Opinion
H025334.
10-24-2003
JOHN ETHERIDGE, Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.
I. INTRODUCTION
In this original proceeding, petitioner John Etheridge (hereafter, defendant) seeks a writ of mandate directing respondent court to vacate its order denying defendants motion for discharge from probation. Defendant contends that the court lacks jurisdiction to conduct probation revocation proceedings, because the 1996 order extending defendants probation another five years to allow him to complete payment of restitution was in excess of the courts jurisdiction. We agree. Pursuant to Penal Code section 1203.2, the trial court could not lawfully impose another five-year term of probation absent formal revocation and reinstatement of probation following a determination on the record that defendant had violated probation by willfully failing to pay restitution. Since the trial court failed meet these statutory requirements in 1996, probation jurisdiction ceased. For that reason, we will issue a peremptory writ of mandate as requested.
Hereafter, all references are to the Penal Code unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Probation Proceedings
Defendant pleaded guilty to four felony counts of diversion of construction funds (§ 484b), and one felony count of fraudulent use of a license number (Bus. & Prof. Code § 7026.10). On October 16, 1991, defendant was granted probation for a term of five years with an expiration date of October 16, 1996. The conditions of probation included an order of restitution in the total amount of $32,359.43, payable to four victims of defendants failure to fulfill home remodeling contracts.
A copy of the original probation order was not included in the record.
Near the end of the five-year probation period, the probation department sent defendant a Vickers letter dated August 27, 1996, advising defendant that he was in violation of his probation order due to his "[f]ailure to keep the Probation Dept. advised of your ability to pay restitution and/or fine and penalty assessment." The Vickers letter instructed defendant to appear at a violation of probation hearing on October 3, 1996. In conjunction with the hearing, the probation department filed a petition for modification or change of the terms of probation, in which the probation officer stated, "The defendant has failed to keep the Adult Probation Department advised as to his ability to complete payment of restitution. Probation is due to expire on October 16, 1996, and a total balance of $24,903.17 remains unpaid. The defendant last made payment on July 30, 1996, in the amount of $20.00 cash." The probation officer recommended that defendant be arraigned for violation of probation, that probation be revoked to retain jurisdiction, and the matter be set for hearing and appointment of the public defender.
In People v. Vickers (1972) 8 Cal.3d 451, 458, the California Supreme Court ruled that the minimum requirements of due process at a probation revocation hearing include written notice of the claimed violations of probation.
On October 3, 1996, defendant appeared in propria persona on the probation arraignment calendar. The court inquired, "And what are you doing about restitution?" Defendant responded, "I have been paying as much as Ive been able to pay." The court also asked, "Are you working?" Defendant replied, "No, Sir . . . I can do some work every once in a while and Ive been able to get some income in, but I really dont have much at all. I have a disability case that should have settled but my attorney had a massive stroke and I have to pick up the records and get another attorney on Monday." The court then said, "Would you like me to extend your probation to permit you to do this?" Defendant responded, "Yes, sir. I really would." The court then made the following order: "All right. Im going to extend it for an additional five years. It will expire October 16 in the year 2001. Stay in touch with your probation officer and let them know what your abilities are."
Nearly five years later, on September 20, 2001, probation was revoked and a bench warrant was issued for defendants arrest as a result of defendants failure to appear for a violation of probation hearing. On July 18, 2002, defendant was arraigned for violation of probation and probation was revoked. A violation of probation hearing was set for August 30, 2002. The probation department filed a petition for modification of terms of probation in conjunction with the hearing. In the petition, the probation department described the prior probation proceedings of October 3, 1996, as follows: "On October 3, 1996, the defendant admitted the violation of probation for failure to pay restitution and probation was reinstated and extended for an additional five-year grant to October 16, 2001 (no jail time imposed)." With regard to the current violation of probation, the probation officer stated that defendant had willfully failed to complete payment of victim restitution, based on defendants reported history of employment and resulting ability to pay the outstanding balance of $24,463.17. When interviewed by the probation officer, defendant admitted that he had been earning $4,000 to $5,000 per month during the past year. However, defendant explained that he had experienced major medical problems and for that reason he had not made full restitution.
The probation officer found that defendant was a man of good character, with no other criminal history and the support of family and friends. However, the officer stated, "he has yet to make full restitution to the victims, although he has been given ample time by the Court to do so. Further, as probation was about to expire for the second time, the defendant appears to have made no effort to contact the Probation Department and explain the reason for failing to make regular monthly payments towards restitution. Instead, the defendant chose not to appear in Court for a Violation of Probation hearing. The defendant remained at large for approximately ten months." Accordingly, the probation officer opined that "the defendant will again fail to make full restitution to the victims if sentenced at the local level" and "the defendant is not a suitable candidate for further probation supervision services." On that basis, the probation officer recommended that probation remain revoked and that defendant be committed to the Department of Corrections for 16 months.
