Filed 12/12/13
                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT

THE PEOPLE,                                         H039250
                                                   (Santa Clara County
        Plaintiff and Respondent,                   Super. Ct. No. CC643452)

        v.

TAMRA LYN FREIDT,

        Defendant and Appellant.


        Defendant Tamra Lyn Freidt appeals from an order reinstating and extending her
probation. She contends that (1) there was never a valid revocation of probation and,
thus, her probationary term had expired; (2) the trial court lacked authority to keep her in
revocation status for two and one-half years thereby tolling her probationary term; (3)
there was no probable cause to believe that she had the ability but willfully failed to
satisfy the victim-restitution condition of probation; and (4) there was insufficient
evidence that she had the ability and had willfully failed to pay the victim-restitution
condition of probation. For the reasons stated below, we shall reverse the order
reinstating probation.
I.      FACTUAL AND PROCEDURAL BACKGROUND
        A.       Defendant Sentenced to Three Years Probation
        Defendant entered a negotiated plea of no contest to felony embezzlement from
her employer, Hartzheim Dodge, in violation of Penal Code sections 484 and 487,
subdivision (b)(3).1 The maximum probation period for the offense is five years. (§
1203.1.)
       On August 17, 2007, the trial court placed defendant on probation for three years.
The court later modified probation by ordering defendant to pay approximately $40,000
in victim restitution to Hartzheim Dodge.
       B.       Summary Revocation of Defendant’s Probation
       Defendant’s probation was set to expire on August 17, 2010. On May 7, 2010, the
Santa Clara County probation department informed defendant by letter that she was in
violation of her probation because she had failed “to make payment” on her fines, fees,
and victim restitution. The letter notified defendant that a violation of probation hearing
had been set for May 20 and that her appearance at that hearing was mandatory. The
probation department then filed a petition for modification of terms of probation alleging
that probation was set to expire on August 17, 2010, and that defendant had (1) a fine/fee
unpaid balance of $458.50 after “making consistent monthly payments” of $100, and (2)
a victim restitution unpaid balance that “will not be completed” after making “consistent
monthly payments in the amount of $100.”
       At the hearing, defendant appeared without counsel and the trial court advised her
that she was entitled to an attorney. The trial court then remarked that it did not think
that defendant would be able to pay off the obligations before the expiration of probation
and summarily revoked her probation. The court set another hearing for June 22 and
directed defendant to the public defender.
       On June 22, defendant appeared with counsel, acknowledged paying $100 on each
debt in May and June, and agreed to double the payments beginning in July. The trial
court ordered that probation “Remains Revoked” and set another hearing for January 25,
2011. At the January 25 hearing, defendant again appeared with counsel and the trial

       1
           Further unspecified statutory references are to the Penal Code.


                                               2
court’s minutes denote “$200/mo 2-15-11.” The trial court ordered that probation
“Remains Revoked” and set another hearing for July 19. On July 19, defendant appeared
with counsel and the trial court’s minutes denote “$250 mo 8/15/11-3/15/12.” The trial
court ordered that probation “Remains Revoked” and set another hearing for March 20,
2012. On March 20, defendant appeared with counsel and the trial court’s minutes
denote “pay $250/mo 4/15/12-10/15/12.” The trial court ordered that defendant pay
victim restitution to Zurich Insurance instead of Hartzheim Dodge and probation
“Remains Revoked.” It set another hearing for October 23. On October 23, defendant
appeared with counsel and the trial court’s minutes denote “pay $200 by 11/15/12 pay
$250 mon 12/15/12-6/15/13.” It set another hearing for June 18, 2013, without
addressing defendant’s probation status.

       C.     Defendant’s Petition for Reinstatement, Modification, or Termination of
              Probation

       On December 21, 2012, defendant filed a petition for reinstatement and/or
modification or termination of probation. In the petition, defendant argued that the trial
court lacked jurisdiction to keep defendant’s probation in an indefinite “summarily
revoked” status. Supported by a declaration, the petition described what defendant
claims is commonly known as the trial court’s “payment monitoring calendar”:
       “Defendants referred to that calendar are placed on a monthly payment plan, based
on their ability to pay, and then typically given a review date several months out. The
vast majority of the defendants referred to the calendar have had their probation
summarily revoked. Over time a practice evolved on the payment monitoring calendar to
keep probation in summarily revoked status indefinitely, or until there was payment in
full. Thus, it is not uncommon to encounter cases where the defendant has not only been
in revoked status for many years, but will remain in that status for the foreseeable future.
[¶] The majority of cases on the payment monitoring calendar come from the Superior
Court’s probation violation and modification calendars . . . . Defendants facing a

