Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 08HF1635, James S. Odriozola, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Gregory S. Cilli, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Heidi T. Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant forfeited his argument that he is unable to pay restitution as ordered by the court because he did not raise it earlier. Substantial evidence supports the court’s findings that defendant had the ability to pay the restitution ordered, but willfully failed to pay it. We affirm.
I
FACTS
Guilty Plea
When defendant David Scott Schapel pleaded guilty, he offered the following facts as a basis for his plea: “In Orange County, California, pertaining to the charge of Grand Theft [Penal Code Section 487 (a)], as referenced in the first amended felony complaint Count 1, on or about and between March 24, 2003 and March 22, 2004, I did willfully, unlawfully and knowingly take, steal and fraudulently appropriate personal property valued in excess of four hundred dollars ($400.00) belonging to Data Mechanix, Inc. and Craig Rager, with the specific intent to permanently deprive the owner of the personal property I took, stole and fraudulently appropriated; [¶] Pertaining to the charge of Theft of Trade Secrets [Penal Code Section 499c (b)(2)], as referenced in the first amended felony complaint Count 2, on or about and between March 24, 2003 and March 22, 2004, I did willfully, unlawfully, and with an intent to appropriate a trade secret to my own use or to the use of another, fraudulently appropriate articles representing a trade secret of Data Mechanix, Inc. and Craig Rager that was entrusted to me; [¶] I further admit as true, within the meaning of Penal Code Section 12022.6 (a)(2), that I took property valued in excess of one hundred and fifty thousand dollars ($150,000) during the commission of the offenses to which I am pleading guilty as described in Counts 1 and 2; [¶] I also admit as true, within the meaning of Penal Code Section 186.11 (a)(2), that during the commission of the offenses to which I am pleading guilty in Counts 1 and 2 as described above, I committed two or more related felonies, a material element of which is fraud or embezzlement and involved a pattern of related felony conduct which resulted in the loss by Data Mechanix Inc. and Craig Rager of more than five hundred thousand dollars ($500,000).”
On January 8, 2009, the court sentenced defendant to six years eight months in the state penitentiary. But the court suspended execution of sentence and placed defendant on 10 years’ formal probation. At the time of sentencing, the court found that all parties stipulated to the amount of restitution. The minute order states: “Pay restitution to victim(s) in the amount of $800,000.00 as to count(s) 1, 2. For victim[s] Data Mechanix & Craig R[a]ger.” It further states: “Defendant shall pay restitution monthly during the term of probation in installment payments of not less than Four Thousand Dollars ($4000.00) per month, payable on the first day of each month, until restitution is paid in full.... Court notes defendant paid victim Craig R[a]ger a check in the amount of $20,000.00 in court.”
When the court heard defendant’s change of plea, the court stated: “Pay restitution on counts 1 through 6 in the amount of $800,000. With that, at this time the court is going to add that to the amount of restitution owing to Data Mechanix and Craig R-A-G-E-R. [¶] The court is going to sign the order for restitution and abstract of judgment upon confirmation from Mr. Schapel that you agree that is the amount of restitution owing in this case. Do you agree?” Defendant responded: “Yes, Your Honor.” After some discussion among counsel and the court, the court stated: “All right. So in concurrence with the amount of $800,000, that will be the order of restitution. The court will consider that to be his restitution hearing if that is not contested.”
When stating other terms and conditions of defendant’s probation, the court stated: “That as I indicated pursuant to 186.11 (i)(1)(B), this is ten years probation or until full restitution is made to the victim in this case, whichever is earlier. Which mean the termination of probation would, would — the term of probation would terminate upon satisfaction in full of the restitution that has been ordered in this case, that that $800,000 is the amount that has been set. [¶] Restitution is to be paid monthly during probation in installments of not less than $4,000 per month payable on the first day of each month until paid in full....” Defendant then stated he understood and agreed with the terms and conditions of probation.
An addendum to the terms and conditions of probation was signed by defendant on January 8, 2009 states: “Restitution to the victim, Craig Rager and Data Mechanix, Inc., is stipulated by the parties and ordered in the amount of Eight Hundred Thousand Dollars ($800,000.00). Restitution shall be paid monthly during the term of probation in installment payments of not less than Four Thousand Dollars ($4,000.00) per month, payable on the first day of each month, until restitution is paid in full[.]”
