PEOPLE v. GOODALE

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Frank Hartmut GOODALE, Defendant and Appellant.

D004168.

Decided: March 27, 1987

Marino & Ball and Richard R. Marino, Escondido, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., John W. Carney and Jay M. Bloom, Deputy Attys. Gen. for plaintiff and respondent.

Defendant Frank Goodale appeals an order denying his motion to terminate probation.   We affirm the order.

In September 1980 Goodale pleaded guilty to two counts of grand theft.   (Pen.Code,1 § 487, subd. (1).)  In pleading guilty, Goodale admitted willfully using money given to him in trust for purposes other than those intended by the entrusting party and acknowledged he understood the maximum possible punishment was three years, eight months.   Under a plea bargain, the People agreed not to oppose local time at Goodale's initial sentencing.   The plea bargain also provided:

“Defendant will make restitution in an amount between $40,000 and $60,000—the exact amount to be set by the Court.   Defendant agrees to a probationary term of ten years or such time as the restitution is paid in full.   Defendant understands that in any event he will likely be on probation for a minimum of three years.   Should restitution not have been paid within four years, nine months, defendant will confess judgment to the extent of the unpaid balance.”

On October 24, 1980, the court suspended imposition of sentence and placed Goodale on probation for five years.   The court ordered Goodale to pay $60,000 restitution at $500 monthly beginning December 1, 1980, until paid in full to his victims.   The court also ordered Goodale to submit a statement of assets and liabilities each six months for financial review.

In April 1982 the probation officer filed a declaration for order to show cause why Goodale's probation should not be revoked or modified, asserting Goodale's restitution account was in arrears and his last statement of assets and liabilities was dated August 1981.

In January 1983 after hearing, the court modified its October 1980 probation order to require Goodale to pay $50 on the fifth and twentieth of each month into a suspense account until disposition of his bankruptcy proceedings.

On July 11, 1983, the court held a probation review hearing.   The probation officer recommended Goodale should show cause why his probation should not be revoked.   After hearing, the court modified its October 1980 probation order by extending probation for an additional five years until July 10, 1988.   The court also ordered Goodale to pay $54,289.40 restitution at $100 monthly and Goodale's attorney to turn over $700 held in trust.

In October 1985 the probation officer asked the court to order Goodale to sign a confession of judgment for his outstanding restitution according to the plea bargain.   On October 22, 1985, Goodale signed a statement and confession of judgment for $51,889.40.

In November 1985 Goodale asked the court to terminate his probation, asserting as a matter of law his probation expired on October 24, 1985, at the end of the five year maximum probation term permitted under section 1203.1.   The People opposed Goodale's motion to terminate probation.   After hearing, the court denied Goodale's motion and continued him on probation under the same terms and conditions as earlier ordered.   Goodale appeals.

II

Section 1203.1 provides in part:

“The court or judge thereof, in the order granting probation, may suspend the imposing, or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence, except as hereinafter set forth, and upon those terms and conditions as it shall determine.   The court, or judge thereof, in the order granting probation and as a condition thereof may imprison the defendant in the county jail for a period not exceeding the maximum time fixed by law in the case;  however, where the maximum possible term of the sentence is five years or less, then the period of suspension of imposition or execution of sentence may, in the discretion of the court, continue for not over five years;  may fine the defendant in a sum not to exceed the maximum fine provided by law in the case;  or may in connection with granting probation, impose either imprisonment in county jail, or fine, or both, or neither;  shall provide for restitution in proper cases;  and may require bonds for the faithful observance and performance of any or all of the conditions of probation.”

III

 Goodale contends his probation must be terminated, asserting his originally agreeing to a ten year probation period and his not timely objecting to the five year extension are irrelevant because the order extending the probation period beyond October 24, 1985, was null and void under section 1203.1.   The People contend Goodale should be estopped to complain about the court's extending his probation beyond the five years permitted under section 1203.1 because he consented to the court's action by accepting implementation of his plea bargain and not timely raising any objection.   We find Goodale is estopped to seek to strike the portion of his probation term beyond October 24, 1985.