                                             3
violation of probation due to willful nonpayment of fines, fees and restitution are
sometimes given a choice: they can either choose to contest the willful non-payment
allegation at a formal hearing or they can agree to payment monitoring on the restitution
review calendar. [¶] If the defendant chooses to go to the payment monitoring calendar,
the court generally imposes a monthly payment amount and sets a future review date . . . .
Probation is summarily revoked. Sometimes, but not always, an admission to the
violation of probation is required before referral to the payment monitoring calendar. In
choosing payment monitoring, the defendant is permitted to remain out of custody so
long as he or she continues making consistent monthly payments pursuant to his ability to
pay. The defendant thus avoids or defers the formal revocation hearing and the
possibility of long-term incarceration. [¶] In some cases a defendant may be advised that
if he or she does not accept the payment monitoring calendar, and instead wishes a formal
hearing, he or she will be remanded pending the full revocation hearing. [¶] There are
certain defendants who appear simply for a modification of their probation . . . because
they are near the expiration of their probationary period, yet have an outstanding
restitution balance. Some of these defendants appear with counsel; many do not. In
some of these cases, the Court may simply summarily revoke probation and refer the
matter to the payment monitoring calendar. [¶] In a minority of cases, rather than initially
revoke probation the Court might impose a new grant of probation or simply extend the
period of probation. Those persons appear on the payment monitoring calendar without
any tolling. However, the vast majority of cases on the payment monitoring calendar are
in revoked status. Such cases will remain in revoked status indefinitely until victim
restitution has been paid in full.” (Fns. omitted.)
       The petition noted that, at the time defendant’s probation was summarily revoked,
the probation department had not alleged a probation violation against defendant. To the
contrary, it had affirmed that she had made consistent monthly payments.



                                              4
         At the hearing on January 18, 2013, defendant argued that the trial court had no
authority to revoke probation on May 20, 2010, because there was no willful failure to
pay on defendant’s part. The People replied that there was no need to find willful failure
to pay for summary revocation as distinguished from a formal revocation for a violation
of probation.
         D.     Reinstatement and Extension of Defendant’s Probation
         Referring to the May 20, 2010 summary revocation order, which was issued by a
different judge, the trial court commented: “Quite frankly, I will say I don’t agree with it,
especially without counsel and without advisement of rights. Nevertheless, it appears to
me that the Court chose to revoke probation, and based on the comments by the
prosecutor, the Court may have relied on that as sufficient basis to summarily revoke
probation, and then as in other cases, then the probationer appears on [the payment
monitoring calendar] with counsel.” The court then ordered defendant’s probation
reinstated on its original terms and extended it from three years to the maximum period
of five years. Reasoning that the term had been tolled since the May 20, 2010 revocation,
the court determined that defendant’s probation should continue to run for approximately
two years and eight months until September 16, 2015. Defendant timely appealed the
order.
II.      DISCUSSION
         A.     Governing Legal Principles
         Where a probationer fails to pay restitution, his or her probation can be revoked
only if the court determines that the probationer willfully failed to pay and has the ability
to pay. (People v. Medeiros (1994) 25 Cal.App.4th 1260, 1263 (Medeiros).)
         “Under section 1203.2, the court is authorized to revoke a defendant’s probation . .
. ‘if the interests of justice so require and the court . . . has reason to believe from the
report of the probation officer or otherwise’ that grounds for revocation exist,” including
willful failure to pay restitution. (People v. Clark (1996) 51 Cal.App.4th 575, 581,

                                                5
disapproved on another ground in People v. Mendez (1999) 19 Cal.4th 1084, 1098,
quoting § 1203.2, subd. (a).) “Such summary revocation . . . is proper if the defendant is
accorded a subsequent formal hearing in conformance with due process.” (People v.
Clark, supra, at p. 581.) “The purpose of the formal proceedings is not to revoke
probation, as the revocation has occurred as a matter of law; rather, the purpose is to give
the defendant an opportunity to require the prosecution to prove the alleged violation
occurred [to] justif[y] [the] revocation.” (Ibid.)
       “The revocation [of probation], summary or otherwise, shall serve to toll the
running [of the] [probationary] period . . . .” (§ 1203.2, subd. (a).) Normally, the running
of the probationary period is tolled until the formal hearing described above. Where
summary revocation is based on an alleged failure to pay restitution, if it is shown at the
formal revocation hearing that probationer willfully failed to pay, “the court is authorized
to revoke probation and either order imprisonment or to set aside the revocation and
reinstate probation for a new term exceeding the original maximum.” (Medeiros, supra,
25 Cal.App.4th at p. 1267.) If, however, it is determined that the probationer was unable
to pay restitution, “[a]ll the court can do is modify and extend probation to the maximum
term” pursuant to section 1203.3, subdivision (a). (Medeiros, supra, at p. 1267; see also
People v. Leiva (2013) 56 Cal.4th 498, 504 (Leiva) [“Section 1203.3, subdivision (a),
empowers the trial court ‘at any time during the term of probation to revoke, modify, or
change its order of suspension of imposition or execution of sentence.’ ”].) “If the
probationer remains unable to fully pay restitution throughout the maximum term, the
trial court lacks authority either to revoke and imprison or to further extend probation,
and, instead, must discharge defendant from probation pursuant to section 1203.3,
subdivision (b).” (Medeiros, supra, at p. 1267.) The remaining restitution balance may
be enforced as a civil judgment. (§ 1203, subd. (j).)




