Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC768277
ELIA, J.Defendant Donna Martinez pleaded no contest to two misdemeanors: violation of Penal Code section 76, subdivision (a)(1) (threatening public official) (count one) and violation of Penal Code section 422 (making criminal threats) (count two). The trial court suspended imposition of sentence, placed her on three years court probation, and ordered her to pay $1,000 in victim restitution, a mandatory restitution fund fine of $100, and other fees.
All further statutory references are to the Penal Code unless otherwise stated. We take judicial notice of relevant court records, including the prior appeal (H033830). (Evid. Code, §§ 452, subd. (d), 459.)
In case number H035362, defendant contends that the court abused its discretion in subsequently modifying probation to require defendant to pay a minimum of $40 per month toward the court-ordered victim restitution when her fixed income from disability payments exceeds her expenses for life's necessities. In case number H035634, defendant makes the same argument.
A. Background
On December 1, 2009, a "Petition for Modification of Terms of Probation" was filed. It alleged that defendant "willfully failed to make regular, monthly payments towards victim restitution and/or willfully failed to pay an amount each month that would pay victim restitution in full by the end of the probationary period and/or willfully failed to pay victim restitution to the best of his or her ability." The petition requested that the court revoke probation to retain jurisdiction and keep probation revoked until victim restitution was paid in full, obtain financial history information, and set a payment schedule and monitor payments.
On December 2, 2009, counsel appearing for defendant waived formal arraignment and advisement of rights and denied the allegations on defendant's behalf. The court then scheduled a hearing on the petition for January 27, 2010 and summarily revoked probation "pending" "further discussions."
On January 27, 2010, defendant's financial history, which was signed under penalty of perjury, was filed. It stated that she was born in January 1963 and she was unemployed. It showed that she had been most recently employed in June 1994. She had no spouse or dependents. Her only monthly income was $1,716 in social security. Her monthly expenses totaled $2,296.55 and included a $40 cable payment. Those expenses also included "$100 + church" for food, a house payment of $1531.25, and homeowner dues of $342. Defendant stated on the form that she owed $2,400 to her family, she owed $10,000 in property taxes to the State of California, and she had an additional $1,547 property tax bill coming due in April 2010. She owned a 1991 Mazda valued at $1,500. No credit card debt was stated. No equity in her home was reported.
An application for waiver of court fees and costs, signed by defendant under penalty of perjury on August 3, 2008, indicated that her townhome had $106,428.86 in home equity.
At the January 27, 2010 hearing, the prosecutor voiced concern that payment of money owed to family, homeowner's dues, cable bills, and credit card debt was taking precedence over payment of victim restitution. Defense counsel represented to the court that defendant was in foreclosure and behind on her home owner's dues. Defendant had been paying $1 a month toward victim restitution. The court continued the matter to February 26, 2010.
On February 26, 2010, the court continued the matter to March 3, 2010.
On March 3, 2010, defense counsel filed a memorandum of points and authorities in which she asserted that the court could not legally order defendant to use her social security benefits to satisfy her court-ordered restitution obligations.
At the March 3, 2010 hearing, defendant was not present. Defense counsel represented to the court that defendant's home was in foreclosure, she had no assets, and her church was paying her PG & E bill. The prosecutor requested that the court set a reasonable payment plan based on defendant's ability to pay. She argued that since defendant's financial history showed her spending $40 a month for cable, the restitution payment should be $40 a month. She further argued that defendant's car should be sold and the money applied to victim restitution. The prosecutor asked the court to require defendant to supply information regarding her mortgage loan balance, her home equity, and medical proof that she could not hold down any job.
At the end of the March 3, 2010 hearing, the court ordered that defendant pay no less than $40 per month beginning April 2, 2010. It stated: "Based on the information provided, it is clear she has the finally [sic] capability to do so." The court indicated that it was "taking into account the discretionary funds that [defendant] has available to her." When asked if the court was finding that defendant receives income beyond the social security disability benefit, the court stated: "I'm not making any finding. I don't have information here upon which to make such a finding." Defense counsel objected to the increase on the ground that defendant's only income was her social security benefit. The court ordered the parties to return on May 5, 2010.
On March 12, 2010, defendant filed a notice of appeal from the March 3, 2010 order requiring her to pay $40 per month.
The People filed a memorandum on its position regarding "court-ordered victim restitution payments by recipients of social security benefits."
On May 5, 2010, defendant was not present at the hearing. Defense counsel indicated to the court that she was presenting evidence that defendant was $8,224 in arrears on her mortgage. She represented to the court that defendant received social security disability benefit of $1,716 for her work-related disability and the federal government had deemed her unable to work.
