Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC234226
McAdams, J.
Defendant appeals from the judgment and sentence imposed in Santa Clara County action number CC234226. He challenged the court’s jurisdiction to revoke his probation. First, defendant argues that because his probation in CC234226 was specifically made coterminous with his probation in CC587219, it should have been terminated when CC587219 was dismissed following his successful appeal in that case. Second, he argues that inasmuch as his conviction in CC587219 was reversed on appeal and later dismissed for reasons that went to his guilt or innocence of that crime, his probation revocation based on that conviction cannot be sustained, his probation must be deemed to have terminated as of the date it would have terminated but for the illegal probation violation, and the second violation occurred after probation had lapsed. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
According to the probation report, on January 3, 2002, defendant sat next to a woman who was sitting on a bench on South First Street in San Jose. He reached into her purse and grabbed her wallet. The victim tried unsuccessfully to push his hand away from her purse. She had $150 in cash and her Social Security check in the amount of $812 in her wallet. Defendant rode off on a bicycle but was soon detained by police and positively identified by the victim.
While defendant was in custody on January 8, 2002, for snatching the wallet from the woman’s purse, he was questioned by a San Jose Police Department detective about a 2001 wallet theft from an elderly man. He admitted it and said he was under the influence of “crack.” In that case, on November 27, 2001, an 84-year-old, hearing-impaired man and his wife were walking on San Carlos Street in San Jose when defendant rode his bicycle directly at the couple. Defendant staged a fall and grabbed his knee as if in pain. The elderly couple offered him assistance and defendant asked them for a pen and paper. When the elderly man got out his wallet, defendant grabbed it. The man struggled with defendant to hold onto his wallet, was almost knocked to the ground when defendant fled.
On March 7, 2002, defendant pleaded no contest to grand theft from a person in the 2002 case, and to robbery in the 2001 case. (Pen. Code, §§ 487, subd. (c), 211/212.5, subd. (c).) Pursuant to a negotiated disposition, defendant waived a preliminary hearing and was promised a sentence of no more than two years in prison. On June 25, 2002, the court suspended imposition of sentence and granted defendant three years’ probation, on various terms and conditions, including that he pay restitution in an amount to be determined, but no less than $50.
On March 30, 2005, defendant was arrested for a violation of Vehicle Code section 10851. He was eventually charged with receiving a stolen motorcycle in violation of Penal Code section 496, subdivision (d). (Russell, supra, 144 Cal.App.4th at pp. 1419-1421.) A petition to violate defendant’s probation was filed, and on April 21 defendant appeared for arraignment on the probation violation; his probation was summarily revoked at that time. A jury convicted him of the charge on August 30, 2005. (Id. at p. 1419.)
On our own motion, we take judicial notice of our opinion and the appellate record in H029753/CC587219, People v. Russell (2006) 144 Cal.App.4th 1415 (Russell).
Defendant was to be further arraigned on the probation violation in CC234226 on October 14, 2005. However, further arraignment proceedings were not held until December 23, 2005. At that time, defendant admitted a violation and the court found defendant in violation of his probation. The court then modified and reinstated probation.
On December 23, 2005, in CC587219, the court dismissed defendant’s strike prior conviction (the 2001 robbery) pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and granted him probation. The probation officer suggested that the court place him on probation for four years, rather than the usual three, “for his support more than punitively.” The probation officer also recommended that defendant’s prior probation in CC234226 be continued, “at least the period of time within which it [would] be terminated. I think there’s a maximum five year grant, but if it’s reinstated and extended, coterminous, that they should both terminate.” Defense counsel requested that probation be set at three years. The court placed defendant on formal supervised probation in CC587219 for four years, but indicated that it would consider terminating probation after three years “if everything is going fine.” With respect to case number CC234226, the court opted to “reinstate probation in that matter and extend probation to be cotermin[o]us with probation in case number CC587219.”
