Filed 12/6/18
                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                FIRST APPELLATE DISTRICT

                                         DIVISION TWO


 THE PEOPLE,
            Plaintiff and Respondent,
                                                      A151559
 v.
 TAMEL RAY JOHNSON,                                   (Solano County
                                                      Super. Ct. No. FCR318291)
            Defendant and Appellant.


        The sole issue presented on this appeal is whether the length of appellant’s
postrelease community supervision (PRCS) was properly extended when PRCS was
revoked and then reinstated. We conclude that it was not. While the present appeal is
technically moot because appellant’s period of supervision has ended, we address the
issue to provide guidance on an issue of continuing public importance.
                                        BACKGROUND
        Appellant was sentenced to prison after being convicted of possessing stolen
property (Pen. Code, § 496, subd. (a)),1 with a sentence enhancement for a prior prison
term (§ 667.5, subd. (b)). On June 6, 2014, he was released from prison and placed on
PRCS. (§ 3451.)
        On December 9, 2015, the probation department filed a petition for revocation of
community supervision that indicated supervision was scheduled to expire on June 16,
2017. Appellant admitted violating PRCS by failing to abstain from illegal substances
and the court revoked and then reinstated PRCS.



        1
            Further statutory references will be to the Penal Code.


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       The probation department filed a new petition for revocation of community
supervision on August 9, 2016, again indicating June 16, 2017, as the scheduled date for
expiration of supervision. On August 12, 2016, the court summarily revoked PRCS,
remanded appellant to custody without bail and set the matter for hearing. At the hearing
on September 6, 2016, appellant admitted his violation and the court reinstated PRCS,
with prior orders to remain in effect, modified by the additional condition that appellant
serve 120 days in county jail.
       The petition for revocation of supervision presently at issue was filed on February
10, 2017. This petition stated the date of expiration of supervision as “7/11/2017 (time
tolled).” The 25-day difference from the previously stated date of expiration reflects the
25 days appellant spent in custody between August 12 and September 6, 2016, while
PRCS was revoked.
       Appellant failed to appear in court on February 17, 2017, and the court summarily
revoked supervision and ordered issuance of a bench warrant, which issued on February
23, 2017. A hearing was subsequently set for March 27, 2017, for voluntary return on the
warrant. Appellant was remanded to custody on April 6, 2017. After a contested hearing
on May 8, 2017, the court found appellant in violation and continued the matter for
sentencing on June 2, 2017.
       On June 2, 2017, the court again reinstated PRCS. At the outset of the hearing, the
court asked defense counsel why he had stated the PRCS expiration date was June 16,
2017, when the petition indicated the date was “July 11, 2017 and time tolled.” The court
stated, “I don’t know if that is still the accurate date or whether it’s beyond that still at
this point. So, in any event, it will be July 11 or thereafter potentially.” Defense counsel
responded, “Based on tolling statutes that my client objects to, yes.” There was no
further reference to the expiration date.
                                        DISCUSSION
       Appellant challenges the extension of his PRCS as unauthorized by law. The
Attorney General argues that the appeal is moot because appellant is no longer on PRCS.
Although the respondent’s brief does not address the merits of appellant’s claim, at oral


                                               2
argument, the Attorney General argued that extension of the period is authorized by
statute. With the permission of the court, the parties filed supplemental briefs addressing
the Attorney General’s newly raised theory.
       Although the appeal is technically moot, we exercise our discretion to decide the
issue presented because it “ ‘is likely to recur, might otherwise evade appellate review,
and is of continuing public interest.’ ” (People v. DeLeon (2017) 3 Cal.5th 640, 646,
quoting People v. Morales (2016) 63 Cal.4th 399, 409.) The Attorney General argues the
issue will not evade review because a person may be subject to PRCS for up to three
years (§ 3451, subd. (a)) and “[t]hat is ample time to challenge an extension of the
supervision period pursuant to section 1203.2, subdivision (a).” This point could have
merit only with respect to a violation, revocation and reinstatement occurring extremely
early in the PRCS period. As the present case demonstrates, an extension of PRCS
imposed later in the original period will often evade review. Here, the period of
revocation upon which the extension was based, August 12 to September 6, 2016, was
less than a year before the original probation expiration date; appellant learned of the
extension imposed by the probation department just over four months before the original
expiration date. By the time of the trial court hearing on June 2, 2017, only two weeks
remained of the original period. Even without consideration of the actual time required
for processing and deciding the appeal, it is obvious appellant could not have presented
the issue for decision by this court before it became moot. And, as appellant observes,
the present case suggests that PRCS periods are routinely extended in such
circumstances, as the probation department unilaterally changed the PRCS expiration
date after appellant served time in jail, and the trial court simply assumed this extension
was appropriate.
       Turning to the merits, section 1203.2, subdivision (a), provides that “revocation,
summary or otherwise, shall serve to toll the running of the period of supervision.”
People v. DePaul (1982) 137 Cal.App.3d 409 (DePaul) interpreted this provision as
meaning that the time during which probation was revoked is not counted in calculating
the end-date for supervision, thus serving to extend the end date. This interpretation,


