P. v. Bernal

Filed 10/16/06 P. v. Bernal CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Jose Trinidad Bernal appeals from a January 5, 2006 order revoking probation and ordering him to serve a four year eight month prison sentence previously imposed but stayed. (Pen. Code, § 1203.2, subd. (c).)^[1] We affirm.

On April 7, 2005, appellant was sentenced to four years state prison in Case No. 1161436 after entering a plea of no contest to petty theft with priors (§ 666) and admitting a prior prison term enhancement (§ 667.5, subd. (b)). In Case No. 1141254, appellant pled no contest to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and received an eight month sentence, to be served consecutive to the sentence in Case No. 1161436. The trial court suspended execution of sentence in both cases and granted three years probation.

Appellant absconded from probation supervision, was arrested for being under the influence of alcohol, and was arrested on a warrant on June 22, 2005. The trial court found appellant in violation of probation and reinstated probation, subject to the condition that appellant serve 90 days in jail and complete a one-year residential treatment program.

On August 13, 2005, appellant was arrested for disturbing the peace and abusing alcohol. Appellant admitted violating probation. The trial court revoked probation and ordered appellant to serve the prison sentence previously imposed.

Reinstating Probation

It is well settled that probation is not a right, but an act of clemency to allow rehabilitation. (People v. Johnson (1993) 20 Cal.App.4th 106, 109; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) During the term of probation, the court may "revoke, modify, or change its order of suspension or imposition or execution of sentence." (§ 1203.3, subd. (a.).) Only in an extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 443.)

Appellant violated probation twice and admitted the probation violations. At the sentencing hearing, the trial court considered the probation report, appellant's sentencing memoranda, and argument. The prosecutor, in reference to the trial court's comments in a case heard earlier that day, said "it's not true that just because it's state prison suspended . . . you have to get it, [if you violate probation] . . . . But it certainly is -- the defendant should be swimming against the tide to get more probation after that happens and have a very good reason, and there isn't one in this case."

Responding to the prosecutor's comments, the trial court stated: "I'm not necessarily convinced that we do, but [we] may have some difference of view with regard to the consequences of violating probation after a state prison sentence has been imposed and suspended. I have very strong feelings about that. I feel that when I say to a defendant you're sentenced to state prison and the execution of that sentence is suspended, and you're granted probation, that the clear import of that message is you're going to state prison if you violate probation. That decision's been made. There's a purpose in using that mechanism. There’s a purpose in using that device. And the purpose is to say that I know that if I deviate from what's expected of me, I'm going to state prison. It's not because the judge does something or mother doesn't do something or sister doesn't do something or [your] brother turns you away. It's because there are options to getting drunk again."

Appellant argues that the trial court had a "fixed policy" of not reinstating probation and abused its discretion. (See e.g., People v. Penoli (1996) 46 Cal.App.4th 298, 303-304 ["standard practice" of requiring waiver of custody-time credit as a condition of probation is abuse of discretion]. We disagree. The fair import of the trial court's comments was that appellant was given a second chance to rehabilitate himself and squandered the opportunity. "[W]hen a judge suspends execution of a prison term, the message being conveyed is that the defendant is on the verge of a particular prison commitment." (People v. Medina (2001) 89 Cal.App.4th 318, 323.)

Appellant was advised that he was required to follow the terms of probation or go to prison. He violated probation not once but twice. The trial court found that appellant has "demonstrated time and time again that you have not -- you have not been able to stay sober" and be a law abiding citizen. This finding was amply supported by the record. The probation report stated that appellant "has a lengthy criminal history dating back to 1980 which includes twenty-three different charges ranging from burglary to assault with [a] deadly weapon (not firearm)[] with GBI. . . . It appears the [appellant] has a history of squandering his opportunities and is doing so again."

Appellant makes no showing that the trial court's order was irrational, arbitrary, or the product of whimsical thinking. (In re Cortez (1971) 6 Cal.3d 78, 85.) The probation report stated that appellant was unamenable to probation, "has no desire to change his behaviors, and only makes empty promises in order to take advantage of the Court's leniency." Appellant's criminal record, his performance on probation and prior grants of probation, and his unwillingness to comply with the terms of probation clearly supports the decision not to reinstate probation. (Cal. Rules of Ct., rule 4.414, subd. (b).) The trial court did not abuse its discretion in ordering appellant to serve the four year eight month prison sentence. (See e.g., People v. Angus (1980) 114 Cal.App.3d 973, 988.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

George C. Eskin, Judge

Superior Court County of Los Angeles

______________________________

California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director and Richard B. Lennon, Staff Attorney, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Yun K. Lee, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] Unless otherwise stated, as statutory references are to the Penal Code.