Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC065011
Bamattre-Manoukian, ACTING P.J.
Defendant Sonya Marshall pleaded no contest to fraudulently obtaining welfare (Welf. & Inst. Code, § 10980, subd. (c)(2)), and falsely applying for aid (Pen. Code, § 118). On February 6, 2003, the court granted probation to defendant for three years with various terms and conditions, including that she pay victim restitution. On January 19, 2006, the court summarily revoked defendant’s probation due to her failure to pay victim restitution. On February 23, 2006, defendant admitted violating probation. The court reinstated probation to defendant for an additional three years.
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant challenges the validity of the additional three years of probation, contending that she did not admit willful refusal to pay restitution, and therefore the court did not have jurisdiction to extend her total probation beyond five years. For the reasons stated below, we affirm the judgment.
BACKGROUND
Defendant was charged by felony complaint with fraud in obtaining welfare, and with false application for aid (Welf. & Inst. Code, § 10980, subd. (c)(2), Pen. Code, § 118). At a hearing on January 9, 2003, defendant pleaded no contest to the charges. On February 9, 2003, the court placed defendant on probation for three years with various terms and conditions. One of the conditions was that defendant pay victim restitution in the amount of $3,997.
The probation officer filed a petition for modification or change of terms of probation on January 19, 2006, alleging that defendant failed to pay the court-ordered victim restitution. On the same day, the court summarily revoked defendant’s probation. On February 23, 2006, defendant appeared and admitted the violation of probation as set forth in the petition. The court reinstated probation for three more years, until February 23, 2009, with additional terms and conditions, including that defendant serve seven months in county jail.
On May 9, 2006, the court denied defendant’s request to modify probation. On July 7, 2006, this court granted defendant’s application for relief from default for failing to file a timely notice of appeal. On July 12, 2006, defendant filed a notice of appeal.
DISCUSSION
Standard of Review
Pursuant to Penal Code section 1203.2, subdivision (a), “a court is authorized to revoke probation ‘if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his [or her] probation. . . .’ ” (People v. Rodriguez (1990) 51 Cal.3d 437, 440 (Rodriguez).) “It has long been recognized that the Legislature, through this language, intended to give trial courts very broad discretion in determining whether a probationer has violated probation.” (Id. at 443.) A preponderance of the evidence standard is necessary because “ ‘revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependant on observance of special . . . restrictions.’ ” (People v. Coleman (1975) 13 Cal.3d 867, 877, fn. 8, quoting Morrissey v. Brewer (1972) 408 U.S. 471, 480; see also, Rodriguez, supra, 51 Cal.3d at p. 442.)
A decision whether to revoke probation “ ‘rests in the sound discretion of the court.’ ” (People v. Zaring (1992) 8 Cal.App.4th 362, 378, quoting People v. Buford (1974) 42 Cal.App.3d 975, 985.) Probation is not a right, but “an act of clemency, and a decision to revoke probation when the defendant fails to comply with its terms rests within the broad discretion of the trial court.” (People v. Covington (2000) 82 Cal.App.4th 1263, 1267.) “Only in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation.” (People v. Lippner (1933) 219 Cal. 395, 400.)
Failure to Pay Restitution
Defendant contends that there is no evidence that she willfully refused to pay the victim restitution, and therefore the court does not have the right to revoke probation and subsequently extend it. Defendant cites People v. Cookson (1991) 54 Cal.3d 1091 (Cookson) in support of her claim.
The defendant in Cookson was sentenced to pay a total of $12,000 in victim restitution over a probation period of three years, after he failed to build a contracted addition to the victim’s house. (Cookson, supra, 54 Cal.3d at p. 1093.) However, three years of a payment schedule of $100 a month only amounted to approximately $4,085, so the trial court modified the defendant’s probation to extend it for two more years. (Id. at p. 1094.) The defendant claimed that his probation was “improperly extended without proof he willfully failed to pay restitution as ordered.” (Id. at p. 1095.) Section 1203.2 subdivision (a), states in relevant part that “probation shall not be revoked for failure of a person to make restitution . . . as a condition of probation unless the court determines that the defendant has willfully failed to pay and has the ability to pay.” The court held that “section 1203.2(a) does not prohibit a court from extending a term of probation when the probationer fails to pay restitution as ordered because of an inability to pay,” and therefore it was appropriate to modify the defendant’s probation with an extension because he could not pay the restitution within three years. (Cookson, supra, 54 Cal.3d at p. 1097.)
