Reset A A Font size: Print

Court of Appeal, Second District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Covialeska Lavert THOMAS, Jr., Defendant and Appellant. IN RE: Covialeska Lavert THOMAS, Jr., On Habeas Corpus.

Cr. 42046, 42230.

Decided: August 25, 1983

Wilbur F. Littlefield, Public Defender, and Laurence M. Sarnoff, Bernard J. Rosen and John Hamilton Scott, Deputy Public Defenders, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian and John K. Van De Kamp, Attys. Gen., Robert H. Philibosian and Daniel J. Kremer, Chief Asst. Attys. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Robert D. Breton, Deputy Attys. Gen., for plaintiff and respondent. Cecil Hicks, Dist. Atty., Orange County, Michael R. Capizzi, Asst. Dist. Atty., William Bedsworth and Thomas K. Buck, Deputy Dist. Attys., as amicus curiae on behalf of Appellate Committee of the District Attorneys Ass'n of the State of California.

Covialeska Lavert Thomas, Jr. (Thomas) appeals from a court order imposing an additional three-year period of probation.1  Because the new term was properly imposed under Penal Code section 1203.2, subdivision (e), we affirm.2


On November 15, 1976, Thomas pleaded guilty to a charge of vehicular manslaughter, a felony with a maximum sentence of five years.  (§§ 192, subd. (3)(a), 193.)   Rather than committing Thomas to prison, the trial court suspended the proceedings and granted probation for the maximum five year term beginning February 14, 1977.   The court conditioned probation on Thomas' spending the first year in the Los Angeles County Jail, and beginning restitution one month after his release.   Originally Thomas was to pay 10 percent of his expendable monthly income towards restitution.   This condition was modified on January 4, 1980, to require a $50 monthly payment.

On February 9, 1982, five days before the end of his probationary term, the court summarily revoked Thomas' probation for failure to make the full monthly payments.   After a hearing on March 2, 1982, the court set aside the revocation order, and relying on section 1203.2, subdivision (e), reinstated probation for an additional three years.

Thomas filed both a timely appeal and a writ of habeas corpus.   In each, Thomas contends that the imposition of a new term of probation is improper because section 1203.2, subdivision (e) has been rendered ineffective by a recent amendment to subdivision (a) of the same statute.3  He also contends that even if the court has the authority to extend the term, the court erred in doing so because it failed to find that Thomas had violated any probation conditions.


1. Section 1203.2, subdivision (a), does not impliedly repeal section 1203.2, subdivision (e).

a. The statutes in question.

This case raises the issue of whether the last sentence of section 1203.2, subdivision (e) was impliedly repealed by the 1977 amendment to subdivision (a) of the same statute.   Subdivision (e) enacted in 1957 reads in pertinent part:  “If an order setting aside the judgment, the revocation of probation, or both is made after the expiration of the probationary period, the court may again place the person on probation for such period and with such terms and conditions as it could have done immediately following conviction.”  (Emphasis added.)

In 1977 the Legislature amended section 1203.2, subdivision (a), by adding the sentence “Such revocation summary or otherwise, shall serve to toll the running of the probationary period.”

Thomas argues that since the running of his probationary period was tolled by subdivision (a) when it was revoked, it did not expire and would never expire so as to invoke section 1203.2, subdivision (e).   Expiration of the probationary term is a condition precedent to the application of subdivision (e).   Therefore, he contends that subdivision (e) cannot provide the needed authority to extend his term.   In essence, Thomas argues that the amendment of subdivision (a) rendered subdivision (e) unusable.

b. Rules of statutory construction.

