P. v. Pantega

Filed 8/18/09 P. v. Pantega 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Trinity)

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After finding that defendant Walter P. Pantega had twice violated probation by failing to pay victim restitution, the trial court revoked his probation and sentenced him to prison. Defendant appeals, contending that the trial court never found he willfully failed to pay and that he received ineffective assistance of counsel. We remand the matter for rehearing.

FACTUAL AND PROCEDURAL BACKGROUND

The order granting probation and awarding victim restitution

On November 1, 2005, defendant was charged in Trinity County Superior Court with vehicular manslaughter (count one; Pen. Code, 192, subd. (c)(3) [all further undesignated section references are to the Penal Code]) and driving under the influence of alcohol or drugs (count two; Veh. Code,  23153, subd. (a)). It was alleged as to both counts that defendant had caused bodily injury and/or death to Jenny Jordan, Jesse Bramlett, and Mary Arello. (Veh. Code,  23558.)

On May 24, 2006, defendant pled no contest to both counts (with the special allegation dismissed as to count two) under an agreement which included a maximum sentence of one year in county jail. The probation report gave the facts as follows: On the night of June 21, 2005, as defendant was en route from Sacramento to Crescent City with three prescription drugs in his system, his car left its lane on a mountain road and crashed into the oncoming car of Jenny Jordan. Jordan, the mother of two children ages eight and six, was killed; Jesse Bramlett, her boyfriend and passenger, was seriously injured. Defendant and Mary Arello, his mother and passenger, also suffered injury.

The probation report stated further: Defendant, 52 years old at the time of the accident, lived with his wife, his nine-year-old daughter, and his mother. Aside from traffic citations, he had no recent contact with the criminal justice system. He had worked as a senior certified sterile processing technician at Kaiser Permanente in Sacramento for the last 10 years, and thus should be able to pay restitution if given sufficient time.[1] However, according to defendant, if incarcerated for more than six months (Kaisers maximum allowed leave of absence) he would lose his job and his family would lose their home.

At a sentencing hearing on September 29, 2006, the trial court (Judge James P. Woodward) granted defendant five years probation, including 270 days in jail.[2] The court heard argument on victim restitution, but deferred ruling.[3]

On December 13, 2006, the trial court entered a written ruling on victim restitution. The court found that Jean Lam, on behalf of the decedent and the minors, was entitled to $49,106.75 ($1,386.75 for the decedents funeral expenses and $47,720 for the minors care for five years) plus 10 percent interest per year dating from September 29, 2006, and Jesse Bramlett was entitled to $18,005.99 plus the same interest from the same date.[4] Defendant would pay through an earnings withholding order.

On December 29, 2006, the trial court entered an amended order granting probation which incorporated the above orders and provided: Restitution payments to begin within 30 days of the defendant[]s release from custody and to be in an amount of no less than $1,230.00 per month until paid in full.

The first petition to revoke probation

On April 20, 2007, the probation department filed a petition to revoke defendants probation, alleging: The defendant has failed to pay an amount of no less than $1,230.00 per month on his restitution payments as ordered 30 days upon release from custody. The trial court summarily revoked probation.

On April 27, 2007, defendant appeared and received written advisement of his rights. On April 30, 2007, defendant was arraigned and received appointed counsel.[5]

On June 13, 2007, at the scheduled hearing on the petition, defendants counsel, James Dippery, stated: There will be an admission by [defendant] that he has failed to make the $1,200 [sic] a month restitution payments, with a substantial explanation in two parts. The trial court (Judge Anthony C. Edwards) asked: Is that sufficient? I guess thats the allegation. The court then asked defendant: By admitting that you didnt pay the $1,230.00 a month, youre admitting you violated probation, youre giving up your right to a hearing, youre also giving up your right to see and hear all the witness[e]s and cross-examine them, and to remain silent without prejudice, and present a defense. Do you understand that? Defendant replied that he did. Advised of his potential maximum prison exposure, defendant repeated his admission. The trial court accepted the admission and found that defendant had knowingly, intelligently, and voluntarily waived his rights.

