Filed 5/2/17 P. v. Arnett CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
CORY ARNETT,
Defendant and Appellant.
B266986
(Los Angeles County
Super. Ct. No. MA051213)
APPEAL from a judgment of the Superior Court of
Los Angeles County, Daviann L. Mitchell, Judge. Reversed.
Stephen M. Vasil, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant Attorney
General, Victoria B. Wilson and Viet H. Nguyen, Deputy Attorneys
General, for Plaintiff and Respondent.
________________________________
2
Cory Arnett appeals from the revocation of his probation and
execution of his previously suspended prison sentence. He contends
the trial court erred when it determined he had violated the terms
of his probation by failing to complete a drug treatment program
and failing to pay victim restitution. We agree and reverse the
court’s order.
FACTUAL AND PROCEDURAL SUMMARY
In August 2010, Arnett walked out of a store with a child’s
stroller and a pair of shoes without paying for them. He was
arrested and charged with commercial burglary and petty theft
with priors. (Pen. Code, §§ 459, 666.)1
While out on bail, he
attempted to carjack one car, then carjacked a second car. (§§ 664,
215, 12022.1.)
In June 2011, Arnett pleaded no contest to each of the
pending charges and admitted a prison prior that had been alleged
in each case. The trial court accepted the plea and sentenced
Arnett to 13 years and 6 months in prison, suspended execution of
the sentence, and placed Arnett on five years of probation. Among
other conditions of probation, the court required Arnett to
“[c]ooperate with the probation officer . . . in a plan for drug
treatment and rehabilitation” and to “[m]ake restitution to the
victim . . . in an amount to be determined by the probation
department.” Arnett accepted the conditions.
The probation department subsequently established a
restitution payment plan of $20 per month. Our record does not
indicate what plan, if any, the probation department established for
drug treatment and rehabilitation. During the next two and onehalf
years, Arnett tested negative for drugs 18 times, never tested
positive for drugs, and reported regularly to his probation officer.

1 Unless otherwise specified, subsequent statutory references
are to the Penal Code.
3
In January 2014, Arnett requested that his probation be
transferred to Indiana, where he had an opportunity to work as a
coach for a semi-professional basketball team. The next month,
Arnett took the coaching job without getting the probation
department’s approval, and thereafter did not inform his probation
officer of his whereabouts. On that basis, the court summarily
revoked Arnett’s probation in May 2014 and issued a bench
warrant. Arnett returned to California.
In a probation report prepared for a July 2014 hearing, the
probation officer stated that Arnett failed to keep the probation
officer advised of his place of residence and employment, failed to
report as directed to the probation officer, failed to complete a drug
treatment program, and failed to make payments towards his
financial obligations. Regarding restitution, Arnett had reportedly
made two payments totaling $25. The probation officer
recommended that probation be revoked, but stated that he “would
not be opposed” to reinstatement of probation.
At a hearing in August 2014, the trial court noted that Arnett
had not completed a drug program during the three years he had
been on probation, which the court described as a “significant
violation.” The court indicated its intention to execute the sentence,
but continued the hearing at defense counsel’s request.
At an October 2014 hearing, Arnett admitted that he violated
probation by failing to report to his probation officer. The court
found that Arnett had violated probation on that basis, but declared
the violation “de minimis.”
2 The court revoked Arnett’s probation
and reinstated probation with, in the court’s words, “very, very
strict rules and regulations.” The court ordered Arnett “to enroll
and complete a drug treatment program” and to provide the court

2 At the October 2014 hearing, there was no mention of a
then-existing drug treatment plan or any allegation that Arnett had
violated any condition concerning such a plan.
4
with “proof of enrollment in [a] drug program” on November 20,
2014. Although Arnett needed to produce proof of enrollment by a
certain date, neither the court nor the probation department set a
deadline for Arnett to complete a drug treatment program. The
court also ordered Arnett to “pay any restitution, if owed, through
probation.”
Arnett enrolled in the Matrix Institute (Matrix), a drug
program located in the San Fernando Valley, and, on November 20,
2014, provided the court with proof of enrollment. The court
accepted the proof and said that “everything else will go through
[the probation department].” When Arnett attempted to address
the court directly, the court interrupted him, stating: “Stop.
Please. All I’m going to tell you is everything else will go through
probation.”
Within a few days after Arnett presented his proof of his
Matrix enrollment, his probation officer gave him permission to
move to Oceanside to find work and live with his wife and children,
who were then homeless. Arnett agreed to report to the
San Fernando Valley probation office once per month, which he did.