The prosecutor asserted that the documents provided by defense counsel, which apparently were not received into evidence and are not part of the appellate record, indicated that defendant's home had some "considerable equity" since it was worth between $300,000 and $400,000 and had only a loan balance of $175,000. The prosecutor informed the court that defense counsel had told her that a relative of defendant had mailed in a $78 check on April 29, 2010 and that check together with defendant's payments would meet the court's $40 per month order for April and May. The prosecutor argued that defendant could pay at least that much, if not more.
Defense counsel asked the court to find defendant "not in violation of probation because there was no willful failure to pay the restitution amount." As to selling defendant's home, defense counsel indicated that there was an issue with title because fraudulent W-2's had been submitted in connection with the loan and, according to counsel, defendant believed she had been a victim of mortgage fraud. Refinancing the property was not a possibility because defendant was in arrears and was in the midst of foreclosure proceedings. Defense counsel indicated that defendant had a deficit of $580 a month based on the difference between defendant's social security income and her expenses. According to counsel, the State of California was not requiring defendant to pay her outstanding property taxes at the time of the hearing because of her inability to pay. Defense counsel asked the court to reinstate defendant's probation nunc pro tunc to the date of summary revocation and to "allow [defendant] to continue to make restitution payments with an understanding that she has made a good faith effort given her financial issues."
The prosecutor maintained that the court could find defendant in violation of probation based on the evidence that she pays $40 a month for cable TV and has considerable equity in her house. In addition, she asserted that the court had no proof that defendant could not work at all.
Defense counsel responded that defendant was "not authorized to work" and "[t]he federal government has deemed that." She stated that the prosecutor was "completely incorrect under the law" that defendant could have a job and "not run afoul of her federally-mandated social security disability." She asserted that cases cited by the People in its opposition were distinguishable. She argued that the order requiring defendant to pay $40 in restitution, which would be paid from her social security benefits that were her sole source of income, was "against public policy and against the intent of the Legislature in providing her income in that regard."
Defense counsel also pointed out that the $78 was paid by defendant's family and defendant did not have the means to pay it. She again asked the court to find there had not been a willful failure to pay.
The court indicated that it did not have the complete file.
The prosecutor then clarified that she was not asking the court to compel defendant to sell her home. The prosecutor's position was that "if she can afford to pay $40 a month to cable TV, she can afford to pay $40... in victim restitution." She also complained that she did not have any current documentation that defendant was currently receiving social security benefits. The prosecutor further contended that the court was under no legal obligation to assume that defendant could not work at any job merely because she received social security benefits.
Defense counsel reiterated that defendant had no income other than her social security benefits. Defendant did not have enough money to pay her property taxes, the arrears in her mortgage payments, or her court-ordered restitution payment. She asked the court, "as a matter of law, " to "not garnish or order a certain amount of money that come[s] from her social security each month." She also asked the court to find defendant was "not in violation of probation and admit her back on to probation."
The court rejected the defense arguments. It stated: "[F]rankly the $1 a month payment is a slap in the face to the victim in this case. As long as your client is watching cable television and owns a $300,000 to $400,000 home—and... frankly I'm very confused—on one hand I'm being told that the defendant is behind over $8,000 in her mortgage payments, but on the other hand I'm being told she is in fact paying $1,531 in rent each month and $342 in association fees. [¶]... The defendant's mortgage payment and her homeowner dues payments alone exceed the amount that you say she receives each month as income. So it's inconceivable to this Court since she's been on this disability income, which you say is her exclusive form of income for some number of years, that somehow she has been paying more than that amount and yet has established several $100,000 of equity, or many thousands of dollars of equity, in that home. Something doesn't fit here...." The court agreed with the prosecutor that $40 should not be going to cable but should be going to the victim and stated that would "continue to be the order in this case."
When the prosecutor asked whether the next $40 payment was due June 2, the court responded, "Yes." The prosecutor questioned, "Probation revoked?" The court replied, "Yes." When defense counsel asked the court to either reinstate probation or to state grounds for not reinstating probation, the court continued the matter to May 26, 2010. It stated that it could not do anything without a complete court file. The May 5, 2010 minute order shows that probation remained revoked.
On May 24, 2010, defendant filed a notice of appeal stating she was appealing from "the order after judgment entered... on May 5, 2010."
The May 26, 2010 minute order indicates that defense counsel appeared without defendant. The court ordered defendant to be present on June 23, 2010 for a hearing on her ability to pay. Defendant was ordered to bring her current financial status evidence, including information on foreclosure. Probation remained revoked.
