Filed 7/9/14 P. v. Hernandez CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.
RICARDO HERNANDEZ,
Defendant and Appellant. B247606
(Los Angeles County Super. Ct. No. VA093208)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Peter P. Espinoza, Judge. Affirmed. Maria Leftwich, under appo intment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Idan Ivri, Deputy Attorneys Ge neral, for Plaintiff and Respondent.

_____________ ____________2 Defendant and appellant, Ricardo Hernandez, appeal s from the revocation of probation and imposition of a three-year prison term arising from his guilty plea to receiving stolen property and possessing bu rglar’s tools (Pen. Code, §§ 496, 466). 1 The judgment is affirmed.
BACKGROUND On December 31, 2005, defe ndant Hernandez and a companion were sitting in a van when they were contacted by a police officer. The co mpanion was arrested on an outstanding warrant and the van was search ed. The victim’s checkbook was found between the driver’s seat and the passenger seat. Shaved car keys, commonly used for stealing cars, were found in the companio n’s purse. The companion told police
Hernandez had handed her th e keys when the patrol car pulled up behind them. After Hernandez pled guilty to receiving stolen prope rty and possessing burglar’s tools, the trial court imposed and then su spended execution of a three-year prison sentence and placed Hernandez on probation fo r three years. Hernandez subsequently violated probation a number of times. On July 22, 2008, he was convicted of grand theft after a DHL driver refused to complete a delivery of some cell phones and Hernandez forcibly took the pack ages from the driver. This conv iction led to the revocation of probation on February 19, 2009 , after which probation was re instated. There were three more probation violations: on September 17 , 2010, for a driving under the influence of drugs conviction; on August 10, 2012, for testing positive for methamphetamine; and, on February 22, 2013, for being found in po ssession of apparently stolen property. Following the last of these probation vi olations, the trial c ourt revoked probation and executed the original three-year prison sentence.

1 All further references are to the Pe nal Code unless otherwise specified.3 CONTENTIONS 1. The trial court had no power to im pose the three-year prison sentence because Hernandez’s probationary period had alre ady terminated as a matter of law.
2. Hernandez was entitled to serve his prison sentence in county jail under the Realignment Act.
DISCUSSION
1. Trial court did not lack jurisd iction to impose a prison term

. Hernandez contends his prison term is invalid because his te rm of probation had
been extended be yond the statutory maximum of five years and, therefore, it expired
before it could be revoked. This claim is meritless.