On November 21, 2006, this court reversed defendant’s conviction in CC587219, finding that the trial court’s failure to instruct on the defenses of mistake-of-fact and claim-of-right was error, and concluding that the error was prejudicial under the Watson standard because “it is reasonably probable defendant would have obtained a more favorable result if the jury had been instructed with the defenses at issue.” (Russell, supra, 144 Cal.App.4th at p. 1433; People v. Watson (1956) 46 Cal.2d 818, 836.) The remittitur issued on January 23, 2007. On March 7, 2007, the parties appeared in the superior court on CC587219 and the deputy district attorney announced that the People were “not going [to] proceed on this matter either.” The court then dismissed the charges.
On April 27, 2007, the parties appeared before the superior court in CC234226. Defendant, through counsel, requested that his probation be terminated. Counsel explained that “Mr. Russell was convicted in one matter, because of that conviction, probation in another matter was extended cotermin[o]us. His conviction was then overturned. And we are asking that the court terminate probation on that violation of probation matter that was extended.” The district attorney added that the People had dismissed the overturned case and did not intend to pursue that matter again. The probation officer offered the information that defendant “had been making some payments sporadically to DOR, but it doesn’t appear it was paid in full.” Defense counsel then added that defendant was indicating that he “does not owe any money on this case.” The court “put the matter over for about two weeks to allow Mr. Russell to go over to the Department of Revenu[e] and get a copy from the Department o[f] Revenue indicating that there’s no balance due, then I don’t have a problem terminating probation at that point.”
Subsequently, on April 30, 2007, Probation Officer Dina Rocha reported in the probation log that defendant still owed $1,937, but that the court would consider terminating probation if defendant made arrangements with the DOR to pay victim restitution and fines. In an email dated May 22, 2007, Ms. Rocha informed the court of defendant’s balance owing. Thereafter, on August 17, 2007, Probation Officer Abel Mendoza reported in the log that when he asked defendant why he did not appear for court “to try and get his probation dismissed[, ] [defendant] said he does not have the money to pay, so he will remain on probation.”
The probation log reflects that on March 6, 2008, probation was summarily revoked and a no-bail bench warrant issued for defendant’s arrest. Grounds for revocation included: failure to appear for a scheduled office visit; a positive urine test for cocaine; failure to enroll in a substance abuse program; failure to make regular payments to the restitution fund fine; 2007 convictions for violating Penal Code, section 594, and Vehicle Code section 14601.2, subdivision (a). The probation memorandum also noted that defendant still owed $1,937 in victim restitution.
On March 27, 2008, defendant argued, through counsel, that this violation of probation should be considered his first such violation, inasmuch as “there was an issue as far as the basis of the violation that was overturned by the Court, ” and he should receive credit for the nine and a half months he served for that probation violation. The matter was continued for three weeks to allow for further investigation by counsel of defendant’s claim.
On April 17, 2008, defendant through counsel renewed his argument that his probation should be deemed to have ended when CC587219 was dismissed because “this case became coterminous with another case.” The district attorney informed the court that the “the Court has already heard and rejected his request” to terminate probation. Defendant then admitted the allegations set forth in the March 6 and March 27, 2008 probation violation petitions. The court sentenced defendant to prison for the mitigated term of two years on count 2, and the mitigated term of 16 months, to be served concurrently, on count 1, with credit for time served.
DISCUSSION
Defendant argues that because his probation in CC234226 was ordered to run “coterminous” with his probation in CC587219, his probationary term in CC234226 should have “expired with the dismissal of case no. CC587219 on March 7, 2007.” We disagree.
Other than the dictionary definition of the term “coterminous, ” defendant cites no authority for the proposition that his probation in CC234226 simply “expired” by operation of law, without any judicial action, on March 7, 2007, when CC587219 was dismissed. So far as the record shows, CC234226 was not on calendar on that day, the court did not have the file before it, and none of the parties to the proceedings made any mention of it.
