People v. Bethea

California Court of Appeal Sep 6, 1990 No. Docket Nos. D011604, D012645Published

Before: Work

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Holding. The court held that a defendant's request for disposition under Penal Code section 1203.2a does not constitute a waiver of the right to a revocation hearing when the defendant explicitly contests the violation, and that due process requires a finding of ability to pay before revoking probation for failure to pay monetary sanctions.

Issues

Whether probation can be revoked for failure to pay monetary sanctions without a finding of ability to pay and willful failure.
Whether a defendant's request for disposition under Penal Code section 1203.2a constitutes a waiver of the right to a revocation hearing when the defendant denies the violation.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“due process requires probation not be revoked solely due to failure to pay monetary sanctions imposed as an order of probation absent findings of the defendant’s ability to pay and willful failure.”

“The record substantiates Bethea’s contention he did not intend to waive counsel and appearance at a revocation hearing for the purpose of having sentence imposed.”

Opinion

WORK, J.

This case presents the court with a fact situation unique in our experience. For the reasons set forth below we reverse the sentence imposed on Joseph Maurice Bethea in absentia pursuant to Penal Code

sections 1203.2, subdivision (a) and 1203.2a, following formal revocation of probation, and remand this matter to the superior court with directions to vacate its order revoking probation and to conduct further proceedings in accordance with our opinion.

Bethea pleaded guilty to assault with a deadly weapon (§ 245, subd. (a)(1)) pursuant to a plea bargain in which the San Diego Superior Court

[920]

agreed to limit its discretion to either sentence him to nine months in county jail

to grant him summary probation with credit for one hundred forty-four days of presentence custody. After receiving the recommendation of the probation department, the court granted summary probation, the only significant conditions of which were that he remain law abiding during the three-year term of probation and pay a fine of $200, including penalty assessment, by October 1, 1988. When the court was notified Bethea had failed to pay the fine, it summarily revoked probation on January 25, 1989, issued a bench warrant and set bail in the amount of $1,000. The only grounds for this action was Bethea’s failure to pay the $200 fine.

At the time Bethea was placed on probation on July 11, 1988, charges were pending against him in Nevada for a crime committed January 5, 1988. He was later convicted and imprisoned

on the Nevada charge for a term expiring December 7, 1989. While he was incarcerated, a detainer was placed with the Nevada authorities by California pursuant to the San Diego arrest warrant. It was in this manner Bethea learned his probation had been summarily revoked. On October 26, 1989, Bethea returned a form provided by the San Diego County District Attorney’s office entitled “Request for Disposition of Probation, Waiver of Appearance and Right to Attorney.” (§ 1203.2a.) On November 30, 1989, the court formally revoked probation and sentenced Bethea to three years in state prison.

People v. Bethea

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WORK, J.

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