People v. Salauyou CA6 ( 2016 )

Filed 4/26/16 P. v. Salauyou CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H041070
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CC619511)
v.
TSIMAFEI SALAUYOU,
Defendant and Appellant.
I. INTRODUCTION
At issue in this appeal is whether the trial court unlawfully extended a defendant’s
probation term twice to allow him to make more victim restitution payments and whether
defendant has timely challenged either extension.
On March 1, 2007, the court suspended imposition of sentence and placed
defendant Tsimafei Salauyou on felony probation for five years following his no contest
plea to driving with a blood alcohol level in excess of .08 percent (Veh. Code, § 23153,
subd. (b)) and his admission of personally inflicting great bodily injury (Pen. Code,
§§ 12022.7, subd. (a); 1203, subd. (e)(3)).1 In July 2011, the court extended the
probation term for one year to March 2013 without finding a probation violation in light
1
Unspecified section references are to the Penal Code.
of evidence that defendant had not fully paid victim restitution in the amount of $404,136
as ordered in March 2007. In February 2013, the court summarily revoked defendant’s
probation. Facing allegations of a willful failure to pay and a petition seeking
modification of probation, in May 2013 defendant agreed to a new five-year probation
term based on the petition being withdrawn without a violation being found. Defendant
did not appeal from either order extending probation. Instead, in January 2014, defendant
filed a motion requesting termination of probation because neither term extension was
authorized without a finding of a probation violation. Defendant has appealed from the
court’s April 2014 denial of his motion.
The Attorney General contends that it is too late now for defendant to challenge
either appealable order. Moreover, he is estopped from challenging the May 2013 order
to which he stipulated. Relying on this court’s recent decision in People v. Sem (2014)
229 Cal. App. 4th 1176 (Sem), defendant contends he is not estopped and the trial court
lacked authority to extend his probation on either occasion. For the reasons stated below,
we find defendant’s circumstances significantly different from Sem and we will affirm
the order.
II. TRIAL COURT PROCEEDINGS
A. CHARGES AND PLEA
A traffic accident on January 15, 2006 led to defendant being charged with driving
under the influence and personally inflicting great bodily injury on another driver,
Millicent Phillips (count 1; Veh. Code, § 23153, subd. (a)); §§ 12022.7, subd. (a), 1203,
subd. (e)(3)) and driving with a blood alcohol level exceeding .08 percent and personally
inflicting great bodily injury (count 2; Veh. Code, § 23153, subd. (b)); §§ 12022.7,
subd. (a), 1203, subd. (e)(3)). Defendant’s blood alcohol level was .17 percent. Phillips
suffered broken ribs, a broken right leg, facial fractures, and other injuries.
On June 28, 2006, defendant agreed as advised by counsel to accept a court offer
of a two-year top by pleading no contest to count 2. Defendant acknowledged that his
2
maximum sentence could be six years, but if sentenced to prison it would be for no more
or less than two years. He could also be placed on probation for up to five years. After
waiving his rights, defendant pleaded no contest to count 2 and admitted personally
inflicting great bodily injury.
B. IMPOSITION AND EXTENSION OF PROBATION
Sentencing was originally scheduled for August 11, 2006. After a number of
continuances, a hearing was held on March 1, 2007. The court stated there had already
been two separate full discussions as well as a full discussion at the bench.2 Defense
counsel agreed to submit the matter. The court suspended imposition of sentence and
placed defendant on formal probation for five years. Among the conditions of probation
were that defendant serve 364 days in jail and pay victim restitution of $404,136.
Defendant accepted probation on the stated terms and conditions.
A judgment and victim restitution order signed by defendant and the court was
filed on May 1, 2007 ordering defendant to make victim restitution payments totaling
$404,136 through the Department of Revenue.
On December 29, 2008, defendant was arrested for kicking his girlfriend with his
bare foot and a protective order issued two days later. On January 8, 2009, the protective
order was terminated when the district attorney declined to file new charges, but
defendant was arraigned on a violation of probation and remanded into custody.3
2
No reporter’s transcript of any preliminary discussions appears in the record on
appeal.
At the outset of the hearing on March 1, 2007, the court announced it had read and
considered the original probation report for August 11, a supplemental memo dated
September 5, and a supplemental report dated September 26, 2006. Only the original
report has been included in the record on appeal.
