The People v. Covington
| Decision Date | 11 August 2000 |
| Citation | 98 Cal.Rptr.2d 852 |
| Court | California Court of Appeals Court of Appeals |
| Parties | (Cal.App. 5 Dist. 2000) THE PEOPLE, Plaintiff and Respondent, v. CHERYL COVINGTON, Defendant and Appellant. F032872 Filed |
APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart, Judge.
Gregory H. Mitts for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Stan Cross and Brian G. Smiley, Deputy Attorneys General, for Plaintiff and Respondent.
CERTIFIED FOR PUBLICATION
The defendant, Cheryl Covington, appeals from an order denying her petition to expunge a grand theft conviction following termination of her probation. (Pen. Code, 1203.4.)FN1) She contends she was entitled to expungement as a matter of right because she complied with all the conditions of her probation, and in particular the requirement she pay restitution commensurate with her ability to pay. We disagree and will affirm the order.
Covington worked as a bookkeeper for Kern River Distributors. In 1989, she began diverting company funds to her personal use and continued to do so over the next three years until she was finally discovered and arrested in November of 1992. She subsequently was charged with four counts of grand theft (former 487, subd. (1), now 487, subd. (a))-one count for each year from 1989 to 1992-and one count of forgery ( 470). Pursuant to a plea agreement, Covington pleaded guilty to one of the theft counts subject to a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754). The other charges were dismissed.
On March 10, 1993, the court suspended imposition of sentence and placed Covington on five years' probation on the condition, among others, she serve one year in jail. The court also ordered her, pursuant to former section 1203.04, to pay $99,473.48 in restitution to her former employer through the probation department.
Following her release from jail, Covington began making payments at the rate of $150 per month, the amount the probation department determined she could afford. She evidently made all the payments as scheduled over the next four years. In addition, she deeded her interest in her house to the owner of Kern River Distributors, further reducing her liability by about $4,000.
In January of 1998, some two months before Covington's probation was due to end, the probation department filed a "DECLARATION LETTER" asking the court to revoke her probation for failure to comply with the restitution condition. Her outstanding balance was then about $88,000. At a hearing in April, the court denied the revocation petition, finding no evidence Covington had willfully failed to pay when she had the means to do so. ( 1203.2.)2 The court therefore reinstated her probation, which it then terminated. ( 1203.3.)
Covington thereafter filed a section 1203.4 petition to expunge her conviction. The court denied the petition on the ground she had not met the restitution condition.
Covington maintains the court was required to grant her expungement petition, despite her failure to pay the full amount of restitution, because she complied with the terms of her probation by making all court-ordered payments prior to termination. She argues, in effect, that her compliance was established by the court's earlier finding she had done nothing to warrant revocation of her probation.
Section 1203.4 provides in pertinent part:
"(a) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation ... the defendant shall, at any time after the termination of the period of probation, if he or she is not then serving a sentence for any offense, on probation for any offense, or charged with the commission of any offense, be permitted by the court to withdraw his or her plea of guilty ... and enter a plea of not guilty ... and ... the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall thereafter be released from all penalties and disabilities resulting from the offense of which he or she has been convicted ...."
Under section 1203.4, when a defendant has "fulfilled the conditions of probation for the entire probationary period" he or she "is entitled as a matter of right to have the plea or verdict of guilty changed to one of not guilty, to have the proceedings expunged from the record, and to have the accusations dismissed." (People v. Chandler (1988) 203 Cal.App.3d 782, 787, fn. omitted; People v. Johnson (1955) 134 Cal.App.2d 140, 144.)
In finding Covington had not satisfied the restitution condition of her probation, the court relied in large part on People v. Chandler, supra, 203 Cal.App.3d 782. As in the present case, the defendant in Chandler 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: "[W]hether 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.)
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 (See People v. Hernandez (1991) 226 Cal.App.3d 1374, 1378.) There is nothing in the Chandler decision to indicate the defendant could have satisfied the restitution condition during the period of probation.3
In any event, there were no grounds in the present case to revoke Covington's probation for failure to pay restitution. The trial court so found, and thus had no choice but to terminate probation. Consequently, we are presented with a somewhat different question than was the court in Chandler. We must decide whether a defendant who has fully complied with a schedule of restitution payments approved by the probation department and implicitly ordered by the court (as well as all other terms of probation) has thereby "fulfilled the conditions of probation for the entire period of probation" ( 1203.4) even though an unpaid balance remains at the time probation is terminated. In order to answer this question, it is necessary to reconcile the general requirement that a defendant pay restitution to his or her victim with the limitation that "[r]estitution shall be consistent with a person's ability to pay." ( 1203.2.) It will often be the case, as it was here, that a defendant lacks the ability to pay restitution in full within the period he or she is on probation.
The right of a crime victim to recover restitution is set out in article I, section 28, subdivision (b) of the California Constitution, which was enacted by a vote of the people in June of 1982 as part of Proposition 8. (People v. Vega-Hernandez (1986) 179 Cal.App.3d 1084, 1091-1092.) It provides in part:
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