                                              6
       B.     The Court Lacked Jurisdiction To Reinstate Defendant’s Probation
       Here, the court summarily revoked defendant’s probation based on the probation
department’s representation that she had failed to pay restitution. Defendant did not
receive a formal hearing to determine whether her failure to pay was willful or not.
Instead, her probation remained summarily revoked for more than two-and-a-half years,
beyond the expiration of the maximum probationary period of five years. Then the court
purported to reinstate and extend defendant’s probation until September 2015. The court
reasoned that it was extending the probationary term to the five-year maximum, as
Medeiros permits, because the term had been tolled under section 1203.2, subdivision (a),
since May 20, 2010. The court did not determine whether defendant had willfully failed
to pay restitution, thereby violating her probation.
       The question before us is whether summary revocation and section 1203.2,
subdivision (a)’s tolling provision allow trial courts to retain jurisdiction to modify or
extend a probationary term indefinitely.2 We conclude that they do not.
       In Leiva, the Supreme Court considered the operation of summary revocation in
conjunction with section 1203.2, subdivision (a)’s tolling provision, and concluded that
together they “allow the trial court to retain the authority to adjudicate a claim that the
defendant violated a term of probation during the court-imposed period of probation.”
(Leiva, supra, 56 Cal.4th at p. 518.) The court rejected “the Attorney General’s reading
of the tolling provision of section 1203.2[, subdivision] (a), as allowing a trial court,
through summary revocation, to extend indefinitely the conditions and terms of probation
until a formal revocation proceeding can be held,” (id., at p. 509) reasoning that such a
construction “would be contrary to our statutes that authorize the courts to grant
probation for a period not to exceed a specified time, three years in the case of

       2
       The government argues that defendant waived her jurisdictional argument, but a
defendant cannot create jurisdiction by consent.


                                              7
misdemeanors, with certain exceptions (§ 1203[, subd.] [(a)]), or five years or the
maximum possible term of sentence, whichever is longer, in the case of felonies, with
certain exceptions (§ 1203.1).” (Ibid.)
       Leiva compels us to conclude that the court exceeded its jurisdiction here for two
reasons. First, the Leiva court concluded that the purpose of the tolling provision is to
ensure that the court has jurisdiction to “hold a formal probation violation hearing at a
time after probation would have expired with regard to a violation that was alleged to
have occurred during the probationary period.” (Leiva, supra, 56 Cal.4th at pp. 514-
515.) Here, no formal probation violation hearing was held and the alleged violation
never was adjudicated. Instead, defendant’s probation eventually was reinstated and
extended. But Leiva indicates that the tolling provision does not preserve the court’s
jurisdiction in that regard. Second, permitting courts to summarily revoke a probationer’s
probation and later reinstate it (without finding a violation) such that it runs beyond the
maximum term “would be contrary to our statutes that authorize the courts to grant
probation for a period not to exceed a specified time,” here, five years. (Id. at p. 509.)
Leiva counsels against such a reading of the Penal Code.
       This court’s decision in Medeiros also supports our conclusion. There, as here, “it
[was] undisputed that defendant’s maximum probationary period under section 1203.1,
subdivision (a), [was] five years.” (Medeiros, supra, 25 Cal.App.4th at p. 1264.)
Accordingly, “the trial court could not extend defendant’s probation beyond five years”
(ibid.) unless, under section 1203.2, subdivision (e), “probation [was] revoked based on a
violation of probation and the revocation [was] set aside.” (Medeiros, supra, at p. 1267.)
This court concluded that, “[s]ince the trial court found that defendant did not violate
probation and was unable to pay full restitution, there was no formal revocation and
section 1203.2, subdivision (e), did not authorize extending probation beyond the initial
maximum five-year term.” (Id. at pp. 1267-1268.) Here, the court likewise neither found



                                              8
a violation, nor formally revoked defendant’s probation. It therefore lacked the authority
to extend her probation beyond the five-year maximum.
III.   DISPOSITION
       The order reinstating probation is reversed. The trial court is directed to discharge
defendant from probation.



                                                              Premo, J.


       WE CONCUR:




              Rushing, P.J.




              Elia, J.




People v. Freidt
H039250




                                             9
Trial Court:                        Santa Clara County Superior Court
                                    Superior Court No. CC643452

Trial Judge:                        Hon. Arthur Bocanegra

Counsel for Plaintiff/Respondent:   Kamala D. Harris
The People                          Attorney General

                                    Dane R. Gillette
                                    Chief Assistant Attorney General

                                    Gerald A. Engler
                                    Senior Assistant Attorney General

                                    Laurence K. Sullivan
                                    Supervising Deputy Attorney General

                                    René A. Chacon
                                    Supervising Deputy Attorney General

Counsel for Defendant/Appellant:    Under appointment by the Court of Appeal
                                    Jonathan B. Opet




People v. Freidt
H039250
