Filed 8/21/20
                              CERTIFIED FOR PUBLICATION
                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                              (Placer)
                                                ----

 THE PEOPLE,

                  Plaintiff and Respondent,                          C088829

          v.                                                (Super. Ct. No. 62-149962)

 STEPHEN ROBERT BELCHE,

                  Defendant and Appellant.

       APPEAL from a judgment of the Superior Court of Placer County, Michael W.
Jones, Judge. Reversed with directions.

      Alexandr Satanovsky, under appointment by the Court of Appeal, for Defendant
and Appellant.

      Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Ross K.
Naughton, Deputy Attorney General, for Plaintiff and Respondent.


        Defendant Stephen Robert Belche admitted violating probation in exchange for an
agreed-upon sentence of three years on the original conviction. The trial court approved
the admission agreement, formally revoked defendant’s probation, and ordered that
probation would not be reinstated. While defendant was awaiting sentencing on the
original conviction, he exposed himself to a jail nurse. The probation department filed a
new petition to revoke probation based on the indecent exposure. The trial court found
the new allegation true, again revoked defendant’s probation, and sentenced him to six
years in state prison.


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       Defendant now contends (1) the trial court did not have jurisdiction to find he
violated probation based on his indecent exposure after the trial court formally revoked
his probation and ordered that it not be reinstated, and (2) the trial court erred in
sentencing him to six years in state prison because he only agreed to a sentence of three
years when he admitted the probation violation.
       We conclude (1) the trial court did not have jurisdiction to find defendant violated
probation based on his indecent exposure because defendant’s probation had been
formally revoked and not reinstated, terminating probation, and (2) we must vacate the
six-year prison term and remand for the trial court either to impose a three-year term or
allow defendant to withdraw his admission made under the agreement.1
       We will reverse the order finding defendant violated probation by exposing
himself to a nurse, vacate the sentence, and remand for the trial court to exercise its
discretion either to impose a three-year term or allow defendant to withdraw his
admission.
                                      BACKGROUND
       In 2017, defendant pleaded no contest to committing a lewd act on a child
(Pen. Code, § 288, subd. (a))2 and the trial court placed him on probation with 364 days
of county jail time. A first petition to revoke probation was subsequently filed and


1 Defendant also contends (3) the evidence was insufficient to support a finding that he
violated Penal Code section 314, which formed the basis of the third petition to revoke
probation, (4) the trial court erred by relying on defendant’s unsatisfactory performance
on probation to impose a six-year prison term, and (5) the matter must be remanded for a
determination of defendant’s ability to pay the imposed fines and assessments under
People v. Dueñas (2019) 30 Cal.App.5th 1157. We need not consider these contentions
because we conclude the order relating to the third petition to revoke probation must be
reversed, the sentence vacated, and the matter remanded for further proceedings.



2 Undesignated statutory references are to the Penal Code.


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defendant admitted violating probation. The trial court revoked and reinstated his
probation with an additional 180 days of county jail time.
       In June 2018, the probation department filed a second petition to revoke probation
and a hearing was held on October 3, 2018. At the hearing, defendant admitted probation
violations in exchange for the lower term of three years on the original conviction for
committing a lewd act on a child. After defendant waived his due process rights and
admitted the probation violations, the trial court said: “Based on the admission as to
allegation number one, I am going to revoke probation. Pursuant to the agreement,
probation is not reinstated. It’s revoked.” The trial court continued the case for judgment
and sentencing so that defense counsel could verify the number of presentence custody
credits.
       On October 17, 2018, the probation department filed a third petition to revoke
probation after defendant exposed himself to a jail nurse on October 12, 2018, violating
section 314. Defendant demurred to the petition, asserting that his probation had been
formally, not just summarily, revoked and not reinstated before he committed the
violation and the trial court no longer had probation jurisdiction over him. The trial court
overruled the demurrer.
       The trial court held a hearing on the third petition to revoke probation and a
preliminary hearing on a new criminal case against defendant alleging indecent exposure.
It ordered defendant held to answer on the new case. The trial court also found true the
probation violation alleged in the third petition and again revoked probation.
       Even though defendant’s agreement to admit the probation violations alleged in
the second petition to revoke probation specified a three-year state prison term, the trial
court sentenced defendant to the middle term of six years on the original conviction for
committing a lewd act on a child.




