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If Probation is Violated, May Judge Extend End Date?
Some appellate court decisions can make one wince. When we read the facts and the arguments made, we just feel sad that a defendant appealed the trial court ruling, thereby creating a published record of a meritless appeal. The following summary epitomizes this folly.
Rodrigo Escobar Ornelas was charged in Sonoma County Superior Court with possessing methamphetamine for sales and unlawfully transporting it, offering to sell it, selling it, or giving it away, violations of Health & Safety Code §§ 11378 and 11379(a).
In February 2021, he pleaded guilty and was placed on formal probation for the maximum period of two years (under Assembly Bill 1950, effective in 2021, the maximum probationary term for most felonies was reduced to two years).
In July 2021, he failed to report to probation as ordered and his probation was summarily revoked. The judge then issued a bench warrant for his arrest.
He was eventually arrested and admitted to violating the terms of his probation. He was then reinstated on probation in April 2022, still well within the two year term of probation, but extended the end date nine months later for his probation to November 2023 to account for the nine months during which his probation was revoked and he was in warrant status because he failed to report to probation as ordered.
Mr. Ornelas then appealed this order extending his termination date for probation, arguing to the First Appellate District Court that the trial court acted in excess of its jurisdiction by extending his probation beyond two years. Mr. Ornelas claimed that the time during which his probation was revoked and he was on warrant status must be counted toward the statutory maximum period.
The First Appellate District bluntly responded to this bold argument: “Under the circumstances here, this is not correct. To the contrary, the court had the authority to tack on the additional time.”
The First Appellate District then reminded the reader that 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.
During the time that Mr. Ornelas was in “warrant status,” he was not under the supervision of a probation officer as is required while being on probation under Penal Code § 1203(a). He had absconded and his absence prevented his probation officer from facilitating and monitoring his rehabilitation.
In moving the termination date of Mr. Ornelas’ probation by an amount equal to the time he was on warrant status, the judge did not increase the period of probation. Instead, it exercised its discretion available under Penal Code § 1203.2(b) to provide Mr. Ornelas with the two years of supervision he agreed to when he accepted the terms of probation.
This “tacking on” of the extra time equal to the time Mr. Ornelas was in warrant status is approved of by other courts. In People v. Jackson (2005) 134 Cal. App. 4th 929, defendant pleaded guilty in August 1996 and the court imposed a probationary term of five years, the maximum term then available under Penal Code § 1203.1(a). Jackson’s term, therefore, was set to expire in August 2001.
Thus, Mr. Ornelas’ appeal was denied and the trial court’s order was affirmed.
For more information about probation violation issues, please click on the following articles:
