Filed 3/27/14 P. v. Dang CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,
Plaintiff and Respondent,

v.
PHUC NGUYEN DANG,
Defendant and Appellant. H039080 (Santa Clara County Super. Ct. No. CC953164)

I NTRODUCTION Defendant Phuc Nguyen Dang appeals from an order extending his probation

term . He claims that the trial court did not have jurisdiction to modify the probation term
because there were no changed circumstances since the time of the original order

. For
the reasons s tated below, we will affirm the order.
B ACKGROUND 1 Defendant was in a dating relationship with the victim. On August 29, 2009, defendant and the victim got in an argument. Defendant took the victim’s phone and got into his car to leave. As defendant was backing out of the driveway, the victim jumped
onto the hood of the car. Defendant drove down the str eet with the victim on the hood
and then stepped on his brakes. T he victim fell off the car and injured her head. At the

1 The factual background is taken from the probation report.2

hospital, d efendant initially told the police officers that the victim had been injured in a skateboarding accident. The victim had brain surgery later that evening. The surgeon

s aid that the victi m would survive but would never be the same. The surgeon indicated
that if defendant had been truthful about the accident when he first arrived at the hospital , some damage could have been prevented.
I n March 2010 , d efendant pleaded no contest to assaul t with a deadly weapon (Pen. Code , § 245, subd. (a)(1)) 2 and admitted the allegation that he personally inflicted great bodily injury during the commission of a domestic violence felony (§ 120 2 2.7, subd. (e)). Defendant signed a plea form, which specified that the maximum sentence for
his offense was nine years. The plea form also stated that he would have to pay
restitution to the victim

. At the change of plea hearing, defense counsel indicated that he informed defendant that he “could be required to pay restitution which could be significant in this case.”
At sentencing o n April 2, 2010, t he trial court suspended imposition of sentence and placed defendant on probation for three years with various condition s, including that
he se rve 364 days in jail, pay various fines and fees, and pay victim restitution in the amount of $139,915.78. Defendant was referred to the Department of Revenue f or a determination of the ability to pay the fines and fees. The court did not make an order regarding a payment plan fo r victim restitution.
O n July 19, 2010, at a domestic viol ence probation review hearing, defendant expressed that he had difficulty with the $186 monthly payments of the fines and fees he was ordered to pay the Department of Revenue. The trial court reduced the monthly payment amount to $50 , and it stayed those fines and fees until July 1, 2011

. The court
noted that the “direct resti tution payment to [the] victim for losses that she sustained, that isn’t stayed. You still need to make that righ t with the victim.”

2 All further statutory references are to the Penal Code unless otherwise specified.3

O n July 12, 2011, defendant again sought relief f rom the fines and fees. The trial court stayed the payment of the fines and fees for six months until January 1, 2012 , at which he would start paying $50 a month

. O n November 20, 2012, the probation officer reported that defendant failed to pay
victim restitution in the full amount as ordered by the court. The balance owed was $139, 265.78. The probation officer noted that defendant “has made consistent monthly payments in the amount of $50 (Court Order dated 07/12/2011), but Probation is due to expire on April 25, 201 [9] , and Victim Restitution w ill not be completed.” In a memorandum to the trial court, the probation officer indicated that after the sentencing hearing, the court set victim restitution payments at $50 per month and allowe d defendant to start his payment s on January 1, 2012. 3 The probation officer stated that victim
restitution will not be completed before probation was set to expire, and thus, he

reco mmended extending probation.
A t a hearing on November 29, 2012 , d efendant argued that th ere was no changed
circumstance justify ing an extens ion . The court adopted the recommendation of the probation department and extend ed defendant’s probation to the maximum term, which

was to April 25, 2019. The court ordered defendant to provide financial declaration information to the probation departmen t , and it put the matter on the restitution calenda r for further review and discussion of payments.
D ISCUSSION Defendant contends that the trial court lacked jurisdiction to extend probation to the maximum term because there was no change in circumstances shown

.

3 We note that the trial court did not specify that the $50 monthly payments pertained to victim restitution. However, according to the probation department’s records, the probation department apparently construed the trial court’s July 12, 2012 order as fixing defendant’s monthly payments of victim restitution at $50, starting on January 1, 2012.4

“A court may revoke or modify a term of probation at any time before the expiration of that term. (§ 1203.3

. ) This power to modify includes the power to extend the probationary term. [Citation.] Pursuant to section 1203.2, subdivision (b) . . . a court, on sufficient notice to the probationer, may ‘ modify, revoke, or terminate the probation of the prob ationer upon the grounds set forth in [section 1203.2,] subdivision (a) if the interests of justice so require.’ ” ( People v. Cookson (1991) 54 Cal.3d 1091, 1095 ( Cookson ) .) Under section 1203.1, subdivision (a), an order of probation may be imposed for five years or the maximum term of imprisonment, whichever is longer. ( Cookson, supra, 54 Cal.3d at p. 1094, fn. 2.) Ho wever, a change in circumstance is required before a court has jurisdiction to extend or otherwise modify probation, and an order modifying the terms of probation based upon the same facts as the original order granting probation is in excess of the court ’ s jurisdiction, for the reason that there is no
factual basis for it. ( Id. at p. 1095; In re Clark (1959) 51 Cal.2d 838, 840; In re Bine (1957) 47 Cal.2d 814, 818.)
In Cookson, the trial court ordered the defendant to make complete restitution to
the victim and to do so in accordance with terms to be set by the probation department

. The probation department determined total restitution to be $12,000 and directed the defendant to make monthly payments of $100. When probation was about to expire, the probation department realized that the defendant could not comply with the court’ s order to make complete restitution before his term of probation expired because they had set his monthly payments too low. The day before pr obation was set to expire, the probation
d epartment sought to extend the term and increase the monthly payment so that the defendant could comply with the condition that he make full restitution. The court granted the petition and modified probation. ( Cookson, supra, 53 Cal.3d at p. 1094.)
In a ffirming, the appellate court conclu ded that although the defendant’ s inability to comply with the trial court’ s order was not his fault, “the trial court had jurisdiction to modify the probation because defendant’s inability to pay amounted to a change of5

circumstance

. ” ( Cookson, supra, 53 Cal.3d at p. 1095.) The Supreme Court affirmed. The court stated that “the Court of Appeal correctly determined that a change in
circumstance could be found in a fact ‘not available at the time of the original order,’ namely, ‘that setting the pay schedule consistent with defendant ’ s ability t o pay had
resulted in defendant’ s inability to pay full restitution as contemplated within the original period of probation.’ ” ( Ibid .) The court noted that “[a]llowing modificat ion of probation to facilitate the recovery of restitution as originally contemplated by the court enables the court to fashion a remedy that best serves the goals of probation. ( Id. at p. 1097.)
Defendant contends that Cookson is distinguishable from the present case because
there , the trial court contemplated that full restitution would be paid during the original probationary period. He also contends that here, unlike Cookson , there is an absence of a payment schedule on the record

. We reject these contentions and conclude that Cookson is applicable to the present case

. Here, as in Cookson , supra, 53 Cal.3d at p age 1095 , defendant’s failure to pay full restitution within the original probation term constituted a changed circumstance allowing the trial court to modify probation. ( See also People v. Medeiros (1994) 25 Cal.App.4th 1260, 1263.) Similar to the defendant in Cookson , defendant made monthly payments towards the full victim restitution amount of $139,915.78 , but was unable to pay the full amount before the expiration of his original probation term

. Because of this changed circumstance , the trial court had jurisdiction to extend probation to the
maximum term to ensure that defendant paid the full amount of restit ution owed to the
victim

. As t he maximum sentence for defendant’s crime was nine years , the court properly extended probation to April 25, 2019

.6 D ISPOSITION The order modifying probation is affirmed.

______________________________________

RUSHING , P.J.

WE CONCUR:

____________________________________

PREMO, J

.

____________________________________

ELIA, J.