In assessing the validity of Thomas' argument, we are guided by the rules of statutory construction.   First, when interpreting a statute, the court's function is to ascertain legislative intent and to give it effect.  (People v. Davis (1981) 29 Cal.3d 814, 828, 176 Cal.Rptr. 521, 633 P.2d 186;  Select Base Materials v. Bd. of Equalization (1959) 51 Cal.2d 640, 645, 335 P.2d 672.)   Second, “[w]here possible, all parts of a statute should be ․ construed to achieve harmony between seemingly conflicting provisions.”   (Estate of McDill (1975) 14 Cal.3d 831, 837, 122 Cal.Rptr. 754, 537 P.2d 874;  see also Sepatis v. Alcoholic Beverages Control Bd. (1980) 110 Cal.App.3d 93, 98, 167 Cal.Rptr. 729.)   Courts are obliged to avoid, wherever possible, interpreting statutes in a way which renders parts of them superfluous.  (See Longshore v. County of Ventura (1979) 25 Cal.3d 14, 24, 157 Cal.Rptr. 706, 598 P.2d 866.)   Thomas' reading of section 1203.2 must be rejected therefore if it is possible to reconcile the parts without violating the legislative intent behind the amendment to subdivision (a).

Neither the language of the amendment to subdivision (a) nor the legislative history behind its passage illuminates the Legislature's reason for adding the tolling provision.   A review of the general area of law however provides a rational basis for determining the legislative purpose.

 When a probationer violates a “condition of probation, has become abandoned to improper associates or a vicious life, or has ․ committed other offenses” the court can revoke probation.  (§ 1203.2, subd. (a).)  Revocation can be accomplished two ways:  summarily, after the issuance of a warrant for the probationer's rearrest, or after a motion noticed to the probationer or the probationer's attorney.  (Ibid.;  People v. Hawkins (1974) 44 Cal.App.3d 958, 966, 119 Cal.Rptr. 54.)   Regardless of the method, the probationer is constitutionally entitled to notice of the alleged violations and an evidentiary hearing on the propriety of the revocation within a reasonable period of time after the probationer has been taken into custody.  (People v. Vickers (1972) 8 Cal.3d 451, 458, 460, 105 Cal.Rptr. 305, 503 P.2d 1313.) 4

At the hearing, evidence may be adduced which convinces the court that continued probation is appropriate.   In the case of a summary revocation, because the hearing occurs after probation has already been revoked, the court must reinstate probation if the court determines it proper that probation should continue.   The process of revocation and later reinstatement creates a hiatus in the probation, the effects of which both the Legislature and the courts have attempted to address.

 The length of a probation term is limited by sections 1203.1 and 1203a.   In 1957 the Legislature added section 1203.2, subdivision (e), creating an exception to these durational limits.   Under special conditions, i.e., that probation expired after it had been revoked and before it had been reinstated, a court could grant new probation.5  This new term could be as long as the maximum period originally possible, without reference to any time already spent on probation.  (In re Hamm (1982) 133 Cal.App.3d 60, 64, 183 Cal.Rptr. 626;  People v. Ottovich (1974) 41 Cal.App.3d 532, 535, 116 Cal.Rptr. 120.)

The purpose of subdivision (e) was to liberalize pre-existing rules by permitting the court to continue probation when circumstances warranted it.   (People v. Ottovich, supra, at p. 535, 116 Cal.Rptr. 120;  see also People v. Gish (1964) 230 Cal.App.2d 544, 547, 41 Cal.Rptr. 155.)   Before its passage, the court was forced to sentence an offender whose probation expired while revoked even where prolonged probation would have been more appropriate.  (People v. Brown (1952) 111 Cal.App.2d 406, 408, 244 P.2d 702;  In re Hamm, supra, 133 Cal.App.3d at p. 64, 183 Cal.Rptr. 626.)   But the passage of subdivision (e) did more than just empower the court to reinstate probation.   The section gave the court the discretion to extend probation where a breach of a probation indicated continued supervision was called for but where incarceration was deemed unnecessary.