After his move to Oceanside, he worked part-time on five days in
late November and December 2014.
In February 2015, Arnett attended a hearing on his
application to reduce his felony convictions of burglary and petty
theft with priors pursuant to the Safe Neighborhoods and Schools
Act.
3 At that hearing, the court asked Arnett’s counsel about the
status of Arnett’s drug program. After counsel said he did not

3 The Safe Neighborhood and Schools Act, enacted by the
electorate in 2014 as Proposition 47, reduces penalties for certain
nonserious and nonviolent crimes and provides a procedure for
those currently serving sentences for such crimes to petition to
recall their sentence and be resentenced. (People v. Contreras
(2015) 237 Cal.App.4th 868, 889-890.)
5
know, Arnett said, “Supposed to be a six-month program.” The
court then ordered Arnett to appear on May 29, 2015, to provide “a
progress report in [his] drug program and a progress report in [his]
restitution.” The court did not specify any particular form or
content of the progress report, and did not require that Arnett
complete a program by that date. Regarding restitution, the court
required “a copy of the money order” showing payment and a
certified mail receipt.
Arnett, who was then living in Oceanside, continued to attend
the Matrix program for some time, but stopped after his car was
repossessed. He then enrolled in the McAlister Institute drug
program in Oceanside. He was initially unable to begin the
McAlister Institute program because of problems with his Medi-Cal
insurance. Once the insurance issues were resolved, the McAlister
Institute scheduled his orientation for June 5, 2015.
At the May 29, 2015, progress report hearing, Arnett and his
counsel informed the court that Arnett had moved to Oceanside to
be with his family, his car had been repossessed, he had enrolled in
the McAlister Institute program, his entry into the program was
delayed because of the Medi-Cal problems, and he has “been clean
for four years.” The court informed Arnett that it had previously
told him, “no more chances,” revoked his probation, and placed him
in custody. The court then set a date for a formal probation
revocation hearing.
At the probation revocation hearing in September 2015, the
prosecution submitted a June 2015 probation report, then rested.
In that report, Arnett’s probation officer, Richard Torres, was
somewhat inconsistent. Although he reported that Arnett was
“currently in compliance,” he also stated that he was “not in
compliance with the [restitution] pay plan.” Torres stated that he
took over responsibility for Arnett’s probation case on January 6,
2015, “at which time [Arnett] appeared to be in compliance with his
6
terms and conditions.” He noted that Arnett “has been making the
effort to remain in compliance with his probation [and] has been
reporting in person as instructed and submitting to controlled
substance testing. [Arnett] has been tested for controlled
substances on four occasions,” and each test “produced negative
results.” Torres further reported that he spoke with an intake
counselor for the McAlister Institute, who confirmed that Arnett
was scheduled for a group orientation on June 5, 2015. Torres
concluded by recommending that probation be continued on the
original terms and conditions because Arnett “is in compliance with
all terms and conditions” of his probation.
Arnett testified in his defense. At the outset, Arnett began to
explain why he left the Matrix program. The court interrupted
Arnett in order “to shortcut this.” After extensive questioning by
the court as to the timing of Arnett’s move to Oceanside, the court
reminded Arnett that it had reinstated probation on “very, very
strict rules and regulations,” and asked him if he understood the
court when it previously told him, “no more chances.” The court
questioned Arnett further as follows:
“Q. . . . you came back on November 20th and filed a proof of
enrollment. [¶] At that point, I basically cut you loose to probation;
correct?
“A. Yes, Ma’am.
“Q. You did not complete the program you presented to me;
correct?
“A. No, Ma’am, because I –
“Q. Not because, it’s a ‘yes’ or a ‘no’ correct?
“A. No Ma’am.
“Q. Okay.
“A. I enrolled in another program. [¶] . . . [¶]
“Q. And you knew I was not giving you any other chances,
when you showed me the proof of enrollment in the Matrix? . . .
7
“A. Yes – Yes, Ma’am.
“Q. And you did not complete that program?
“A. How could I complete it? [¶] I was in Oceanside, Ma’am.
“Q. That’s my point exactly.”
The prosecutor did not cross-examine Arnett.
Two probation officers, Jason Toliver and Jesse Roberson,
testified for the defense. Toliver testified on direct examination
that Arnett was in compliance with his probation conditions. On
cross-examination, however, Toliver conceded that Arnett was not
in compliance with his restitution payment plan. Toliver further
testified that each of Arnett’s 22 drug tests were negative and that
Arnett had been approved for temporary travel permits to
Oceanside.