In the present case, defendant admitted she violated probation by failing to pay victim restitution as stated in the probation officer’s petition. Defendant concedes that the court in Cookson allowed the probation extension although there was no evidence that the defendant willfully refused to pay restitution. The People contend that defendant’s admission of failing to pay victim restitution is equivalent to admitting she willfully failed to pay victim restitution because “the guilty plea admits every element of the offense.” (People v. Billetts (1979) 89 Cal.App.3d 302, 307.) We agree with the People that, by admitting she violated her probation by failing to pay victim restitution, defendant admitted that she “willfully failed to pay and had the ability to pay.” (§ 1203.2, subd. (a).)
The defendant in Bearden v. Georgia (1983) 461 U.S. 660, 662 (Bearden) was sentenced to three years probation and ordered to pay restitution after being indicted for the felonies of burglary and theft. After repeated attempts to secure employment, the defendant failed to secure employment, and thus failed to pay restitution as required by his probation. (Id. at pp. 662-663.) Consequently, the trial court sentenced the defendant to state prison. (Id. at p. 663) On appeal, the Court held that “if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically” and send the defendant to prison “without considering whether adequate alternative methods of punishing the defendant are available.” (Id. at pp. 668-669.) The Court reversed and remanded the matter to allow the trial court to determine another punishment other than prison. (Id. at p. 674.)
In the present case, defendant argues that she was unable to pay restitution through no fault of her own because of her responsibilities to support her children, and therefore she should not have to endure this extended sentence. However, the trial court did not sentence defendant to prison, as did the trial court in Bearden, but ordered an alternative method of punishing her by extending her probation for three years. Therefore, defendant has not shown that the extension of her probation was “fundamentally unfair.” (Bearden, supra, 461 U.S. at p. 668.)
Court’s Jurisdiction to Extend Probation
Defendant contends that the court does not have jurisdiction to extend her probation for more than the permitted maximum of five years. Because “a court cannot establish a period of probation longer than the maximum period of imprisonment for the offense involved,” defendant argues that the trial court erred in sentencing her to a total of six years of probation. (In re Bolley (1982) 129 Cal.App.3d 555, 557.) However, section 1203.2, subdivision (e), provides an exception to this rule, stating in relevant part that “if an order setting aside the judgment, the revocation of probation, or both is made after the expiration of the probationary period, the court may again place the person on probation for that period and with those terms and conditions as it could have done immediately following conviction.” Therefore, a court may revoke probation during the original probationary period, then set aside the revocation after the probationary period has expired and reinstate a defendant’s probation for as long a time as it could have ordered immediately after the original conviction.
Defendant cites a footnote in Cookson to argue that probation cannot be extended beyond five years. That footnote states “[b]ecause the maximum term of incarceration that defendant could have suffered was less than five years (§ 484b), probation could not extend past five years (§ 1203.1).” (Cookson, supra, 54 Cal.3d at p. 1094, fn. 2.) However, this footnote focuses on an alternate statute, Penal Code section 1203.1, and ignores the exception stated in section 1203.2, subdivision (e).
