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Court of Appeal, First District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Vincent Harry GRECO, Defendant and Appellant.

No. A036851.

Decided: October 16, 1987

John K. Van De Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., Ann K. Jensen, Supervising Deputy Atty. Gen., Frances Marie Dogan, Deputy Atty. Gen., San Francisco, for plaintiff and respondent. Thomas W. Turcotte, San Francisco, for defendant and appellant.

Vincent Harry Greco appeals from an order revoking probation and requiring execution of a prison sentence for failure to pay fines imposed as a condition of probation.   We reverse for lack of substantial evidence of ability to pay the fines.

An information filed in 1978 charged Greco with three counts of inducing a minor to sell, buy or use marijuana (Health & Saf.Code, § 11361) and one count of inducing a minor to sell, buy or use cocaine (Health & Saf.Code, § 11353).   A probation report states that on three separate dates in November 1977 Greco, then aged 32, sold to a 17-year-old boy small amounts of marijuana totaling 16 grams, and on one of those dates also sold the boy a gram of cocaine.

Greco failed to appear for trial.   He fled to Florida, where he worked at various jobs, including conductor of a local symphony orchestra and music teacher at a community college.   He returned to Napa County in 1981 after he was found by the Federal Bureau of Investigation.

Greco pleaded guilty to one count of sale of marijuana (Health & Saf.Code, § 11360).   On January 14, 1982, the court imposed the middle term of three years' imprisonment, but suspended execution of sentence and granted five years' probation on the condition, among others, that Greco pay a fine of $5,000 plus assessments, and another fine of $5,000 payable to a nonprofit drug rehabilitation program of Greco's choice.

In December 1985 the People moved to revoke probation on the ground Greco had paid only $3,850 toward the fines.   With penalty assessments, there was a balance due of $9,950.

Greco testified at the revocation hearing in July 1986.   He asserted the following with respect to his ability to pay the fines:  When he returned to Florida after his 1982 sentencing, bad publicity from the criminal proceeding caused him to lose his jobs as symphony conductor and music teacher.   He received a job offer to work as musical or entertainment director on a cruise ship, but Napa authorities told him he could not take the job because the ship would be leaving the country.   He moved to San Diego and bought a restaurant, which he operated for almost two years.   A friend, Dr. Arnold A. Ariaudo, loaned him sums totaling $18,758, which Greco used to pay the expenses of the restaurant.   However, Greco only made enough money to pay his minimum living expenses, and when he closed the business in August 1984 he owed $12,000 to governmental taxing authorities and $18,758 to Dr. Ariaudo.   Greco thereafter worked sporadically as a musician, but did not earn more than his minimum living expenses.   In late 1984 and early 1985 he was unable to work because of an arthritic condition.   At the time of the revocation hearing he was producing a Las Vegas-style revue for an agency in Reno;  performances had just begun and he had so far earned about $1,200.

The prosecutor presented no evidence on the issue of Greco's ability to pay the fines.   The prosecutor simply argued in a memorandum of points and authorities that Greco was an “accomplished musician,” had no family obligations, and “had the ability to secure loans from people in the amount of thousands of dollars.”

The court found Greco had violated probation because he had failed to make full payment of the fines despite having an ability to pay them.   On the issue of ability to pay, the court said Greco could have paid the fines with the proceeds of the loans from Dr. Ariaudo.   The court revoked probation and ordered execution of the three-year prison sentence.

 Greco contends the court erred in revoking probation because the prosecutor presented no evidence of ability to make complete payment of the fines.   It is settled a defendant cannot be imprisoned because of failure to pay a fine imposed as a condition of probation if the defendant was indigent and unable to pay.  (In re Antazo (1970) 3 Cal.3d 100, 115–116, 89 Cal.Rptr. 255, 473 P.2d 999;  People v. Kay (1973) 36 Cal.App.3d 759, 763, 111 Cal.Rptr. 894.)   Greco argues the People bear the burden of proving ability to pay, and did not sustain this burden here for failure to present any evidence on the point.

 The question who bears this burden of proof has not been expressly determined.   The issue was raised but not resolved in In re Angel E. (1986) 177 Cal.App.3d 415, 420, 223 Cal.Rptr. 4 footnote 2.   However, it is settled the prosecutor must prove a violation of a condition of probation by clear and convincing evidence.  (People v. Coleman (1975) 13 Cal.3d 867, 877 fn. 8, 120 Cal.Rptr. 384, 533 P.2d 1024;  People v. Hayko (1970) 7 Cal.App.3d 604, 609, 86 Cal.Rptr. 726.)   Because one of the elements of a violation by failure to pay a fine is ability to pay, it follows that the prosecutor has the burden of proof on this point.   This conclusion is consistent with People v. Buford (1974) 42 Cal.App.3d 975, 986, 117 Cal.Rptr. 333, which in a related setting found there was no substantial evidence of failure to comply with a probation condition requiring maintenance of regular employment, because the prosecutor failed to prove such employment was available.

 The prosecutor in Greco's case failed to present substantial evidence that he was able to pay the fines.   The court found an ability to pay because Greco purportedly could have paid the fines with the proceeds of the loans from Dr. Ariaudo.   The court thus inferred Dr. Ariaudo would have permitted the use of the loans for this purpose.   This inference is unsupportable.   It is one thing to loan someone money to start a business;  the lender has a reasonable expectation of repayment from the profits of the business.   It is quite another thing to make a loan for payment of a criminal fine;  in this situation the prospects for repayment are far worse.   There is no reason to believe, as a general proposition, that one who lends money to run a business would also permit use of the money to pay a substantial criminal fine.   Moreover, there was no evidence that Dr. Ariaudo would have permitted such use of his loans.

The mere fact Dr. Ariaudo loaned Greco money for the restaurant business did not support a finding Greco could have used the money to make complete payment of the fines.   The prosecutor presented no other evidence of ability to pay, and such ability cannot be gleaned from Greco's testimony.   Accordingly, the revocation order must be reversed as unsupported by substantial evidence.   (See People v. Buford, supra, 42 Cal.App.3d at p. 986, 117 Cal.Rptr. 333.)

The order is reversed.

KING, Associate Justice.

LOW, P.J., and HANING, J., concur.