a. Background

. At Hernandez’s probation revocation hear ing on February 19, 2009, the probation department recommended reinstating probati on, extending it for on e year, and ordering Hernandez to attend a theft prevention cla ss. When the prosecutor asked for the suspended three-year prison term to be imposed, the trial court said: “And that’s really one of my only two choices is to continue on probation or impose the time. I don’t have the discretion wh en it’s execution suspended . . . to pick a different and shorter time. I can just conti nue on probation and/or impose the time that I stayed back at the time of th e sentencing, which was March 9th of 2006. [¶] When I see execution suspended, there’s usually a reason. So, I had to look thro ugh the file to see
what the reason was. The reason was he was already on misdemeanor probation for identity theft out of Whittier at the time. . . . I imposed [the] high te rm because I felt at the time we’re dealing w ith someone that’s doing a lot of stealing of people’s identities, checkbooks. Now, here, the in teresting thing is you’ve got some cell phones in packages that look like were admittedly sh ipped to him to other people [ sic ] in different names. So it was his stuff, but he basically forcibly takes them from the DHL driver because the DHL driver doesn’t want to give them to him. It’s a strange set of facts. [¶] My inclination is, with an admission of viola tion, I would not be following the probation officer’s recommendation, which was . . . [to] extend probation for a year. . . . I have4 discretion to institute a probationary period equal to that which I originally imposed. That’s what I would do. He’s on proba tion to me another 3 years on admission of
violation . . . .”
After some discussion about the availability of theft pr evention classes, the trial
court said: “He’ll now have 3 years to get [the restitu tion] paid. If I see him again, he’s going for the full 3 years, no questions asked. So, if you want to talk to your client – “[Defense counsel]: I have, Your Honor, and he is willing to accept. “The Court: My clerk inform s me that there is such a th ing. So, the theft classes
would be an additional cond ition of probation if he’s willing to accept those terms. “[Defense counsel]: Defe ndant is agreeable to those terms, Your Honor. “The Court: All right. And before I do this, I would guess this is over the People’s objection. If you ha ve anything you wish to add, I’d be happy to hear it. “[The prosecutor]: Only that I’m not sure of the court’s summary of the facts. I don’t believe those [cell phones] were his prope rty. I think he was part of a scheme to
have those delivered at the addresses and then to take them. The way I heard the court state the facts was he was taking his own proper ty, but this was a scheme to – they were to other people. “The Court: It’s a strange set of fact s. And my concern is he’s once again engaging in some type of scam and theft-re lated offense, which is why I suspended the time last time. . . . I’ll continue it, but it will be a new 3-year period, additional terms and conditions. He’s going to have to live with the probation officer the whole time and he better not see me again. “[Defense counsel]: That will be 3 years beginning today; correct? “The Court: Beginning today. “[Defense counsel]: Is that agreeable?
“The defendant: Yes.”5 b. Discussion. “[O]ur statutes . . . authorize the cour ts to grant probation for a period not to exceed a specified time, three ye ars in the case of misdemeanors, with certain exceptions (§ 1203a), or five years or the maximum pos sible term of sentence, whichever is longer, in the case of felonies, with cer tain exceptions (§ 1203.1).” ( People v. Leiva (2013) 56 Cal.4th 498, 509.) Hernan dez was convicted of a misdemeanor (§ 466) and a felony (§ 496). Hernandez argues the trial court violated this statutory five-year limitation because the three-year probationary term starting on February 19, 2009, extended his probation well beyond the maximum period, which ended on April 24, 2011. Hernandez is wrong.
Because he consented to the new probationary term as a way of avoi ding prison, Hernandez is now estopped fro m complaining the probati onary term was unlawful.
In In re Griffin (1967) 67 Cal.2d 343, a prob ation revocation hearing was continued, without objection by either party, to a date after the probationary term would expire. Griffin subsequently challenged the tr ial court’s revocation of his probation at the continued hearing on the ground the court had lost jurisdiction before issuing the
revocation order. This claim failed: “Petiti oner contends that because timely revocation of probation is ‘jurisdictional’ the rule that jurisdiction cannot be conferred by estoppel applies. That rule relates to subject matter jurisdiction, the court’s power to hear and determine the cause. [Citations.] [¶] The jurisdictional concept in volved in the cases holding that the court is without power to revoke probation af ter the end of the probationary term is not lack of jurisdicti on of the cause but excess of jurisdiction. [Citations.] Neither the probation statutes nor the cases applying them support a holding that expiration of the probationa ry period terminates the court’ s jurisdiction of the subject
matter. The statutes themselves contem plate that such fundamental jurisdiction continues, for they pr ovide for the court’s determination of certain matters after the end of the probationary term.” ( Id . at pp. 346-347.)6 Griffin went on to explain: “ When

. . . the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court’s powe r as defined by statute or decisional rule may be estopped to comp lain of the ensuing action in excess of jurisdiction . [Citations.] Whether he shall be es topped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy. A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when ‘To hold otherwise would permit the parties to trif le with the courts.’ [Citation.]” ( In re Griffin,