Probation Violation
On August 25, 2009, a petition for probation violation states defendant violated his probation as follows: “Specific Condition: ‘Pay restitution of $800,000.00 payable not less than $4,000.00 per month.’ Restitution was set at $800,000.00 with payments of $4,000.00. As of August 21, 2009, the probationer has paid $180.00 and the arrears are $19,870.00. The probationer has refused to sign a pay agreement (stip) and indicates he is unable to make the full payments as agreed to in his plea agreement. [¶] Specific Condition: ‘Do not leave the state without permission of the Probation Officer.’ The probationer e-mailed the Probation Officer on 7-16-09 indicating that he wanted to go to Las Vegas, Nevada with friends. The Probation Officer responded via e-mail that as he is not in compliance with his restitution payments, he is not to leave the State of California. On 8-19-09, the probationer admitted to the Probation Officer that he went to Las Vegas, Nevada with his friends, without Probation Officer permission or a travel permit.”
A probation violation hearing was conducted on December 7, 2009. The probation officer testified as follows:
“Q: [T]here was a specific condition the court referenced about the probationer going out of state, specifically to Las Vegas, Nevada without your permission. Can you explain how that came about?
[¶]... [¶]
“A: Yes, David e-mailed me that [he] was going to go to Vegas with his friends on July 16th of ‘09, and I responded he was not to go to Vegas.
“Q: Did you specifically state a reason why he couldn’t go?
“A: That he was not in compliance with his probation.
[¶]... [¶]
“Q: Okay. With reference to the travel permit, did the defendant at the start of his probation sign or acknowledge the need for a travel permit to travel out of state at any time?
“A: Yes.
“Q: And did he in fact, to your knowledge, sign that agreement indicating his awareness of that specific condition of probation?
“A: Yes.
“Q: Okay. At some point subsequent to the e-mails that you referenced on page 13 of that document, did you have a subsequent conversation with him about the issue of going to Las Vegas?
“A: Yes.
“Q: And what, if anything, did the defendant tell you about that issue?
“A: He said that he went to Vegas – Las Vegas.”
The questioning continued as follows:
“Q: Did you ever have, Ms. McCann, a discussion with the defendant probationer on the issue of his need to sign a stipulation form regarding the payment of restitution that was court ordered?
“A: Yes.
“Q: Please describe or explain to the court what that discussion was and what, if any, response the defendant gave on that issue?
“A: We spoke at every appointment about his need to pay restitution and sign his papers with Mr. Cabrerra. [The financial officer who works at the probation department.]
“Q: And what, if any, response did the defendant give on that issue of signing that paper by either stipulation [or] agreement?
“A: That he didn’t have money, that he needed to change the amount, and that he would pay what he could.
“Q: Just so we are clear, did the defendant at any point in time ever actually sign the stipulation agreement?
“A: No.”
Two financial statements appear in the record. The first was signed by defendant on October 29, 2008, before he changed his plea, states his salary was $5,000 per month. The second was signed by defendant on March 31, 2009, after he changed his plea and was granted probation, states his salary was $750 a month. In the second statement, defendant listed his restitution obligation, not at $4,000 per month, but at $50 per month. During the probation revocation hearing, defendant testified he provided the probation department with his income each month. He said in February 2009 it was almost $9,000, in March it was almost $8,000 and in April it was $16,000.
In the March 2009 statement, defendant listed his mortgage expense as $1,950 a month. During the probation revocation hearing, the following questions and answers were made between the court and defendant:
“[Q]: On your March financial statement, you indicated you made a $1,950 payment as a offset against your income, but you didn’t make a mortgage payment in March, is that correct?
“[A]: I did not.
“[Q]: Then why did you put it on there?
“[A]: I was asked that same question earlier.
“[Q]: Answer it for me again.
“[A]: I wasn’t sure how that document was supposed to be filled out, if it was supposed to show my expenses as they were — as what my expenses were or actually what money came out of my bank account as far as what was paid. So I had a mortgage payment and that was a legitimate expense, and so I put in there the dollar amount for the payments.
“[Q]: Did you ever do a revised financial statement that indicated that you were not incurring a $1,900 expense every month?
“[A]: I essentially was incurring it, I just wasn’t paying it.”
The court found defendant in violation of his probation. In making its ruling, the court stated: “It would appear to this court that the agreement that was entered into by the defendant was almost entered into fraudulently, that the defendant had the ability to make far more than the minuscule payments that were made, that the defendant did nothing to adjust his expenses so that he could make payments that would be — that would conform with the court’s order, that at the rate of $25 to $50 over a ten-year period, we wouldn’t begin to scratch the surface of the amount of restitution owing. It would appear that there is zero chance that the defendant’s going to pay restitution as he agreed to.” On January 25, 2010, the state prison sentence of six years eight months previously suspended was imposed.
II
DISCUSSION
Forfeiture
The Attorney General contends defendant forfeited his claim the court erred in revoking his probation. Respondent argues defendant’s remedy was to object at the time of the court’s order.
