People v. Miller

Defendant appeals from an order of the trial court modifying the terms of his probation in connection with his previous conviction of grand theft (Pen. Code, § 487). Defendant contends that the trial court invalidly increased the amount of restitution which he must pay as a condition of his probation.

Defendant was found guilty of unlawfully taking $821.60 from Robert J. Keefe. Imposition of sentence was suspended and defendant was granted probation for three years on October 1, 1963. In granting probation, pursuant to a recommendation by the probation officer, the trial court ordered that "Defendant shall. . . . Make restitution to and through the Probation Officer in such monthly installments as directed by said Officer. ’ ’ The court did not otherwise in its order specify the total amount of restitution or the persons to whom it was payable. The trial court, however, at the time of the hearing

Proceeding next to the requirement that defendant reimburse individuals other than the Keefes, we hold that the informal procedure whereby this requirement was imposed amounted to a modification of the original probation order. The probation report indicates that when probation was imposed, the only person known to have suffered a loss at defendant’s hands was Keefe. During the sentencing proceedings the court stated that defendant “will pay restitution to the victims in this case” and further that the court “hoped” that defendant would at some later time want to “take care of” the unpaid creditors in the bankruptcy proceedings. The contrast between the mandatory language used with reference to the victims and the precatory language used in speaking of the unpaid creditors shows that the court intended to order restitution only to the victims—Keefe and his wife—and not to the creditors.

Penal Code, section 1203.3 provides that the court has authority at any time during the term of probation to revoke, modify or change its order suspending imposition or execution of sentence. (See In re Larsen, 44 Cal.2d 642 , 645 [ 283 P.2d 1043 ].) The power of modification conferred on the court is not limited to changing the term of probation, but applies generally to the order granting probation under proper circumstances and within reasonable limits. (In re Marcus, 11 Cal.App.2d 359 , 360-361 [ 53 P.2d 1021 ] ; In re Glick, 126 Cal.App. 649 , 651 [ 14 P.2d 796 ] ; People v. Roberts, 136 Cal.App. 709 , 712-713 [ 29 P.2d 432 ] [disapproved on another point in In re Larsen, supra] ; People v. McClean, 130 Cal.App.2d 439 , 444 [ 279 P.2d 87 ].) Among the limita

In the instant case the modification was not based upon the same facts as the original order granting probation but upon new facts brought to the attention of the trial court. Although at the time of sentencing the court was aware that there were unpaid creditors in the bankruptcy proceedings, whom it hoped defendant would reimburse, it was not aware of the identity of the claimants or of any of the specific details of their claims; nor was it aware that any of such claimants had been defrauded by defendant in a manner similar to that imposed upon the Keefes. It was not until the probation office had conducted its investigation and submitted its memorandum detailing such claims that the trial court had specific knowledge of the nature of the claims and the identity of the claimants.

We now proceed to the question whether it was reasonable to require defendant to reimburse persons other than Keefe. In Williams, supra, 247 Cal.App.2d at p. 402, we discussed the limitations on the conditions which a court may impose in granting probation. These conditions, obviously, apply to the probation office when it imposes conditions under authority delegated by the court. In Williams the defendant was convicted of assault on a salesman who refused to honor the defendant’s Diner’s Club card, which the defendant was wrongfully using. We held that the court could not require as a condition of probation that the defendant make restitution to the Diner’s Club for debts incurred while using the credit card. We found that the credit card transactions were too remotely related to the substantive offense of assault of which the defendant was convicted to be a reasonable basis for a condition of probation. We stated in Williams that it is desirable for the trial court to be permitted a great deal of flexibility in imposing conditions of probation but that this “is not to say that every claim by one victimized directly or indirectly by defendant’s conduct should be granted reparation or restitution, or that the criminal courts should be reduced to collection agencies.” (P. 409.)

We pointed out in Williams, however, that restitution, as a

Although Lippner, Flores, Collins and Alexander appear to be similar to the instant ease, they are distinguishable in that in those cases the restitution was for damage caused by what reasonably appeared to be criminal conduct. In the present case there is no indication that any of the claims other than those of the Keefes were based on criminal conduct, nor is there any showing that they were based on fraudulent representations to the claimants of the sort made to the Keefes, resulting in defendant’s conviction. Rather they are premised on defendant’s breaches of construction contracts or on losses occasioned by liens being placed on the claimants’ properties as a result of defendant’s activities. Nevertheless, defendant’s conduct toward the other restitution claimants arose out of his operation of the same business through which he defrauded the Keefes. In view of the circumstances that this business had been declared bankrupt shortly before the instant criminal proceedings and defendant owed over $10,000

Our conclusion should not be interpreted as authorizing the trial court or the probation office to range far afield in search of all possible losses caused by the defendant and require him to wipe his financial slate completely clean as a condition of his probation. Such a policy would reduce the courts to mere collection agencies. But we do agree with what seems to be the principle established by the California cases, that the probation office in fixing restitution should not be limited by the formalities of the criminal proceeding. Probation is granted in hope of rehabilitating the defendant and must be conditioned on the realities of the situation, without all of the technical limitations determining the scope of the offense of which defendant was convicted. In determining where to draw the line between what is a reasonable and what is an unreasonable condition, common sense and reason must limit the court’s discretion. This discretion must not be disturbed unless there has been a manifest abuse.

In conclusion we note that the granting of probation is not a right but a privilege, and that if the defendant feels that the terms of probation are harsher than the sentence for the substantive offense he is free to refuse probation. (In re Osslo, 51 Cal.2d 371 , 377 [ 334 P.2d 1 ]; People v. Williams, supra, 247 Cal.App.2d at pp. 403-404; People v. Frank, 94 Cal. App.2d 740 , 741-742 [ 211 P.2d 350 ] ; Lee v. Superior Court, 89 Cal.App.2d 716 , 717 [ 201 P.2d 882 ] ; People v. Alexander, supra, 182 Cal.App.2d at pp. 292-293.) Here defendant could have urged the contentions he now urges at the original probation hearing or upon being apprised of the modification order. He did not do so. Under the circumstances it may be deemed that the conditions imposed were acceptable. to him and that he did not consider them too onerous. (See People v. Alexander, supra.) ■ - •

..-The order is affirmed. .....-

Sims, J,, and Elkingtpn, J., concurred.