Filed 3/27/14 P. v. Dang CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039080
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. CC953164)

             v.

PHUC NGUYEN DANG,

         Defendant and Appellant.



                                                   INTRODUCTION
         Defendant Phuc Nguyen Dang appeals from an order extending his probation
term. He claims that the trial court did not have jurisdiction to modify the probation term
because there were no changed circumstances since the time of the original order. For
the reasons stated below, we will affirm the order.
                                                   BACKGROUND1
         Defendant was in a dating relationship with the victim. On August 29, 2009,
defendant and the victim got in an argument. Defendant took the victim’s phone and got
into his car to leave. As defendant was backing out of the driveway, the victim jumped
onto the hood of the car. Defendant drove down the street with the victim on the hood
and then stepped on his brakes. The victim fell off the car and injured her head. At the


         1
             The factual background is taken from the probation report.
hospital, defendant initially told the police officers that the victim had been injured in a
skateboarding accident. The victim had brain surgery later that evening. The surgeon
said that the victim would survive but would never be the same. The surgeon indicated
that if defendant had been truthful about the accident when he first arrived at the hospital,
some damage could have been prevented.
       In March 2010, defendant pleaded no contest to assault with a deadly weapon
(Pen. Code, § 245, subd. (a)(1))2 and admitted the allegation that he personally inflicted
great bodily injury during the commission of a domestic violence felony (§ 12022.7,
subd. (e)). Defendant signed a plea form, which specified that the maximum sentence for
his offense was nine years. The plea form also stated that he would have to pay
restitution to the victim. At the change of plea hearing, defense counsel indicated that he
informed defendant that he “could be required to pay restitution which could be
significant in this case.”
       At sentencing on April 2, 2010, the trial court suspended imposition of sentence
and placed defendant on probation for three years with various conditions, including that
he serve 364 days in jail, pay various fines and fees, and pay victim restitution in the
amount of $139,915.78. Defendant was referred to the Department of Revenue for a
determination of the ability to pay the fines and fees. The court did not make an order
regarding a payment plan for victim restitution.
       On July 19, 2010, at a domestic violence probation review hearing, defendant
expressed that he had difficulty with the $186 monthly payments of the fines and fees he
was ordered to pay the Department of Revenue. The trial court reduced the monthly
payment amount to $50, and it stayed those fines and fees until July 1, 2011. The court
noted that the “direct restitution payment to [the] victim for losses that she sustained, that
isn’t stayed. You still need to make that right with the victim.”


       2
           All further statutory references are to the Penal Code unless otherwise specified.
                                               2
       On July 12, 2011, defendant again sought relief from the fines and fees. The trial
court stayed the payment of the fines and fees for six months until January 1, 2012, at
which he would start paying $50 a month.
       On November 20, 2012, the probation officer reported that defendant failed to pay
victim restitution in the full amount as ordered by the court. The balance owed was
$139,265.78. The probation officer noted that defendant “has made consistent monthly
payments in the amount of $50 (Court Order dated 07/12/2011), but Probation is due to
expire on April 25, 201[9], and Victim Restitution will not be completed.” In a
memorandum to the trial court, the probation officer indicated that after the sentencing
hearing, the court set victim restitution payments at $50 per month and allowed defendant
to start his payments on January 1, 2012.3 The probation officer stated that victim
restitution will not be completed before probation was set to expire, and thus, he
recommended extending probation.
       At a hearing on November 29, 2012, defendant argued that there was no changed
circumstance justifying an extension. The court adopted the recommendation of the
probation department and extended defendant’s probation to the maximum term, which
was to April 25, 2019. The court ordered defendant to provide financial declaration
information to the probation department, and it put the matter on the restitution calendar
for further review and discussion of payments.
                                       DISCUSSION
       Defendant contends that the trial court lacked jurisdiction to extend probation to
the maximum term because there was no change in circumstances shown.



