P. v. Baylor
Filed 7/30/07 P. v. Baylor CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, Plaintiff and Respondent, v. ALONZO BAYLOR, Defendant and Appellant. | B193770 (Los Angeles County Super. Ct. Nos. BA243089 & BA279446 |
APPEAL from judgments of the Superior Court of Los Angeles County, Hank M. Goldberg, Judge. Affirmed.
Jonathan B. Steiner and Ronnie Duberstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Alonzo Baylor appeals from judgments sentencing him to prison after his probation was revoked. His sole assignment of error is that the trial courts finding that he violated a condition of probation was not supported by substantial evidence. As we conclude the finding was supported by substantial evidence, and that appellant has failed to meet his burden to establish an abuse of discretion, we reject his contention, and affirm the judgments.
BACKGROUND
The events leading up to this appeal began on February 25, 2003, when appellant was convicted upon a no contest plea, in Los Angeles County Superior Court case No. BA243089, of a felony violation of Penal Code section 69, resisting an executive officer by means of threat and violence. Imposition of sentence was suspended, and appellant was placed on three years probation, ordered to serve 180 days in jail, pay a restitution fine and the costs of probation services, obey all laws and orders of the court, obey all rules and regulations of the Probation Department (Department), and participate in a substance abuse program.
On August 23, 2004, appellant was charged with violating his probation in case No. BA243089, based upon his failure to attend an alcohol program. He admitted the violation, probation was revoked and reinstated on the same terms and conditions, and he was sentenced to 30 days in jail. The court ordered appellant to re-enroll in an alcohol program, and calendared a progress report hearing for October 2004, later continued to December 16, 2004, at which time the court revoked appellants probation and set a further hearing for the following March. That hearing was continued several times, finally to June 15, 2005.
In the meantime, appellant was charged in case No. BA279446 with having committed, on or about February 26, 2005, a felony violation of Penal Code section 273.5, subdivision (a), inflicting corporal injury on his spouse, along with two other offenses which arose from the same incident.[1] On April 13, 2005, appellant pled no contest to the violation of Penal Code section 273.5, subdivision (a), and admitted he had been convicted of a misdemeanor violation of section 273.5 the previous September, in case No. 2CR7076. The other counts were dismissed. Defense counsel stipulated to the factual basis as stated in the police report. The court continued sentencing to May 18, 2005, and ordered appellant to attend weekly Alcoholics Anonymous (AA) meetings. On May 18, sentencing was continued to June 15, 2005, the same date set for the probation violation hearing in case No. BA243089.
On June 15, 2005, probation previously revoked in case No. BA243089 was reinstated under the original terms and conditions. In case No. BA279446, the court imposed five years in state prison, the high term as agreed by the parties and court, and execution of sentence was suspended. Appellant was placed on five years formal probation, with conditions that included 67 days in jail, payment into the restitution and domestic violence funds, and 52 sessions each of domestic violence counseling and AA meetings. In addition, appellant was ordered to have no contact with the victim, to obey all laws and to obey the rules and regulations of the court and probation department.[2]
On September 20, 2005, the trial court revoked appellants probation in both cases, and issued a bench warrant. The probation violation hearing which is the subject of this appeal took place August 23, 2006. The prosecution presented the testimony of appellants wife, Kay, and of probation officer Fely Grace Venus.
Kay identified appellant in court as her husband, from whom she was separated at the time of the hearing. She testified that on May 19, 2006, at the time appellant was subject to the restraining order, he came to her home with her consent to visit the children. They argued, he became angry with her, and she asked him to leave more than once, but he refused and pushed her. He said, you [are] not going to be with this person, referring to a friend of hers. She called the police.
Kay testified that in July 2005, when she and appellant were arguing, she asked him to leave, and he said he was going to kill her. He also said, Well, since you are not going to be with me, you are not going to be with anybody. Kay claimed the threat wasnt nothing, just out of anger . . . , you know, just talk. She denied it was a threat, claiming, Thats not really a threat. Thats just verbal word, not really a threat. . . . Thats just a figure of speech. Look how long weve been together. So he is liable to say anything, you know. She admitted he had said it on more than one occasion, but claimed he never did anything to me. Kay claimed that even when appellant said he was going to kill her, he was just fussin, making crazy remarks, but she testified she called the police when he refused to leave, because she felt she could not handle him by talking to him, and because I do have a red alert on me.
Probation officer Venus testified she had been temporarily assigned to appellants case while probation officer Marilyn Ealy was on personal leave. She brought the probation file regarding both cases and testified to its contents. The file consisted of all probation violation reports and the probation officers chrono entries, which are notes to the file made by the probation officer. Although appellant enrolled in domestic violence counseling in July 2005, the probation file contained no evidence of participation in domestic violence counseling or a substance abuse program, or attendance at AA meetings. Appellant also failed to report to a financial evaluator as instructed by the Department. Appellant never paid the financial conditions of probation.[3] He failed to report to the Department on October 15, 2005, and his reporting thereafter was sporadic.
The trial court found appellant to be in violation of the conditions of his probation on three grounds: appellant failed to obey all laws, he violated the restraining order protecting the victim, and he failed to complete domestic violence counseling or attend AA meetings. In particular, the court found the testimony showed that in the summer of 2005, appellant committed an attempted criminal threat.[4] The court explained that although appellant harbored the specific intent necessary for criminal threat, there was no evidence Kay was actually in fear as a result of the threats.[5]
The court noted appellant could lawfully have had peaceful contact with his wife for purposes of visiting the children, but his contact was not peaceful. The court also found it had been established by a preponderance of evidence not only that appellant did not complete domestic violence counseling or attend AA meetings, but that he had made no attempt to do so. The court read and considered the old probation and sentencing reports and the most recent report.
The court revoked appellants probation and ordered that it not be reinstated, commenting that appellants failure to go to counseling and AA meetings was very serious, although it would not, by itself, justify imposing sentence. The court found the violation of the restraining order much more significant, and the failure to obey all laws and the attempted criminal threat highly significant, as the probation had resulted from a domestic violence conviction. The court further noted that probation might not have been granted originally, had the court been aware that appellant had suffered a prior robbery conviction, which the prosecution had failed to allege as a strike.
On August 23, 2006, in case No. BA279446, the court denied probation and imposed the high term of five years in prison, the previously suspended term. On the same date, in case No. BA243089, the court imposed the midterm of two years, to run concurrently with the sentence in case No. BA279446. Appellant timely filed his notice of appeal from both judgments August 24, 2006.
DISCUSSION
Appellant contends the sentencing court erred in finding he violated probation by committing an attempted criminal threat. (See Pen. Code, 422 & 664.) He claims the determination was error, because the evidence was insufficient to establish by a preponderance of evidence that appellant committed the offense. He further contends the asserted error was not harmless, because the court indicated appellants failure to go to counseling and AA meetings alone would not justify revoking probation, and found the evidence of an attempted criminal threat was the most serious of his violations.
The standard of proof in the probation violation hearing was a preponderance of evidence. (See People v. Rodriguez (1990) 51 Cal.3d 437, 446-447.) Thus, the evidence required to support the trial courts reasonable belief that appellant committed the new offense is less than would be necessary to convict him of that offense. (See In re Coughlin (1976) 16 Cal.3d 52, 56; People v. Andre (1974) 37 Cal.App.3d 516, 521; Pen. Code, 1203.2, subd. (a).) On appeal, we review the record for substantial evidence to support a finding that defendant violated a condition of probation. (See People v. Arreola (1994) 7 Cal.4th 1144, 1161; People v. Kurey (2001) 88 Cal.App.4th 840, 848-849.) The sentencing courts decision to revoke probation following such a finding is reviewed for an abuse of discretion. (People v. Rodriguez, supra, 51 Cal.3d at p. 443.) The courts discretion is very broad, and only in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation . . . . (Ibid.) The courts discretion will not be disturbed on appeal absent a showing it was exercised in an arbitrary or capricious manner, or exceeded the bounds of reason, after all circumstances have been considered. (People v. Downey (2000) 82 Cal.App.4th 899, 909.)
