People v. Yates CA1/1

Filed 5/15/15 P. v. Yates CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A140330 v. MELINDA LEE YATES, (Solano County Super. Ct. No. FCR270728) Defendant and Appellant.

Defendant Melinda Lee Yates pled no contest to grand theft by embezzlement and was ordered to pay restitution. Defendant was later found in violation of her probation for failing to make restitution payments. In connection with the violation, defendant was ordered to perform five hours of community service per week. Defendant now argues the trial court abused its discretion because there is no evidence she had the resources to make the required payments or that she willfully violated the terms of her probation. We agree and reverse. I. BACKGROUND Defendant was charged in a complaint, filed October 1, 2009, with one count of grand theft by embezzlement. (Pen. Code,1 §§ 487, subd. (a), 503.) The charges arose out of defendant’s employment as head cashier at a Barnes & Noble in Fairfield, California. Defendant admitted she would keep customers’ money and receipts after they made cash purchases and later create fraudulent returns. Through the scheme, which was

1 All statutory references are to the Penal Code.

carried out for a year, defendant embezzled about $8,400. In January 2010, defendant entered a plea of no contest. In February 2010, the trial court suspended defendant’s sentence and placed her on three years of formal probation with the condition she serve 60 days in the Solano County jail. Defendant was also ordered to pay $8,300 in direct restitution to the victim, to be paid in $50 monthly installments. The restitution amount was later reduced to $6,000 by stipulation of the parties. The court warned: “I want to make something clear. The reason [defendant] is getting probation is to pay restitution. If this goes by and we are dealing with this in a year and there have been no payments or very little paid, what the impression to the Court will be is that she is not interested in staying on probation.” Defendant indicated she would be able to pay $50 a month. At the time she was sentenced to probation, defendant was unemployed and single, but was receiving financial assistance from her father, as well as AFDC (Aid to Families with Dependent Children) benefits in the amount of $561 per month to support her two- year-old daughter. During her probation, defendant participated in two residential treatment programs for substance abuse, one in October 2011 and the other in late 2012. By December 2012, defendant had paid only $120 in restitution. Around that time, defendant informed the probation department she was still unemployed and had no means to pay off the outstanding balance. Defendant indicated she was residing in an emergency homeless shelter, and her felony conviction was hampering her job search. The probation officer concluded defendant’s failure to pay restitution was not willful and recommended an extension of probation in order to allow time for full repayment. At a January 28, 2013 hearing, the court disagreed with the probation officer’s assessment that defendant’s noncompliance was not willful, stating it could not accept defendant had been unable to find work: “She may not be able to find the job she wants, the job that pays the highest amount, but there’s plenty of jobs that she could be doing.” The court extended probation to the maximum period of five years and scheduled a progress report for July. It also ordered defendant to make a minimum monthly restitution payment of $50 beginning February 1, 2013, and continuing each month