

responded, “I don’t know because you have to look at the toll 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 the timing of the alleged violations. 

 On this basis, we must conclude the record fails to show the court reinstated 

probation based solely on violations that occurred before the expiration of defendant’s 

 7

 As to defendant’s failure 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 circumstances. Furthermore, it appears the court 

ordered all defendant’s payments be made only to victim restitution. This raises doubt 

about the willfulness of her failure to pay the fines and fees. 
12 

probationary period. The record 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 Cal.App.4th 929 

(Jackson), contends defendant is estopped from 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 court 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 violation, the defendant asked the trial court 

to release her from custody and extend her probation five years 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 five-year statutory maximum. But the court 

held she could not challenge the extension because she did not timely appeal. In dicta, 

the court of appeal also noted that the defendant 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 error she induced the trial court 

to commit.” (Id. at p. 933.) 

Jackson is inapposite. Defendant did not request the extension here; the court 

imposed it on its own initiative. In fact, defendant argued that the length of the extension 

would exceed the tolled time remaining on her probationary period. While counsel did 

not use the word “objection,” her argument had 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 impose a new five-year grant of probation 

“[s]ince we’re passed the court date that would have expired. . . .” In no way can 
13 

defendant’s response be construed as “leading 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 the trial court’s jurisdiction. (See In re Sheena K. (2007) 

40 Cal.4th 875, 887 [correction on appeal of defect in a probation condition, similar to 

the correction of an unauthorized sentence on appeal, may ensue from a reviewing court’s 

unwillingness to ignore “correctable legal error”.]) Accordingly, we find no waiver or 

estoppel. 

III. DISPOSITION

 The judgment is reversed and this matter is remanded to the trial court to 

adjudicate only probation violations that occurred before the expiration of defendant’s 

original probationary term on October 29, 2009. 

 _________________________ 

 MÁRQUEZ, J. 

We concur: 

_________________________ 

RUSHING, P. J. 

_________________________ 

GROVER, J.