B. Defendants Motion for Discharge from Probation
On September 13, 2002, defendant filed a motion for discharge from probation. The basis for the motion was defendants contention that the trial court lacked jurisdiction to proceed, because the October 3, 1996, order extending probation for five more years was unlawful. Relying on this courts decision in People v. Medeiros (1994) 25 Cal.App.4th 1260, defendant argued that the trial court did not have the power on October 3, 1996, to extend probation beyond the statutory five-year maximum, because the court did not make a finding that defendant had violated probation and did not revoke probation. Defendant also argued that it was legally impossible for him to agree to the five-year extension of probation at the October 3, 1996, probation arraignment, since the extension was unlawful and defendant was not represented by counsel.
The parties agree that defendant was subject to a maximum five-year probation period.
The People filed a memorandum of points and authorities in opposition to defendants motion for discharge from probation. Their position was that the trial court had jurisdiction to proceed with a probation revocation hearing because the October 3, 1996, order lawfully extended defendants probation for five more years. According to the People, review of the record showed that "It can be inferred, based upon the probation report, and the defendants payment history since being placed upon probation, that the Court revoked the defendants probation on October 3, 1996[,] based upon his willful failure to pay restitution and then reinstated his probation for a brand new term of 5 years." The People pointed out that the original probation report contained a statement by defendant that he had two properties in Arizona that he could sell to pay restitution, and a "steady history of employment."
Additionally, the People asserted that the trial courts statement at the hearing of October 3, 1996, that the court was "going to extend" probation, did not indicate that the court had failed to revoke probation. The People contended that review of the record as a whole, and, in particular, the original probation report, clearly disclosed that the trial court had revoked defendants probation on October 3, 1996. The People viewed the minute order for October 3, 1996, as insignificant, notwithstanding the check mark next to the box indicating that probation was "modified," instead of the box indicating that probation was "revoked," because the check mark was no more than a clerical error that could be corrected nunc pro tunc.
On the basis that the trial court properly revoked defendants probation before it expired on October 16, 1996, the People further contended that the court was authorized by section 1203.2, subdivision (e), to reinstate probation for a second maximum term of five years. Finally, the People interpreted the record of the October 3, 1996, proceedings as showing that defendant had waived his right to a formal probation hearing and had stipulated that he violated probation by willfully failing to pay restitution and failing to advise his probation officer of the status of his payments.
D. The Trial Courts Order
On October 18, 2002, the trial court heard argument on defendants motion for discharge from probation. The court denied the motion, based on its agreement with the Peoples position that the court had probation jurisdiction. "This court feels that the totality of the circumstances with which the defendant was confronted back when he saw Judge Komar [on October 3, 1996,] that in fact the judge can properly extend probation and grant a new period with the defendant agreeing to that extension. And therefore this court does have jurisdiction to proceed."
III. DISCUSSION
Defendant petitioned for a writ of mandate vacating the trial courts order. We issued an order to show cause and imposed a temporary stay of trial court proceedings. As a threshold matter, we note that writ review is available where the defendant challenges the trial courts order denying his motion for discharge from probation. (Fayad v. Superior Court (1957) 153 Cal.App.2d 79, 80.) In performing our writ review, we apply the abuse of discretion standard of review that is applicable to probation orders. (See, e.g., People v. Superior Court (Martinez) (2002) 104 Cal.App.4th 692, 697; People v. Buford (1974) 42 Cal.App.3d 975, 985.) Abuse of discretion "depends on whether the trial courts order ` " `exceeds the bounds of reason. " [Citation.] Obviously, a decision which simply ignores statutory requirements constitutes an abuse of discretion." (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1225.)
A. The Statutory Requirements for Extending Probation
In the present case, defendant contends that the trial court ignored the statutory requirements pertaining to an extension of probation when the court on October 3, 1996, unlawfully extended his probation for another five-year term. The general rule is that "[t]he power of the court with regard to probation is strictly statutory, and the court cannot impose a condition of probation which extends beyond the maximum statutory term of probation." (In re Bolley (1982) 129 Cal.App.3d 555, 557; § 1203.1.) Thus, "a court cannot establish a period of probation longer than the maximum period of imprisonment for the offense involved. Any attempt to do so is null and void." [Citations omitted.] (Ibid.) However, section 1203.2, subdivision (e), provides an exception to the general rule. Where there has been a violation of probation, and as a result probation has been formally revoked prior to the expiration of the probation period and the revocation has been set aside, probation may be reinstated for a new term exceeding the original maximum. (People v. Medeiros, supra, 25 Cal.App.4th at pp. 1267-1268.)