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       This appeal relates only to the case involving the original 2017 conviction for
committing a lewd act on a child and does not relate to the new criminal case filed
against defendant for indecent exposure in 2018.
                                       DISCUSSION
                                               I
       Defendant contends the trial court did not have jurisdiction to find that he violated
probation based on his indecent exposure after the trial court formally revoked probation
and ordered that it not be reinstated. He argues the trial court loses probation jurisdiction
over a defendant when it formally revokes probation, whereas the Attorney General
asserts the trial court does not lose probation jurisdiction over a defendant until it
sentences the defendant. Each party relies on People v. Lewis (1992) 7 Cal.App.4th 1949
(Lewis) to support its position. Even though Lewis is not on point, defendant has the
better argument.
       Before we analyze Lewis, we will summarize the procedure for revoking
probation. When a defendant violates probation, the probation department may file a
petition to revoke probation and the trial court may summarily revoke probation. This
summary revocation does not terminate probation; instead, it suspends probation and
allows the probationer to be brought before the court to answer for alleged probation
violations. (§ 1203.2; People v. Barkins (1978) 81 Cal.App.3d 30, 32-33.) The
defendant is still subject to probation conditions after summary revocation. (People v.
Pipitone (1984) 152 Cal.App.3d 1112, 1117.) After summary revocation of probation,
the defendant is entitled to a hearing before probation may be formally revoked. (People
v. Vickers (1972) 8 Cal.3d 451, 458-459 (Vickers).) Formally revoking probation and
declining to reinstate it terminates probation and allows imposition or execution of
sentence. (See § 1203.2, subd. (c).)
       Here, on the date defendant exposed himself to the nurse, the trial court had
already held a Vickers hearing on the second petition to revoke probation, defendant had

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already waived his due process rights and admitted the alleged probation violations, the
trial court had already formally revoked defendant’s probation, and it had already
determined that probation would not be reinstated, although the trial court had not yet
sentenced defendant.
       The circumstances in Lewis were different. In that case the trial court summarily
revoked defendant’s probation, defendant admitted a probation violation at a Vickers
hearing, and the trial court continued sentencing to a later date and released defendant on
his own recognizance. While released, the defendant committed felony conduct, but
three days later the trial court reinstated probation, apparently unaware of the defendant’s
felony offense. The trial court subsequently revoked the defendant’s probation based on
the felony conduct committed after the Vickers hearing and sentenced the defendant to
state prison. (Lewis, supra, 7 Cal.App.4th at pp. 1951-1952.)
       On appeal, the defendant argued the trial court could not find he violated probation
because he had already had a Vickers hearing in which he admitted a previous probation
violation and he was only awaiting sentencing on the original conviction. (Lewis, supra,
7 Cal.App.4th at p. 1952.) The Court of Appeal rejected the defendant’s argument,
finding his probationary term was in effect when he committed the last felony conduct.
(Id. at p. 1956.)
       The court wrote that “the trial court has the power over the defendant at all times
during the term of probation until the defendant is discharged from probation or the court
loses jurisdiction upon the defendant being sentenced to prison. [Citation.]” (Lewis,
supra, 7 Cal.App.4th at p. 1954, italics added.) In the present case, based upon the
italicized portion of that quotation, the Attorney General argues defendant’s probation
term was still in effect when he exposed himself to the nurse because he had not yet been
sentenced. However, the court in Lewis also wrote: “[S]ummary ‘revocation’ of
probation following the filing of a petition ‘cannot affect a grant of probation or its
conditions, . . . .’ [Citation.] Rather, “ . . . it is simply a device by which the defendant

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may be brought before the court and jurisdiction retained before formal revocation
proceedings commence. [Citation.] If probation is restored there has been[,] in effect,
no revocation at all.’ [Citation.] Thus, in the context of the statutory scheme governing
probation, the term ‘revocation’ has a meaning quite different from other contexts. The
term ‘reinstatement of probation’ suffers from this same misunderstanding of the context
in which this phrase is used. [¶] In contrast[,] termination of probation or a discharge
from probation following completion of the probation term formally end the conditions of
probation. When probation is terminated for a violation of probation conditions,
judgment must be pronounced if no sentence was imposed at the time probation was
granted. [Citation.] When a probationer is discharged, he or she has completed the term
of probation, and the court no longer has jurisdiction. (§ 1203.3, subd. (b)(3).) Neither
of these conditions occurred in the present case. It follows that the conditions of
probation continued in full effect during the period at issue here.” (Id. at pp. 1955-1956,
original italics omitted, italics added.)
       From this last quoted statement in Lewis, it is apparent that the Court of Appeal
based its holding on the specific facts of that case, which involved a summary revocation
and subsequent reinstatement of probation. But this case is different. The trial court
formally revoked defendant’s probation at the hearing on the second petition to revoke
probation and ordered that probation was not reinstated. That occurred before defendant
exposed himself to the nurse.
       The cases cited by defendant involved whether the trial court had probation
jurisdiction after probation was summarily revoked but before probation was formally
revoked. (See, e.g., People v. Leiva (2013) 56 Cal.4th 498, 515 [“[S]ummary revocation
of probation preserves the trial court’s authority to adjudicate a claim that the defendant
violated a condition of probation during the probationary period”]; People v. Hunter
(2006) 140 Cal.App.4th 1147, 1155 [parole search valid after defendant arrested for
parole violation but parole not formally revoked].) Based on that authority, defendant