Goodale relies on People v. Goldberg (1975) 45 Cal.App.3d 601, 119 Cal.Rptr. 616, In re Bolley (1982) 129 Cal.App.3d 555, 181 Cal.Rptr. 111 and People v. Gilchrist (1982) 133 Cal.App.3d 38, 183 Cal.Rptr. 709.   In In re Bolley, supra, the appellate court held the trial court may not condition a grant of probation on the defendant's waiving the statutory maximum period of probation.   The court stated:  “The power of the court with regard to probation is strictly statutory, and the court cannot impose a condition of probation which extends beyond the maximum statutory term of probation.   [Citation.]  A court cannot establish a period of probation longer than the maximum period of imprisonment for the offense involved.  (People v. Goldberg (1975) 45 Cal.App.3d 601, 603 [119 Cal.Rptr. 616]․)  Any attempt to do so is null and void.  (Id., at p. 604 [119 Cal.Rptr. 616];  [citation].)”  (In re Bolley, supra, 129 Cal.App.3d at p. 557, 181 Cal.Rptr. 111.)   In People v. Gilchrist, supra, 133 Cal.App.3d at page 44, 183 Cal.Rptr. 709, the appellate court stated:  “If defendant's period of probation was five years' maximum, any attempt by the ․ court to extend probation beyond that period would be null and void even had he consented.  (In re Bolley, supra [, 129 Cal.App.3d] at p. 557 [181 Cal.Rptr. 111].)  Defendant's consent could not authorize an act which was beyond the trial court's statutory power․”  (People v. Gilchrist, supra, at p. 44, 183 Cal.Rptr. 709.)

The situation here is distinguishable from the facts involved in the cases cited by Goodale.   Such cases did not involve plea bargains containing an assertedly improper condition.   In such cases trial courts on their own imposed probation conditions extending beyond the maximum statutory term of probation.   The appellate courts held trial courts could not properly impose such conditions.   In In re Bolley and People v. Gilchrist, the appellate courts also stated the mere fact a defendant accepts probation on conditions imposed by a trial court does not constitute consent to an invalid condition.   Unlike the defendants in such cases, Goodale did more than merely accept probation imposed by the court containing an assertedly invalid condition.   Goodale agreed to a plea bargain, accepted its benefits and later sought to deprive the People of their benefits.

 Although the court's probationary power is exclusively statutory, judicial actions exceeding the statutory limits are not completely void ab initio.   Further, although Goodale's consent to an apparently invalid condition in the plea bargain may not authorize an act beyond the court's statutory power, such consent limits Goodale's right to challenge the court's act.   In In re Griffin (1967) 67 Cal.2d 343, 62 Cal.Rptr. 1, 431 P.2d 625, the California Supreme Court rejected an argument similar to Goodale's:

“Petitioner contends that because timely revocation of probation is ‘jurisdictional’ the rule that jurisdiction cannot be conferred by estoppel applies.   That rule relates to subject matter jurisdiction, the court's power to hear and determine the cause.  [Citations.]

“The jurisdictional concept involved in the cases holding that the court is without power to revoke probation after the end of the probationary term is not lack of jurisdiction of the cause but excess of jurisdiction.  [Citations.]  Neither the probation statutes nor the cases applying them support a holding that expiration of the probationary period terminates the court's jurisdiction of the subject matter.   The statutes themselves contemplate that such fundamental jurisdiction continues, for they provide for the court's determination of certain matters after the end of the probationary term.

“When, as here, the court has jurisdiction of the subject, a party who seeks or consents to action beyond the court's power as defined by statute or decisional rule may be estopped to complain of the ensuing action in excess of jurisdiction.  [Citations.] ․” (Id. at pp. 346–347, 62 Cal.Rptr. 1, 431 P.2d 625, cited with approval in In re Bakke (1986) 42 Cal.3d 84, 89, 227 Cal.Rptr. 663, 720 P.2d 11.)

“A litigant who has stipulated to a procedure in excess of jurisdiction may be estopped to question it when ‘To hold otherwise would permit the parties to trifle with the courts.’  [Citation.] ․” (In re Griffin, supra, 67 Cal.2d at p. 348, 62 Cal.Rptr. 1, 431 P.2d 625.)   Under the plea bargain, the People agreed not to oppose local time and Goodale agreed to a probation term of “ten years or such time as the restitution is paid in full.”   The court originally sentenced Goodale in accord with the plea bargain.   Goodale was not imprisoned.   Goodale did not object.   He accepted the benefit of his bargain.   Later the court extended the probation term in accord with the plea bargain.   Again Goodale did not timely object.   Under the plea bargain, Goodale implicitly agreed to act in good faith and to raise any objections in a timely manner.   However, instead of acting in good faith, Goodale delayed challenging imposition of more than five years probation until such time as a successful challenge would result in only Goodale receiving the benefit of the bargain with the People deprived of their benefit.   Allowing Goodale at this time to seek to strike the assertedly improper probation condition would permit him to trifle with the court.   Accordingly, Goodale is estopped to argue the assertedly improper probation condition should be stricken with the remainder of the bargain left intact.