The power of the court to revoke probation on the basis that the defendant has failed to pay restitution depends upon whether the defendants failure was willful. Section 1203.2, subdivision (a), provides that "probation shall not be revoked for failure of a person to make restitution pursuant to Section 1203.4 as a condition of probation unless the court determines that the defendant has willfully failed to pay and has the ability to pay." Therefore, where it is shown at the formal revocation hearing that defendant willfully failed to pay restitution and was able to pay, "the court is authorized to revoke probation and either order imprisonment or to set aside the revocation and reinstate probation for a new term exceeding the original maximum." (People v. Medeiros, supra, 25 Cal.App.4th at p. 1267.)
On the other hand, where the probationer was simply 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)." (People v. Medeiros, supra, 25 Cal.App.4th at p. 1267.) The remaining restitution balance may enforced as a civil judgment. (§ 1203, subd. (j).)
Keeping these statutory requirements in mind, we now consider whether the trial court abused its discretion in denying defendants motion for discharge from probation, on the ground the court lacked probation jurisdiction as a result of its failure to comply with the statutory requirements for the extension of probation when it imposed a second five-year probation period on October 3, 1996.
B. The Trial Court Lacked Probation Jurisdiction
We have reviewed the record of the proceedings of October 3, 1996, and find that the trial court did not expressly determine on the record whether defendant had willfully failed to pay restitution, or whether defendant had the ability to pay, during the initial five-year term of probation. Instead, it appears that the trial court simply extended probation for another five years to give defendant the opportunity to complete payment of restitution, because defendant had advised the court that he anticipated receiving a disability case settlement but there had been a delay due to his attorneys illness and the need to find a new attorney. As we have discussed, pursuant to section 1203.2, subdivision (a), the trial court did not have the authority to extend probation past the expiration of the statutory maximum period on October 16, 1996, in the absence of a determination of willful failure to pay and ability to pay. Therefore, the order of October 3, 1996, extending probation for another five years appears to be in excess of the trial courts jurisdiction.
The People argue to the contrary that it must be inferred from the record in its entirety that the trial court implicitly revoked defendants probation on the basis of willful failure to pay restitution, and then properly reinstated probation for a new five-year term. The Peoples argument is not persuasive. Pursuant to the plain language of section 1203.2, "the court must in some manner indicate it has considered the defendant probationers willful failure to pay and ability to pay restitution and made a determination thereon. Although it need not recite any talismanic words or outline in detail all relevant factors it has considered in making its determination, the trial court must make apparent on the record, prior to exercising its discretion, that it has considered and weighed relevant factors in making the determination required by statute. . . ." (People v. Self (1991) 233 Cal.App.3d 414, 418.)
Here, the reporters transcript for the hearing of October 3, 1996, shows only that the trial court inquired about defendants ability to pay, and defendant responded that he had little income and had been paying as much as he could, and further indicated that he was willing to attempt to pay more if probation was extended. The trial court did not state on the record any findings pertaining to willful failure to pay or ability to pay. Moreover, there is nothing in the probation departments October 3, 1996, report to suggest that defendant willfully failed to pay restitution. The report merely indicates that defendant was advised by the probation department that he had violated probation by failing to keep the probation department advised as to his ability to pay. Thus, at the time of the October 3, 1996, probation hearing, there were no facts before the trial court on which a determination of willful failure to pay and ability to pay could be made.
Accordingly, the record shows that the trial court exceeded its jurisdiction on October 3, 1996, when it extended petitioners probation for another five-year period without making a determination on the record that defendant had willfully failed to pay restitution and had the ability to pay. For that reason, we agree with defendant that the trial court did not have jurisdiction to conduct any further probation proceedings after the initial five-year period expired on October 16, 1996.