Dippery then gave his substantial explanation. First, [defendant] has been unemployed. So his failure to pay was arguably not willful, because he was unemployed and had no income with which to pay it.[6] (Italics added.) Second, and more importantly, the minors guardian, Ms. Lam, had refused defendants insurers offer of $50,000 to avoid jeopardizing a future civil action against defendant.

Dippery proposed reinstating probation and reducing the monthly restitution payment by an unspecified amount for at least a period of time sufficient to encourage the $50,000 offer to be accepted. The prosecutor asserted that defendant got a break upfront by receiving reduced jail time on the promise that he would keep his job and make the payments. The trial court referred the matter to probation.

The probation officers supplemental report and recommendation stated: (1) Bramlett and Lam had not received restitution payments. Bramlett got $50,000 from defendants insurer.[7] However, Lam had refused the same offer because [i]f we accept and he doesnt pay a thing, he gets off free and clear. (2) According to defendant, after losing his job he had applied in his field at the four Sacramento-area hospitals, but getting hired would take time and he would have to start with fill-in and on-call shifts. He was drawing $1,800 per month in unemployment, and his wife took home $2,200 per month. Their house was worth $350,000, but they owed $361,000 on a first mortgage and $18,000 on a second mortgage, with total payments of $2,700 per month. Unless defendant got work by September, when his unemployment ran out, they would lose the house (which he would have sold to pay restitution if it had had any equity).

The probation officer noted that though defendant owed restitution, it appeared he could not pay as of now. (It was unknown whether he had deliberately misled the trial court by promising he would get his job back.) The probation officer proposed that defendant serve 95 days in jail, which would exhaust his available local custody time, and be given 60 days after release from custody to start making payments. Prison would probably be recommended if any future violation occurred.

At the sentencing hearing on July 3, 2007, Judge Woodward (the original sentencing judge) stated that he had read and considered the supplemental probation report, then invited discussion.

Dippery called the probation officers recommendation counterproductive: because defendants job prospects in his field were marginal at best, at least initially, and his unemployment would run out after 95 days in jail, he would lose his house and have no way to make restitution payments.[8] But even if he found work, the currently ordered payments were simply more than is reasonable[.] Dippery again urged a much reduced monthly restitution payment while Lam reconsidered the insurance offer.[9]

The prosecutor asked for an immediate prison sentence. Dippery replied in part: [T]he only reason hes here for a violation of probation is not paying something that he simply cant pay. There have been no other violations of law. Hes otherwise been a law-abiding person. [] Now, if the court wants to send him to state prison, the court has that option. But I dont think thats an option that is viable if there is some hope of eventually getting some restitution payment to the victims in this case. (Italics added.)

The trial court stated: The whole point of the sentencing in this case is for these victims to be paid. And [defendant] had a good job that he was supposed to continue to have. And everything this court heard was that he was going to take care of the obligations. And now Im hearing that hes got marginal prospects of employment. That simply doesnt fit with the history this court is aware of with [defendants] past experience and employment. I dont think [defendant] is taking his obligations seriously, and . . . if hes not employed, I dont think hes taking his obligation to get employment seriously and get this paid. [] Now, I dont know the situation with the home, but whatever is necessary needs to be done. Frankly, Im going to give [defendant] one chance to get himself employed, to do whatever he needs to do to raise the money to make these payments in the meantime and have the victims paid. What Im going to do is -- and frankly, its not an option this court likes, with minimizing the jail time, but this court is interested in these victims being paid.

The trial court ordered defendant to begin immediately serving 60 days in jail with credit for 30, and afterward to make his payments or face prison.

The second petition to revoke probation

On September 21, 2007, the probation department filed a second petition to revoke defendants probation, alleging that he had still failed to make restitution payments as ordered 60 days upon release from custody. Again, the trial court summarily revoked probation.

On March 20, 2008, defendant appeared and received an advisement of his rights. Attorney Dennis Daniel was appointed to represent him.

The trial court held a hearing on the petition on April 8, 2008. Daniel said he was not ready to proceed: I need to get some medical records which has to do with his ability to work.Or maybe that would be a sentencing issue. It would appear he is in violation because he cant make the $1,230.00 a month. So would that be a sentencing issue, as far as why hes not making it? (Italics added.) The court said it could not comment: So far I havent heard the evidence in the VOP [violation of probation] hearing. (Italics added.) The prosecutor added: The defense is that he wasnt able to pay. I think thats a sentencing issue. Were only on for a VOP hearing today as to whether [defendant] made the payments or not. If there is an admission that he hasnt made the payments that were ordered, whether he had the ability to pay or not would be a sentencing issue . . . . (Italics added.)