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argues: “The fact that the trial court did not formally pronounce the bargained-for
sentence at the same time as it formally revoked probation is of no matter.”
       The Attorney General nevertheless urges that probation jurisdiction lasts until
sentencing, even if probation was previously revoked formally after a Vickers hearing
and the trial court ordered that probation was not reinstated. Among other things, the
Attorney General quotes the following sentence from a practice guide: “ ‘[P]robation
terms are enforceable during [the] period between [a] Vickers hearing and [a] formal
disposition proceeding.’ (3 Witkin & Epstein, Cal. Crim. Law (4th ed. 2012) Time
Limitations, § 687, p. 1101, discussing [Lewis, supra, 7 Cal.App.4th 1949].)” As noted
above, however, Lewis did not involve a situation in which the defendant committed the
alleged probation violation after the trial court formally revoked probation and ordered
that probation was not reinstated.
       The Attorney General also relies on the following portion of section 1203.2:
“At any time during the period of supervision of a person . . . , if any probation officer,
parole officer, or peace officer has probable cause to believe that the supervised person is
violating any term or condition of the person’s supervision, the officer may, without
warrant or other process and at any time until the final disposition of the case, rearrest the
supervised person and bring them before the court or the court may, in its discretion,
issue a warrant for their rearrest.” (§ 1203.2, subd. (a).) The Attorney General
emphasizes that the statute gives arresting authority “until the final disposition of the
case,” but this emphasis disregards the first clause limiting the reach of the statute to the
period of supervision, i.e., the probationary period. The Attorney General also argues
that, because subdivision (b)(1) of section 1202.3 refers to revocation and termination in
the disjunctive (“the court may modify, revoke, or terminate supervision of the person”),
revocation and termination are not the same thing. But this argument is unpersuasive
because the effect of an order formally revoking probation along with a determination not



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to reinstate probation is termination of probation. (People v. Latham (1988) 206
Cal.App.3d 27, 29.)
       In addition, the Attorney General cites In re Medina (1983) 143 Cal.App.3d 562,
in which a defendant violated his probation while the probation order (not a revocation of
probation) was on appeal. The Court of Appeal held: “It is insignificant when the
subsequent misconduct occurs as long as it occurs before the probation terminates. There
is no ‘free time out’ during which a defendant may misbehave, free from the risk of such
misbehavior affecting his probation.” (Id. at 565.) Although there is no free time out
while a defendant is on probation, that concept does not apply if a defendant is no longer
on probation.
       Here, we conclude defendant was no longer on probation once the trial court
formally revoked his probation and ordered that probation was not reinstated. When a
trial court formally revokes probation and determines that probation shall not be
reinstated, the trial court must proceed to judgment and sentencing. (See Cal. Rules of
Court, rule 4.435(b)(1).) In this case, defendant, having had his probation formally
revoked and reinstatement rejected, stood convicted of lewd conduct on a child (the
original conviction) and awaited sentencing. Because he was not on probation when he
committed the felony conduct alleged to have been a probation violation under the third
petition to revoke probation, the trial court erred in overruling defendant’s demurrer to
the petition to revoke probation. The trial court should have sustained the demurrer and
dismissed the third petition to revoke probation.
                                             II
       Defendant further contends the trial court breached the plea agreement when it
sentenced him to a six-year prison term rather than the agreed-upon three-year term.
       When a defendant has agreed to admit a probation violation in exchange for a
specified prison term and the trial court has approved the admission agreement, the trial
court has only two options going forward: to sentence the defendant consistent with the

                                             8
agreement or allow the defendant to withdraw his or her admission to the probation
violation. (People v. Calloway (1981) 29 Cal.3d 666, 670-671; People v. Kim (2011)
193 Cal.App.4th 1355, 1365.) We agree with defendant and the Attorney General that
the trial court did not have discretion to impose a six-year prison term because defendant
agreed to a three-year term when he admitted the probation violation associated with the
second petition to revoke probation.
       Accordingly, we will reverse the order finding defendant violated probation by
exposing himself to a nurse, vacate the sentence, and remand for the trial court to
exercise its discretion either to impose a three-year term or allow defendant to withdraw
his admission.
                                       DISPOSITION
       The order finding defendant violated his probation based on the third petition to
revoke probation (based on the indecent exposure allegation) is reversed. The sentence
on the original conviction is vacated. The matter is remanded with directions to the trial
court to dismiss the third petition to revoke probation, and to either sentence defendant
consistent with the admission agreement or to allow defendant to withdraw his admission
to the second petition to revoke probation.


                                                     /S/
                                                  MAURO, J.

We concur:



    /S/
ROBIE, Acting P. J.



    /S/
HOCH, J.

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