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People v. Sem

California Court of Appeals, Sixth District

September 17, 2014

THE PEOPLE, Plaintiff and Respondent,
HENG SEM, Defendant and Appellant.

Santa Clary County Superior Court No.: CC259359 Honorable Arthur Bocanegra, lead Judge, Honorable Randolf J. Rice Judge, Honorable Jerome S. Nadler Judge.

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Ronald L. DeHoff for Defendant and Appellant.

Lisa H. Ashley-Ott for Plaintiff and Respondent.




In this appeal we consider how long a term of probation can be extended to compel payment of victim restitution from a probationer who was unable to pay $60, 422 in full during her original three-year term of probation.

Restitution for crime victims was recognized as a California constitutional right in 1982. Since 1983, Penal Code section 1203.2, subdivision (a)[1] has provided that restitution shall be consistent with a probationer’s ability to pay and that probation cannot be revoked for nonpayment of restitution “unless

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the court determines that the defendant has willfully failed to pay and has the ability to pay.” Since 1959, section 1203.1 has provided that the length of felony probation may not exceed the maximum possible sentence, except that where the maximum sentence is five years or less, probation may last up to five years. (Stats. 1959, ch. 1016, § 1, p. 3038.)

In People v. Medeiros (1994) 25 Cal.App.4th 1260 [31 Cal.Rptr.2d 83] (Medeiros), this court determined that the probation statutes did not authorize extending probation beyond the statutory maximum time by revoking and reinstating probation in order to collect more victim restitution from those who are unable to pay. This appeal challenges a similar practice where probationers unable to pay full victim restitution before the end of their probation are placed in a perpetually revoked status by summary or formal revocation. The decision to reinstate or terminate probation is indefinitely postponed, apparently with the probationer’s acquiescence, until long after the expiration of the probationary period. While in this suspended animation, probationers remain subject to the restitution condition (and apparently other probation conditions) and the superior court monitors payments at periodic review hearings.

In this case, defendant was placed on probation for three years in January 2004 after pleading no contest to felony welfare fraud.[2] Defendant’s original probationary term was three years, which would have expired in January 2007. Near the end of that term, based on an allegation that defendant had not fully paid victim restitution of over $60, 000, her probation was summarily revoked on November 16, 2006. When she implicitly admitted that she had willfully not paid in full, her probation was formally revoked on April 19, 2007. The superior court kept defendant in revoked status for almost six years, until January 15, 2013, while monitoring her restitution payments at intermittent hearings. When defendant’s attorney questioned the legality of her status in January 2013, the trial court reinstated probation and extended it through July 15, 2015. By that date, defendant would have been subject to probation terms for 11½ years on a felony whose maximum sentence is three years.

For the reasons stated below, we will reverse the order reinstating probation after concluding that this practice is unauthorized by the probation statutes. While the lack of a certificate of probable cause precludes some of

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defendant’s contentions on appeal, she is entitled to challenge the unlawful extension of her revoked status. We will further conclude that defendant is not estopped by years long acquiescence from challenging the extension of her probationary status.


A. Initial Grant and Revocation of Probation

On January 9, 2004, the trial court placed defendant on probation for three years. The probation conditions imposed did not include providing a DNA sample (§ 296, subd. (a)(1)), nor the familiar condition to obey all laws. The court imposed the then-minimum restitution fund fine of $200.00 and waived the criminal justice administration fee and the probation supervision fee. The court ordered restitution to the Santa Clara County Social Services Agency, and referred the matter to the Santa Clara County Department of Revenue to determine defendant’s ability to pay fines and fees.

According to its presentencing report, the probation department had calculated the victim restitution owed as $44,261 in Aid to Families with Dependent Children payments and $16,161 for food stamps. A “Judgment and Victim Restitution Order” in the amount of $60,422 was entered on November 29, 2004. The order was signed by defendant and the court, reflecting defendant’s stipulation to the amount owed and her waiver of a formal restitution hearing.

On November 16, 2006, a “Petition for Modification of Terms of Probation” was filed alleging two violations: “1. The defendant failed to pay her victim restitution to the Department of Social Services in full and owes an approximate balance of $50, 739.00.” “2. The defendant failed to have her DNA collected pursuant to Section 296 PC. A notification letter was mailed to the defendant on May 16, 2006 and September 14, 2006....” Probation was summarily revoked the same day and a bench warrant was issued. The bench warrant was served on March 19, 2007.

At a hearing on April 19, 2007, defendant appeared in custody and was assisted by a Cambodian interpreter. The prosecutor asked to continue the hearing to work out a payment plan and to keep probation revoked. When defense counsel asked why probation was being revoked, the court answered: “Because it stops the clock, and to work out a payment plan so that the amount owed to the Department of Social Services through probation, if I revoke probation, in essence it stops the clock from going on further. Otherwise probation runs out.”

Defense counsel asserted that defendant had paid $50 a month faithfully according to an agreed payment plan, so there was no violation. The court

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explained that was not correct. “The presentencing report would show that as a term and condition of probation, she was to pay the full amount to the Department of Social Services. And the payment amount is set, not by the Court, but by the Department of Probation. [¶] So she may have been paying the minimum payments required by the Department of Probation, but she’s not amortizing the debt fast enough right now to pay it off within the period of probation. [¶] So in terms of the sentence that was issued by the judge, the defendant is in violation of probation unless she pays this full amount within the period of probation.” “And that’s why we require the admission and stopping the clock and seeing what payment plan we can work out.”

Defense counsel announced they were prepared to do that. The court asked defendant if she admitted β€œthe circumstances of violation set forth in this petition.” When defendant answered β€œ[y]es, ” the court revoked probation, continued the matter to May 1, 2007, and ...

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