Daniel conferred with defendant, then said: Your Honor, my clients telling me one thing. Hes got some money in a civil matter. I didnt do the original case. I dont know what hes talking about, if there is actually money available from his insurance company to pay this or if its a separate matter. Thats what [the prosecutor] is telling me. I really dont have the files. Im going to have to look into that. I dont think its really going to hurt, as far as the People, as far as [defendant] sitting in jail for a few more weeks.

When the trial court stated that they would proceed with the hearing, Daniel said: Lets see if he wants to admit, then. After conferring with defendant, Daniel said: [Defendant] will admit he hasnt made the full $1,230.00 a month payment.

The trial court asked defendant if he waived his rights to a formal evidentiary hearing and admitted the allegation that he violated probation by not paying the ordered restitution. Defendant admitted the allegation. The court found defendant made the admission freely and voluntarily, with a knowing and intelligent waiver of his rights. The court then put the matter over for a second supplemental probation report.

The second supplemental report and recommendation stated: Defendant claimed that he had failed to pay due to his inability to work that resulted from the accident. He had no assets, his house was in foreclosure, and he and his wife were divorcing. When released from custody, he hoped to get government aid until he could find work. However, if Lam would accept the $50,000 insurance settlement he could comply with the courts restitution order as to Bramlett.[10] He felt that he had not received a fair trial and would not get one now.

In the probation officers view, defendant had offered only excuses, minimizing of responsibility, and a disturbing lack of effort to meet his responsibilities to both the victims and the Court. He had not been employed since originally leaving custody, despite his promise, and had had to be brought back to court with bench warrants on each petition. He had shown no willingness to comply with the courts order. Therefore, a prison sentence was warranted.

At the sentencing hearing on May 6, 2008 (at which defendant was represented by attorney Craig Collins), the trial court stated that it intended to follow the probation officers recommendation.

Asked for comment, Collins began: In terms of the violation . . . , I do know there was an admission on behalf of [defendant], and its my understanding that any violation of probation, whether its failure to pay fines or otherwise, must be a willful violation. It appears that there is an issue regarding whether or not there was a willful violation. He did admit, so it kind of makes the point moot, but it does go in terms of sentencing. (Italics added.)

Collins then asserted that defendant had made attempts to pay restitution and that his sister had indicated there was money set aside for payments of restitution while he was incarcerated, and otherwise to his ex-wife, that were not handed over in terms of the restitution payments. Defendant had been unable to gain employment both because of his injuries from the accident and his conviction. Nevertheless, he had made good faith attempts to comply with the restitution order and would continue to do so.

The trial court revoked probation on the following grounds: [Defendant] was given an opportunity to demonstrate success on probation. And frankly, the entire initial sentencing in this matter focused extensively on limiting the amount of incarceration time on probation so [defendant] would not lose his employment with Kaiser. In fact, there was a letter attached to the probation report and recommendation from Kaiser indicating that he was employed at the time. It was structured that way, and everybody was aware that thats -- the court made a statement on the record limiting the amount of jail time so [defendant] would not lose his job.

Hes been given the opportunity to demonstrate success by making the $1,230 payments. He hasnt done so. After the first violation of probation, the court did indicate that it was reinstating on a condition and that he had to make the payments. He failed to do so. He does have the job experience and skills to be employed. (Italics added.)

The court imposed a prison sentence of two years eight months (the two-year middle term on count one, plus one-third the middle term on count two run consecutive to count one). The court also reordered victim restitution of $48,681.75 to Lam as the minors guardian and $17,830.99 to Bramlett.

DISCUSSION

I

Defendant contends that his imprisonment for nonpayment of victim restitution is a miscarriage of justice because the trial court failed to make the predicate factual finding that he willfully refused to pay and there is no evidence to support such a finding. He also contends that his counsel in the probation violation hearings provided ineffective assistance. We agree with both points.

