P. v. McGrew

Filed 5/4/06 P. v. McGrew CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

This appeal is taken from the trial court's order extending appellant's probation by three years and transferring an order of restitution from a juvenile case to an adult matter. We modify the trial court's order to extend probation by two years, and otherwise affirm.

FACTS

Appellant has a juvenile record. On December 14, 2001 (at age 20), he entered a no contest plea to petty theft with a prior (Pen. Code, § 666)^[1] and was placed on three years' probation. The probation report, prepared for the hearing, included a list of appellant's juvenile offenses. It reflected that when appellant committed the section 666 offense "he was on one grant of juvenile probation, still owing $4,885 in restitution, and two grants of bench probation."^[2] When he entered his plea on the section 666 offense, defense counsel acknowledged that appellant "still owes some restitution on a previous . . . matter."

On May 7, 2002, the juvenile court issued an order transferring $4,885 in restitution from the juvenile matter (JV22756) to appellant's adult case (F319327).^[3] Appellant violated probation later that year and, on December 5, 2002, the probation officer filed a report reflecting that appellant owed $4,260 in restitution.

Appellant violated probation on several occasions in 2003 and 2004. Each time, he admitted the violation and his probation was reinstated with certain modifications. There was no discussion regarding restitution at any of the hearings. On December 13, 2004, the probation officer issued a report indicating that appellant had failed to pay $3,960 in restitution, $174.03 in fines and fees, and $1,513.49 in probation fees. Nor had he completed 100 hours of community service as previously ordered by the court. The probation officer recommended that probation be modified and extended for two years, to end December 14, 2006.

On April 4, 2005, the trial court held a hearing on an alleged probation violation for appellant's failure to pay restitution. Appellant did not appear, but was represented by counsel. He argued that appellant could not be required to pay restitution because he was not informed that this was a condition of his adult probation. The court rejected this argument. It noted that, when the juvenile court issued the May 2002 order transferring restitution to the adult case, appellant's counsel and the district attorney were both contacted and neither had an objection to the order. The court indicated that, after the order was signed, restitution was transferred from the juvenile to the adult case and probation was terminated in the juvenile matter.

The court did not find appellant in violation of probation. It extended probation for three years, until April 4, 2008, and ordered the payment of restitution, "in an amount and manner as directed by probation." The court indicated it would terminate probation when payment was complete and approved the 2002 order transferring restitution from the juvenile matter to the adult case. The minute order from the April 4, 2005 hearing, contained the statements, "Deft. ordered to pay restitution as directed" and "[t]he Court finds resti. [sic] transferred from JV22756 to F319327 is appropriate."

DISCUSSION

Order of Restitution

Appellant contends that he cannot be required to pay restitution because he did not know that it was a condition of his adult probation. He claims that there was no factual basis for modifying probation because the trial court did not find a violation at the 2005 hearing, or make findings concerning his ability to pay. Appellant argues, and the People agree, that the court is barred by statute from extending probation beyond five years.

Trial courts have broad discretion to impose conditions of probation. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121.) "'Probation is an act of clemency which rests within the discretion of the trial court, whose order granting or denying probation will not be disturbed on appeal unless there has been an abuse of discretion.'" (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) During the probationary term, the court possesses authority to "revoke, modify, or change its order of suspension of imposition or execution of sentence." (§ 1203.3. subd. (a).) It need not find a violation to modify the terms of probation. (People v. Cookson (1991) 54 Cal.3d 1091, 1098, 1100; People v. Medeiros (1994) 25 Cal.App.4th 1260, 1263, fn. 3; see §§ 1203.2, 1203.3.)

However, a change of circumstances must be shown before a court has jurisdiction to make a modification. (People v. Cookson, supra, 54 Cal.3d at p. 1095.) The court may not rely on the same facts it utilized in its initial order granting probation. (Ibid.) "'An order modifying the terms of probation based upon the same facts as the original order granting probation is in excess of the jurisdiction of the court, for the reason that there is no factual basis to support it.'" (Ibid., quoting In re Clark (1959) 51 Cal.2d 838, 840.)

