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Name: People v. Freidt
Case #: H039250
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/12/2013

Summary revocation proceedings cannot be used to extend a probationary term indefinitely until victim restitution is paid. Following her conviction for embezzlement in 2007, appellant was granted three years probation and ordered to pay restitution to the victim. In 2010, the trial court summarily revoked probation because it did not think appellant would be able to pay off the entire amount of restitution before the expiration of probation. She was then placed on the court’s “payment monitoring calendar” and her probation was kept in summarily revoked status while she made monthly payments and attended periodic hearings. In December 2012, appellant filed a motion for reinstatement and/or modification or termination of probation. The court reinstated probation and extended it to the maximum period of five years, reasoning it had been tolled during the summary revocation period. Held: Reversed. Probation can be revoked for failure to pay restitution only if the court determines the probationer willfully failed to pay and has the ability to pay. However, if a probationer is unable to pay restitution, the court can only modify and extend probation to the maximum term. (People v. Medeiros (1994) 25 Cal.App.4th 1260.) Here, appellant never received a formal hearing to determine whether her failure to pay was willful. Her probation was summarily revoked for two-and-a-half years, beyond the expiration of her maximum probationary period. The trial court lacked authority to extend her probation beyond the maximum period because it neither found a violation nor formally revoked her probation. Allowing trial courts to use summary revocation and the tolling provision (Pen. Code, § 1203.2, subd. (a)) to retain jurisdiction to modify or extend probation indefinitely would be inconsistent with the tolling provision and contrary to statutes that authorize courts to grant probation for a specified period of time.