                                              3
however, was subsequently disapproved in People v. Leiva (2013) 56 Cal.4th 498
(Leiva).
       Leiva, unlike the present case, involved a probation violation that occurred after
the original supervision period had ended. The trial court had summarily revoked
probation during the original period of probation, but the formal revocation hearing was
not held until long after expiration of the original period. At the formal hearing, the court
found the defendant had violated probation not by the conduct underlying the summary
revocation but by different conduct that occurred after the end of the original probation
period. The issue in Leiva was whether the tolling provision of section 1203.2,
subdivision (a), extended the probation period between the summary revocation and the
formal hearing, so that the violation during the extended period counted as a violation of
probation.2
       The Supreme Court held it did not. Based on its review of the language and
legislative history of section 1203.2, Leiva held that tolling does not subject a defendant
to revocation of probation for conduct that occurred after the expiration of the court-
imposed probation period but rather preserves the court’s jurisdiction to conduct a
hearing after expiration of that period to adjudicate an alleged violation and summary
revocation based on conduct during the original period. (Leiva, supra, 56 Cal.4th at
pp. 511-514.) Leiva concluded that “the commonsense, plain meaning of ‘toll’ in the
context of legal time limits is ‘to abate’ or ‘to stop the running of,’ ” rejecting the
Attorney General’s argument that “toll” means “extend” in the sense that, upon summary



       2
         The defendant was placed on three years’ probation in 2000, which was
summarily revoked in 2001 after he failed to report to the probation department. The
defendant, who had been deported, returned to the United States illegally in 2007 and, in
2009, was found to have violated his original probation (which would have ended in
2003) by the 2007 illegal entry. The trial court in 2009 reinstated probation, extending it
until 2011. The defendant was again deported and probation was summarily revoked for
failure to report to the probation officer. After a hearing, the court found the defendant
violated probation by reentering the country illegally in 2009, during the extended
probation period the court had ordered. (Leiva, supra, 56 Cal.4th at pp. 502-504.)


                                               4
revocation, the terms and conditions of probation continue indefinitely until a formal
revocation proceeding can be held. (Id. at p. 509.) The Attorney General’s
interpretation, Leiva stated, would conflict with express statutory limitations on the
length of probation (§§ 1203a, 1203.1, 1203.2, subd. (e)) and “raise serious due process
concerns because such a reading of the statutory language would extend a defendant's
probationary term indefinitely without notice or a hearing as to the propriety of such an
increase.” (Leiva, at p. 509.)
       Leiva explained that the legislative history indicated “the tolling provision was
focused on preserving jurisdiction, and not on extending indefinitely the terms and
conditions of probation until a formal probation violation hearing could be held.” (Leiva,
supra, 56 Cal.4th at p. 514.) The provision was added “to address problems that can arise
when a formal revocation hearing cannot be held during the court-imposed period of
probation,” and particularly to “respond to the holdings in two appellate decisions” which
“had held that a defendant’s probationary term expires when the trial court does not
validly revoke probation at a hearing . . . during the probationary term,” thereby
depriving the court of jurisdiction to hold a new hearing complying with constitutional
standards after expiration of the probation period. (Id. at pp. 511-512.) The Legislature,
in enacting the tolling provision, intended to “ensure that, once probation was summarily
revoked, the prosecution would have a fair opportunity to prove that a defendant violated
probation during the probationary period even when a formal probation violation hearing
could not be held before probation expired” and to “ensure a defendant’s due process
right to a formal hearing in which to litigate the validity of an allegation that he violated
the conditions of probation during the probationary period whenever such a formal
hearing could be held.” (Id. at pp. 511-515.)
       Due to its conclusions as to the legislative intent underlying the tolling provision
of section 1203.2, subdivision (a), Leiva disapproved DePaul, supra, 137 Cal.App.3d 409
“to the extent it suggests a probation violation can be based solely on conduct that occurs
after the expiration of a court-imposed period of probation.” (Leiva, supra, 56 Cal.4th at
pp. 517-518.) In a comment that was an aside in Leiva but critical in the present case, the