Appellant argues that the evidence was insufficient to prove he harbored the requisite criminal intent to commit an attempted criminal threat, one of the factors cited by the court in revoking probation. A criminal threat is a willful threat to commit a crime which will result in death or great bodily injury, made with the specific intent that it be taken as a threat, even if there is no intent of actually carrying it out. (Pen. Code, 422.) The threat must be -- on its face and under the circumstances -- so unequivocal, unconditional, immediate and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and it must actually cause the person threatened to be in reasonable and sustained fear for his or her own safety or familys safety. (Ibid.) An attempted criminal threat is committed with the same specific intent, but the victim need not have been in fear. (People v. Toledo (2001) 26 Cal.4th 221, 232.)
Appellant contends the specific intent to make a criminal threat was not proven, because his threats were not accompanied by an assault or physical violence, and because Kay testified his remarks did not frighten her -- they were nothing, [made] just out of anger and just talk. Appellant compares the facts of this case to the clearly distinguishable facts of In re Ricky T. (2001) 87 Cal.App.4th 1132. There, although the defendant told the victim, Im going to get you, and he would kick your ass, the circumstances did not indicate he intended to do so -- there was no evidence of prior disagreements or quarrels, or that the two had ever exchanged contentious, hostile or offensive remarks, and there was no weapon, touching or close-up physical confrontation. (Id. at pp. 1137-1139.) Further, the kick your ass comment was made in response to the defendants collision with a door, and Im going to get you was ambiguous. (Id. at p. 1138.)
Here, by contrast, not only was there evidence of a prior history of quarrels, but appellant had twice been convicted of inflicting injury on his spouse, and his threats were made in his wifes presence while he was under a court order restraining him from having contact with her. Appellant unambiguously told Kay in July 2005, that he was going to kill her. Appellant also told Kay that if she was not going to be with him, she would not be with anybody. On May 19, 2006, he made a similar comment -- that she would not be with a particular person. Although the statement was ambiguous on that occasion, there was a physical confrontation -- appellant pushed her when she told him to leave. Kay was concerned enough to call the police. That incident was just one month before the probation hearing, and appellant knew he was still subject to a restraining order.
As Kay testimony reasonably supports a finding that appellant made his remarks to her with the specific intent that she take them as a threat, we conclude that substantial evidence supports the sentencing courts finding that appellant committed an attempted criminal threat.[6] Appellant has not met his burden to show the courts decision to revoke probation was unreasonable, arbitrary or capricious. (See People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) Accordingly, we find no abuse of discretion. (See People v. Clair (1992) 2 Cal.4th 629, 655.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
EPSTEIN, P. J. SUZUKAWA, J.
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[1] According to the probation officers report, appellant head-butted his wife in the mouth during an argument, causing her to break a tooth. He fled when she called the police, but returned later. Finding the locks changed, he entered through a window, and said to his wife, Ill get you back.
[2] Initially, the order directed that appellant have no negative contact with the victim, but the court modified it to an unconditional stay-away order until further order of the court. Although we found no further order of the court changing the restraining order, the trial court later treated the order as permitting peaceful contact.
[3] The court cut short the testimony regarding the financial conditions of probation, indicating it would not send appellant to prison merely for failure to pay. Appellant was unemployed at the time of the hearing.
[4] See Penal Code sections 422 and 664.
[5] The court observed, however, that Kay clearly meant to minimize the circumstances.
[6] Moreover, as respondent has pointed out, appellant does not dispute the evidence that he violated the restraining order, and he fails to mention the courts finding that this was a significant violation of his probation. Other than the failure to make restitution when the probationer has no ability to pay, the law permits the court to revoke probation when the probationer has violated any term or condition of his or her probation. (Pen. Code, 1203.2, subd. (a), italics added.) Any, as a simple adjective, means whichever, of whatever kind, of whatever quantity. (Oxford English Dict. Online (2d ed. 1989)