However, the People make an alternative argument that defendant should be estopped from seeking a discharge from probation on jurisdictional grounds. Estoppel was applied in the context of a probation jurisdiction issue in In re Griffin (1967) 67 Cal.2d 343, 345 (hereafter, Griffin). In that case, the probation revocation hearing was continued at defendants request in order to obtain private counsel. When the hearing was held, the defendants new counsel argued the merits and no one mentioned that the defendants three-year probation period had expired prior to the hearing date. After the hearing, the defendant called his attorneys attention to the expiration of the probationary term, and counsel served a memorandum asserting that the court had lost jurisdiction to revoke probation. The trial court found that the defendant had knowingly sought a continuance of the probation revocation hearing to a date beyond his probation period, and sentenced the defendant to state prison. (Ibid.) The defendant filed a petition for habeas corpus challenging the trial courts order.
On habeas review, the California Supreme Court determined that the defendant was estopped from contesting the jurisdictional issue, based on the following general rules of estoppel: "When, as here, the court has jurisdiction of the subject, a party who seeks or consents to action beyond the courts power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction. [Citations.] Whether he shall be estopped depends on the importance of the irregularity not only to the parties but to the functioning of the courts and in some instances on other considerations of public policy. A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when `[t]o hold otherwise would permit the parties to trifle with the courts. [Citation.] On the other hand waiver of procedural requirements may not be permitted when the allowance of a deviation would lead to confusion in the processing of other cases by other litigants. [Citation.] Substantive rules based on public policy sometimes control the allowance or disallowance of estoppel." (Griffin, supra, 67 Cal.2d at pp. 347-348.)
Applying these rules, the Supreme Court first determined that the expiration of the defendants probationary period did not cause the trial court to lose subject matter jurisdiction, noting that the probation statutes contemplate the continuance of fundamental jurisdiction to determine certain matters at the end of the probationary term. (Griffin, supra, 67 Cal.2d at p. 347.) Next, the court considered whether the defendant should be estopped from attacking the revocation of probation as an order in excess of the courts jurisdiction. The court concluded, "By seeking a continuance to a time beyond the end of the probationary term petitioner asked the court to do in a manner that was in excess of jurisdiction what it could have done properly by immediately revoking probation and continuing the matter for a hearing and determination as to the alternatives of reinstatement of probation or imposition of sentence." (Id. at pp. 348-349.) The court further concluded, "no policy, substantive or procedural precludes estoppel of petitioner to attack the excess of jurisdiction that resulted from the granting of his motion for continuance." (Id at p. 348.)
However, in a later decision on a probation jurisdiction issue, the appellate court rejected the application of estoppel. (In re Dupper (1976) 57 Cal.App.3d 118, 121-122 (hereafter, Dupper.)) In that case, the defendant failed to pay child support as a condition of probation. After the defendant obtained employment and began making payments, the trial court sua sponte extended probation to a date beyond the three-year maximum and, when the defendant defaulted, revoked probation and sentenced the defendant to county jail at a hearing held after statutory probation period had expired. The defendant obtained a writ of habeas corpus from the superior court, and the People appealed.
Applying the standard from Griffin, the appellate court affirmed, concluding, "estoppel should not be applied in the case at hand. Although [the defendant] consented to a continuation of court control beyond the three-year period, he, unlike the defendant in Griffin, was apparently and understandably not aware of the consequence of his consent. He was not represented by counsel at the time he gave his consent and the choice was presented to him as a choice of waiting for his counsel rather than as a choice of freedom beyond the period of authorized probation. [¶] The allowance of a deviation on the instant facts would, if anything, lead to confusion in processing other cases." (Dupper, supra, 57 Cal.App.3d at p. 124.)
The facts of the present case are more like those of Dupper than Griffin. Like Dupper, defendant was representing himself when he consented to an extension of the probationary period beyond the statutory maximum, and nothing in the record indicates that defendant was aware of the legal consequences of his consent. Unlike Griffin, defendant did not knowingly seek a continuation of the probationary period. To the contrary, the trial court initiated the discussion regarding the extension of the probationary period by asking defendant if he would like to extend his probation in order to pay restitution from the proceeds of an anticipated disability settlement. On this record, we cannot infer that defendant knowingly stipulated to a procedure in excess of jurisdiction. For that reason, we do not find that defendant is estopped from raising a jurisdictional bar to further probation proceedings.
Based on our determination that the trial court lacked jurisdiction to hear any probation matters after defendants initial five-year probation period expired on October 16, 1996, we conclude that the trial court abused its discretion in denying defendants motion for discharge from probation and writ relief is warranted.
IV. DISPOSITION
Let a peremptory writ of mandate issue directing respondent court to vacate its order denying petitioners motion for discharge from probation and to enter a new order granting the motion and discharging petitioner from probation. Upon finality of this decision, the previously issued temporary stay order is vacated.
WE CONCUR: RUSHING, P. J., PREMO, J.