Arguably, the People may have bargained for a condition impossible of performance in light of section 1203.1.   Under the circumstances here, the assertedly invalid condition may not be severed from the remainder of the probation order.   Such condition was at the heart of the probation order;  without such condition, the probation order would most likely have been quite different or may not have been forthcoming at all.   The assertedly improper condition resulted from the plea bargain.   To the extent the plea bargain contained an improper essential element, upon timely application Goodale might be entitled to withdraw his plea.  (In re Gonzales (1974) 43 Cal.App.3d 616, 621, 118 Cal.Rptr. 69.)   However, Goodale has not pursued such remedy.2  Instead, he has pursued the estopped remedy of seeking to strike the assertedly invalid condition while leaving the remainder of the bargain intact.

The court properly denied Goodale's motion to terminate probation.

DISPOSITION

The order denying termination of probation is affirmed.

I dissent.

I believe the law requires us to terminate Goodale's probation for the simple reason Penal Code section 1203.1 does not authorize probation for a period greater than five years.   From the earliest version of section 1203.1 to the present time the Legislature tied the period of probation to the maximum possible prison term the defendant might receive.  (See Historical Note, 51 West's Ann.Pen.Code (1982 ed.) § 1203.1, p. 197.)   This constancy in the midst of dramatic changes in the law of sentencing, particularly since the enactment in 1977 of the determinate sentencing law (Pen.Code, § 1170 et seq.), cannot be ignored.

It is clear that absent legislation modifying the time limits and procedures set forth in section 1203.1, any effort to impose probation for a period in excess of the statutory maximum is invalid.  (In re Bolley (1982) 129 Cal.App.3d 555, 181 Cal.Rptr. 111;  People v. Goldberg (1975) 45 Cal.App.3d 601, 119 Cal.Rptr. 616;  cf. In re Daoud (1976) 16 Cal.3d 879, 129 Cal.Rptr. 673, 549 P.2d 145.)   Without any supporting authority the majority's willingness to endorse judicial activism is surprising.   Following this opinion a sentencing court's judicial creativity can supplant section 1203.1 in order to impose a sentence to conform to the judge's personal belief as to the appropriate length of probation.   To endorse such a procedure contradicts the determinate sentencing law and the clear mandate of the Legislature.

To reach their decision the majority overlooks this court's opinion in In re Starr (1986) 187 Cal.App.3d 1550, 232 Cal.Rptr. 487.  Starr held that a criminal defendant's waiver of constitutional or statutory rights must be voluntary, knowledgeable and explicit.  (Id. at p. 1554, 232 Cal.Rptr. 487.)   We decided Starr's failure to object to a court order denying him conduct credits for time served in a private work furlough program was not a knowing and intelligent waiver of his right to those credits under In re Tahl (1969) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 and Mills v. Superior Court (1973) 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273.   We said:

“There is no evidence Starr knew he had any right to credits.   The record suggests his counsel, the probation officer and the sentencing judge were under the impression he had no such right.   Starr and his attorney were told by Western States that credits were not available and accepted that drawback․”  (In re Starr, supra, 187 Cal.App.3d at p. 1554, 232 Cal.Rptr. 487.)

The case before us is strikingly similar.   We have no transcript of the change of plea hearing.   The only evidence of a “knowing, voluntary and intelligent waiver” is limited to a written change of plea form and the attached exhibit A which sets forth Goodale's agreement “to a probationary term of ten years or such time as the restitution is paid in full.” 1  Those documents say nothing about Goodale's rights under section 1203.1.   As Starr explains, for the extended probation term to be valid, Goodale should have been informed of the consequences of his plea including the fact probation was to be imposed for a term in excess of the statutory period.   The length of Goodale's probation was not some inconsequential detail.   The duration of probation, virtually open ended depending upon his full restitution, subjected Goodale to the risk of a prison term even though he had signed a confession of judgment and had complied with the terms of his probation for the maximum period authorized by law.   To unlawfully perpetuate Goodale's probation on the basis of a presumed waiver is to draw more from a silent record than the law permits.  (See In re Tahl, supra, 1 Cal.3d at p. 30, 81 Cal.Rptr. 577, 460 P.2d 449.)