2. H035362
On appeal, defendant argues that on March 3, 2010, the court abused its discretion in ordering her to pay $40 each month toward victim restitution because the order was "irrational given the data in the financial declaration before the court" and there was no substantial evidence to support the finding that defendant can afford to pay $40 per month toward restitution because her expenses exceed her fixed monthly income. She maintains that her "decision to spend money she cannot afford for a non-essential item does not support a finding she has the ability to pay that amount each month."
Under California law, the trial court must order the defendant to pay restitution to the victim. (§ 1202.4, subd. (a)(3)(B).) The court must "order full restitution unless it finds compelling and extraordinary reasons for not doing so, and states them on the record." (§ 1202.4, subd. (f), see § 1202.4, subd. (g).) The statute provides: "A defendant's inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of a restitution order." (§ 1202.4, subd. (g).) But section 1203.2, subdivision (a), provides: "[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. Restitution shall be consistent with a person's ability to pay."
Section 1203.04 was repealed. (Stats. 1995, ch. 313, § 8, p. 1762, eff. Aug. 3, 1995.) The Legislature has not corrected the reference.
The court summarily revoked probation "pending" "further discussions" on December 2, 2009. "Summary revocation causes only a temporary suspension; it is simply a device by which the defendant may be brought before the court and jurisdiction retained before formal revocation proceedings commence." (People v. Pipitone (1984) 152 Cal.App.3d 1112, 1117.) The court did not formally revoke probation on March 3, 2010. Rather, the court modified the conditions of probation order by ordering defendant to make a minimum monthly payment toward court-ordered victim restitution.
Pursuant to section 1203.2, subdivision (b), the court may "modify, revoke, or terminate the probation of the probationer upon the grounds set forth in subdivision (a) if the interests of justice so require." The grounds include a "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...." (§ 1203.2, subd. (a).) "[P]roof of facts supporting the revocation of probation pursuant to section 1203.2(a) may be made by a preponderance of the evidence." (People v. Rodriguez (1990) 51 Cal.3d 437, 447, fn. omitted.) In addition, section 1203.3, subdivision (a), states that "[t]he 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." A violation of probation is not a prerequisite to modifying the conditions of probation under the broad authority conferred by section 1203.3. (People v. Cookson (1991) 54 Cal.3d 1091, 1098-1100.)
In People v. Cookson, supra, 54 Cal.3d 1091, the trial court ordered the defendant's probation extended for two years because, at the end of three years, the defendant had not fully paid restitution. (Id. at p. 1093.) The defendant challenged that order, "contending the extension was improper absent proof he had the ability to pay and willfully failed to pay." (Ibid.) The California Supreme Court held that section 1203.2, subdivision (a), "does not prohibit a court from extending a term of probation when the probationer fails to pay restitution as ordered because of an inability to pay." (Id. at p. 1097.)
Subdivision (b)(4) of section 1203.3 now expressly provides that "[t]he court may modify the time and manner of the term of probation for purposes of measuring the timely payment of restitution obligations or the good conduct and reform of the defendant while on probation." (See Stats. 1995, ch. 313, § 9, p. 1763.)
In making its determination, the court examined the legislative history of the "ability to pay" language in section 1203.2, subdivision (a). (Id. at pp. 1096-1097.) It concluded that the language appeared to codify the U.S. Supreme Court's holding in Bearden v. Georgia (1982) 461 U.S. 660 [103 S.Ct. 2064].) (People v. Cookson, supra, 54 Cal.3d at p. 1096.) The court rejected the argument that "the statutory limitation on the court's power to revoke probation for failure to pay restitution likewise limits the court's power to modify probation." (Ibid.) It declared that "[a]llowing modification of probation to facilitate the recovery of restitution as originally contemplated by the court enables the court to fashion a remedy that best serves the goals of probation." (Id. at p. 1097.)
In Bearden, the high court determined that a trial court erred "in automatically revoking probation because [the probationer] could not pay his fine, without determining that [the probationer] had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist." (Id. at p. 662.) It held: "[I]n 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.)
In addition, the holding in Cookson, supra, 54 Cal.3d 1091 was predicated on the public policies underlying probation. The court stated: "Conditions are imposed on probation 'to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer....' (§ 1203.1.) Restitution 'may serve the salutary purpose of making a criminal understand that he has harmed not merely society in the abstract but also individual human beings, and that he has a responsibility to make them whole.' (People v. Richards (1976) 17 Cal.3d 614, 620....) Thus, aside from making the victim whole, restitution 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. (See Cohen & Gobert, The Law of Probation and Parole (1983) § 6.33, p. 280.) Allowing modification of probation to facilitate the recovery of restitution as originally contemplated by the court enables the court to fashion a remedy that best serves the goals of probation." (People v. Cookson, supra, 54 Cal.3d at p. 1097.)