 The addition of the tolling provision to subdivision (a) also increased the court's ability to extend a probationer's term when necessary.   Before 1977, a probation period continued to run after probation was revoked.   (People v. DePaul (1982) 137 Cal.App.3d 409, 412–413, 187 Cal.Rptr. 82.)   As long as the original probationary term had not yet expired, the court could reinstate probation after its revocation and extend the term.   However, absent the special circumstances which bring subdivision (e) into play, any extension could not increase the total probationary period beyond the maximum set by statute.  (See People v. Gilchrist (1982) 133 Cal.App.3d 38, 44, 183 Cal.Rptr. 709.)   Therefore, if the maximum term of probation had already been ordered, the court could not increase the term to make up for time lost while probation was revoked.

For example, in the case where probation was revoked after six months of a maximum two year term, and one year later the court determined to reinstate probation, the maximum reinstated term would be only six months.   By providing for the tolling of the probation period upon revocation, the Legislature has prevented the one year loss in the above example.   Given the same facts under current law, the reinstated period could be 18 months.

c. Our interpretation benefits the aims of probation.

 The advantages of the new law are clear.   Probation is a time for court-supervised rehabilitation.  (See People v. Richards (1976) 17 Cal.3d 614, 620, 131 Cal.Rptr. 537, 552 P.2d 97;  People v. Gilchrist, supra, 133 Cal.App.3d at p. 47, 183 Cal.Rptr. 709.)   Any reduction in the probationary period limits the court's ability to see that the rehabilitative purposes of probation conditions are fulfilled.   By providing for the tolling of the probationary period in the amenable fact situation, the Legislature intended that the rehabilitation period would not be permanently shortened merely because it was interrupted by a violation.

 Thus, the tolling provision of subdivision (a) and subdivision (e) share the same legislative goal, i.e., allowing the court to supervise rehabilitation for a longer period of time when a probation violation has occurred.   However, each subdivision effectuates this goal in a different manner.   Subdivision (e) empowers the court to set the new probation term without regard to the amount of time previously spent on probation, while subdivision (a) does not.   Since the provisions are not duplicative, the Legislature did not intend to replace subdivision (e) with subdivision (a).

A proper construction of section 1203.2 should therefore leave both subdivision (e) and the tolling provision of subdivision (a) operative.   A limiting interpretation of subdivision (a) does just that.   The tolling provision of subdivision (a) will apply only when, assuming no tolling, the probationary term would not expire before reinstatement.   Under this construction, subdivision (a) is applicable in all situations except where subdivision (e) applies.6  Since subdivision (e) furthers the same general goal as subdivision (a), limiting the applicability of subdivision (a) in this manner does not impede the achievement of the Legislature's purpose.7

2. The burden of proof on an indigency defense to an alleged probation violation rests on the indigent.

Thomas also contends that his probationary term could not be extended because there had been no actual violation of probation.   He argues that the trial court had to find that the failure to pay restitution was willful, i.e., not due to indigency, before it could find a violation of probation and that the evidence produced herein would not sustain such a finding.

 Revocation of probation normally is proper where the defendant fails to comply with a condition of probation.  (People v. Bookasta (1982) 136 Cal.App.3d 296, 301, 186 Cal.Rptr. 193.)   However, imprisonment of one who, because of indigency, cannot pay a fine violates the constitutional guarantee of equal protection.  (In re Antazo (1970) 3 Cal.3d 100, 115, 89 Cal.Rptr. 255, 473 P.2d 999.)   Similarly, where poverty causes a failure to make restitution, probation may not constitutionally be revoked.   (Bearden v. Georgia (1983) ––– U.S. ––––, ––––, 103 S.Ct. 2064, 2073, 76 L.Ed.2d 221.)   On the other hand, where the defendant's refusal to act and not his indigency results in a breach of a probation condition, an impoverished defendant can constitutionally have his probation revoked and can be imprisoned.  (Id. at ––––, 103 S.Ct. at 2072;  In re Antazo, supra, 3 Cal.3d at p. 116, 89 Cal.Rptr. 255, 473 P.2d 999.)