[Victim] [r]estitution may serve the salutary purpose of making a criminal understand that he has harmed not merely society in the abstract but also individual human beings, and that he has a responsibility to make them whole. [Citation.] Thus, aside from making the victim whole, restitution serves valid punitive, deterrent, and rehabilitative objectives . . . . [Citation.] (People v. Cookson (1991) 54 Cal.3d 1091, 1097; see also People v. Whisenand (1995) 37 Cal.App.4th 1383, 1390 & fn. 8.) Therefore, a defendant who persistently flouts victim restitution orders may properly be imprisoned even if the victims remain uncompensated.[11]

Before a court may imprison a defendant for failure to pay victim restitution, however, it must find more than mere nonpayment: it must find deliberate malfeasance. [P]robation shall not be revoked for failure of a person to make restitution pursuant to section 1203.04 as a condition of probation unless the court determines that the defendant has willfully failed to pay and has the ability to pay. ( 1203.2, subd. (a); People v. Self (1991) 233 Cal.App.3d 414, 417-418.) Defendant consistently denied that he had willfully failed to pay, but he never got the chance to make his case because his attorneys did not realize how the case had to be made.

Defendants claim that he could not pay restitution was an affirmative defense on which he was entitled to an evidentiary hearing. But each time the trial court ruled that by admitting he had not paid defendant had waived his right to a hearing on whether he could pay, his counsel acquiesced in the rulings. Counsel also acquiesced in the prosecutors assertion that whether defendant could pay was merely a sentencing issue, rather than the fundamental question before the court. Having thus failed to preserve defendants right to present evidence to support his affirmative defense, counsel then fruitlessly tried to raise the defense by argument alone. In consequence, although the trial court impliedly found willful failure to pay, it did so in an evidentiary vacuum. Yet the record is replete with suggestions that defendant might genuinely have been unable to pay, and nothing before the court affirmatively proved the contrary.

Furthermore, counsels ineffective assistance went beyond their failure to obtain evidentiary hearings. Attorney Dippery undermined defendants position by repeatedly suggesting, contrary to law, that the trial court could properly imprison him for not paying restitution even if he actually could not pay.[12] Attorney Daniel, who took over the case after the second petition was filed, said he believed there was evidence which he had not had time to obtain that supported defendants claim -- yet instead of seeking a continuance to obtain the evidence, Daniel allowed defendant once again to waive an evidentiary hearing and called his ability to pay a sentencing issue. Finally, attorney Collins, who took over the case from Daniel, performed as ineffectively as his predecessors: he told the court that the issue whether or not there was a willful violation was moot except for sentencing because defendant did admit, cited more purported evidence without suggesting any means of introducing it, and failed to rebut the probation officers bald assertion that defendant was just making excuses and avoiding his responsibilities.[13]

To reverse for ineffective assistance of counsel, we must find not only that counsel performed below the standard of a reasonably competent attorney but also that the defendant would have been reasonably likely to obtain a better outcome had counsel performed effectively. (People v. Maury (2003) 30 Cal.4th 342, 389.) Here, the record contains numerous undeveloped suggestions of evidence supporting defendants claim that though he could not presently pay the full restitution ordered, he was trying to meet his obligations and might have been able to pay a reduced amount. Thus, it is reasonably likely that he would have obtained a better outcome but for counsels incompetence.

For all of the above reasons, we vacate the trial courts order and remand for an evidentiary hearing on whether defendants failure to pay was willful. If the court determines that it was willful, the court shall reinstate its original order in full. If the court determines that defendants failure to pay was not willful, the court shall not reimpose a prison sentence and shall consider whether defendant can presently pay either the originally ordered amount of victim restitution or a reduced amount.

For the guidance of the trial court and the parties on remand, we note that the courts order was materially incomplete. The court did not expressly find that defendant had the ability to pay and had willfully failed to do so, and so far as the court made those findings impliedly, they were not supported by evidence. Although the court found that defendant does have the job experience and skills to be employed, it did not find that defendant could have obtained a job that provided enough income to make the ordered payments, or cite facts which would have supported that finding. Instead, the court apparently reasoned that because it had given defendant the opportunity to demonstrate success by making the $1,230 payments, defendants failure to do so must be willful -- which conclusion did not account for the possibility of a good faith but unsuccessful attempt to comply.