We conclude that section 1203.2, subdivision (a), does not prohibit a court from modifying a term of probation by imposing a minimum monthly payment schedule of $40 under the circumstances of this case. The court had ordered defendant to pay $1,000 restitution to a victim. Defendant was making only a nominal payment of $1 per month toward this restitution obligation. Yet, she was using her limited income to pay for cable service that cost $40 per month, a completely discretionary and nonessential expense. The unnecessary cable expenditure indicated that defendant was not making reasonable efforts to pay restitution, at least as to that amount. Under those circumstances, the court acted within its discretion in modifying probation by ordering her to pay a minimum of $40 per month, the amount she was previously spending on the luxury of cable, toward victim restitution. That order was reasonable and consistent with the goals of probation and it did not require a finding of ability to pay.
Of course, probation may not be finally revoked based on a violation of probation consisting of a failure to comply with the court-ordered monthly payment schedule or a failure to pay victim restitution "unless the court determines that the defendant has willfully failed to pay and has the ability to pay." (§ 1203.2, subd. (a).) As evident from court records, the court has repeatedly continued the hearing on the petition in an effort to ascertain the extent of defendant's ability to pay.
B. H035634
Defendant purports to appeal from the May 5, 2010 "order, " arguing that since her "limited income is not even sufficient to meet her basic needs for clothing and shelter, the court abused its discretion in ordering her to pay $40 per month towards restitution." She maintains that the court's order is "irrational" because she "does not have the financial ability to pay $40 per month towards restitution" and the "order" must be reversed.
This court requested supplemental briefing addressing the issue whether any appealable order was made on May 5, 2010. Section 1237, subdivision (b), permits appeal "[f]rom any order made after judgment, affecting the substantial rights of the party."
As indicated, at the time of the May 5, 2010 hearing, the court had made two prior orders: a December 2009 order summarily revoking probation "pending" "further discussions" and a March 2010 order requiring defendant to pay $40 dollars a month toward her victim restitution obligation. On May 5, 2010, the matter pending before the court was the petition's request to find a violation of probation on the ground that defendant "willfully failed to make regular, monthly payments towards victim restitution and/or willfully failed to pay any amount each month that would pay victim restitution in full by the end of the probationary period and/or willfully failed to pay victim restitution to the best of his or her ability." Defendant's counsel asked the court to find that defendant had not willfully failed to pay in that she had been routinely paying $1 per month toward her restitution obligation and to reinstate probation. She also asked the court, "as a matter of law, " to not "garnish or order a certain amount of money... [to] come from her social security each month."
Defendant now argues that her counsel "in effect" "sought a modification of the March 3 finding Martinez had the ability to pay $40 per month...." The record reflects that on May 5, 2010, the court still believed that $40 should not be going toward cable and confirmed that its previous orders remained in effect. There was no order issued on May 5, 2010 affecting defendant's substantial rights because defendant's contentions could be addressed on a timely appeal from the March 3, 2010 order. (See § 1237, subd. (b); cf. People v. Howerton (1953) 40 Cal.2d 217, 220 ["substantial rights" are not affected when defendant's concerns could have been reviewed on timely appeal from the judgment].)
While defense counsel apparently provided the court with additional information regarding defendant's ability to pay, presumably relevant to whether defendant had willfully violated probation as alleged, the court continued the matter again at the end of the May 5, 2010 hearing. The court did not come to any ultimate decision regarding the extent of defendant's ability to pay or whether there had been a violation of probation justifying revocation of probation. The appellate record does not demonstrate that defendant brought, and the court denied, a motion to modify the March 3, 2010 order based on evidence of a change in circumstances. (See People v. Cookson, supra, 54 Cal.3d at p. 1095 ["A change in circumstances is required before a court has jurisdiction to... modify probation"]; cf. People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 [order modifying terms of probation appealable].)
Defendant acknowledges that she is not appealing from an order revoking probation. Even if the court's affirmative reply to the prosecutor's query ("Probation revoked?") constituted a formal revocation of probation, which in our view it clearly did not, the order would not be appealable since sentence was not imposed. (See People v. Delles (1968) 69 Cal.2d 906, 908-909 [revocation of probation granted following suspension of imposition of sentence is "an intermediate order reviewable only on appeal from the judgment"]; People v. Robinson (1954) 43 Cal.2d 143, 145.)
The purported appeal must be dismissed.
Disposition
In case number H035362, the March 3, 2010 order is affirmed.
In case number H035634, the appeal is dismissed.
WE CONCUR: RUSHING, P. J.PREMO, J.