(Monterey County Super. Ct. No. SS050128A). Trial Judge: Hon. Lydia M. Villarreal.
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
In this appeal by the People, this court must resolve the following question. Does the superior court have authority, while a defendant is still on probation, to reduce a county jail term imposed as a condition of probation when the defendant has already served the term? For reasons set forth in this opinion we determine that the superior court does not have such authority. Accordingly, we reverse the superior court's order.
Facts and Procedural History
On January 11, 2006, respondent Francisco Mendoza pleaded no contest to one count of felony grand theft in exchange for a grant of felony probation. Before accepting respondent's plea, the superior court (hereafter the court) asked respondent if he understood that his conviction could "be used to impact [his] immigration rights." Respondent affirmed that he understood. The record contains a form entitled "WAIVER OF RIGHTS PLEA OF GUILTY/NO CONTEST" in which respondent was informed that if he did not have United States citizenship, "a plea of Guilty/No Contest will result in [his] deportation, exclusion from admission to this country, denial of naturalization and/or denial of re-entry to this country." Respondent signed the waiver of rights form and initialed it to acknowledge that he understood the immigration consequences of his plea.
On May 2, 2006, the court placed respondent on probation for a period of five years. During the sentencing hearing, the prosecutor argued that as one of the conditions of probation respondent should serve 365 days in county jail.*fn1 The court imposed a 365-day county jail term as one of the conditions of probation with a credit of two days for time served. In addition, the court imposed victim restitution in the amount of $26,867.17 plus interest from December 13, 2003. The court imposed various other conditions of probation not relevant here. At the time the court ordered that respondent pay restitution to the victims, the court told respondent that if he paid restitution to his victims the court would be "willing to consider a modification of [his] sentence if the victims have been completely paid."*fn2
The probation report noted that respondent was born in Mexico. Accordingly, included within the recommendations for conditions of probation was a condition that if deported, respondent's probation would revert to non-reporting. The court advised respondent, "In the event you are deported, probation is to revert to non-reporting. You're ordered not to re-enter the United States unless you do so legally. Any illegal entry into the United States will be deemed a violation of probation. Upon legal re-entry, you must report to the probation department within 72 hours -- upon any re-entry."
On May 31, 2006, the court denied respondent's request to reduce his jail term based on the fact that respondent had not fully paid restitution to the victims. Counsel represented to the court that respondent's family had gathered $7000 in cash to pay the victims restitution. The court denied the request to modify the jail sentence stating, "Well, as I stated to the defendant as well as to the attorneys, I am fully prepared to reduce the jail sentence but restitution has to be paid...." At the close of the hearing, the court reiterated, "Whenever the defendant has been able to make restitution, it should be put back on calendar so that I can consider a release."
For a second time, on October 24, 2006, while he was still serving his jail sentence, respondent asked for a reduction of his jail time. This time, counsel explained to the court that respondent's family had told him that they had paid $5000 through the probation department for victim restitution. Again, the court denied respondent's request. The minute order reflects that that respondent was to continue serving his jail term.
At a restitution hearing held November 9, 2006, counsel represented to the court that he had documentation that confirmed that respondent's family had paid approximately $2000 and that respondent's son had had his wages garnished in the amount of $3000. The court told counsel that $5000 was "not enough to warrant a change in the sentence." The court recalled that respondent owed $22,000 so he needed to "make significant... progress towards that amount" before the court was willing to consider modifying the sentence.
On August 30, 2007, sometime after respondent had completed his jail term and been transferred to a federal detention facility pending deportation, a hearing was held during which respondent's counsel again sought a reduction in respondent's sentence. Respondent's counsel told the court that it was not the grand theft conviction "in and of itself" that was "causing [respondent's] deportation" but rather the 365 day jail sentence. Counsel told the court that respondent's family had made a $5000 restitution payment and asked the court to reduce respondent's jail term to 364 days because knowing that the court's primary concern was victim restitution, "if... the 365 day sentence stays and he's deported, the reality is they're not going to get any more of it than they already have."
The court replied that it was unwilling to modify the jail term by reducing it to 364 days, but would consider reducing it to 250 days if respondent waived his custody credits. Specifically, the court told counsel, "So if he was willing to give up those credits[,] which obviously he can do[,] and if he was willing to give up those credits, I would think that it would be in the victims' best interest in having him do that because that would be additional time hanging over his head so that we could pursue this restitution. That would seem to be some advantage to the victims."
The court continued the matter so the parties could file briefs. Respondent's counsel stated that she would obtain a written waiver from respondent waiving his right to be present at the next hearing. The court told respondent's counsel that as long as she was getting a waiver of respondent's presence she "might also want to ask him if he would be willing to give up credits...."
In a written motion, filed on September 12, 2007, counsel stated that respondent was a permanent legal resident of the United States, but by virtue of his 365-day jail sentence, considered a "serious" felony by immigration standards, respondent was facing deportation to Mexico.*fn3
The parties appeared before the court on September 18, 2007. Respondent filed a written waiver of his presence and waived credit for time served beyond 250 days. The court reiterated that it was considering modifying respondent's jail sentence only for the purpose of motivating respondent to pay additional restitution and not for the purpose of enabling him to avoid deportation.
Nevertheless, the court refused to modify the jail sentence because the court felt that respondent had failed to offer adequate proof of the amount of restitution paid up to that point. The court put over the matter for one week.*fn4
On October 2, 2007, in response to the prosecutor's argument that the court should not interfere with the sentence for the purpose of preventing the federal courts from using the conviction, the court emphasized once again that the objective in reducing respondent's jail term was to motivate respondent to make restitution to the victims. Respondent's counsel told the court that probation had received between $7500 and $8000 in victim restitution payments. The court granted the request for modification, striking respondent's custody credits, thereby making the time he served 250 days. The court warned respondent's counsel, "restitution is going to be critical. If he doesn't pay restitution, he's going to prison.
On November 19, 2007, the People filed a notice of appeal from the October 2, 2007 order granting the motion to modify ...