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Name: People v. Sem
Case #: H039252
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 09/17/2014

Trial court’s practice of formally revoking probation and indefinitely extending revocation to collect victim restitution is unauthorized. In January 2004, the trial court placed Sem on probation for three years after she pled no contest to felony welfare fraud. She was ordered to pay over $60,000 in victim restitution. Shortly before her probation was set to expire, the trial court summarily revoked probation based on an allegation that Sem willfully failed to pay the victim restitution in full while having the ability to pay. At a hearing in April 2007, the trial court explained that probation was being revoked “[b]ecause it stops the clock” and would allow Sem to work out a payment plan so she could pay off the victim restitution within the period of probation. Sem admitted the probation violation and was placed on the “victim restitution calendar.” For almost six years, Sem remained “in revoked status,” making regular court appearances and payments. In January 2013, Sem requested that probation be reinstated and terminated. The trial court declined Sem’s request and instead reinstated probation on the original terms and conditions and extended it to five years, to July 2015. Sem appealed. Held: Reversed with order directing that Sem be discharged from probation. After Sem admitted that she willfully failed to pay restitution, the trial court could have revoked probation and, as an alternative to sentencing defendant to prison, could have reinstated probation “for that period and with those terms and conditions as it could have done immediately following conviction.” (Pen. Code, §§ 1203.2, subd. (e).) Here, the trial court did not exercise any of its statutory options after formally revoking Sem’s probation in April 2007. Instead, it created a status of perpetual revocation where Sem remained obligated to comply with a probation condition requiring payment of restitution for a substantial time after the maximum probationary period of five years. No authority allowed the trial court to do this.

Defendant was entitled to challenge the unlawful extension of her revoked status without first obtaining a certificate for probable cause. The appellate court agreed with Sem that the January 2013 order reinstating and extending probation was the first appealable order following her revocation of probation. Because it was an order after judgment affecting her substantial rights, a certificate of probable cause was not required for her to challenge the lawfulness of the orders that followed her admission. However, a certificate of probable cause was required to review Sem’s challenge to the adequacy of the probation violation allegations and her claim that trial counsel was incompetent in advising her to admit the probation violations.