IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Alpine)
April 12, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ELDMAN CARDEL DANIELS, DEFENDANT AND APPELLANT.
(Super. Ct. No. A020593)
The opinion of the court was delivered by: Nicholson , J.
P. v. Daniels
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Instead, probation was revoked because defendant failed to pay restitution within the full three-year probationary period, as ordered by the court as a condition of probation.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.
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 summarily revoked to prevent the expiration of the period of probation before defendant can be brought before the Court."
The order to show cause was mailed to the address defendant had given to the court, but it was returned to the court with a notation that the mail forwarding time had expired. When defendant failed to appear on April 30, 2007, the court issued a bench warrant.
Defendant's probationary period would have expired on August 23, 2007, if the trial court had not summarily revoked his probation on March 28, 2007.
On November 17, 2008, defendant appeared in court on the matter. The trial court recalled the bench warrant and set a contested hearing for December 15, 2008.
At the hearing on December 15, 2008, defendant's trial counsel argued that defendant's probation condition required him to pay restitution within the probationary period, and that defendant's probationary period had not expired as of the date alleged in the clerk's affidavit. He therefore still had time to pay restitution as ordered. Counsel also argued that, in order to establish a violation of probation based on failure to pay restitution, the burden was on the People to show defendant had the ability to pay restitution. The trial court asked the parties to submit briefing on these issues and continued the hearing. The court also took judicial notice that no payments had been received from defendant since March 2005.
A week after the hearing, on December 22, 2008, the court clerk filed an amended clerk's affidavit alleging that defendant violated probation by failing to (1) notify the court within five days after moving, (2) "[p]ay restitution during [the] period of probation (to wit, within three years of August 23, 2004)," and (3) file a financial disclosure within 120 days prior to his release from probation. On January 7, 2009, the court clerk filed a second clerk's affidavit making a minor change to the financial disclosure allegation. Based on the amended clerk's affidavit and second amended clerk's affidavit, the court issued an order to show cause summoning defendant to appear on February 23, 2009, "to show cause why the probation granted should not be revoked, or if summarily revoked to show cause why it should not remain revoked, and why sentence should not be imposed or executed."
In points and authorities submitted to the trial court, defendant's attorney argued that the amended clerk's affidavit and second amended clerk's affidavit were untimely. He asserted that the court lost jurisdiction to revoke his probation because the original three-year probationary period had expired and the People did not prove the allegation in the March 28, 2007, clerk's affidavit, upon which the trial court relied in summarily revoking probation, that defendant violated the terms of his probation by failing to pay restitution on March 28, 2005.
The trial court took the legal issues under submission and, in a written ruling, rejected defendant's argument concerning the necessity of proving the specific allegation underlying the summary revocation. The court also concluded that, under "the 'rule of convenience'", defendant carried the burden to produce evidence of his inability to pay restitution as ordered because "the circumstances of [his] finances are peculiarly within his knowledge." Although the amended clerk's affidavit and second amended clerk's affidavit alleged that defendant also violated the terms of his probation by failing to notify the court of his move and failing to file a financial disclosure, the court did not consider these allegations in determining whether defendant violated his probation.
The hearing on the order to show cause was continued to April 6, 2009. At the hearing, defendant testified that he lived with his girlfriend, who was "the breadwinner" in the home, and their eight-year-old son, and he had no bank account or other source of income. According to defendant, he was last employed for three months in 2004, at which time he received income totaling $1,500. Defendant stated he had not sought employment because he had an outstanding child support judgment against him from 1989 and, between that and expenditures for childcare for his son, it would cost him more to work than to remain unemployed. Defendant acknowledged that he was absolved from having to pay the child support judgment in January 2009, and he no longer owed any child support.
The trial court found defendant had the ability to pay restitution and "wil[l]fully chose to take himself out of the job market." The court rejected defendant's explanation for remaining unemployed, noting that an eight-year-old child is in school part of the day and after school programs are available. The court reinstated defendant on probation, ordered him to pay restitution, and ordered him to serve 10 months in jail, which was stayed pending appellate review.
Defendant claims the trial court no longer had jurisdiction in this matter at the time of the probation violation hearing because the original allegation underlying the summary revocation of his probation was not found true. We conclude that, because defendant's probation was summarily revoked and the court found that he violated probation during the original probationary period, the trial court had jurisdiction to find that defendant violated probation.