We agree with defendant that the court intended to make the two probationary matters “coterminous, ” that is, “having the same or coincident boundaries, ” “covering or involving the same area, ” and “coincident or coextensive in range, scope, limit, time, or duration.” (Webster’s 3d New Internat. Dict. (1993) p. 516.) However, in the context of the entirety of the sentencing hearing, the court’s clear and unambiguous intent was to make both probationary terms four years in length. Nothing in the record suggests that the court contemplated early termination for both cases if, for some unforeseeable reason, one case should be dismissed. For that matter, nothing in the record suggests that the court contemplated early termination for either case in the absence of compliance with the terms of probation. On the contrary, the court stated that it would consider terminating probation in CC587219 after three years “if everything is going fine.” In our view, the court’s intent in making defendant’s probation matters “coterminous” was to ensure that defendant remained on probation in both matters for four years, from December 23, 2005, to December 23, 2009, or three years, “if everything is going fine, ” and we reject the notion that probation in one coterminous matter automatically terminated two years earlier than the court intended when the other probation matter was dismissed for wholly unforeseeable reasons.
Penal Code section 1203.3 supports our view. Subdivision (a) of that statute provides in relevant part that the court “shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence.” However, under section 1203.3, subdivision (b), the court’s authority to revoke, modify, or alter the terms of probation is subject to certain conditions. These include that a hearing be held in open court for which the prosecuting attorney shall be given two-days written notice; that the judge shall state the reasons for any modification of sentence or the terms or conditions of probation; and that advance written notice by the court or clerk be given to the “proper probation officer” of the intention to revoke, modify, or change its order. (§ 1203.3, subd. (b)(1) & (2).)
The power to modify probation includes the power to change the length of the probationary period based on a change in circumstances. (People v. Cookson (1991) 54 Cal.3d 1091, 1095 (Cookson) [extension of probation]; People v. Medeiros (1994) 25 Cal.App.4th 1260, 1263 [same].) Given that the court had set a four year probationary term in CC234226, earlier termination of probation entailed a modification of probation, which could only be accomplished after a noticed hearing and a showing of changed circumstances, not automatically. In this case, the court correctly followed proper procedures before entertaining defendant’s motion to modify his probation. Probation did not automatically terminate upon dismissal of case no. CC587219.
Furthermore, the court did not abuse its discretion in declining to modify defendant’s probation by terminating it earlier than December 23, 2009, when defendant still owed $1,937 in victim restitution. “A change in circumstances is required before a court has jurisdiction to extend or otherwise modify probation.” (Cookson, supra, 54 Cal.3d at p. 1095, italics added.) The trial court has a constitutional and statutory duty to order that restitution be made to the victim by the defendant. (Cal. Const., art. I, § 28, subd. (a); Pen. Code. §§ 1203.1, subds. (a)(3) & (b), 1203.04, subd. (a)(1); People v. Carbajal (1995) 10 Cal.4th 1114, 1121-1122.) “[R]estitution serves valid punitive, deterrent, and rehabilitative objectives by requiring the defendant to return his ill-gotten gains and helping him appreciate the harm done to the victim.” (Cookson, at p. 1097.) Accordingly, the court has broad discretion to determine the amount of restitution, and to impose restitution as a condition of probation. Here, circumstances had not changed: the record shows that despite defendant’s efforts to secure steady employment and meet his financial obligations, he had been unable to significantly pay down his restitution debt. The court’s decision to allow defendant the full four years of probation to make restitution payments was not unreasonable, arbitrary or capricious. No error appears.
