Opinion
A151091
05-22-2018
THE PEOPLE, Plaintiff and Respondent, v. JANICE LYNN SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKCRCR9311351)
Janice Lynn Smith appeals from an order revoking and reinstating her probation on modified terms for failing to pay victim restitution for seven months. Smith contends there was no substantial evidence that she willfully violated her probation, since the undisputed evidence was that the county collections department could not accept her restitution payments for that period due to computer issues. We will reverse the order.
I. FACTS AND PROCEDURAL HISTORY
In September 1993, Smith entered a no contest plea to theft and embezzlement by a caretaker (Pen. Code, § 368), in exchange for a promise of no state prison at the outset, jail time for up to a year, dismissal of another charge, and victim restitution.
In October 1993, the court suspended imposition of sentence and placed Smith on probation for five years. As a condition of probation, the court ordered Smith to serve 270 days in county jail. The court reserved jurisdiction over victim restitution, set a restitution hearing, and ordered Smith to surrender to serve her jail time.
At the hearing on December 7, 1993, neither Smith nor her attorney appeared. The court ordered Smith to pay victim restitution in the amount of $11,250, based on the value of the stolen property. The court also ordered the probation department to file a petition to revoke Smith's probation due to her failure to surrender for her jail commitment. The probation department did so on December 9, 1993, and the court issued a bench warrant and summarily revoked Smith's probation.
A. December 2015 Revocation and Reinstatement
About 22 years later in September 2015, Smith appeared in court and the prosecutor amended the December 1993 revocation petition to allege a failure to pay victim restitution. In October 2015, Smith admitted violating the terms of her probation by failing to surrender to the jail, failing to report to the probation department, and failing to pay victim restitution.
In December 2015, the court revoked Smith's probation and reinstated it on modified terms. The court ordered Smith to serve 365 days in jail (including the 270 days imposed in 1993), extended her probation by five years, and ordered her to pay the $11,250 victim restitution she still owed, plus interest since December 1993, to the deceased victims' grandson (Roe Sandelin). Smith had offered to pay monthly restitution of $150, but no payment plan or deadline was set by the court; instead, Smith was directed to submit a financial declaration to the court and prosecutor, after which a "realistic amount of monthly restitution" would be set.
B. April 2017 Revocation and Reinstatement
Over a year later in January 2017, the prosecutor filed a petition to revoke Smith's probation for failure to pay restitution. An amended revocation petition was filed in March 2017, alleging (as relevant here) that Smith "willfully failed to tender restitution payments for the months of January 2016 through September 2016." The court summarily revoked Smith's probation pending a hearing.
A contested hearing on the revocation petition took place on April 12, 2017, focusing on Smith's failure to pay restitution from March 2016 through September 2016, since Smith had been in jail and was unable to pay in January and February 2016.
At the hearing, a revenue recovery specialist for the Mendocino County Revenue and Reimbursement Department (collections department) testified that the balance of Smith's restitution account was $39,163.89 as of February 28, 2017. Smith had provided the collections department with an application for a financial evaluation to determine her ability to pay and submitted to an interview. Smith did not submit restitution payments from March 2016 through September 2016, however, because the collections department "went live with new software" and, as Smith was told, could not "receipt" any payments. Nor could Smith have made payments to the probation department, since "they don't have a way to enter or keep track, an accurate accounting of interest or anything, which is important to do, especially in situations like this." Because Smith's failure to pay was not her fault and the collections department does not advise the court that people are "not paying their restitution for an extenuating circumstance like this," Smith was never reported to be delinquent in paying restitution. (Italics added.) Smith nonetheless remained in "constant contact" with the collections department several times each month - perhaps on 15 occasions in total - and in September 2016 entered into a plan with the collections department to make payments of $50 per month beginning in October 2016. Smith's "first payment was received prior to her first due date" in October 2016, and she continued to make payments each month thereafter. (Italics added.) The revenue recovery specialist concluded, "So as far as our Department was concerned, she was on time."
The trial court nonetheless found that Smith violated her probation by not making restitution payments in the period from "March until October" of 2016, "by not paying anything, by not arranging to pay anything or not making any payments." The court recognized that Smith stayed in contact with the probation department and collections department and they were not "helpful," but it found that there were six or seven months when Smith was not paying restitution and, "given the circumstances of surfacing after 22 years, doing some time in jail and having the importance of restitution emphasized, I think she was wrong not to do that." The court revoked Smith's probation and reinstated it, requiring Smith to pay $100 a month for seven months (starting in May 2017) to make up for the $50 monthly payments she "missed," with monthly payments thereafter of $50 per month. The court concluded: "So I see it as a modification of an order as the sentence. And I'm not intending to impose jail time or do anything of that nature."
This appeal followed.
II. DISCUSSION
A. Revocation of Probation for Willful Violation
The court may revoke and terminate 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 condition of probation. (Pen. Code § 1203.2, subd. (a); People v. Rodriguez (1990) 51 Cal.3d 437, 440 (Rodriguez).) The court has broad discretion in determining whether to revoke probation (id. at pp. 443, 445), and the burden of demonstrating an abuse of that discretion rests on the appellant. (People v. Urke (2011) 197 Cal.App.4th 766, 773.)
