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California Probation Cannot Exceed Maximum for Unpaid Restitution

California Probation Cannot Exceed Maximum for Unpaid Restitution

by Mark Wilson

The California Court of Appeal, Sixth Appellate District, held on September 17, 2014 that trial courts lack authority to hold probationers in “suspended animation” beyond their maximum sentence to ensure full payment of victim restitution.

In California, restitution can be ordered as a probation condition and a court may not revoke probation for nonpayment unless the probationer has the ability to pay but willfully fails to do so. If nonpayment of restitution is not willful, a term of probation may be modified but not revoked.

Upon an alleged violation, a trial court can summarily revoke probation to preserve the court’s jurisdiction pending a formal revocation hearing. When a violation is established, the court may modify, revoke, terminate or reinstate probation. A felony probation term can not exceed the maximum sentence; probation may be extended up to five years, however, when the maximum sentence is five years or less.

On November 7, 2003, Heng Sem pleaded no contest to felony welfare fraud, which has a three-year maximum sentence. The trial court placed Sem on probation for three years in January 2004. As a condition of probation, she was ordered to pay $60,422 in restitution.

Sem diligently paid $50 each month toward her restitution obligation. Yet she would still owe approximately $50,739 when her probation term ended in January 2007. As such, on November 16, 2006 the state filed a petition to modify probation, alleging that Sem was in violation of her conditions of probation by failing to pay her restitution in full.

The trial court summarily revoked Sem’s probation the same day to “stop the clock,” stating, “[o]therwise probation runs out.” At an April 19, 2007 formal revocation hearing, the court found that Sem had violated her probation by failing to pay full restitution and continued the hearing until May 1, 2007. At that time, the court placed Sem on “the victim restitution calendar” in perpetual revoked status for almost six years, while monitoring her restitution payments at 15 different hearings until January 15, 2013.

During that final hearing, defense counsel requested reinstatement and termination of Sem’s probation. The prosecutor objected because Sem still owed $19,869 in restitution. The trial court reinstated her probation “on the original terms and conditions” through July 2015 with minimum monthly payments of $300. By that time Sem would have been subject to a term of probation for 11 years on a felony that carried a three-year maximum sentence.

Finding that the trial court’s practice was not authorized by the probation statutes, the Court of Appeal reversed the January 15, 2013 order and directed the trial court to discharge Sem from probation.

“The superior court here has created a status of perpetual revocation in which a probationer remains obligated to comply with a probation condition requiring payment of restitution (and other probation conditions) for a substantial time after the maximum probationary period,” the appellate court wrote. “The practical effect of this status is a reinstatement of probation on the same terms for an indefinite period.”

The Court of Appeal agreed “that the summary revocation tolled the probationary period for five months and three days until defendant appeared at the revocation hearing,” but rejected “the suggestion that formal revocation further tolled the probationary period.” Rather, the trial court “was not authorized to postpone its disposition and thereby impose a de facto reinstatement of probation on the same terms for a period exceeding the statutory maximum of five years.”

The Court noted that nothing in its decision “precludes enforcing the victim restitution order as a civil judgment” after a term of probation ends, should the probationer still owe restitution. See: People v. Sem, 229 Cal. App. 4th 1176 (Cal. App. 6th Dist. 2014).


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Related legal case

People v. Sem