Relying on the reasoning of People v. Tapia (2001) 91 Cal.App.4th 738 (Tapia), defendant also argues that the court lacked the jurisdiction to revoke his probation in 2008, after the expiration of the probationary period, because the noticed basis for the revocation was not sustained. His contention depends on the following assumptions: (1) the sole noticed basis for the revocation was defendant’s 2005 conviction in CC587219; (2) defendant’s probation expired by operation of law in 2007, not 2009; (3) this court’s reversal of the conviction requires a finding that the probation revocation was not sustained, and renders the underlying summary revocation of probation unlawful; and (4) as a result, the revocation failed to toll the running of the probationary period. Defendant acknowledges that in People v. Wagner (2009) 45 Cal.4th 1039, 1061, fn. 10 (Wagner), our Supreme Court disapproved certain “language” in Tapia. However, he argues, the disapproving footnote “appears at a point in the opinion where the Supreme Court is discussing the tolling of the probationary period by the filing of a valid notice of appeal. ([Wagner, supra, 54 Cal.4th] at pp. 1060-1061) However, Tapia has no discussion whatsoever of this particular topic and thus appellant is unable to ascertain what aspect of Tapia has been disapproved.” He therefore maintains that Tapia remains good law for the proposition that “because the summary revocation of probation on April 21, 2005 was unlawful, it failed to toll the running of the probationary period.” Thus, defendant’s 2008 probation violation occurred after probation had expired by operation of law on March 7, 2007. The Attorney General does not specifically address this contention.
In Tapia, defendant was placed on probation in July 1996 and his probation was set to expire in July 1999. Tapia was ordered to report to probation immediately upon his release from jail and he failed to do so because he was deported. The trial court summarily revoked Tapia’s probation in March 1997 and issued a bench warrant. Tapia was arrested when he returned to California in September 2000 and a probation violation hearing was held in November 2000. Tapia admitted that he did not report to his probation officer when he returned to the United States in September 2000 and that he did not show his probation officer proof, upon his return, that he was in the United States legally. The trial court found a violation, revoked probation, reinstated it and extended it to March 2003.
The People argued in Tapia that the deportation did not excuse defendant’s failure to report to the probation officer; therefore, the summary revocation tolled the running of the probation period and preserved the court's jurisdiction over the defendant, and the trial court had jurisdiction to find a violation based on Tapia’s admission and then extend the probationary period.
The Court of Appeal disagreed and reversed. The court noted that defendant did not admit that he failed to report in March 1997, the basis for the summary revocation, or that his reentry in 2000 was illegal. Since the charged violation was not proved, his probation expired in 1999, before he reentered. “Since his probation had expired by the time he did reenter in September 2000, the trial court had no jurisdiction to extend the period of probation.” (Tapia, supra, 91 Cal.App.4th at p. 740.) The court explained that “the trial court has ‘the power and duty to summarily revoke... probation on the information supplied by the probation officer and to issue a bench warrant as the only practical and expeditious way to bring the defendant swiftly before the court, to give him notice of the claimed violations and to afford him a hearing.’... But when it comes to the tolling contemplated by... section 1203.2, subdivision (a), and People v. DePaul [(1982)] 137 Cal.App.3d [409, ] 415, it is clear that a summary revocation of probation suspends the running of the probation period and permits extension of the term of probation if, and only if, probation is reinstated based upon a violation that occurred during the unextended period of probation. (See People v. Lewis (1992) 7 Cal.App.4th 1949, 1955 [summary revocation is simply a device by which the defendant may be brought before the court and jurisdiction retained before formal revocation proceedings commence; if probation is restored, there has, in effect, been no revocation at all].) Just as the restoration of probation erases the summary revocation, so too does the court’s failure to find a violation within the period of probation. Put another way, the jurisdiction retained by the court is to decide whether there has been a violation during the period of probation and, if so, whether to reinstate or terminate probation. When the court finds there has been no violation during the period of probation, there is no need for further jurisdiction. And where, as here, the term of probation has expired, the defendant is also entitled to an order discharging him from probation. (People v. Lewis, supra, 7 Cal.App.4th at pp. 1955-1956.) [¶] It follows that Tapia’s probation expired in July 1999, that the order finding him in violation is void, and that he is entitled to an order discharging him from probation.” (Id. at pp. 741-742.)
We need not determine whether Wagner disapproved Tapia on the very point for which defendant cites it, because we do not view the procedural facts in the same way that defendant does, and we further find that Tapia is distinguishable. In Tapia, the only evidence presented on the revocation allegation was an admission by the defendant that did not prove the allegation: Tapia was bound by his probationary terms to report to his probation officer, he was charged with failing to report to his probation officer in 1997, and he admitted only that when he returned to the United States in 2000, after his probationary term had ended, he did not report to the probation department or show a probation officer proof that he was in the U.S. legally.