3
No petition to revoke probation based on this incident appears in the record. It
is described in defendant’s motion for release and a probation department memo.
3
Defendant responded with a motion for release on his own recognizance or alternatively
for reasonable bail. He explained that he is a Russian citizen with an asylum petition
pending in a federal immigration court. He had made regular restitution payments of
$150 per month since December 2007. After interviewing defendant and his girlfriend,
the probation department agreed that he should be released on his own recognizance. At
a hearing on March 4, 2009, the court found no probation violation, reinstated probation,
and ordered defendant released.
At a hearing on June 9, 2011, probation was revoked. Defendant was directed to
apply for a “prob[ation] transfer.” On July 12, 2011, a “petition for modification of term
of probation” was filed by the probation department. (Capitalization omitted.) The
petition gave the following “reason for the hearing.” (Capitalization omitted.) “The
defendant failed to pay Victim Restitution in full as ordered by the Court. The amount
ordered to Millicent Phillips was $404,136.00 with an unpaid balance of $397,900.00.
The defendant has made monthly payments in the amount of $150, with the last payment
on April 22, 2011, but Probation is due to expire on March 1, 2012, and Victim
Restitution will not be paid in full.”
The petition recommended revocation of probation.
At a hearing on July 12, defense counsel argued that the failure to pay was not
willful. With defendant’s annual wages of $30,000, it was impossible for him to pay the
full amount before the end of probation. He was paying what he could as well as
supporting his fiancée. The prosecutor argued that probation could have been imposed
for six years based on the underlying crime instead of five and that defendant was
spending his money on other items, his fiancée’s rent as well as his own, and child care
of $1,600. Defendant could afford to pay more than $150 monthly.
The court stated, “based on what I know, I don’t think I should violate him, so I’m
going to set aside the revocation. Probation is reinstated on the original terms and
4
conditions. [¶] I will modify the probation and extend it a year. [¶] Order that you pay
$300 a month.” Probation was extended to March 1, 2013.
At a hearing on February 26, 2013, the court ordered a maximum wage
garnishment of 25 percent and probation was revoked based on a probation department
memo noting that probation was due to expire on March 1, 2013. At a hearing on April
9, 2013, defendant unsuccessfully objected to the probation revocation.4
On May 20, 2013, a second “petition for modification of term of probation” was
filed. (Capitalization omitted.) The petition gave the following “reason for the hearing.”
(Capitalization omitted.) “The defendant failed to pay Victim Restitution in full as
ordered by the Court. The amount ordered to Millicent Phillips was $404,136.00. The
current unpaid balance is $391,287.75. The defendant has been making regular payments
as ordered at his last court date, but Probation was due to expire on 3/1/13, and Victim
Restitution was not paid in full. The Court has requested a full report.”
The prosecutor separately filed “violation of probation allegations” (capitalization
omitted) that “[t]he Defendant has willfully failed to pay restitution to the best of his
ability. [For example, the defendant has been paying into 401k and stock purchase plans
at his place of employment. The amount of payment on his 3/15/13 paycheck is
$392.33.]”
At a hearing on May 20, 2013, the court explained that, based on informal
discussion with defense counsel and the prosecutor, “[m]y understanding is that I believe
the petition for alleged violation of probation will be withdrawn.” The prosecutor agreed.
The court continued, “[a]nd that would be withdrawn as a result of our discussion,
wherein the court would reinstate probation under the original terms and conditions,
modify probation to include a new five-year grant from that date.” Defense counsel
4
No reporter’s transcript of either hearing appears in the record on appeal.
5
agreed. Defense counsel also pointed out that defendant was entitled to an offset of
$115,530.50 based on an insurance payment to the victim. The court stated: “[p]robation
will be modified with a new grant of five years, to expire five years from today’s date.
Today being the 20th of May 2013[,] [i]t would expire May 20, 2018. So it’s reinstated
under the original terms and conditions.” The court recognized that defendant was
paying $474.50 every two weeks through a wage garnishment.
At the end of the hearing was the following discussion.
“[Prosecutor]: . . . I think counsel wanted to make sure the minute order reflects
this was not a violation of probation, so as not to affect his green card status.
“[The Court]: Correct. So that’s why the petition was ordered off calend[a]r.
[¶] So there’s no adjudication of the violation.
“[Defense Counsel]: And no finding?
“[The Court]: No finding.”
