People v. Svien CA3

Filed 4/19/21 P. v. Svien CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C089204

Plaintiff and Respondent, (Super. Ct. No. 12F05564)

v.

KENNETH SVIEN,

Defendant and Appellant.

Defendant Kenneth Svien appeals the trial court’s order overruling his demurrer challenging the trial court’s jurisdiction to consider a probation violation allegation. Defendant asserts his probationary term expired approximately a year prior to the filing of the probation violation petition at issue in this appeal and he did not agree to an extension of the probationary term. The People disagree, arguing defendant agreed to an extension of his probationary term and is thus estopped from challenging the trial court’s jurisdiction. We conclude the record is devoid of evidence showing defendant agreed to extend his probationary term. We thus reverse the trial court’s order overruling the demurrer and the subsequent order finding defendant in violation of probation. FACTUAL AND PROCEDURAL BACKGROUND Defendant entered a plea of no contest to willful infliction of corporal injury in exchange for being placed on probation for five years. On November 27, 2012, the trial

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court accepted the plea, suspended imposition of sentence, and placed defendant on probation for five years subject to various terms and conditions. The parties agree the five-year term expired by November 27, 2017. Defendant violated his probation several times during the five-year period. Pertinent to this appeal, a probation violation allegation was pending before the trial court prior to November 27, 2017. The hearing on that allegation took place on January 2, 2018. During the January 2018 hearing, defendant admitted to violating probation in another case (No. 15F07086). The trial court reinstated probation in that case on the original terms and conditions and ordered defendant to serve additional days “as a term of condition of probation.” The trial court then said, “Probation is also reinstated on its original terms and conditions in case ending 5564” -- i.e., the case before us on appeal. The trial court asked the prosecution whether it “ha[d] a motion as to that [violation of probation] petition.” The prosecution “move[d] to dismiss in the interest of justice in light of the admission.” The trial court granted the motion and asked defendant, “do you understand and accept all the terms and conditions of probation that you had before in both of your separate cases including the additional condition that I made today?” Defendant responded in the affirmative. A few months later, the probation officer filed another violation of probation petition. Defendant appeared at the hearing on August 20, 2018, and admitted to failing to complete the batterer’s treatment program. The trial court sentenced defendant to 60 days in jail, and reinstated defendant’s probation with a referral to an indigent batterer’s treatment program. Not long thereafter, the probation officer again filed a violation of probation petition and defendant appeared for the hearing on November 19, 2018. During that hearing, defendant admitted to being “placed on five years of felony probation, and . . . fail[ing] to complete the batterer’s treatment program.” The court ordered probation to be “reinstated on the original terms and conditions.”