Defendant cites People v. Medeiros (1994) 25 Cal.App.4th 1260 (Medeiros) to support her argument that the trial court in the present case did not meet the statutory requirements. The trial court in Medeiros placed the defendant on three years probation for forgery and grand theft, and ordered her to pay victim restitution. (Medeiros, supra, 25 Cal.App.4th at p. 1262.) The trial court summarily revoked probation approximately a month before it expired because she did not make restitution payments, but “paid when she could.” (Ibid.) The court reinstated probation for two more years, but again revoked probation approximately one week before the period expired because the defendant did not fully pay victim restitution. (Ibid.) The court held that the defendant was not in violation of probation, but “reinstated probation and extended it to expire for another five years” under section 1203.2, subdivision (e). (Medeiros, supra at pp. 1262-1263.) The appellate court stated that under section 1203.2, subdivision (e), “probation cannot be imposed ‘again’… unless probation is revoked based on a violation of probation and the revocation has been set aside.” (Id. at p. 1267.) The court held that because the defendant “did not violate probation and was unable to pay full restitution, there was no formal revocation and section 1203.2, subdivision (e), did not authorize extending probation beyond the initial maximum five-year term.” (Id. at pp. 1267-1268.) Consequently, the court reversed the extension of probation.
Defendant in the present case contends that, but for the circumstance where a revocation of probation is set aside, the court lacks jurisdiction to extend probation for more than five years. Therefore, the court lacked jurisdiction to order defendant’s probation for a total of six years because her probation was revoked before her original term expired. Although the court revoked defendant’s probation on January 19, 2006, before her original probation period expired on February 6, 2006, the court set aside the revocation after her probation period expired, when the court reinstated defendant’s probation for three more years. Because the order setting aside the revocation was made after the expiration of the probation period, the court was able to place defendant on probation for three years, just “as it could have done immediately following conviction” pursuant to section 1203.2 subdivision (e).
The court in People v. Ottovich (1974) 41 Cal.App.3d 532, 533 (Ottovich) considered whether the defendant’s probation could be extended for an additional three years, which would exceed the maximum probation period. The defendant was granted probation on November 18, 1970, with a maximum probation period of three years. (Id. at p. 534.) Respondent argued that “despite the language of section 1203a, the trial court was authorized to extend appellant’s probation beyond three years pursuant to Penal Code section 1203.2.” (Ibid.) The superior court appellate department held that “the provisions of section 1203.2 are inapplicable to the case at bar.” (Ibid.) The Court of Appeal found that section 1203.2 permits the court to place a defendant on probation for a period exceeding the maximum when probation is revoked during the original probation period, then reinstated after the period has expired. (Id. at pp. 533, 534.) The court held that because in that case the defendant’s “probationary period had not expired at the time of the court’s order setting aside the order of revocation of probation … section 1203.2 [was] inapplicable.” (Id. at p. 535.)
Defendant contends that Ottovich supports her claim that a court does not have jurisdiction to extend a defendant’s probation period. However, in Ottovich, the defendant’s probation period had not yet expired when the trial court set aside the revocation of probation and then reinstated it. In the present case, the trial court set aside defendant’s revocation of probation and reinstated the probation for another term of three years after her original probation period expired.
The defendant in People v. Jackson (2005) 134 Cal.App.4th 929, 931 (Jackson) was charged with false application for aid and misrepresentation to receive aid and was granted probation on August 19, 1996. On March 5, 1999, the defendant’s probation was summarily revoked due to desertion, and was reinstated on November 23, 1999, until November 23, 2004. (Ibid.) Again, the trial court found the defendant in violation of probation on November 18, 2004, and revoked and reinstated her probation on the same day for five more years until November 18, 2009. (Ibid.) The defendant appealed, and the court held that “because the third sentence of Penal Code section 1203.2, subdivision (e) applies only where the order revoking probation ‘is made after the expiration of the probationary period,’ it provided no authority for the extension or reimposition.” (Id. at p. 932, quoting Ottovich, supra, 41 Cal.App.3d at p. 535.)
Defendant contends that Jackson supports her claim that the court does not have jurisdiction to extend defendant’s probation. However, in Jackson, the trial court reinstated the defendant’s extended probation before her previous probationary period expired, and therefore did not have jurisdiction to extend the probationary period under section 1203.2 subdivision (e). In the present case, the trial court reinstated defendant’s probation after her original probation period expired.
We therefore conclude that the trial court had jurisdiction to revoke and extend defendant’s probation period.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Mcadams, J., Duffy, J.