On January 14, 2014, defendant filed a motion to terminate probation. He
contended that the original one-year probation extension was unauthorized, so the court
did not have jurisdiction to impose a later five-year extension. Alternatively, the five-
year extension was unauthorized absent an established probation violation.
On February 14, 2014, the probation department submitted an “Order for
Restitution and Abstract of Judgment (Judicial Council Form CR-110/JV-790)” for the
judge’s signature. The judge signed the order at a hearing ten days later, ordering
defendant to pay the victim $266,404.00.
On April 9, 2014, the probation department filed opposition to early termination of
probation. The prosecutor also opposed defendant’s motion.
At a hearing on April 9, defendant argued that there was no basis for extending his
initial probation grant from five to six years on July 12, 2011 “because there was no
violation and no modification of probation, no finding of violation . . . .” Also, the court
was not authorized to extend probation five years on May 20, 2013. “[E]ven if it was a
6
negotiated disposition with the Court and his counsel . . . he can’t waive his statutory
rights in that manner . . . without a finding of wrongdoing.” Defense counsel
acknowledged in response to a question by the court, “The maximum period of probation
for this case based upon his plea was—would have been six years.”
The prosecutor responded that no violation of probation was needed to authorize
extending probation to the maximum term in 2011. In May 2013, the only reason there
was no finding of a probation violation was that defense counsel was concerned about
adverse consequences for defendant’s pending immigration request. To accommodate
that concern, counsel and the court worked out a negotiated disposition agreeing to a new
five-year grant if the petition was withdrawn. “I understand that we didn’t have an
express finding of violation of probation but it was everybody’s understanding that it was
in violation of probation when we were talking about this in chambers and the defendant
agreed to the five years.” Defendant was estopped from changing his position.
The court ruled: “[T]he July 11, 2012 extension of probation was valid pursuant
to People v. Cookson and Penal Code Section 1203.3(a). [¶] The Court will further find
that the May 20th, 2013 imposition of new grant of probation is appropriate and valid
given the authority of the Court pursuant to Penal Code 1203.2(e) together with the
negotiated plea that was executed and entered into by respective parties. So the motion to
terminate probation at this time is denied.”
III. ANALYSIS
A. APPEALABILITY
In Sem, supra, 229 Cal. App. 4th 1176, 1186, we discussed the appealability of
orders revoking and reinstating probation. “An order revoking probation while
imposition of judgment is suspended is not directly appealable, but is reviewable on
appeal from the judgment following the revocation. (People v. Robinson (1954) 43
Cal. 2d 143, 145; People v. Delles (1968) 69 Cal. 2d 906, 908-909; People v. Avery (1986)
179 Cal. App. 3d 1198, 1201, fn. 5; contra People v. Woods (1978) 84 Cal. App. 3d 149,
7
154.) It is the disposition after a probation revocation that is appealable. Defendant
correctly contends that the January 15, 2013 order reinstating and extending probation
was the first ruling appealable essentially as an order after judgment affecting defendant’s
substantial rights. (§ 1237, subd. (b); In re Bine (1957) 47 Cal. 2d 814, 817; People v.
Ramirez (2008) 159 Cal. App. 4th 1412, 1421 [(Ramirez)].)”
Unlike the revocation order in Sem, which we concluded was not appealable, an
order modifying probation is appealable as an order after judgment affecting a party’s
substantial rights, considering that an order granting probation is deemed a final
judgment in section 1237. (In re Bine, supra, 47 Cal.2d at p. 817.)