supra, 67 Cal.2d at pp. 347- 348, italics added.)
The rule of Griffin has been followed in proba tion and other contexts. (See People
v. Jackson (2005) 134 Cal.App.4th 929, 932-933 [ Griffin estoppel applied because trial court had subject matter jurisdiction and could impose probationary term exceeding statutory maximum at defendant’s request]; People v. Hester (2000) 22 Cal.4th 290, 294- 295 [ Griffin estoppel applied where defendant agreed to plea bargain that failed to stay
concurrent term in violation of multiple punishment statute (§ 654); defendant in effect waived right to raise § 654 issue on appeal]; People v. Collins (1996) 45 Cal.App.4th 849, 864-865 [ Griffin estoppel applied where trial c ourt granted People’s motion to
vacate defendant’s CYA sentence for violating plea agreement be cause, even if trial court lacked jurisdiction to reconsider the senten ce, defendant had agreed juvenile commitment was conditioned on his complia nce with plea terms].) Hernandez’s argument the trial court had no “authority” to extend his probationary period beyond the statutory maxi mum thus misses the point. As Jackson explained:
“There can be no doubt that the trial court possessed and retained subject matter jurisdiction over appellant when it made its erroneous ruling. Th e court’s attempt to extend appellant’s probation was merely an act in excess of its jurisdiction.” ( People v. Jackson, supra, 134 Cal.App.4th at p. 933.)7 Hernandez claims he did not knowingly waive his statutory right to a five-year maximum probationary term, but waiver and estoppel are not the same thing. “ ‘Although waiver and equitable estoppel 2 are not always distinguished in the cases, they rest upon different legal principles. There ma y be an equitable estoppel where there is no
waiver in the technical sense. Waiver is a voluntary relinquishment, expressly or impliedly, of a known right and depends upon the intention of one pa rty only. Equitable estoppel is based upon the fundamental principl e that “one’s conduct has induced another to take such a position that he will be injured if the first pa rty is permitted to repudiate his acts.” [Citation.]’ ” ( Elliano v. Assuranc e Co. of America (1970) 3 Cal.A pp.3d 446, 450- 451.) “Estoppel does not require a voluntary relinquishment of a known right . . . . [Citation.]” ( Hoopes v. Dolan (2008) 168 Cal.Ap p.4th 146, 163.) 3 When Hernandez appeared for the probation revocation hearing on February 19, 2009, he was facing jail time. The record is very clear the trial court was either going to execute the suspended thr ee-year prison sentence or impose a new three-year probationary term. Hernandez and his atto rney readily agreed to the extension of probation. In this situation, it is appropri ate to apply the estoppel principle to prevent Hernandez from gaming the judicial system.

2 “ ‘The doctrine of equitable estoppel is founded on concepts of equity and fair dealing. It provides that a person may not deny the existence of a state of facts if he intentionally led another to believe a particular circumstance to be true and to rely upon such belief to his detriment. The elements of the doctrine are that (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserti ng the estoppel has a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his in jury. [Citation.]’ [Citations.] [¶] Equitable estoppel ‘will not apply against a governmental body except in unusual instance s when necessary to avoid grave injustice and when the result w ill not defeat a strong public policy. [Citation.]’ ” ( City of Goleta v. Superior Court (2006) 40 Cal.4th 270, 279.)

3 Hence, Hernandez’s reliance on In re Starr (1986) 187 Cal.App.3d 1550, is misplaced. That case onl y involved the validity of a prisoner’s purported waiver of entitlement to conduct credits. Th e case does not mention estoppel.8 We hold Hernandez is estopped from claimi ng the trial court had no authority to extend his probationary period for three years on February 19, 2009.
2. Realignment sentencing.
Hernandez contends he was en titled to serve his sentence in county jail, rather than state prison, pursuant to the Criminal Justic e Realignment Act of 2011. This claim is
meritless.
Hernandez relies on People v. Clytus (2012) 209 Cal.App.4th 1001, which “conclude[d] that a trial court executing a su spended sentence for a probation violation on and after October 1, 2011, the effective date of the Realignment Act, has no discretion to send to prison a defendant w ho qualifies under the Act to se rve the sentence in county jail.” ( Id . at p. 1004.) However, our Supreme Court has just disapproved Clytus in People v. Scott (2014) 58 Cal.4th 1415: “We conclude that the Realignment Act is not applicable to defendants whose state prison sentences were imposed and suspended prior to October 1, 2011. Upon revocation and te rmination of such a defendant’s probation, the trial court ordering execution of the pr eviously imposed sentence must order the sentence to be served in state prison according to the terms of the or iginal sentence, even if the defendant otherwise qualifies for incarce ration in county jail under the terms of the Realignment Act.” ( Id . at p. 1419.) Scott reasoned: “[T]he statut ory provisions and case law existing at the time of the Legislature’ s enactment of secti on 1170(h)(6) in 2011
established that a defendant is ‘sentenced ’ when a judgment imposing punishment is pronounced even if execution of the sentence is then suspended. A defendant is not sentenced again when the trial court lifts th e suspension of the sentence and orders the previously imposed senten ce to be executed.” ( Id . at p. 1423.) The trial court did not err by co mmitting Hernandez to state prison.9 DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J.

ALDRICH, J.