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The People v. Eldman Cardel Daniels

April 12, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ELDMAN CARDEL DANIELS, DEFENDANT AND APPELLANT.



(Super. Ct. No. A020593)

The opinion of the court was delivered by: Nicholson , J.

P. v. Daniels

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Eldman Cardel Daniels was charged with felony vandalism. Pursuant to a plea agreement, he pleaded guilty to misdemeanor vandalism, and the trial court placed him on probation for three years. As a condition of probation, the trial court ordered him to pay more than $5,000 in victim restitution.

Before the expiration of defendant's probation term, the court clerk filed an affidavit stating that defendant had not paid restitution by a date that was about seven months after the beginning of the three-year probation term. Based on the affidavit, the trial court summarily revoked defendant's probation, thus tolling the probationary period. (Pen. Code, § 1203.2, subd. (a).)*fn1 After the original probationary period would have expired but did not expire because of the tolling, the court clerk filed an amended and a second amended affidavit, alleging that defendant failed to pay restitution during the probationary period. The trial court revoked defendant's probation based on his failure to pay restitution during the probationary period.

The principal question raised on appeal is whether the trial court lost jurisdiction because the clerk's original affidavit, which stated that defendant had not paid restitution by a certain date about seven months after the grant of probation, was not the eventual basis for revoking probation. Instead, probation was revoked because defendant failed to pay restitution within the full three-year probationary period, as ordered by the court as a condition of probation. We conclude that the trial court did not lose jurisdiction. The original affidavit served to toll the probationary period until the trial court revoked probation based on conduct that occurred during the three-year probationary period.

Another question raised by defendant on appeal is whether the trial court properly invoked the "rule of convenience" to give defendant the burden of producing evidence that he did not have the ability to pay restitution. (See People v. Montalvo (1971) 4 Cal.3d 328, 334 [allowing court to place burden of producing evidence on defendant under some circumstances].) We conclude that the trial court properly placed the burden of producing evidence on defendant.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2003, the People charged defendant by information with one count of felony vandalism. Defendant pleaded guilty to misdemeanor vandalism causing damage over $400 (§ 594, subd. (b)(1)) after the People moved to amend the information to charge the offense as a misdemeanor. On August 23, 2004, the trial court placed defendant on probation for three years. As conditions of probation, the court ordered defendant violate no laws, pay a restitution fine of $100, and notify the court within five days if he changed his residence or employment. Also, most relevant to this appeal, the court ordered defendant to pay $5,589 in restitution to the victims during the probationary period. There is no record of the trial court ordering, or defendant agreeing to, a payment schedule for the victim restitution.

On March 28, 2005, defendant paid the $100 restitution fine, as well as $100 toward victim restitution. The payment of victim restitution left $5,489 still owing, not including interest.

On March 28, 2007, exactly two years after defendant made the $100 payment toward victim restitution, the superior court clerk filed a "Clerk's Affidavit of Violation of Probation and Order to Show Cause," stating that "[o]n or about 3/28/2005" defendant violated the terms of his probation by failing to pay restitution. The trial court signed the order to show cause, summoning defendant to appear before the court on April 30, 2007. The court's order stated: "Probation is ...


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