An order granting probation, like an order modifying probation, is immediately
appealable. Appellate courts do not allow probationers to extend the time for appeal by
the device of appealing from an order denying a motion to modify probation conditions
instead of appealing from the initial imposition of conditions. (People v. Djekich (1991)
229 Cal. App. 3d 1213, 1219.) This is analogous to the restrictions imposed on motions to
vacate criminal convictions. People v. Totari (2002) 28 Cal. 4th 876, 882, explained:
“Although section 1237, subdivision (b), literally permits an appeal from any
postjudgment order that affects the ‘substantial rights’ of the defendant, the right to
appeal is limited by the qualification that, ordinarily, no appeal lies from an order
denying a motion to vacate a judgment of conviction on a ground which could have been
reviewed on appeal from the judgment. (People v. Thomas (1959) 52 Cal. 2d 521, 527
(Thomas).) ‘In such a situation appeal from the judgment is an adequate remedy;
allowance of an appeal from the order denying the motion to vacate would virtually give
defendant two appeals from the same ruling and, since there is no time limit[] within
which the motion may be made, would in effect indefinitely extend the time for appeal
from the judgment.’ ”
Ramirez, supra, 159 Cal. App. 4th 1412, cited by neither side, is educational. In
that case, in July 2003 the trial court imposed a four-year middle term prison sentence for
8
a drug offense, but suspended execution of the sentence and placed the defendant on
three years probation. (Id. at p. 1418.) In December 2004, to resolve new sexual assault
charges and have probation reinstated, the defendant generally admitted that the court
could find a violation of probation without admitting any particular crime and agreed the
court could increase his sentence to the five-year upper term. (Id. at pp. 1418-1419 &
fn. 2.) After another probation violation, in August 2006 the court revoked probation and
imposed the five-year sentence, from which the defendant appealed. (Id. at pp. 1419-
1420.)
On appeal, the defendant challenged the court’s authority to revoke probation and
to increase the sentence in December 2004. The Attorney General questioned the
timeliness of those appellate arguments. (Ramirez, supra, 159 Cal.App.4th at p. 1420.)
The court noted: “In general, an appealable order that is not appealed becomes final and
binding and may not subsequently be attacked on an appeal from a later appealable order
or judgment. [Citation.] Thus, a defendant who elects not to appeal an order granting or
modifying probation cannot raise claims of error with respect to the grant or modification
of probation in a later appeal from a judgment following revocation of probation.” (Id. at
p. 1421)
The appellate court observed that the defendant’s challenge of the December 2004
order appeared “to be untimely.” (Ramirez, supra, 159 Cal.App.4th at p. 1421.)
However, the defendant was able to raise at any time the court’s lack of fundamental
jurisdiction. (Id. at pp. 1422-1423.) Therefore, the timeliness of the challenge depended
on the defendant establishing a jurisdictional defect.
The appellate court concluded that the trial court lacked authority to increase the
initial sentence after it became final. (Ramirez, supra, 159 Cal.App.4th at p. 1420 at
pp. 1423-1425.) However, the appellate court further concluded that “the court merely
exceeded its jurisdiction but did not lack jurisdiction in any fundamental sense over
appellant or the subject matter.” (Id. at p. 1427.) Because there was no lack of
9
fundamental jurisdiction, the court concluded that defendant had “forfeited his challenge
to the December 2004 order by failing to seek a timely appeal from that order.” (Ibid.,
fn. omitted.)
Similarly, because defendant could have appealed from the one-year extension of
probation in July 2012 and the five-year extension in May 2013, we conclude that he is
unable to challenge those rulings without establishing that the court lacked fundamental
jurisdiction to make either ruling.
B. JURISDICTION TO EXTEND PROBATION TERM ONE YEAR
Defendant contends that the trial court exceeded its jurisdiction by extending his
five-year probation term to six years in July 2011.
In a series of cases, this court has considered what adjustments may be made to a
defendant’s probation term to allow more time to pay victim restitution. (People v.
Medeiros (1994) 25 Cal. App. 4th 1260 (Medeiros); People v. Freidt (2013) 222
Cal. App. 4th 16; Sem, supra, 229 Cal. App. 4th 1176.)5 We noted there is an inevitable
tension between a California crime victim’s right to full restitution for the economic
losses resulting from criminal conduct and a defendant’s right to avoid being incarcerated
based on an inability to pay full restitution.
In 1982, the Victims’ Bill of Rights added to California’s Constitution “the right
of crime victims to receive restitution directly ‘from the persons convicted of the crimes
for losses they suffer.’ (Cal. Const., art. I, § 28, subd. (b).)” (People v. Giordano (2007)
42 Cal. 4th 644, 652.) With rare exceptions, “in every case in which a victim has suffered
economic loss as a result of the defendant’s conduct, the court shall require that the
defendant make restitution to the victim or victims in an amount established by court
5
Our opinion in Sem was filed on September 17, 2014, almost two months before
the Attorney General’s brief, but it is mentioned only in defendant’s reply brief.
10
order . . . . The court shall order full restitution unless it finds compelling and
extraordinary reasons for not doing so and states them on the record.” (§ 1202.4,
subd. (f), our emphasis.) “[T]he restitution order . . . shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every determined economic loss
incurred as the result of the defendant’s criminal conduct . . . .” (Id. at subd. (f)(3)..