“[T]he appropriateness of a restitution fine is fact-specific, as a matter of fairness to the People, a defendant should not be permitted to contest for the first time on appeal the sufficiency of the record to support his ability to pay the fine. Otherwise, the People would be deprived of the opportunity to cure the defect by presenting additional information to the trial court to support a finding that defendant has the ability to pay. [Citations.] A challenge to the sufficiency of evidence to support the imposition of a restitution fine to which defendant did not object is not akin to a challenge to the sufficiency of evidence to support a conviction, to which defendant necessarily objected by entering a plea of not guilty and contesting the issue at trial.” (People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469.)
It is clear from the record that defendant had numerous opportunities to speak up when the court first granted him probation. It can be reasonably inferred from the record that the court and the prosecutor were concerned with having the victims made whole, and that, had defendant candidly told the court he did not have the means or the wherewithal to pay restitution, other arguments and evidence would have been presented to the court.
It can also be reasonably inferred that, since defendant paid only $180 in seven months, when the amount he should have paid was $20,000, he was quite aware of his now alleged inability to pay when he promised to do so on January 8. We cannot ignore defendant’s financial statement, signed a few months after he was granted probation, in which he unilaterally reduced his monthly obligation by $3,950. We agree with the Attorney General that defendant waived this argument by not raising it when the court first set the terms and conditions of probation.
“A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when ‘To hold otherwise would permit the parties to trifle with the courts.’ [Citation.]” (In re Griffin (1967) 67 Cal.2d 343, 348.) “Where defendants have pleaded guilty in return for a specified sentence, appellate courts are not inclined to find error even though the trial court acts in excess of jurisdiction in reaching that figure, as long as the court does not lack fundamental jurisdiction. [Citations.] The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to ‘trifle with the courts’ by attempting to better the bargain through the appellate process. [Citation.]” (People v. Nguyen (1993) 13 Cal.App.4th 114, 122-123.)
Immediately after he avoided prison, defendant became delinquent in his payments, paying nothing at all for months, sometimes $50, $25 one month and $5 another month. It was a short time after inducing the court to grant him probation on condition he pay $4,000 a month in restitution to the victims that he listed his obligation at $50 a month instead. Taking defendant’s arguments and representations then and comparing them with what he says now, it appears defendant was trifling with the court then or is doing so now. Even assuming defendant had not waived his claim, however, he would still not prevail.
Revocation of Probation
Defendant argues: “The trial court erred when it found [defendant] violated the probation condition to pay restitution at the rate of $4,000 per month without substantial evidence to show [defendant] had the ability to pay restitution at that rate.” The Attorney General contends substantial evidence supports the court’s ruling, and the court did not abuse its discretion in rendering it.
Review of a probation revocation determination is based on the substantial evidence test. (People v. Kurey (2001) 88 Cal.App.4th 840, 848.) “Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court’s decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision.” (Id. at pp. 848-849, fns. omitted.)
“The decision to place the defendant on probation, however, reflects a determination by the sentencing court that the State’s penological interests do not require imprisonment. [Citations.] A probationer’s failure to make reasonable efforts to repay his debt to society may indicate that this original determination needs reevaluation, and imprisonment may now be required to satisfy the State’s interests.” (Bearden v. Georgia (1983) 461 U.S. 660, 670.) “We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.” (Id. at pp. 672-673, fn. omitted.)
“[T]he court may revoke and terminate such probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses. However, probation 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....” (Pen. Code, § 1203.2, subd. (a.))
“[C]ourts deem probation an act of clemency in lieu of punishment....” (People v. Howard (1997) 16 Cal.4th 1081, 1092.) “[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, fn. omitted.) “[F]acts in a probation revocation hearing [are] provable by a preponderance of the evidence.” (Id. at p. 441.) “[O]nly 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.) “[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.” (Pen. Code, § 1203.2, subd. (a).)
Here the court provided defendant with a hearing and found he had the ability to pay much more than he did, but was not willing to adjust his lifestyle in order to pay restitution. One month, April 2009, defendant had a gross income of $16,000 and paid no restitution at all. The court caught defendant lying about paying his monthly mortgage. Ultimately the court decided defendant’s failure to pay was willful. Under the circumstances in this record, we conclude substantial evidence supports the court’s decisions. We also conclude that since there is sufficient evidence to demonstrate defendant willfully refused to pay, his rights under the Fourteenth Amendment are not implicated.
Las Vegas
Respondent concedes the travel restriction was imposed by the probation officer and was not an order of the court and, thus, not a condition suitable for probation revocation if violated. “The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended.” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359.) We accept the concession and do not discuss the issue.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.