                                              5
court further stated, “We also disapprove the conclusion of the court in [DePaul,] at page
415, that ‘if probation is reinstated the period of revocation cannot be counted in
calculating the expiration date.’ ” (Leiva, at p. 518, fn. 7.)
       Although Leiva was concerned with probation, section 1203.2, subdivision (a),
applies to PRCS as well, and it would be anomalous to view the tolling provision as
having a different meaning in the context of PRCS. Section 1203.2 was amended in 2012
to make its provisions regarding revocation of supervision, which previously had applied
only to probation, apply also to mandatory supervision, PRCS and parole. (Stats. 2012,
ch. 43, § 30.) The Legislature’s “stated intent was ‘to provide for a uniform supervision
revocation process for petitions to revoke probation, mandatory supervision, postrelease
community supervision, and parole.’ (Stats. 2012, ch. 43, § 2, subd. (a).)” (People v.
DeLeon, supra, 3 Cal.5th at p. 647.)
       Leiva, supra, 56 Cal.4th at page 518, footnote 7, leads us to conclude that when
PRCS is revoked and later reinstated, the period of revocation does not automatically
extend the length of the originally imposed period of supervision. In his initial briefing,
the Attorney General offered no argument to the contrary.3
       In the supplemental brief filed after oral argument, however, the Attorney General
argues that the trial court properly extended appellant’s PRCS when it reinstated PRCS at
the June 2, 2017. The Attorney General takes issue with appellant’s characterization of
the probation department having “unilaterally” extended PRCS, arguing that the
probation department simply noted in the petition that the PRCS period should be
extended, and the court so ordered. The Attorney General cites the court’s comments at
the outset of the June 2 hearing that “the last petition for revocation states July 11, 2017
and time tolled,” and “I don’t know if that is still the accurate date or whether it’s beyond


       3
         Indeed, the Attorney General appeared to acknowledge the applicability of Leiva:
In urging us to dismiss this appeal as moot, the Attorney General states that “[w]hile the
issue raised here is of some public interest, the California Supreme Court has already
interpreted section 1203.2, subdivision (a)’s tolling provision, albeit in a different
context. [Citation.] Thus, there is already some guidance on the meaning of that statute.”


                                               6
that still at this point. So . . . it will be July 11 or thereafter potentially.” This is hardly
an explicit exercise of judicial discretion with respect to the length of the PRCS period:
The court simply accepted the assumption, reflected in the probation department’s change
of expiration date, that the period of revocation served to extend the period of PRCS.
       The Attorney General further maintains that the trial court was not required to
make its extension of the PRCS period explicit. In DePaul, supra, 137 Cal.App.3d at
page 415, the court held that “[i]f a trial court wishes to void or cancel the tolling effect
of the revocation it must do so expressly.” Appellant interprets Leiva’s disapproval of
DePaul as creating the opposite rule, that “[t]olling does not extend the end-date of PRCS
unless the trial court says so.” By contrast, the Attorney General maintains that when
Leiva disapproved the DePaul court’s conclusion that “ ‘if probation is reinstated the
period of revocation cannot be counted in calculating the expiration date’ ” (Leiva, supra,
56 Cal.4th at p. 518, fn. 7), it simply “rejected a per se rule that the revocation period
never be counted in calculating the expiration date for the period of supervision.”
       Leiva was concerned with the problem of probation being revoked based on a
“violation” that occurred after expiration of the original probationary period—hence its
explanation that rejecting the DePaul rule was “fair to the prosecution because, upon
proof that a defendant did violate probation before the expiration of the probationary
period, probation may be reinstated or a new term may be granted.” (Leiva, supra, 56
Cal.4th at p. 518, fn. 7.) That situation is not at issue here: Appellant’s violation and the
court’s reinstatement of PRCS both occurred before expiration of the original PRCS
period.
       The question is what the Leiva footnote means outside the specific context the
court was addressing. Appellant, as we have said, takes it to mean the opposite of the
disapproved DePaul rule: Unless the trial court states otherwise, when supervision is
reinstated, it may not be extended due to a period of revocation. The Attorney General
takes it to mean only that there is no rule requiring that the period of supervision be
extended. Fundamentally, the parties thus appear to agree that the trial court may extend
the PRCS period—at least to the statutory three-year maximum. (§ 3455, subd. (a).) The