Section 1203.2 governs revocation of probation.*fn2
"Under section 1203.2, the court is authorized to revoke a defendant's probation . . . 'if the interests of justice so require and the court . . . has reason to believe from the report of the probation officer or otherwise' that grounds for revocation exist. (§ 1203.2, subd. (a).) Such summary revocation gives the court jurisdiction over and physical custody of the defendant and is proper if the defendant is accorded a subsequent formal hearing in conformance with due process. [Citation.] [¶] Therefore, after the summary revocation, the defendant is entitled to formal proceedings for probation revocation. The purpose of the formal proceedings is not to revoke probation, as the revocation has occurred as a matter of law; rather, the purpose is to give the defendant an opportunity to require the prosecution to prove the alleged violation occurred and justifie[d the] revocation. [Citation.]" (People v. Clark (1996) 51 Cal.App.4th 575, 581, disapproved on another ground in People v. Mendez (1999) 19 Cal.4th 1084, 1098.)
"The revocation [of probation], summary or otherwise, shall serve to toll the running of the probationary period." (§ 1203.2, subd. (a).)
In a simple case, a defendant's probation may be summarily revoked based on the court clerk's affidavit stating that the defendant has violated a condition of probation. The running of the defendant's probationary period is then tolled until a formal hearing to determine whether the allegation in the clerk's affidavit is true. If the court finds the allegation true, then the court may, among other things, reinstate probation and extend the probationary period.
Complications arise when the court's subsequent finding of a violation of a probation condition is not based on the allegation that caused the earlier summary revocation. For example, in People v. Tapia (2001) 91 Cal.App.4th 738 (Tapia), the appellate court reversed the trial court's extension of the probationary period because (1) the trial court's finding of a violation of a probation condition was not based on the allegation that caused the summary revocation and (2) the finding of a violation of probation was based on events that occurred after the original probationary period would have expired. The Tapia court concluded that, under such circumstances, the trial court had no jurisdiction to extend probation. (Id. at pp. 740-742.)
In Tapia, the trial court placed defendant on probation for three years, with a jail term, and ordered him to report to the probation department upon his release from jail. After completing his jail term, the defendant was deported, and his failure to report to the probation department triggered a summary revocation of his probation. After the defendant's probationary period would have expired absent the tolling triggered by the summary revocation, he reentered the United States and was arrested on a bench warrant. The defendant admitted he did not report to his probation officer when he reentered the country, and based on this admission, the trial court found him in violation of his probation. (Tapia, supra, 91 Cal.App.4th at pp. 740-741.)
The appellate court reversed, based on the People's "fail[ure] to prove that a violation occurred during the term of probation." (Tapia, supra, 91 Cal.App.4th at p. 741, italics omitted.) The court held: "[A] summary revocation of probation suspends the running of the probation period and permits extension of the term of probation if, and only if, probation is reinstated based upon a violation that occurred during the unextended period of probation. [Citation.]"*fn3 (Ibid.)
Another appellate court declined to extend the holding of Tapia to a case in which, although the allegation upon which the trial court summarily revoked probation was not the basis for a finding that the defendant violated probation, the probation violation that resulted in termination of probation occurred during the original probationary period. (People v. Burton (2009) 177 Cal.App.4th 194 (Burton).)
In Burton, there were two petitions pending against the defendant for violating his probation at the time of his probation violation hearing, both of which were filed prior to the time his probationary period was otherwise due to expire. The defendant's probation was summarily revoked following the filing of the first petition. The hearing occurred after the date that the defendant's probation would have expired absent the tolling resulting from the summary revocation. The trial court dismissed the first petition but found sufficient evidence to sustain one of the allegations in the second petition. (Burton, supra, 177 Cal.App.4th at pp. 197-199.)
On appeal, the defendant argued that, as the petition triggering the summary revocation of probation was dismissed, his probationary period was not tolled and the trial court no longer had jurisdiction when the revocation hearing took place. The appellate court rejected this reasoning, holding that Tapia did not require "the violation ultimately found to have occurred [to be] the same one that triggered the summary revocation" for the tolling to be valid. (Burton, supra, 177 Cal.App.4th at p. 200.) The court distinguished Tapia from the facts before it because "there was no proof [in Tapia] that the defendant had committed any probation violation until after his probation had long since expired." (Ibid.)