Neither of the parties in this case dispute that Thomas failed to satisfy the court ordered requirement to pay $50 per month in restitution.   Rather, the issue of probation revocation turned on whether this failure to pay was due to indigency.   Indigency is a factual issue to be resolved by the court.  (In Re Siegel (1975) 45 Cal.App.3d 843, 847, 120 Cal.Rptr. 8.)   A supplemental hearing was had on this question.   However, insufficient information was produced to enable the court to answer the question.   Under these circumstances, whether the court abused its discretion in revoking probation depends on who had the burden of proof.

 Allocation of the burden of showing indigency at a revocation hearing has not been squarely decided by a California court.   We believe the burden lies on the probationer.   The Supreme Court in In Re Antazo, supra, 3 Cal.3d at p. 116, 89 Cal.Rptr. 255, 473 P.2d 999 implied this holding in stating:  “When the indigent offender ․ defaults or otherwise fails to meet the conditions of the particular alternative which is offered him without a showing of reasonable excuse, the indigent offender becomes in the eyes of the court exactly the same as the contumacious offender who is not indigent.”   (Emphasis added.)   Similarly, the United States Supreme Court implied that the probationer has the burden when it mentioned that the court must focus on “whether the defendant has demonstrated sufficient efforts to comply with the terms of probation.”  (Bearden v. Georgia, supra, ––– U.S. at p. ––––, fn. 12, 103 S.Ct. at 2073, fn. 12.)

Sound theory also supports this result.   A claim of indigency is a special limitation on the court's power to revoke probation for a violation of a condition.   It is therefore like an affirmative defense.   The burden of establishing an affirmative defense is typically on the defendant.  (See Patterson v. New York (1977) 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281, 292;  cf. People v. Drew (1978) 22 Cal.3d 333, 336, 349, 149 Cal.Rptr. 275, 583 P.2d 1318 (burden of showing insanity may be placed on defendant).)   Here, when the People proved that Thomas failed to pay the court ordered $50 monthly payment toward restitution, a prima facie case of violation of probation was established.   Thereafter, the reasons why Thomas failed to pay constitute affirmative defensive matter.   The People should not and do not have the burden of negating all the possible reasons Thomas may have had for not complying, including his indigency.

The probationer is in the better position to show indigency and that best efforts were made to comply with the terms of probation.   The probationer has personal knowledge or easy access to the relevant information and the state does not.   This is particularly true of financial data.   It is both fair and efficient to allocate the burden in this manner.

 Since Thomas did not sustain the burden of presenting evidence of his indigency, the court did not abuse its discretion in revoking probation for failure to pay restitution.


For the foregoing reasons, the judgment is affirmed.   The petition for writ of habeas corpus is denied.


1.   A petition for habeas corpus raising the same issues was filed on April 5, 1982, and has been consolidated with the appeal.

2.   All statutory references hereinafter are to the Penal Code unless otherwise noted.

3.   Section 1203.2, subdivision (a) sets forth:  “Upon such rearrest, or upon the issuance of a warrant for rearrest the court may revoke and terminate such probation ․  Such revocation, summary or otherwise, shall serve to toll the running of the probationary period.”

4.   As long as a hearing takes place within a reasonable time after the defendant is taken into custody, a pre-hearing revocation does not violate due process.  (People v. Hawkins, supra, 44 Cal.App.3d at p. 966, 119 Cal.Rptr. 54;  see also People v. Vickers, supra, 8 Cal.3d at p. 461, 105 Cal.Rptr. 305, 503 P.2d 1313.)

5.   The order originally revoking probation must be made before the probationary term expires since the court loses jurisdiction to do so when the term ends.  (People v. DePaul (1982) 137 Cal.App.3d 409, 412, 187 Cal.Rptr. 82.)

6.   Under this interpretation of subdivision (a), the court must wait until the date at which it decides to reinstate probation in order to determine whether the tolling provision applies.

7.   We invite the Legislature to change this result by clarifying amendment should our view of the legislative purpose behind the addition of the tolling provision be incorrect.

KLEIN, Presiding Justice.

LUI, J. and DANIELSON, JJ., concur. Hearing denied;  MOSK, J., dissenting.

Copied to clipboard