Section 1202.4 mandates victim restitution in every case involving conviction of a crime
regardless of the disposition. Section 1203.1 applies when restitution is ordered as a
condition of probation.
On the other hand, a period of felony probation ordinarily cannot exceed “the
maximum possible term of the sentence” except that it may be up to five years when “the
maximum possible term of the sentence is five years or less . . . .” (§ 1203.1, subd. (a).)
“[A] probation violation must be willful to justify revocation of probation.” (Sem, supra,
229 Cal. App. 4th 1176, 1187, and cases there cited.) In particular, probation
“[s]upervision shall not be revoked for failure of a person to make restitution imposed as
a condition of supervision 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.” (§ 1203.2, subd. (a) [the 1983 amendment].)
In some cases, payment of full restitution may be impossible within five years or
even in a defendant’s remaining life if the defendant’s financial ability is limited and the
victim restitution award is high.
In Sem, we explained that People v. Cookson (1991) 54 Cal. 3d 1091, 1096
(Cookson), interpreted and applied the 1983 amendment of section 1203.2, subdivision
(a). (Sem, supra, 229 Cal.App.4th at p. 1189.) “Cookson . . . determined that, even
though probation cannot be revoked without a prior violation and a nonwillful failure to
pay is not a revocable violation, a nonwillful failure to pay the full amount of restitution
is a change in circumstances authorizing a court to modify probation by extending it.
(Cookson, supra, at pp. 1095, 1098.) Cookson upheld an order extending the
11
probationary period from three years to five to assure that restitution would be made. (Id.
at pp. 1093.)” (Sem, supra, at p. 1190.)
Defendant correctly relies on Cookson as establishing that it would exceed a
court’s jurisdiction to modify probation based on the same facts underlying the initial
probation grant. (Cookson, supra, 54 Cal.3d at p. 1095.) However, defendant has
overlooked the conclusions of Cookson. “[S]ection 1203.2(a) does not prohibit a court
from extending a term of probation when the probationer fails to pay restitution as
ordered because of an inability to pay.” (Id. at p. 1097.) Under the probation statutes,
“the sentencing court need not await a violation of the conditions of probation before it
may modify the conditions of probation.” (Id. at p. 1098.)
Defendant contends that the court in July 2011 extended his “probation for an
additional year without finding that he violated his probation and without evidence of any
change in circumstances. [Defendant] had not missed any restitution payments and had
not violated his probation in any way.” That was equally true of Mr. Cookson. “[T]he
department ordered that defendant pay $12,000, and devised a monthly payment
schedule. Defendant made all monthly payments as required by the department, but at
the end of three years he had paid only a part of the total amount originally ordered. On
motion by the department, the trial court ordered defendant’s probation extended for two
years to assure further restitution would be made.” (Cookson, supra, 54 Cal.3d at
p. 1093.)
Defendant also relies on People v. Leiva (2013) 56 Cal. 4th 498 (Leiva). As we
noted in Sem, supra, 229 Cal. App. 4th 1176, “the central issue in Leiva involved an
attempt to establish a probation violation that occurred after the court-imposed
probationary period had elapsed . . . .” (Id. at p. 1192.) That is not our situation.
The trial court correctly concluded that the one-year extension in July 2011 was
authorized under Cookson based on the evidence that defendant would not have fully
12
paid the victim restitution ordered by the end of the original five-year probation term.
There was no judicial error, let alone a fundamental lack of jurisdiction.
C. JURISDICTION TO EXTEND PROBATION FIVE YEARS
Defendant contends the trial court exceeded its jurisdiction in extending his
probation term for five more years in May 2013.
We also discussed this topic in Sem. That defendant was originally placed on
probation for three years in January 2004 and ordered to pay $60,422. (Sem, supra, 229
Cal.App.4th at p. 1181.) In November 2006, a petition to modify probation alleged that
she had a remaining unpaid balance of over $50,000. (Ibid.) At a hearing in April 2007,
we concluded that she implicitly admitted allegations of willful failure to pay while
having the ability to pay. (Id. at pp. 1182, 1187-1188.) The court revoked probation (id.
at p. 1182), but then kept her in a state of “suspended animation” (id. at p. 1180). As we
explained, “The trial court exercised none of its statutory options upon formally revoking
probation on April 19, 2007. It did not discharge defendant from probation. It did not
sentence defendant to prison. It did not reinstate probation on modified terms, at least not
before January 15, 2013.” (Id. at p. 1192.)