Neither of these cases supports defendant's contention that because the trial court did not later re-sustain the allegation in the original clerk's affidavit it had no jurisdiction at the time of the subsequent probation violation hearing. Unlike the circumstances in Tapia, the People in the present matter proved a violation of probation occurred during the original term of probation. Tapia is therefore factually distinguishable.
This case is more like Burton. The main difference between this case and Burton is that in Burton the second petition was filed during the original probationary period while in this case the second amended clerk's affidavit was filed after the original probationary period. That difference, however, is not dispositive because the finding that defendant violated his probation during the original probationary period conferred jurisdiction on the trial court to reinstate probation and extend the probationary period. As the Tapia court noted, "a summary revocation of probation suspends the running of the probation period and permits extension of the term of probation if, and only if, probation is reinstated based on a violation that occurred during the unextended period of probation. [Citation.]" (Tapia, supra, 91 Cal.App.4th at p. 741, italics added.) Therefore, it is the finding of a probation violation committed during the original probationary period that extends the trial court's jurisdiction. As long as the probationary period has been tolled by summary revocation, the timing of the allegation upon which the trial court bases the finding of a probation violation is not dispositive.
Here, as the trial court found, defendant violated his probation during the original probationary period because he let the period expire without paying restitution. While the better practice is for the trial court to order a defendant to pay restitution on a specific schedule or by a certain date before the probationary period expires, a defendant who accepts a condition of probation to pay restitution during the probationary period cannot escape the duty to pay restitution simply by asserting that, until the period expired, he was not in violation of the probation condition.
The tolling of defendant's probationary period was based on a proper summary revocation of his probation during the original probationary period. And the trial court found, on sufficient evidence, that defendant failed to pay restitution during the probationary period and thus violated a condition of his probation. Therefore, the trial court had jurisdiction to reinstate and extend defendant's probation.
II Burden of Producing Evidence
"The rule of convenience 'emerged from a long line of decisions which operate to impose on a defendant the burden of proving an exonerating fact if its existence is "peculiarly" within his personal knowledge and proof of its nonexistence, by the prosecution, would be relatively difficult or inconvenient. (People v. Boo Doo Hong (1898) 122 Cal. 606, 608-609 . . . [license to practice medicine]; People v. Fortch (1910) 13 Cal.App. 770, 775 . . . [license to practice dentistry]; People v. Osaki [(1930) 209 Cal. 169, 182] [citizenship by birth]; People v. Marschalk (1962) 206 Cal.App.2d 346, 349-350 . . . [prescription authorizing possession of narcotics]; People v. Flores [(1976) 62 Cal.App.3d Supp. 19, 21-23] [license to do business as a carrier].)' (People v. Yoshimura (1979) 91 Cal.App.3d 609, 626-627 [permit for explosives].)" (In re Shawnn F. (1995) 34 Cal.App.4th 184, 197, italics omitted.)
Applying the rule of convenience at the probation violation hearing, the trial court placed the initial burden of producing evidence on defendant to show he did not have the ability to pay restitution. Defendant claims the trial court violated his due process rights by placing this burden on him to show that he did not have the ability to pay restitution. The claim is without merit. Placing on defendant the initial burden of producing evidence did not violate his due process rights.
The People established that defendant had failed to pay victim restitution as required by the terms of his probation, which he agreed to when the court granted probation. Defendant is correct that his probation could not be revoked for nonpayment of restitution absent a finding that he had the ability to pay and willfully failed to do so. (§ 1203.2, subd. (a).) Thus, inability to pay was an exonerating fact. (In re Shawnn F., supra, 34 Cal.App.4th at p. 197.) Defendant's lack of assets and inability to work were peculiarly within his knowledge. Relevant circumstances included efforts by defendant to obtain employment, any disabilities or health problems preventing him from working, and any legitimate expenses that precluded or excused him from satisfying his restitution obligations. To require the People to cast about for evidence of defendant's ability to work is simply untenable. It is neither unfair nor unduly harsh to place on defendant the initial burden to produce evidence on this issue.
Accordingly, we conclude the trial court properly applied the rule of convenience and did not violate defendant's due process rights.
The judgment is affirmed.
We concur: RAYE, P. J. ROBIE , J.