The power to modify includes the power to extend probation. (People v. Cookson, supra, 54 Cal.3d at p. 1095.) A court is permitted to extend a term of probation to assure the payment of further restitution, but may not revoke probation unless the probationer has willfully failed to pay. (§§ 1203.2, subd. (a); 1203.3, subd. (b)(4); Cookson, at p. 1097; People v. Medeiros, supra, 25 Cal.App.4th at p. 1263.)^[4]

Where a probationer is unable to pay restitution, "[a]ll the court can do is modify and extend probation to the maximum term. If the probationer remains unable to fully pay restitution throughout the maximum term, the trial court lacks authority either to revoke and imprison or to further extend probation, and, instead, must discharge defendant from probation pursuant to section 1203.3, subdivision (b)." (Medeiros, at p. 1267.) The remaining restitution balance may, in the court's discretion, be enforced as a civil judgment. (§ 1203, subd. (j).)

In Cookson, the defendant was ordered to pay $12,000 in restitution and placed on three years' probation. The probation department fixed his payments at $100 per month, and later increased them to $135. Although the defendant made the required monthly payments, he had paid only $4,085 at the end of three years. The trial court modified the terms of probation, increasing the defendant's payments to $344 per month and extending probation by two years, so the balance could be paid in full. The defendant appealed, arguing that the trial court had improperly extended probation because there was no proof he willfully failed to pay. (People v. Cookson, supra, 54 Cal.3d at p. 1095.)

The Court of Appeal affirmed and the defendant appealed to the Supreme Court which held that the trial court properly modified probation. It concluded that the defendant's inability to pay the full sum within three years constituted a change in circumstances, justifying modification. (People v. Cookson, supra, 54 Cal.3d at p. 1095.) The court stated that "'setting the pay schedule consistent with the defendant's ability to pay had resulted in defendant's inability to pay full restitution as contemplated within the original period of probation.'" (Ibid.) This constituted a change in circumstance because it was "a fact 'not available at the time of the original order . . . .'" (Ibid.)

Here, the juvenile court imposed restitution as a condition of probation when appellant was a minor. In 2001, at age 20, appellant committed another offense (petty theft with a prior)--a fact not present when the original order of juvenile probation was made. Commission of the new offense was a change in circumstances justifying modification of the terms of probation.

We reject appellant's argument that the trial court erred by failing to make findings concerning his financial circumstances. At a probation violation hearing, "[t]he requirements of due process are met if a defendant is afforded an opportunity to present evidence on his ability to pay. [Citation.] There is no requirement that a court make an express finding of the ability to pay, and the court may properly base its restitution order on the probation officer's report which recommends restitution. [Citations.]" (People v. Campbell (1994) 21 Cal.App.4th 825, 831 [although present at several hearings, defendant failed to present evidence of his ability to pay].)

When appellant entered his plea to petty theft with a prior, his counsel indicated that restitution was owed "on a previous . . . matter." Neither appellant nor his counsel offered evidence of his ability to pay. At the probation violation hearing, appellant was not present. However, his attorney had an opportunity to present evidence of appellant's financial circumstances, but did not do so. The trial court did not abuse its discretion in approving the order of restitution.

Length of Probation

At the April 4, 2005 hearing, the trial court extended appellant's probation by three years, until April 4, 2008. Appellant argues, and the People agree, that appellant's probation may be extended by only two years. Under section 1203.1, subdivision (a), an order of probation may be imposed for five years or the maximum term of imprisonment, whichever is longer. (People v. Cookson, supra, 54 Cal.3d at p. 1094, fn. 2; People v. Medeiros, supra, 25 Cal.App.4th at p. 1264.) A violation of section 666 (petty theft with a prior) is punishable by a maximum term of three years. (§§ 18, 666.)

The parties agree that appellant was subject to a maximum five-year probation period. Appellant was placed on probation on December 14, 2001. However, at the April 2005 hearing, the trial court extended probation beyond the statutory five-year maximum. Accordingly, the order of probation must be modified to reflect that appellant's probation will terminate December 14, 2006.

As modified, the order of probation is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Michael L. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Supervising Deputy Attorney General, Catherine Okawa Kohm, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All further statutory references are to the Penal Code.

^[2] The probation report listed five criminal offenses, two of which made reference to restitution. On October 4, 2002, appellant committed an unspecified offense and the report indicated that "probation to terminate upon payment of restitution." Following another unspecified offense, committed on March 26, 2001, was the notation that appellant's sentence of 30 days in jail was "stayed upon successful payment of restitution. Case remains open to date. He continues to owe $4,885 in restitution and his last restitution payment was received November 14, 2001."

^[3] This order was not included in the record on appeal.

^[4] Under section 1203.2, subdivision (a), the court may modify the terms of probation if it "has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses. However, probation shall not be revoked for failure of a person to make restitution . . . unless the court determines that the defendant has willfully failed to pay and has the ability to pay. Restitution shall be consistent with a person's ability to pay."