DISPOSITION

The order revoking probation and sentencing defendant to prison is vacated. The matter is remanded for further proceedings in light of part I of the Discussion.

NICHOLSON , J.

We concur:

SCOTLAND , P. J.

SIMS , J.

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[1] The report attached a letter from Kaiser Permanentes HR Service Center in Oakland, headed Subject: Verification of Employment. It stated that defendant had been employed by Kaiser continuously since 1996, gave his present job title (senior certified sterile processing technician) and status (full-time at 40 hours a week), and added: Due to Kaiser policy we are unable to furnish any further information. The letter provided a contact phone number in case of questions. (The record does not indicate whether anyone contacted Kaiser to ask about its policy on employing convicted felons.)

[2] The trial court calculated this sum as the maximum sentence defendant could serve (including credits for time served) without exceeding six months of actual time in custody and losing his job.

[3] The court had only recently received key documentation, including the probation report, defendants financial disclosure statement ( 1202.4, subd. (f)(5)), information about insurance payments, the Peoples sentencing memorandum on restitution, and victim impact statements from Lam and Bramlett.

[4] The court observed that Bramlett had received $33,500 ($50,000 less attorney fees) from defendants insurer. Defense counsel had indicated that the same $50,000 offer was available to Lam.

[5] Defendants original counsel withdrew after sentencing. Defendant was represented by a different attorney at each later stage of the proceedings.

[6] Defendant was unemployed, according to Dippery, because Kaiser discovered his felony convictions and refused to rehire him.

[7] The report did not mention that $16,500 in attorney fees had been deducted from this payment, so that Bramlett had actually received only $33,500.

[8] In this context, Dippery stated again that defendant had not misled the trial court: Kaiser had told him that he could take a leave of absence for six months and then return, but when he returned Kaiser discovered the felony through a background check and refused to rehire him.

[9] Dippery acknowledged that the trial court could not order Lam to accept the offer.

[10] As noted above, despite receiving settlement money from defendants insurer, Bramlett was still owed over $18,000 under the existing restitution order. The report does not indicate whether defendant explained how he could pay this sum.

[11] Defendant asserts: [T]he Legislature has clearly determined that the principal purpose behind victim restitution orders is not the shaping of the defendants behavior during the period of probation. The principal purpose is the compensation of victims. However, the authorities we have cited hold otherwise.

Defendant also appears to assert that the petitions to revoke probation were legally defective because they did not expressly allege willful failure to pay. Defendant does not cite authority to support this contention, and we have found none. Therefore we reject it. (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794.)

[12] At the first hearing on the first petition, Dippery told the trial court that defendants failure to pay was arguably not willful, because he was unemployed and had no income with which to pay it. (Italics added.) If defendant could not pay, his failure to pay could not be willful. To say that the point was merely arguable, rather than an absolute defense, was not helpful to defendant.

At the second hearing on the first petition, Dippery repeated this blunder more emphatically: [T]he only reason hes here for a violation of probation is not paying something that he simply cant pay. . . . [] Now, if the court wants to send him to state prison, the court has that option. (Italics added.) If defendant could not pay, the court did not have the option of sending him to prison lawfully.

It is true that Dippery added: But I dont think thats an option that is viable if there is some hope of eventually getting some restitution payment to the victims in this case. But the trial court could ultimately choose to imprison defendant to satisfy the punitive, deterrent, and rehabilitative purposes of victim restitution, as it did, even if the victims never received payment. Furthermore, although Dippery requested lowering the ordered payments by some unspecified amount, without an evidentiary hearing the trial court had no reason to think this would help the victims get paid.

[13] The trial court may consider the probation reports account of the facts in deciding whether to revoke probation (see People v. Jackson (2005) 134 Cal.App.4th 929, 933-935; People v. Whisenand, supra, 37 Cal.App.4th at p. 1394; People v. Medeiros (1994) 25 Cal.App.4th 1260, 1262). But here, the probation officers supplemental report and recommendation on the second petition simply rejected defendants claims without citing any evidence that rebutted them.