Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. FCR189129
Siggins, J.
Yolanda Faye Lee appeals following a contested violation of probation. Counsel has briefed no issues and asks for record review of the proceedings. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has not filed a supplemental brief. We have reviewed the record and affirm.
Defendant pled guilty to welfare fraud. Sentence was suspended and defendant was placed on three years’ probation, including conditions that require she serve 180 days in county jail and pay restitution of $30,466. In February 2004, a petition to revoke probation was filed alleging defendant failed to pay restitution. Probation was summarily revoked. In September 2004, probation was reinstated, modified, and extended for two years. Defendant was ordered to make monthly restitution payments of $50, subject to upward modification by her probation officer, and the case was set for a March 2005 progress report.
In March 2005, the court ordered preparation of a formal progress report and the case was continued. In November 2005, the court summarily revoked probation and continued the matter for a formal revocation hearing after the probation officer reported that defendant defaulted on her restitution obligations even though she had the ability to pay. In December 2005, the probation department advised the court that defendant then had no discretionary income and was unable to make monthly restitution payments. The memo concluded “there does not appear to be a compliance issue at this time, and the defendant’s probation should not have been revoked.” Probation was thus reinstated on the same terms and conditions.
A new petition to revoke probation was filed in October 2006 alleging defendant failed to pay restitution and monthly installments of $50. Records showed a remaining balance of $29,671. A court-ordered financial evaluation report prepared by the probation department concluded defendant had the ability to pay “a considerable amount per month” toward her restitution obligations. The court summarily revoked probation and ordered a formal hearing.
The memo reviewed financial data provided by defendant and concluded: “Considering that the defendant’s monthly expenses far exceed her income before taxes, the undersigned believes that it is quite probable that she is receiving financial help from her husband or some other person, although the defendant did not disclose this. Therefore, it is difficult to determine her true ability to pay restitution. However, it is obvious that she has the ability to pay a considerable amount per month. Her cable TV alone is $158 per month. If her discretionary purchases were eliminated she could easily pay $1,000 per month. The defendant stated that she ‘is doing the best she can’ to pay restitution. However, the undersigned has presented a blatant failure to pay restitution in any meaningful way while expending an extensive amount of funds on discretionary purchases.” Defendant later claimed some of her expenses were work-related and were reimbursed by her supervisor. Verification of certain work-related expenses was apparently provided before the probation revocation hearing.
Defendant’s contested probation revocation hearing was held in May 2007. A record of defendant’s restitution payments was introduced into evidence, and an accounting technician testified that $29,606 in restitution remained outstanding. The probation officer testified about defendant’s financial status and discretionary spending, and concluded defendant could pay $1,000 per month toward restitution. When an issue arose regarding whether the court’s December 2005 order reinstating probation modified defendant’s payment obligations, the court concluded the minute order did not modify the prior order of probation. The court ordered a transcript of the December 2005 hearing, and invited the parties to discuss the effect of the December 2005 order. Defendant submitted supplemental briefing that argued there was no pending order for monthly restitution payments and no evidence that her failure to pay was willful.
In June 2007, the court found defendant in violation of probation based on her willful failure to pay restitution. The court concluded “[t]here was an ongoing order with restitution being made. . . . [¶] . . . When [defendant] became in a position where she had income that was available to her to make payments towards that restitution, she had the ongoing duty, pursuant to Judge Harrison’s prior order, to make a minimum payment of $50 per month. [¶] When he reinstated the probation, he found [no] willful failure at that time based upon the information he had before him, but he did not take away [defendant’s] obligation to pay the restitution. That obligation remained in full force and effect.”
The People requested that defendant be sentenced to state prison, but the court reinstated probation and modified its conditions to require defendant to serve an additional 300 days in county jail. Probation was ordered to terminate unsuccessfully on defendant’s release from jail, and the remaining restitution was converted to a civil judgment. Defendant timely appealed.
Defendant was represented by counsel and received a fair hearing. Substantial evidence supports the trial court’s finding that she violated probation by willfully failing to pay court-ordered restitution. Nor did the court abuse its discretion when it reinstated probation on modified terms. Appellate counsel advised defendant of her right to file a supplemental brief in this court within 30 days of counsel’s opening brief, but no supplemental brief has been filed. Full review of the record reveals no issue that requires further briefing.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J., Pollak, J.