                                                7
Attorney General, however, goes on to state that when the trial court formally revoked
appellant’s PRCS and reinstated it, the court “thereby extend[ed] his period of PRCS 25
days commensurate with the amount of time he spent in revoked status.” We cannot
reconcile this view that the period of supervision is automatically extended with the
Leiva footnote, which, by disapproving the DePaul rule, appears to say just the opposite.
       The Attorney General points to section 3455, subdivision (e), as demonstrating
that extension of appellant’s PRCS was “contemplated and endorsed by the Legislature.”
Section 3455, subdivision (e) provides that “[a] person shall not remain under supervision
or in custody pursuant to this title on or after three years from the date of the person’s
initial entry onto postrelease community supervision, except when his or her supervision
is tolled pursuant to Section 1203.2 or subdivision (b) of Section 3456.” (Italics added.)
       The Attorney General’s reliance upon the exception for tolling pursuant to section
1203.2 begs the question, as it ignores Leiva’s analysis and conclusion, discussed, ante,
that the tolling provision of section 1203.2 was intended to preserve the trial court’s
jurisdiction to hold formal revocation proceedings after expiration of the original period
of supervision. Section 3456, subdivision (b), provides 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.” This exception, by its
terms, does not apply in the present case, as appellant did not abscond. Moreover, the
fact that this one circumstance, and no other, is identified as not counting toward the
PRCS period suggests that the Legislature did not intend the length of PRCS to be
extended due to periods of revocation. The section 3456, subdivision (b), exception thus
bolster’s appellant’s position rather than the Attorney General’s.
       Additionally, under the statutes governing PRCS, periods of incarceration are a
permitted form of punishment for violations of PRCS (§§ 3454, subds. (b), (c), 3455,
subds. (a)(1), (a)(2), (d)), yet section 3455, subdivision (e), provides that “[a] person shall
not remain under supervision or in custody pursuant to this title on or after three years
from the date of the person’s initial entry onto postrelease community supervision, except
when his or her supervision is tolled pursuant to Section 1203.2 or subdivision (b) of


                                              8
Section 3456.” (Italics added.) Automatically extending the length of PRCS due to a
period of revocation during that period would be inconsistent with the requirement of
section 3455, subdivision (e), that PRCS be limited to three years from initial entry
despite intervening periods of custody due to violations of the conditions of supervision.
       In sum, we believe that a reasonable reading of Leiva compels the conclusion that
the length of the supervisory period is not automatically extended when PRCS is
reinstituted after revocation, although a trial court may choose to extend the original
expiration date for PRCS within the maximum statutory period.
                                      DISPOSITION
       The tolling provision of section 1203.2, subdivision (a), did not authorize the
automatic extension of appellant’s PRCS period.
       The matter is remanded to the trial court for proceedings consistent with this
opinion.




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                                   _________________________
                                   Kline, P.J.


We concur:


_________________________
Richman, J.


_________________________
Stewart, J.




People v. Johnson (A151559)




                              10
Trial Judge:                Hon. Tim P. Kam

Trial Court:                Solano County Superior Court

Attorney for Appellant:     Under Appointment by the Court of Appeal
                            Garrick Byers


Attorneys for Respondent:   Attorney General of California
                            Xavier Becerra

                            Gerald A. Engler
                            Chief Assistant Attorney General

                            Jeffrey M. Laurence
                            Senior Assistant Attorney General

                            Seth K. Schalit
                            Supervising Deputy Attorney General

                            Melissa J. Kendra
                            Deputy Attorney General

                            Claudia H. Amaral
                            Deputy Attorney General




                              11
