People v. Ayub

Opinion

Defendant Haidee Ayub appeals from an order requiring her to pay restitution on a misdemeanor charge as a condition of probation on an earlier felony charge. Ayub claims that the two convictions did not evidence the same intent and therefore, the condition based on one was not reasonably related to the other. Ayub also seeks reversal of the judgment on the grounds of ineffective assistance of counsel claiming she was not properly represented at her hearing. We reject her contentions and affirm the judgment.

Factual and Procedural Background

In 1981 Ayub was convicted of passing checks with insufficient funds. She pled guilty to a single felony count (Pen. Code, § 476a, subd. (a)) and the remaining count was dismissed. The court placed her on probation on the condition, inter alia, that she pay restitution to Vacation Village Hotel and not use or possess a checking account or checks other than those issued to her.

In 1983 Ayub started the American Tablecloth Company. After a brief time she lacked funds to cover her employees’ paychecks. She was charged with grand theft (Pen. Code, § 487, subd. 1) and with the misdemeanor of issuing checks to employees with insufficient funds under Labor Code, section 212, subdivision (a). Her felony probation was revoked and reinstated, extended for five years to 1990 and conditioned on the payment of restitution for the misdemeanor charge. After a six-day restitution hearing

The analogy to Richards is not totally persuasive. Here, Ayub violated her felony probation by committing a misdemeanor, and the court properly revoked probation. It is well established that a court may consider the nature of a probationer’s violation in deciding whether to reinstate probation or sentence the probationer to state prison. (People v. White (1982) 133 Cal.App.3d 677 , 681 [ 184 Cal.Rptr. 134 ].) Along similar lines, where a violation is not so serious as to warrant commitment to state prison, the court may invoke the authority of Penal Code section 1203.3 to modify the terms of probation to take into account the subsequent violation. (In re Bine (1957) 47 Cal.2d 814 , 817 [ 306 P.2d 445 ]; In re Davis (1957) 150 Cal.App.2d 790 , 792 [ 310 P.2d 1031 ].) Arguably, even modified probationary terms must bear a reasonable relationship to the original crime. Here, however, the same result could have been effected indirectly had restitution been required as a condition of probation on Ayub’s misdemeanor and had her felony probation been modified to include a.condition that she obey all court orders. (See, e.g., People v. Derner (1986) 182 Cal.App.3d 588 , 591 [ 227 Cal.Rptr. 344 ]; People v. Bookasta (1982) 136 Cal.App.3d 296 , 299 [ 186 Cal.Rptr. 193 ]; People v. Wild (1976) 60 Cal.App.3d 829 , 831, fn. 1 [ 131 Cal.Rptr. 713 ].) Under such a scenario, if Ayub willfully failed to pay restitution which she had the ability to pay, she would be subject to probation revocation on both her felony and misdemeanor conditions.

In any event, even if this case were indistinguishable from People v. Richards, the condition requiring Ayub to pay just over $55,000 in restitution is nonetheless reasonably related to her earlier felony conviction. In Richards the Supreme Court held that unless the acts underlying the two counts involved the same state of mind, the rehabilitative purpose in imposing the condition would be thwarted. (17 Cal.3d at p. 622.) Ayub argues that “state of mind” necessarily equates to the specific intent of the offender when he committed the crime. She claims that because the first offense evidenced a specific intent to defraud and the second offense did not, there was no requisite relationship between the probation condition and the first felony offense.

After positing the state of mind theory, the Richards court elaborated by stating “[n]o rehabilitative purpose can be served by forcing a person to confront tendencies which differ from those which induced his crime.” ( 17 Cal.3d 614 , 622.) The court used People v. Williams (1966) 247 Cal.App.2d 394 [ 55 Cal.Rptr. 550 ] as an illustration of different tendencies. In Williams

We do not believe Richards’s state-of-mind requirement can be read as rigidly as Ayub would suggest. In this case, both of Ayub’s convictions were for charges of writing checks with insufficient funds. Both convictions involved at a minimum the reckless disregard for responsible check writing and in each the victims were harmed monetarily. Even if her misdemeanor conviction did not involve the intent to defraud her employees, it clearly did involve an intentional violation of the conditions of her probation, namely, that she not possess a checking account. Under the circumstances, we conclude the condition requiring her to pay restitution was reasonably related to the felony for which she was on probation.

Ayub claims that she was not afforded effective assistance of counsel at the probation revocation hearing. She contends her counsel made no argument regarding the propriety of a double restitution sentence, the commissioner’s refusal to allow testimony concerning her state of mind at the time of each offense and the commissioner’s use of nontestifying witnesses in assessing the amount of restitution.

In part I of this opinion we explained why the restitution condition was proper even assuming the misdemeanor violation did not involve a specific intent to defraud the victims. We thus confine our discussion to Ayub’s contention that at the sentencing hearing before Judge Domnitz, her counsel should have objected to the commissioner’s acceptance of claims by nontestifying witnesses as a basis for establishing the amount of restitution.