To justify revocation, the probation violation must have been willful. (People v. Galvan (2007) 155 Cal.App.4th 978, 982 (Galvan); People v. Cervantes (2009) 175 Cal.App.4th 291, 295.) The prosecution must prove willfulness by a preponderance of the evidence. (Rodriguez, supra, 51 Cal.3d at p. 447.) A willful violation requires a willingness to commit the act, without regard to motive, an intent to injure or violate the law, or knowledge of the act's prohibited character. (See Pen. Code § 7, subd. (l); In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438.) A violation is not willful when the probationer is incapable of fulfilling the probation term or unforeseen circumstances prevent the probationer from satisfying it. (See, e.g., Galvan, supra, 155 Cal.App.4th at pp. 984-985 [physical incapability]; People v. Zaring (1992) 8 Cal.App.4th 362, 379 ["unforeseen circumstance"].)
Here, the court made no explicit finding that Smith willfully violated her probation. Nor is there any substantial evidence to support an implicit finding that Smith's failure to make payments from March 2016 through September 2016 was willful.
The only period at issue is from March 2016 through September 2016. As of that time, while the 2015 probation reinstatement had ordered payment of victim restitution plus interest, the court had not imposed any deadline for the payment or any particular monthly payment obligation. Despite Smith's contact with the collections department after her release from jail, no payment plan was devised until September 2016, with the first payment due in October 2016; Smith made that payment and the payments that came due thereafter, and the collections department considered all her payments to be timely. Smith could not have willfully violated her probation by failing to make monthly payments before the monthly payments became due.
Moreover, there is no substantial evidence that Smith could have paid victim restitution, in any amount, during March through September 2016. As the revenue and recovery specialist testified, the collections department informed Smith that it could not accept payments from her during the period of the alleged violation. This suggests that Smith had attempted to pay, or at least inquired, during the months in question. The specialist also testified that Smith was unable to make payments to the probation department. Tellingly, at no point did the collections department or Smith's probation officer consider her to be in violation of the restitution term of her probation, since they understood the failure to pay was not her fault. Smith remained in "constant contact" with the collections department and her probation officer throughout the period of the alleged violation and, once the county's computer system could receipt payments in October 2016, Smith made her monthly restitution payments in accord with her payment plan.
Respondent contends that Smith willfully violated her probation because, even though the collections department refused to receive her payments, Smith could have paid the victims' grandson, Roe Sandelin, directly. Respondent points to a handwritten notation in the court's minutes that restitution payments were "to be made to" Sandelin. It is obvious from the record, however, that the court was merely identifying the proper payee in light of the victims' deaths, not directing Smith to take the payments directly to Sandelin. The prosecutor never suggested at the probation revocation hearing that Smith could have or should have paid Sandelin (or even had his address), and the court did not note that possibility either. In fact, the prosecutor at the December 2015 sentencing hearing had informed everyone to the contrary, advising the court that it "need[ed] to make an order because this needs to go through revenue and collections" and the restitution amount had to be "ordered, collected, and delivered to Mr. Sandelin." (Italics added.) The expectation, therefore, was for the payments to be made through the collections department. And certainly making payments to the collections department makes more sense than paying Sandelin directly, since it avoids Smith contacting her victims' grandson, eliminates any questions that might arise as to Smith's compliance with the restitution order, guarantees that Sandelin receives payments that will clear, and ensures that the remaining balance is accurately computed.
Under the circumstances of this case, a reasonable person in Smith's position would have assumed that she would not have to make payments until the collections department was willing to receive them. (See Galvan, supra, 155 Cal.App.4th at p. 985.) Smith's inability to comply with the probation condition during the period in question was due to circumstances beyond her control. (See Cervantes, supra, 175 Cal.App.4th at p. 295.) The revocation of her probation was an abuse of discretion.
We do not trivialize the nature of Smith's original crime nor her absconding for 22 years. But those matters were addressed in the December 2015 order. At issue here is whether Smith later willfully violated the terms of her probation from March 2016 to October 2016. --------
B. Modification Due to Changed Circumstances
"When a failure to pay restitution is not shown to be willful, probation may be modified, but not revoked." (People v. Sem (2014) 229 Cal.App.4th 1176, 1187-1188.) A change in circumstances is required before a court may modify probation under Pen. Code section 1203.2, subdivision (b). (People v. Cookson (1991) 54 Cal.3d 1091, 1095.)
Respondent argues there were changed circumstances in the county's inability to receive payments from March through October 2016, which led to Smith's failure to make payments during that time. Based on this change of circumstances, respondent urges, it was reasonable for the court to order Smith to make seven payments of $100 (rather than the $50 the collections department deemed appropriate) to make up for the "missed" months. Besides the fact that the court made this order without any analysis of Smith's financial condition, respondent's argument is based on a false premise: that Smith missed seven monthly payments. She did not. From March through September 2016, no monthly payments were due, so they could not have been missed.
III. DISPOSITION
The order is reversed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.