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The People v. Myna Manyvong

December 28, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MYNA MANYVONG, DEFENDANT AND APPELLANT.



(Super. Ct. No. SF096869A)

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

P. v. Manyvong

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Myna Manyvong appeals from a judgment of three years eight months in prison for a probation violation resulting from his failure to pay restitution. Defendant contends that the trial court abused its discretion by allowing probation officer Steven Berchtold to testify at his probation revocation hearing based solely on notes and documents prepared by clerical staff. Defendant further contends there was insufficient evidence to establish that he "willfully" failed to pay restitution. Rather, defendant argues that he was indigent and unable to pay his restitution obligations as a result of his inability to work after a heart bypass. He also contends the trial court's decision to impose the three-year eight-month prison sentence violated his equal protection and due process rights. Finding no merit in these arguments, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 21, 2006, defendant was placed on probation for five years after pleading guilty to the unauthorized use of personal identifying information of another person and the unlawful taking of a vehicle. As a condition of probation, the trial court ordered defendant to pay restitution in the amount of $4,206.07 and stayed execution of a three-year eight-month sentence. On the basis of the trial court's order, San Joaquin County's Revenue and Recovery Division set up an account to facilitate the collection of the restitution from defendant.

On July 27, 2010, a California Highway Patrol Officer pulled defendant over in Stockton. Defendant was driving a gold Chrysler Sebring that was registered to him. The officer ran a check of his driver's license and found that defendant was driving with a suspended license. Upon a search of the vehicle, the officer located a first aid box containing a small amount of cash and five small plastic baggies containing a crystal substance, which the officer believed to be methamphetamine. Defendant was subsequently charged with possession of methamphetamine and driving with a suspended license. Consequently, on September 21, 2010, the prosecutor filed a petition seeking an order to show cause why probation should not be revoked as a result of defendant's failure to obey all laws on July 27, 2010. The petition alleged only the possession of a controlled substance charge.

Previously, on August 4, 2010, the probation department filed a violation of probation report, alleging that defendant had violated the terms of his probation by failing to pay the remaining balance of $3,906 of his restitution.

A preliminary hearing on the charges of possessing a controlled substance and driving on a suspended license was held on December 15, 2010. At the same time, the court heard the allegations on the violation of probation. The trial court found there was probable cause to hold defendant to answer on the charges but held there was insufficient evidence to prove a probation violation.

As to defendant's failure to pay restitution, however, the trial court held that defendant willfully failed to pay, and as a result, the court revoked probation and imposed the previously stayed three-year eight-month prison sentence.

To establish defendant's failure to pay restitution, the prosecution offered the testimony of Probation Officer Steven Berchtold. According to Berchtold, his duties included the supervision of adult probation offenders, including defendant, as well as the supervision of the clerical staff who assist the offenders.

Berchtold testified that defendant paid $300 toward the total restitution amount due. Berchtold also testified that a delinquency letter was sent on March 30, 2010, informing defendant that he was in violation of probation for failure to make restitution payments, and that he needed to make a payment by April 20, 2010. Berchtold further stated that defendant made a $50 payment on April 5, 2010, and was thereafter directed to make ...


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