The problem in Sem was that the trial court lacked authority after revoking
probation to keep a probationer in a “perpetually revoked status . . . until long after the
expiration of the probationary period.” (Sem, supra, 229 Cal.App.4th at p. 1180.)
“Based on an admission that defendant had willfully failed to pay restitution, the trial
court could have revoked probation and, as an alternative to sentencing defendant to
prison, could have reinstated probation ‘for that period and with those terms and
conditions as it could have done immediately following conviction.’ (§ 1203.2,
subd. (e).) Because the maximum prison sentence for felony welfare fraud is three years,
the court could have reinstated probation for up to five more years, until April 19, 2012.
(§ 1203.1, subd. (a).)” (Id. at pp. 1191-1192, fn. omitted.) Sem thus acknowledged an
13
exception to the original maximum probation term specified in section 1203.1,
subdivision (a), when a 1957 amendment of section 1203.2, subdivision (e) applies.6
We reiterated the effect of this amendment in Medeiros, supra, 25 Cal. App. 4th
1260. “ ‘The purpose of the amendment (Pen.Code, § 1203.2) was to liberalize the rule
and permit the court not only to retain the right to impose sentence at a subsequent time,
but also to extend the original term of probation to the maximum time for which it could
have been originally fixed in lieu of sentencing or, as an alternative, to grant a completely
new term of probation without reference to the length of the original term or time served
under it. As would the original, the period of the new term would be limited in time only
by the length of the maximum period for which the defendant could be sentenced for the
original offense.’ ” (Id. at p. 1265, quoting People v. Carter (1965) 233 Cal. App. 2d 260,
267-268.) In Medeiros, we concluded that this probation term exception does not apply
when there is no evidence of a willful violation of probation justifying revocation. (Id. at
p. 1266.)
In his reply brief, defendant contends that he is in the same position as Monica
Medeiros, with the trial court extending his probation beyond the initial statutory
maximum without finding a willful failure to pay restitution. In that case, however, the
trial court reinstated probation and extended it for five more years after five years on
6
That subdivision provides: “If probation has been revoked before the judgment
has been pronounced, the order revoking probation may be set aside for good cause upon
motion made before pronouncement of judgment. If probation has been revoked after the
judgment has been pronounced, the judgment and the order which revoked the probation
may be set aside for good cause within 30 days after the court has notice that the
execution of the sentence has commenced. If an order setting aside the judgment, the
revocation of probation, or both is made after the expiration of the probationary period,
the court may again place the person on probation for that period and with those terms
and conditions as it could have done immediately following conviction.” (§ 1203.2,
subd. (e).)
14
probation despite finding that she “was not in violation of her probation . . . .” (Medeiros,
supra, 25 Cal.App.4th at p. 1262.)
In this case, there was no express finding of a probation violation on
May 20, 2013, but neither was there a finding of no violation. There was uncontradicted
evidence that the probation violation allegations were withdrawn to accommodate
defendant’s concern over the potential negative impact of a probation violation on his
immigration status. On May 20, 2013, defendant stipulated to a five-year probation
extension conditioned on withdrawal of the petition and the absence of a judicial finding.
Here, as in Sem, the Attorney General relies on In re Griffin (1967) 67 Cal. 2d 343
(Griffin) to assert that defendant is estopped to challenge the five-year probation
extension. “The defendant in Griffin was admitted to probation on condition that he
make monthly restitution payments of $100. He failed to make the payments and a
revocation hearing was scheduled for shortly before probation was to expire. The
defendant obtained a continuance of the hearing in order to hire private counsel. After
the hearing and revocation the defendant pointed out that the probationary term had
lapsed in the interim. Whether the court had jurisdiction to revoke probation was raised
by petition for habeas corpus.” (Sem, supra, 229 Cal. App. 4th 1193.)
“The Supreme Court rejected the notion that untimely revocation deprived
the trial court of subject matter jurisdiction. (Griffin, supra, 67 Cal.2d at p. 347.)