Here, the record on appeal does not contain the petition to revoke probation on April 21, 2005; however, we do not agree with defendant that “there was no petition to revoke probation supporting [the] April 1, 2005 revocation order.” The probation log, which is part of the appellate record, shows that on April 18, 2005, deputy probation officer Thang Tran sent the “vop [violation of probation] pet[ition] and file to ASPO Yuen for corrections, set for 4-21-05.” The probation log also shows that in addition to defendant’s arrest on March 30, 2005, he had also submitted several drug test results that were positive for cocaine. Thus, on the state of this record, while we can confidently conclude that a petition to revoke probation was, in fact, filed, we cannot be equally sure that it contained only one basis for revocation.
The record on appeal also does not contain a reporter’s transcript of the proceedings related to the court’s finding of a probation violation in CC234226; the only reporter’s transcript included in this appeal for December 23, 2005, is the same one that was prepared for and included in CC587219: the Romero motion and sentencing hearing in that case. However, the minute order for December 23, 2005, included in this appeal shows that in case number CC234226, defendant admitted a probation violation, and the court found a violation of probation based on that admission. The extant record does not show, as defendant contends, that “the matter of the violation was apparently deemed subsumed within the jury’s verdict in CC587219.” Just as the record does not show the bases for revocation alleged in the petition to revoke, it does not show the basis or bases for defendant’s admissions.
Finally, for the reasons we have explained above, we do not agree that defendant’s probation expired by operation of law on March 7, 2007, when CC587219 was dismissed. In our view, defendant remained on probation until December 23, 2009. Thus, even assuming that Tapia’s reasoning survives Wagner, Tapia is distinguishable because, in this case, the probation violations alleged in the March 8, 2008 petition occurred while he was on probation.
However, if we correctly understand the implications of defendant’s lack of jurisdiction argument, it is that the reversal of defendant’s conviction in CC587219 wiped out the factual basis for the court’s finding of a probation violation in CC234226. Thus, defendant’s probation in CC234226 should never have been extended for four more years, and defendant’s 2008 violations occurred well after his probation should have terminated on June 25, 2005. This argument might be meritorious if (1) the sole noticed basis of defendant’s revocation were the arrest and/or conviction in CC587219, and (2) the court’s finding of a probation violation were based on the contested facts presented at the jury trial in CC587219. It is true that the basis for this court’s reversal of the conviction in CC587219 went to the very heart of the question whether defendant did or did not “steal” the motorcycle in question. But, as we have noted above, the record before us does not support a conclusion that the theft of the motorcycle was the sole basis for the revocation of defendant’s probation, or that the evidence heard at trial was a significant basis of the court’s finding. As far as the extant record shows, the court’s finding of a probation violation was based on defendant’s admission of some fact that proved he had violated his probation, and not on the court’s view of the evidence at trial. Therefore, Tapia is of no assistance to defendant. The court did not lose jurisdiction to find defendant in violation of his probation after the probationary period had expired.
In view of our resolution of defendant’s claim, we do not reach the Attorney General’s contention that defendant is estopped from asserting that the court lacked jurisdiction to revoke his probation.
CONCLUSION
Although defendant’s probation in CC234226 was “coterminous” with his probation in CC587219, the court’s clear and unambiguous intent was that both probations should last four years, and defendant’s probation in CC234226 did not automatically expire by operation of law when CC587219 was dismissed following this court’s reversal of defendant’s conviction in CC587219 on appeal. Because the record does not demonstrate that defendant’s arrest, trial and/or conviction in CC587219 constituted the sole noticed basis for revocation, or a significant basis for the court’s finding of a probation violation, but does demonstrate that defendant admitted a probation violation upon which the court based revocation, defendant’s probation in CC234226 was lawfully extended and the court did not lose jurisdiction to find defendant in violation of his probation after the original probationary period had expired.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Mihara, Acting P.J., Duffy, J.