       3
          We note that the trial court did not specify that the $50 monthly payments
pertained to victim restitution. However, according to the probation department’s
records, the probation department apparently construed the trial court’s July 12, 2012
order as fixing defendant’s monthly payments of victim restitution at $50, starting on
January 1, 2012.
                                             3
       “A court may revoke or modify a term of probation at any time before the
expiration of that term. (§ 1203.3.) This power to modify includes the power to extend
the probationary term. [Citation.] Pursuant to section 1203.2, subdivision (b) . . . a court,
on sufficient notice to the probationer, may ‘modify, revoke, or terminate the probation of
the probationer upon the grounds set forth in [section 1203.2,] subdivision (a) if the
interests of justice so require.’ ” (People v. Cookson (1991) 54 Cal.3d 1091, 1095
(Cookson).) Under section 1203.1, subdivision (a), an order of probation may be
imposed for five years or the maximum term of imprisonment, whichever is longer.
(Cookson, supra, 54 Cal.3d at p. 1094, fn. 2.) However, a change in circumstance is
required before a court has jurisdiction to extend or otherwise modify probation, and an
order modifying the terms of probation based upon the same facts as the original order
granting probation is in excess of the court’s jurisdiction, for the reason that there is no
factual basis for it. (Id. at p. 1095; In re Clark (1959) 51 Cal.2d 838, 840; In re Bine
(1957) 47 Cal.2d 814, 818.)
       In Cookson, the trial court ordered the defendant to make complete restitution to
the victim and to do so in accordance with terms to be set by the probation department.
The probation department determined total restitution to be $12,000 and directed the
defendant to make monthly payments of $100. When probation was about to expire, the
probation department realized that the defendant could not comply with the court’s order
to make complete restitution before his term of probation expired because they had set his
monthly payments too low. The day before probation was set to expire, the probation
department sought to extend the term and increase the monthly payment so that the
defendant could comply with the condition that he make full restitution. The court
granted the petition and modified probation. (Cookson, supra, 53 Cal.3d at p. 1094.)
       In affirming, the appellate court concluded that although the defendant’s inability
to comply with the trial court’s order was not his fault, “the trial court had jurisdiction to
modify the probation because defendant’s inability to pay amounted to a change of
                                               4
circumstance.” (Cookson, supra, 53 Cal.3d at p. 1095.) The Supreme Court affirmed.
The court stated that “the Court of Appeal correctly determined that a change in
circumstance could be found in a fact ‘not available at the time of the original order,’
namely, ‘that setting the pay schedule consistent with defendant’s ability to pay had
resulted in defendant’s inability to pay full restitution as contemplated within the original
period of probation.’ ” (Ibid.) The court noted that “[a]llowing modification of probation
to facilitate the recovery of restitution as originally contemplated by the court enables the
court to fashion a remedy that best serves the goals of probation. (Id. at p. 1097.)
       Defendant contends that Cookson is distinguishable from the present case because
there, the trial court contemplated that full restitution would be paid during the original
probationary period. He also contends that here, unlike Cookson, there is an absence of a
payment schedule on the record. We reject these contentions and conclude that Cookson
is applicable to the present case.
       Here, as in Cookson, supra, 53 Cal.3d at page 1095, defendant’s failure to pay full
restitution within the original probation term constituted a changed circumstance
allowing the trial court to modify probation. (See also People v. Medeiros (1994) 25
Cal.App.4th 1260, 1263.) Similar to the defendant in Cookson, defendant made monthly
payments towards the full victim restitution amount of $139,915.78, but was unable to
pay the full amount before the expiration of his original probation term. Because of this
changed circumstance, the trial court had jurisdiction to extend probation to the
maximum term to ensure that defendant paid the full amount of restitution owed to the
victim. As the maximum sentence for defendant’s crime was nine years, the court
properly extended probation to April 25, 2019.




                                              5
                                   DISPOSITION
     The order modifying probation is affirmed.

                                      ______________________________________
                                                 RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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