Roberson was Arnett’s probation officer in November and
December 2014, and had approved Arnett’s relocation to Oceanside.
Based on his review of the most recent probation report, Roberson
stated that the probation department did not consider the change in
Arnett’s drug program from the Matrix to the McAlister Institute
programs to constitute a violation of probation.
The court engaged in colloquy with Roberson regarding
Arnett’s drug program that included the following.
“The Court: Did [Arnett] show you proof of enrollment into a
drug program?
“A. No.
“Q. Did he ever ask you if he could change drug programs?
“A. I don’t remember that conversation.
“Q. Are there any notes in the file that indicate that he was
given permission to not attend a drug program, as the court had
ordered.
“A. Not to my knowledge. [¶] . . . [¶]
“Q. . . . Is there anything in [the] probation file that ever says
the defendant was excused from attending the Matrix Institute?
8
“A. No.
“Q. . . . Did you ever tell him, ‘you do not have to attend that
program’?
“A. Not to my knowledge.
“Q. Okay. And did he ever ask you to be excused from
attending that program.
“A. . . . Not to my knowledge.
“Q. Did you review the court file, to know that there was an
ESS [execution of sentence suspended] pending and he was told to
have no further violations, when you gave him permission to leave?
“A. No.
“Q. Okay. And there’s nothing in the file to indicate that any
probation officer gave him permission not to attend the program.
“A. That’s my understanding.
“Q. All right. And so as far as you can see from the file, is
there any proof that he’s attended – actually attended any
programs?
“A. There’s no documentation.
“Q. At all, even on when he was reporting, there’s no
documentations regarding his drug programs?
“A. No.”
When Arnett’s counsel elicited from Roberson that he did not
find Arnett to be in violation of probation, the court interjected the
following:
“The Court: Did the defendant pay his restitution, as we was
ordered to do, Sir?
“[A.]: From the probation report, he was in delinquency.
“[Q.]: So he – it’s actual restitution, correct?
“[A.]: Yes.
“[Q.]: And he did not pay his restitution, as ordered, based on
his payment plan?
“[A.]: Correct.
9
“[Q.]: Okay.”
Arnett’s counsel then asked Roberson if he knew whether
Arnett had the ability to pay the restitution. Roberson said that his
understanding was that Arnett “had no job” and “no place to live.”
After hearing argument, the court revoked Arnett’s probation
and imposed and executed sentence of 12 years in prison.
4
Regarding the drug program requirement, the court stated: “I
ordered him to enroll and complete the drug treatment program.
He was to show proof of enrollment to me. [¶] He did. He was
enrolled in Matrix. From that date, . . . we have no evidence that he
ever attended one session, for any drug treatment program, Matrix
or otherwise. [¶] Mr. Roberson testified for the two months . . .
that he was supervising the defendant, he never excused the
defendant from any of his obligations with respect to the drug
treatment program. [¶] The defendant never requested a leave
from the program, so he could get re-enrolled in a program down
where he was living in Oceanside.”
The court further explained that “there was never any
excuses allowed for [Arnett’s] failing to attend that drug treatment
program, and from the date where he provided enrollment to me, to
Matrix, on November 20th, through today’s date, he has not
attended one session. [¶] And from the defendant’s own mouth, he
indicated that he could have returned, because he did return, to
attend his probation meetings once a month, that he was able to
take the train to do so, and there was never any explanation why he
could not have attended some of the Matrix or gotten re-enrolled
down there in a program that was appropriate or ask for the
assistance of probation or asked leave . . . not to attend and be
excused until he was able to get back in.”

4 The sentence was reduced from the original sentence
because of the burglary and petty theft with prior convictions were
resentenced as misdemeanors pursuant to Proposition 47.
10
The court also found that Arnett had violated the restitution
payment plan requirement, stating: “he was ordered to pay $20 a
month, and I have nothing before me that says that he had the
inability to pay. He also testified he was working. I’m using his
words, that – he testified that he was working to support his ability
to pay.”
Arnett appealed.
DISCUSSION
In order to revoke probation, the court must find that the
probationer willfully violated the terms and conditions of probation.
(People v. Gonzalez (2017) 7 Cal.App.5th 370, 382; People v.
Cervantes (2009) 175 Cal.App.4th 291, 295; People v. Galvan (2007)
155 Cal.App.4th 978, 983.) The People have “the burden of
producing evidence and the burden of persuasion showing a
probation violation occurred by a preponderance of the evidence.”