The court discussed general principles of estoppel: ‘When, as here, the court has
jurisdiction of the subject, a party who seeks or consents to action beyond the
court’s power as defined by statute or decisional rule may be estopped to complain
of the ensuing action in excess of jurisdiction. [Citations.] Whether he shall be
estopped depends on the importance of the irregularity not only to the parties but
to the functioning of the courts and in some instances on other considerations of
public policy. A litigant who has stipulated to a procedure in excess of
jurisdiction may be estopped to question it when “To hold otherwise would permit
15
the parties to trifle with the courts.” [Citation.] On the other hand waiver of
procedural requirements may not be permitted when the allowance of a deviation
would lead to confusion in the processing of other cases by other litigants.
[Citation.] Substantive rules based on public policy sometimes control the
allowance or disallowance of estoppels.’ (Id. at pp. 347-348.) Specifically, the
court concluded that, ‘[b]y seeking a continuance to a time beyond the end of the
probationary term [the defendant] asked the court to do in a manner that was in
excess of jurisdiction what it could have done properly by immediately revoking
probation and continuing the matter for a hearing and determination as to the
alternatives of reinstatement of probation or imposition of sentence.’ (Id. at
pp. 348-349.)” (Sem, at pp. 1193-1194.)
In Sem, supra, 229 Cal. App. 4th 1176, we concluded that the probationer was not
estopped to complain of being kept in perpetually revoked status, because it was not her
proposal to “ ‘stop the clock,’ ” but the trial court’s. (Id. at p. 1194.) Defendant relies on
Sem, but his position is quite different. The court and the prosecutor acquiesced to his
request to avoid proof and a finding of a probation violation while he agreed to a five-
year probation extension in the absence of such a finding. While extension of a probation
term beyond the initial maximum period is ordinarily warranted only by an admission or
finding of a probation violation, in this case defendant agreed to an extension in order to
avoid a formal finding. We conclude he is estopped to argue now that a formal finding
was jurisdictional.
In People v. Ford (2015) 61 Cal. 4th 282 (Ford), the Supreme Court recently
followed Griffin in concluding that a probationer was estopped to challenge a court order
imposing victim restitution after expiration of his probation term. The defendant was
placed on probation for three years beginning in October 2008. That case, like this one,
involved personal infliction of great bodily injury in a traffic accident. The probation
department did not calculate an amount of victim restitution until May 2010. The
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defendant asked for a hearing, and the hearing was continued many times, sometimes at
the defendant’s request and always with his consent. Probation was also extended three
times with defendant’s consent to March 30, 2012. After a restitution hearing in January
2012, the defendant was given time to rebut evidence of the victim’s losses. It was
continued three times in March 2012, last at the prosecutor’s request. In April 2012, the
defendant objected to further hearings because probation had lapsed. (Id. at pp. 285-
286.) The Supreme Court noted that the “[d]efendant in this case did not seek the [final]
continuance. But estoppel can also apply to a party who merely consents to a
continuance to a date beyond the court’s ordinary authority to act.” (Id. at p. 288.) “In
the circumstances here, where defendant’s own requests played a role in delaying the
proceedings and defendant did not object to a continuance of the restitution hearing to a
date beyond his probationary term, he can be understood to have consented to the
continuance.” (Ibid.)
In Ramirez, supra, 159 Cal. App. 4th 1412, the appellate court not only concluded
that the defendant’s challenge to a probation modification was untimely, but that he was
“estopped to complain that the court exceeded its jurisdiction.” (Id. at p. 1428.) “In
exchange for agreeing to increase his suspended sentence by one year, appellant received
the benefit of being reinstated on probation and released from custody. Having accepted
the benefits of his plea, he should not now be able to better the bargain by scaling back
the increased sentence that was a fundamental component of the plea deal.” (Ibid.)
The case for estoppel is stronger here than in Ford. Like Ramirez, defendant did
not merely acquiesce in the court making no finding of a probation violation, he actively
requested it. Defendant will not now be heard to complain of the absence of such a
finding.
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IV. DISPOSITION
The order denying the request to terminate probation is affirmed.7
7
An order denying modification of probation is not appealable unless it raises
new grounds not available on appeal from the initial probation grant. Because we have
concluded that defendant is raising grounds that could and should have been raised on
appeal from the earlier orders extending probation, we could dismiss this appeal as from
a nonappealable order. However, because defendant has suggested the earlier orders
suffered from a jurisdictional defect, we will instead affirm the latest order.
18
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
MÁRQUEZ, J.
People v. Salauyou
H041070
19