Probation Extension for Not Paying Restitution to the Victim
In People v. Chandler (1988), 203 Cal. App. 3d 782 the defendant was granted probation on the condition, among others, he pay restitution to his victim.
The amount was later determined to be $ 2,571.65, made payable at $ 20 per month over the three-year probationary period.
The defendant, who was unemployed for the first year, initially made some payments of $ 5 or $ 10, but eventually started paying $ 20 each month once he found a job.
Even so, over the course of the three years he paid only a few hundred dollars.
Therefore, on the day before probation was to end, the probation department asked the court to extend it by two years so the defendant could pay the balance.
In order to retain jurisdiction and toll the running of the probationary period ( 1203.2, subd. (a)), the court made a preliminary finding the defendant had failed to comply with the restitution condition, and so revoked his probation subject to a formal violation hearing.
At the hearing, however, the court reinstated and terminated probation in light of the defendant's efforts to pay. a year later, the defendant filed a section 1203.4 petition.
The petition was denied based on the court's determination the defendant had failed to satisfy the restitution condition. (Chandler, supra, 203 Cal. App. 3d at pp. 785-786.)
The appellate court framed the issue on appeal as follows:
"Whether the trial court was required to grant defendant's application for relief under Penal Code section 1203.4 because, as defendant contends, he had complied with the terms of probation during the probationary period, and the court terminated probation before defendant had paid restitution in full." (People v. Chandler, supra, 203 Cal. App. 3d at p. 786.)
The defendant argued the lower court's decision not to revoke his probation amounted to an implied finding of " 'good conduct and reform' " to the effect that he had met all the conditions of his probation notwithstanding his failure to pay restitution in full. (Id. at pp. 787-788.)
The appellate court rejected this contention.
As it explained, a grant of probation is not a matter of right but an act of clemency, and a decision to revoke probation when the defendant fails to comply with its terms rests within the broad discretion of the trial court. by contrast, the defendant is entitled by right to relief under section 1203.4 if he or she has fulfilled the conditions of probation during the entire probationary period.
Thus a decision by the court, in the exercise of its discretion, declining to revoke probation despite a violation is not the same as a determination the defendant fully complied with all its conditions. (People v. Chandler, supra, 203 Cal. App. 3d at pp. 788-789; see also People v. Turner (1961) 193 Cal. App. 2d 243, 247 [14 Cal. Rptr. 130].)
The Chandler court's conclusion, of course, rested on the premise there were grounds to revoke the defendant's probation.
"Although the court could have revoked defendant's probation for failure to pay restitution in full [citation], it chose not to do so." (People v. Chandler, supra, 203 Cal. App. 3d at p. 789.)
The basis of this statement, however, is not altogether clear.
As noted, section 1203.2 provides, as it did at the time Chandler was decided, that "probation shall not be revoked for failure of a person to make restitution pursuant to Section 1203.04 as a condition of probation unless the court determines that the defendant has willfully failed to pay and has the ability to pay. Restitution shall be consistent with a person's ability to pay." (See People v. Hernandez (1991) 226 Cal. App. 3d 1374, 1378 [277 Cal. Rptr. 444].)
There is nothing in the Chandler decision to indicate the defendant could have satisfied the restitution condition during the period of probation.