(People v. Quarterman (2012) 202 Cal.App.4th 1280, 1292, citing
People v. Rodriguez (1990) 51 Cal.3d 437, 441.)
We review a trial court’s factual findings supporting
revocation to determine whether they are supported by substantial
evidence, and we review the decision to revoke probation for an
abuse of discretion. (People v. Gonzalez, supra, 7 Cal.App.5th at p.
381; People v. Butcher (2016) 247 Cal.App.4th 310, 318; People v.
Urke (2011) 197 Cal.App.4th 766, 773.) We interpret a court’s
probation condition based on “what a reasonable person would
understand from the language of the condition itself.” (People v.
Bravo (1987) 43 Cal.3d 600, 607.)
Arnett’s terms of probation initially required him to
“[c]ooperate with the probation officer . . . in a plan for drug
treatment and rehabilitation.” When the court revoked and
reinstated probation after Arnett’s unapproved move to Indiana, the
court imposed the condition that Arnett “enroll and complete a drug
treatment program” and required Arnett to provide the court with
11
“proof of enrollment in [a] drug program” on November 20, 2014.
Although the court required Arnett to prove his enrollment by that
date and to thereafter complete a drug program, the court never
required that he complete a particular drug program or that he
complete any program by a certain date.
Arnett did enroll in a drug program and presented proof of his
enrollment by the date the court required. Upon receiving proof of
the enrollment, the court informed Arnett that “everything else
would go through [the probation department.]” In this context,
“everything else” must reasonably be understood to include issues
concerning the manner and timing of fulfilling the drug program
condition; and the direction that such issues “go through” probation
implies that the probation department would resolve them. (See In
re I.S. (2016) 6 Cal.App.5th 517, 525 [“When interpreting a
probation condition, we rely on ‘context and common sense’
[citation] and give the condition ‘ “the meaning that would appear to
a reasonable, objective reader” ’].)
After Arnett’s enrollment in the Matrix program, issues arose
and the probation department resolved them. Arnett requested and
obtained his probation officer’s permission to live in Oceanside.
Even after the move, Arnett continued for some time to drive to the
San Fernando Valley to participate in the Matrix program.5
When
his car was repossessed and he could no longer drive, he enrolled in
the McAlister Institute program in Oceanside. His start date was
delayed for three months because of issues concerning his Medi-Cal
insurance. Significantly, his probation officer was aware of Arnett’s
efforts, confirmed his enrollment in the McAlister Institute

5 Although the court stated that Arnett did not attend any
sessions of the Matrix program, there is no evidence to support that
finding. Arnett stated that he attended sessions of the Matrix
program, and there was no contradictory evidence.
12
program, and concluded that Arnett was still in compliance with
the court’s drug program condition. This conclusion implies that
the probation department did not require Arnett to complete the
Matrix program or to complete any program by May 29, 2015.
Because the court deferred to the probation department
“everything” other than proof of enrollment in a program, and the
probation department concluded that Arnett continued to be in
compliance with the drug program condition, the court abused its
discretion in concluding that he had not complied with the
condition.
The court’s questioning of Arnett and probation officer
Roberson at the revocation hearing and its rationale for finding a
violation of the drug program condition indicate the court
misunderstood or misapplied the drug program condition. The
court asked Arnett, for example, whether he completed the Matrix
program, and appeared to take no interest in the fact that Arnett
had enrolled in the McAlister Institute program. The court asked
Officer Roberson if Arnett “was excused from attending the Matrix”
program” or if Roberson had told Arnett that he “[did] not have to
attend that program.” The court’s questions suggest that it believed
that Arnett was required to attend the Matrix program, which he
was not. The court also questioned Roberson as to whether Arnett
had produced any documents proving his attendance at Matrix.
The only document Arnett was ever required to produce, however,
was documentary proof of his enrollment in a drug program by
November 20, 2014, which he supplied on time.
The court’s explanation of its ruling also emphasized that the
probation officers did not “excuse” or grant Arnett “leave” from the
Matrix program. Arnett, the court stated, “was never given
permission to take a . . . six-and-one-half month hiatus on his own.”
Neither the court nor the probation department, however, ever
mandated that Arnett complete the Matrix program (as opposed to
13
another program), that he obtain permission to discontinue the
Matrix program, or that he request a leave of absence from any
program. As we interpret the court’s statement of the drug
program condition, it required only that Arnett complete a program
under the auspices and direction of the probation department,
which found Arnett to be in compliance with the condition. The
court’s rationale, in short, does not withstand scrutiny.
