Filed 10/4/13 P. v. Williams CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039084
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC761493)

         v.

ULISES VAZQUEZ WILLIAMS,

         Defendant and Appellant.



         Defendant Ulises Vazquez Williams appeals from an order revoking his
probation.1 He contends that the trial court lacked authority to revoke his probation. We
agree and reverse the order.


                                   I. Factual and Procedural Background
         In March 2007, defendant was charged with first degree burglary (Pen. Code,
§§ 459, 460, subd. (a)). In May 2007, he pleaded no contest to the charge on condition
that his maximum sentence would be two years in state prison. On June 12, 2007, the
trial court suspended imposition of sentence and placed defendant on probation for three
years. His probation was set to expire on June 12, 2010.


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     At the hearing in May 2007, defendant said that his true name is Ulises Williams
Vazquez.
       In September 2007, defendant was released to the Bureau of Citizenship and
Immigration Services after he completed his jail sentence. In November 2007, defendant
was deported to Mexico.
       In March 2009, the probation officer filed a petition to modify the terms of
probation. The petition alleged that defendant failed to provide proof of completion of
400 hours of volunteer work, failed to make himself available for search and testing,
failed to provide verification of education, vocational training, or employment, and failed
to provide proof of enrollment in or completion of a substance abuse program. On March
26, 2009, the trial court summarily revoked defendant‟s probation.
       In September 2011, defendant was arrested in San Diego County and transported
to Santa Clara County on an outstanding bench warrant.
       On October 6, 2011, the trial court found that defendant had not violated the terms
of his probation and reinstated probation under the original terms and conditions. Five
days later, defendant was released to the Bureau of Citizenship and Immigration Services.
       On November 16, 2012, the probation officer filed a petition to modify the terms
of probation. The petition alleged that defendant failed to provide proof of completion of
400 hours of volunteer work, failed to make himself available for search and testing,
failed to provide verification of education, vocational training, or employment, failed to
provide proof of enrollment in or completion of a substance abuse program, and failed to
pay fines and fees.
       On November 29, 2012, the trial court held a hearing on the petition. Defendant
was not present. Defense counsel objected to the revocation of defendant‟s probation on
the ground that defendant‟s probation term had expired on June 12, 2010, and time was
not tolled because defendant never admitted a probation violation. The prosecutor argued
that time was tolled, but noted that the issue was before the California Supreme Court.
The trial court revoked defendant‟s probation and issued a bench warrant.

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       Defendant filed a timely notice of appeal.


                                         II. Discussion
       Defendant contends, and the People concede, that the trial court erred when it
revoked his probation on November 29, 2012, since his probation expired on
June 12, 2010.
       After the trial court summarily revoked defendant‟s probation in the present case,
the California Supreme Court decided People v. Leiva (2013) 56 Cal.4th 498 (Leiva). In
Leiva, the court interpreted former Penal Code section 1203.2, subdivision (a), which
provided in relevant part that the revocation of probation, “ „summary or otherwise, shall
serve to toll the running of the probationary period.‟ ” (Leiva, at p. 502.) After
examining the legislative history of the statute, the court concluded 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, at pp. 514-
515.) Thus, Leiva held that “section 1203.2, subdivision (a)‟s . . . tolling provision
preserves the trial court‟s authority to adjudicate, in a subsequent formal probation
violation hearing, whether the probationer violated probation during, but not after, the
court-imposed probationary period.” (Leiva, at p. 502.)
       Here, when the trial court found at the October 6, 2011 hearing that defendant did
not violate probation during the court-imposed probationary period, it erred by reinstating
the terms of probation. Absent a finding that defendant violated probation during the
court-imposed probationary period, defendant‟s three-year probationary period expired
on June 12, 2010. Consequently, the trial court lacked authority to summarily revoke
defendant‟s probation and issue a bench warrant on November 29, 2012.



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                              III.     Disposition
     The order is reversed.




                                     _______________________________
                                     Mihara, J.



WE CONCUR:




______________________________
Premo, Acting P. J.




______________________________
Grover, J.




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