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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Randall COOKSON, Defendant and Appellant.

No. H006017.

Decided: March 13, 1990

Julie Kai Barreto, Santa Cruz, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Stan M. Helfman, Supervising Deputy Atty. Gen., and John T. Murphy, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Defendant Randall Cookson appeals from an order extending his probation to June 3, 1991, under the terms and conditions previously ordered.   He contends probation was improperly extended for failure to pay restitution absent proof he had the ability to pay and willfully failed to pay.   We affirm.

Defendant entered a plea of nolo contendere to one count of diverting construction funds in excess of $1,000 (Pen.Code, § 484b).   On June 3, 1986, he was sentenced to three years probation upon condition, inter alia, that he “pay restitution as determined by the probation department.”   The accompanying minute order confirmed that the “amount” and “manner of payment” of restitution was to be determined by the probation officer.   The probation report had recommended three years probation with conditions which included restitution in the amount of $12,000.

In May of 1989, shortly before probation was to expire, the probation department filed a Penal Code section 1203.3 petition which reported that defendant had not paid the full amount of restitution.   However, at the hearing on the petition, the probation officer conceded the department “wouldn't recommend a violation at probation hearing in this case, because [defendant] has paid everything that we've asked, according to his ability to pay.”   The probation officer told the court he had explained to defendant “the benefits, if he wanted an extension, of 17 P.C., 1203.4, but at this time he may—he decided that he wanted probation terminated.”   The court permitted withdrawal of the petition without prejudice to file a new petition if the department concluded defendant was in violation of probation.

On the day before defendant's probation was to expire, a second Penal Code section 1203.3 petition was filed which reiterated that defendant still owed a balance of $7,915 to the victim and requested that “probation be modified in such a manner to insure full payment of restitution to the victim.”   At the hearing on the second petition, the court announced that “[i]t is the conclusion of this court that Mr. Cookson has not paid restitution in the amount determined by the probation officer, and in fact owes $4,915 [sic ], and therefore is in violation of probation.”   The court extended probation until June 3, 1991, stating that it expected “restitution to be paid in the full amount.”   The court elaborated as follows:  “It is the expectation of this court that you will pay an amount that is coincident with your economic abilities and an amount that will permit the payment in full by the completion of the five-year period, and failure to do so will cause the court to take other appropriate action in this matter.”

In the instant case defendant was directed to make restitution to the victim in an amount and at a rate and schedule determined by the probation officer.   The trial court retained jurisdiction to review the probation officer's determination as to the manner of restitution.  (Pen.Code, § 1203.1;  People v. Keele (1986) 178 Cal.App.3d 701, 708, 224 Cal.Rptr. 32.)   Defendant does not contend in this appeal that the court erred originally in permitting the probation officer to set the amount of restitution.   Defendant also “does not contend in this appeal that it was error to have the probation officer set the rate and schedule of payment of the restitution.   A probation officer should know the amount that a person under his supervision has the ability to pay at any particular time and the probation officer can set the schedule and rate accordingly.   This allows flexibility that would not be present if the court ordered a defendant to pay a certain amount each month.”   (People v. Ryan (1988) 203 Cal.App.3d 189, 198, 249 Cal.Rptr. 750.)

The only issue on appeal is whether the trial court can extend probation for failure to pay full restitution to the victim when, during the entire period of probation originally ordered, the defendant made restitution to the victim at the exact rate and schedule as directed by the probation officer.

A trial court has authority to modify the term of probation.  (Pen.Code, § 1203.2.)  Penal Code section 1203.3 states that, in all cases, unless revoked, the defendant is discharged from probation at the end of the term or any extension thereof.

 When appropriate, a court may extend probation and increase the restitution amount, given the limitation that the restitution amount relates directly to the offense committed.  (Pen.Code, § 1203.1;  People v. Scroggins (1987) 191 Cal.App.3d 502, 506–507, 236 Cal.Rptr. 569.)   However, “[a]mong the limitations imposed upon the court's power to modify is that such an order cannot be based on the same facts as the original order granting probation because such a modification is in excess of the court's jurisdiction for the reason that there is no factual basis to support it.  [Citations.]”   (People v. Miller (1967) 256 Cal.App.2d 348, 353–354, 64 Cal.Rptr. 20;  In re Bine (1957) 47 Cal.2d 814, 818, 306 P.2d 445.)   Here the new fact not available the time of the original order which was presented to the trial court in conjunction with the petition requesting modification was that setting the pay schedule consistent with defendant's ability to pay had resulted in defendant's inability to pay full restitution as contemplated within the original period of probation.

Defendant relies upon dicta in People v. Ryan, supra, 203 Cal.App.3d 189, 199, 249 Cal.Rptr. 750, that “[t]he period of probation may not be extended for failure to make full restitution to the victim unless said failure is willful and the defendant has the ability to pay.”   This dicta does not have a sound statutory basis.   Subdivision (b) of section 1203.2 gives the court authority to “modify, revoke, or terminate the probation of the probationer upon the grounds set forth in subdivision (a) if the interests of justice so require.”   Subdivision (a) of that section provides the following exception to the court's power:  “However, probation shall not be revoked for failure of a person to make restitution pursuant to Section 1203.04 as a condition of probation unless the court determines that the defendant has willfully failed to pay and has the ability to pay.”  (Pen.Code, § 1203.2, subd. (a).)  “The maxim expressio unius est exlusion alterius applies here.   Under this familiar rule of construction, an express exclusion from the operation of a statute indicates the Legislature intended no other exceptions are to be implied.  [Citations.]”  (Strang v. Cabrol (1984) 37 Cal.3d 720, 725, 209 Cal.Rptr. 347, 691 P.2d 1013.)   If the Legislature had intended to withdraw the court's power to modify or extend probation absent proof of willful failure to pay restitution and inability to pay, it could have said so directly.

The force of the above maxim is strengthened here where a related provision in the law places great emphasis on providing full restitution to victims of crime.   When Proposition 8 was enacted in 1982, the right of a victim to restitution from the person convicted of a crime from which the victim suffers a loss became a constitutional right.   In 1983, when the Legislature amended Penal Code section 1203.04, it also amended section 1203.2 to add the caveat that “probation shall not be revoked for failure of a person to make restitution pursuant to Section 1203.4 as a condition of probation unless the court determines that the defendant has willfully failed to pay and has the ability to pay”;  both sections were amended and considered together as part of the Crime Victim Restitution Program of 1983.

In light of the foregoing principles of statutory construction and obvious legislative intent, we hold that the statutory exception to the court's ability to revoke, as opposed to modify or extend, probation, is exclusive;  i.e., “no other exceptions are to be implied.”  (Strang v. Cabrol, supra, 37 Cal.3d at 725, 728, 209 Cal.Rptr. 347, 691 P.2d 1013.)

The order extending defendant's probation to June 3, 1991, is affirmed.

COTTLE, Associate Justice.

PREMO, Acting P.J., and ELIA, J., concur.