The court also indicated that it was revoking probation
because the court had previously impressed upon Arnett that it was
imposing “very, very strict rules and regulations,” and “that there
weren’t going to be any further chances.” The court, it appears,
believed that it had drawn a line and that Arnett had crossed it.
The court, however, did not draw that line as precisely as it appears
to have assumed. If the court had, for example, imposed upon
Arnett a “very strict” requirement that he complete a drug program
no later than the May 29, 2015 hearing, and Arnett failed to do so,
the court could have rationally concluded that Arnett did not fulfill
the requirement. Here, however, the court never imposed such a
requirement.6 Rather, it left the details regarding fulfillment of the
drug program condition, including determining when Arnett must
complete a drug program, to the probation department. The
probation officers, charged with constructing the line over which

6 The only act the court required Arnett to perform by May
29, 2015, was to provide the court with a “progress report” on his
drug program and restitution payments. Arnett appeared at the
May 29, 2015 hearing, and provided the court with his progress
report – specifically, that he had moved to Oceanside, stopped
attending the Matrix program, and was enrolled in the McAlister
Institute program. Although the court’s reaction to the report –
summarily revoking Arnett’s probation – indicates that the court
was displeased with the report, Arnett did not violate any
requirement that the court had imposed; the court required a
progress report on a certain date and Arnett timely complied.
14
Arnett could not cross, ultimately determined that Arnett had not
crossed it. Arnett, in short, did not need a “further chance” to
comply with the drug program requirement because he had not
violated any “rule or regulation,” strict or otherwise, concerning the
drug program condition.
Regarding the restitution requirement, the court was
required to find that Arnett had the ability to pay the restitution as
ordered before it could revoke probation. (§ 1203.2, subd. (a); People
v. Self (1991) 233 Cal.App.3d 414, 418-419; People v. Whisenand
(1995) 37 Cal.App.4th 1383, 1393-1394.) Here, the court made that
finding based solely on Arnett’s testimony that he was employed
part-time for five days in November and December 2014 and the
absence of evidence “that he had the inability to pay.”7

Initially, we note that the court’s statement that there was no
evidence that Arnett “had the inability to pay” improperly suggests
that Arnett had the burden of proving such inability. As noted
above, the People have the burden of proving a violation of
probation. (People v. Quarterman, supra, 202 Cal.App.4th at p.
1292.) Because the failure to pay restitution violates probation only
if the probationer has the ability to pay, the People have the burden
of establishing that fact. They failed to do so. The only affirmative
evidence the People offered – the June 2015 probation report –
states that Arnett’s restitution “account is currently in a delinquent
status.” It does not, however, mention Arnett’s employment or
financial information or otherwise address whether Arnett had the
ability to pay the restitution. When probation officer Roberson was

7
In explaining its ruling, the court initially relied on a letter
submitted by Arnett’s wife, as well as Arnett’s testimony. In the
letter, which had not been admitted into evidence, Arnett’s wife
stated that Arnett had worked six days a week. When Arnett’s
counsel inquired whether the court was relying on the letter in
making the ability-to-pay finding, the court stated that it was not.
15
asked about Arnett’s ability to pay restitution, he stated only that
he understood that Arnett “had no job” or a place to live, facts that
do not support a finding that Arnett had the ability to pay.
Although Arnett testified that he had been employed on a part-time
basis for five days on and after Thanksgiving Day 2014, there was
no evidence of the income he received for his work, no evidence that
he had any savings, and no evidence of his expenses or debts beyond
the restitution obligation. The fact that Arnett worked part-time
for five days is, based on our review of the entire record, insufficient
to support the court’s finding of his ability to pay.
Because the evidence is insufficient to support the court’s
findings as to Arnett’s willful failure to comply with the drug
program condition or the restitution condition, the court abused its
discretion in revoking Arnett’s probation.
DISPOSITION
The order revoking probation is reversed. Upon issuance of
the remittitur, the trial court shall order that Arnett be released
from custody, vacate the orders made at the September 15, 2015,
probation revocation hearing, and reinstate probation on the
original terms and conditions. Arnett shall be permitted a
reasonable time to comply with the requirement that he complete a
drug treatment and rehabilitation plan as established by the
probation department.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
ROTHSCHILD, P. J. LUI, J.