For similar reasons I disagree with the majority's reliance on In re Griffin (1967) 67 Cal.2d 343, 62 Cal.Rptr. 1, 431 P.2d 625 in holding that Goodale is estopped to complain about the court's acts in excess of jurisdiction.  Griffin and its progeny deal with the concept of estoppel better described as “invited error.”   Under this theory, where a party by his conduct induces the commission of error, that party is estopped from asserting it as a ground for reversal.  (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 302, p. 313;  see e.g., People v. Davidson (1972) 25 Cal.App.3d 79, 83, 101 Cal.Rptr. 494 (probationary period tolled during narcotics treatment requested by defendant, therefore revocation of probation occurred during the term of probation).)   In Griffin and People v. Ham (1975) 44 Cal.App.3d 288, 118 Cal.Rptr. 591 the court applied estoppel on specific findings that the defendant or his counsel requested continuances of probation revocation hearings beyond the date they knew the probationary period was to expire.   In both cases the court held defendants were estopped to complain that probation was revoked after expiration of probation.   The court reached the opposite result in In re Dupper (1976) 57 Cal.App.3d 118, 128 Cal.Rptr. 898 where the defendant was unaware of the consequences of his consent to probation in excess of the maximum three-year statutory period.   Defendant's knowledge is again the key to application of the estoppel theory.   There is nothing in this record to show that Goodale induced the commission of error by agreeing to the plea bargain with knowledge that an eight year plus period of probation was in excess of the court's jurisdiction under section 1203.1.

The majority unfairly accuse Goodale of not acting in good faith and intentionally delaying his challenge to his probationary term “until such time as a successful challenge would result in only Goodale receiving the benefit of the bargain with the People deprived of their benefit.”  (Maj.Opn., p. 691.)   The majority's imaginative use of the covenant of good faith and fair dealing to support its statement is erroneous.   There is nothing in this record which shows Goodale had actual knowledge of his statutory right to a five year probationary term before he moved to terminate probation.   Further, to say that granting the motion would allow Goodale to have received the benefit of his bargain while depriving the People of theirs is to ignore reality.   Probation, although preferable to prison for the convicted felon, is not all fun and games.   During Goodale's probation there has been a quid pro quo.   He has been subjected to each of the probationary conditions.   Upon violating any of those conditions he could—and still can—be returned to court, his probation revoked, and his three year, eight month prison sentence imposed.   The only potential benefit which the People have lost is their extraction of an unlawful period of years.   I see nothing unfair to require the parties to a contract to be bound by the terms of their bargain and to excise those terms which are unlawful.   Since estoppel is inapplicable, to hold otherwise places the court in the untenable position of enforcing an illegal bargain.

I draw no solace from the majority's suggestion that Goodale's failure to seek to withdraw his plea justifies his extended probationary term.   I assume the majority are facetious when they invite Goodale to withdraw his guilty plea so “the matter ․ [could] be returned to the status quo ante and Goodale ․ subject[ed] to trial, conviction, imprisonment or probation without regard to the amount of time already spent on probation.”  (Maj.Opn., p. 691, fn. 2.)   To invite more punishment after Goodale has already been on probation for 7 years borders on the Draconian.

For all of the foregoing reasons I would reverse the judgment and instruct the trial court to terminate Goodale's probation.

FOOTNOTES

FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   We assume Goodale does not desire to withdraw his plea.   If the plea were set aside, the matter would be returned to the status quo ante and Goodale would be subject to trial, conviction, imprisonment or probation without regard to the amount of time already spent on probation.  (People v. Morrison (1980) 109 Cal.App.3d 378, 382–383, 167 Cal.Rptr. 276.)   Withdrawal of the plea would thus appear likely to result in no benefit to Goodale because realistically the most favorable result would be imposition of probation for five years.   Further, the existing probation order remains subject to modification under section 1203.2.   However, should Goodale seek to withdraw his plea, he may brief such issue by petition for rehearing.

1.   Under one interpretation of this provision, paying $100 per month for restitution Goodale could be kept on probation for the remainder of his life.

KREMER, Presiding Justice.

LEWIS, J., concurs.