Fear Not Law Articles: P. v. Mitchell

P. v. Mitchell

Filed 5/7/07 P. v. Mitchell CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

TAMATHA PEARL MITCHELL,

Defendant and Appellant.

E041295

(Super.Ct.No. PEF005946)

O P I N I O N

APPEAL from the Superior Court of Riverside County. Michael S. Hider, Judge. (Retired judge of the Merced Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Reversed with direction.

Elizabeth A. Missakian, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, and Janelle Marie Boustany, Deputy Attorney General, for Plaintiff and Respondent.

Defendant pled guilty to one count of use of an access card with intent to defraud. (Pen. Code, 484g.)^{^[1]} The trial court granted defendant formal probation for a period of five years, a condition of which required defendant to pay restitution in an amount later to be determined. Defendant contends, and the People concede, that the trial court erred in extending her probation beyond the maximum permissible term due to defendants inability to pay the restitution in its entirety. We agree and, therefore, reverse the order extending defendants probation for an additional year.

I. FACTS AND PROCEDURAL HISTORY

One of the conditions of probation required defendant to pay restitution in an amount to be determined and payable through the court as directed by the Financial Services Division. Apparently, the Financial Services Division determined that defendant could only afford to make monthly payments of $50 toward the total amount of victim restitution.^{^[2]} Defendant timely made most of her restitution payments. However, on July 19, 2006, an allegation of violation of probation was filed asserting defendant had failed to pay her ordered restitution. At a hearing held on August 22, 2006, the probation officer implicitly agreed to withdraw the allegation. It was undisputed defendant had made all the restitution payments required of her; however, the People noted that defendants period of probation was coming to an end and the majority of her restitution had yet to be paid. Thus, the People argued defendant had violated her probation by failing to pay the entire amount of restitution by the completion of her probationary term and urged the court to extend her probation. Defendant opposed an extension of probation, asserting she had done everything requested of her by making all the installments. The court found that defendant was not in violation of probation, but ordered her probation extended by an additional year. Defendant appeals from that order.

II. DISCUSSION

Defendant contends, and the People agree, that the trial court lacked jurisdiction to extend her probation for an additional year.

Section 1203.1, subdivision (a), provides: The court, or judge thereof, in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence, except as hereinafter set forth . . . . [] However, where the maximum possible term of the sentence is five years or less, then the period of suspension of imposition or execution of sentence may, in the discretion of the court, continue for not over five years. (Italics added.) The maximum period of confinement for a violation of section 484g is three years.

A trial court retains authority to modify or change its order granting probation. ( 1203.3, subds. (a), (b)(1)(A), (b)(3), & (b)(4).) Indeed, as the California Supreme Court stated, a trial court is not prohibited from extending a term of probation when the probationer fails to pay restitution as ordered because of an inability to pay. (People v. Cookson (1991) 54 Cal.3d 1091, 1097.) This said, a trial court may not extend probation beyond the maximum term permitted by statute without an express finding of a violation of probation. [S]ection 1203.2, subdivision (e), is the only statutory authority for extending probation beyond the initial maximum term. Probation cannot be imposed . . . under that subdivision unless probation is revoked based on a violation . . . . Since the trial court found that 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. (People v. Medeiros (1994) 25 Cal.App.4th 1260, 1267-1268.) As Cookson stated, the amendment of subdivision (a) of section 1203.2 was intended to prevent imprisonment of probationers who have simply been unable to fully pay restitution. All the court can do is modify and extend probation to the maximum term. If the probationer remains unable to fully pay restitution throughout the maximum term, the trial court lacks authority either to revoke and imprison or to further extend probation and, instead, must discharge defendant from probation pursuant to section 1203.3, subdivision (b).(Id. at p. 1267, italics added.)

Here, the trial court, the probation department, and the Financial Services Division all acknowledged defendants inability to pay the restitution in its entirety. All, likewise, agreed defendant had made all the installment payments towards the restitution required of her and that those payments represented the most she could comply with. Moreover, the trial court explicitly found defendant was not in violation of her probation. Furthermore, defendants probationary period had already comprised the entire amount of time permissible pursuant to section 1203.1, subdivision (a), which the court itself acknowledged. Therefore, the trial court was in error in extending defendants probation beyond the maximum term allowable.^{^[3]}

III. DISPOSITION

The order reinstating probation is reversed. The trial court is directed to discharge defendant from probation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

We concur:

/s/ Ramirez

P.J.

/s/ Richli

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^{^[1]} All further statutory references are to the Penal Code unless otherwise indicated.

^{^[2]} The Financial Services Division evidently determined the total amount of victim restitution payable by defendant amounted to $68,727. As of August 22, 2006, defendant had made payments totaling $4,750 and had a balance due of somewhere between $70,000 and $70,569.70. Therefore, it appears the total amount of restitution increased, despite defendants payments, due to the accumulation of interest. ( 1214.5, subd. (a).)

^{^[3]} Because of this conclusion, we do not address defendants other arguments.

Description	Defendant pled guilty to one count of use of an access card with intent to defraud. (Pen. Code, 484g.)[1] The trial court granted defendant formal probation for a period of five years, a condition of which required defendant to pay restitution in an amount later to be determined. Defendant contends, and the People concede, that the trial court erred in extending her probation beyond the maximum permissible term due to defendants inability to pay the restitution in its entirety. Court agree and, therefore, reverse the order extending defendants probation for an additional year.
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