P. v. Castro-Fierro

Filed 11/30/09 P. v. Castro-Fierro CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Joan M. Borba, Judge. Affirmed.

Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Delfino Castro-Fierro appeals the imposition of a prison sentence after he was found in willful violation of the terms of his probation, granted in 2000. Defendant urges that the evidence was sufficient to find that his failure to comply with the condition of probation that he report to serve 180 days in the county jail was not willful, because he had been deported before his report date. The People respond that defendant had ample opportunity to comply, notwithstanding his deportation, in the years since defendants return to the United States. We affirm.

FACTS AND PROCEDURAL HISTORY

In 2000, defendant was arrested in possession of 10 grams of cocaine. He was charged with transportation of a controlled substance (Health & Saf. Code,  11352, subd. (a)), and possession of a controlled substance for sale (Health & Saf. Code,  11351).

In August 2000, defendant pleaded no contest to count 1, transportation of a controlled substance. In September 2000, the court granted defendant probation, on certain terms and conditions, including that he serve 180 days in the county jail, to be served on weekends. Defendant was to begin serving his jail term on November 3, 2000.

Defendant failed to report to the jail as ordered. By December 8, 2000, a no-bail warrant was issued, alleging that defendant had violated the terms of his probation by failing to appear to start serving his jail term.

In 2008, defendant was eventually arrested in the United States on an outstanding warrant. Defendant was granted a formal probation revocation hearing. A probation report was prepared in advance of the hearing. Defendant told the probation officer that he did not report to start serving his jail term because he was deported in November of 2000. Defendant further acknowledged, however, that he had returned to the United States in February 2001, and thereafter lived with his wife and family until his arrest in April 2008. He also admitted that he used a false name when he received traffic citations, to avoid detention.

At the hearing, the trial court found defendant in violation of his probation for failure to report to serve his jail sentence. The court imposed a state prison term of three years.

ANALYSIS

I. The Trial Court Properly Found that Defendants Violation of Probation Was Willful

Defendant contends that the evidence was insufficient to find that his violation of probation was willful, because he was involuntarily deported on or before the date he was ordered to begin serving his jail sentence.

The standard of proof required for revocation of probation is a preponderance of evidence to support the violation. (People v. OConnell (2003) 107 Cal.App.4th 1062, 1066.) Trial courts are granted great discretion in deciding whether or not to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) Absent abuse of that discretion, an appellate court will not disturb the trial courts findings. (People v. Self (1991) 233 Cal.App.3d 414, 417.)

Defendant relies on People v. Galvan (2007) 155 Cal.App.4th 978 for the proposition that a trial court abuses its discretion in finding a willful violation of probation in the face of an involuntary deportation. Galvan does not aid defendant. In Galvan, the defendant was placed on probation and ordered to report to the probation office within 24 hours of his release from custody. He was also ordered to report to the probation office within 24 hours of his reentry into the United States if he left the country. The defendant did not appear for a probation violation hearing because he had been deported to Mexico immediately after his release from jail. There was no evidence in the record to show when he had returned to the United States. The Court of Appeal therefore determined that the evidence was insufficient to show that he willfully failed to comply with the reporting requirements. (Id. at pp. 983, 984.)

Galvan, in turn, had relied on People v. Zaring (1992) 8 Cal.App.4th 362. In Zaring, the trial court had ordered the defendant to appear in court the following day at 8:30 a.m. The next day, the defendant was 22 minutes late. At her probation revocation hearing, the defendant explained that she had arranged for a ride to court (she lived 35 miles away), but that the ride fell through at the last minute because of a childcare problem. The Court of Appeal in Zaring held that the trial court had abused its discretion in revoking probation. It determined that the defendants violation had not been willful: Certainly, it cannot reasonably be concluded that Judge Broadman expected the appellant to camp outside the courtroom until 8:30 in the morning. Neither can it reasonably be concluded that had appellant had an accident or mechanical failure of her vehicle that such conduct would not be excusable. In other words, the discretion that the trial court is empowered to use is predicated upon reason and law but is primarily directed to the necessary end of justice. . . . [] . . . [] . . . [A]ppellant was confronted with a last minute unforeseen circumstance as well as a parental responsibility common to virtually every family. Nothing in the record supports the conclusion that her conduct was the result of irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court. . . . [W]e cannot in good conscience find the evidence supports the conclusion that the conduct of appellant, even assuming the order was a probationary condition, constituted a willful violation of that condition. (Id. at pp. 378-379, fns. omitted.)

The instant case is significantly different from both Galvan and Zaring. Unlike Galvan, there is evidence here as to when defendant reentered the United States. He did so in early 2001, and thereafter never made any attempt to comply with the condition of probation that he serve 180 days in the county jail. Although defendant makes much of the supposed distinction that he, unlike the defendant in Galvan, was never expressly ordered to report to probation upon his reentry into the United States, defendant was nevertheless fully aware of his obligation to serve 180 days in jail, an obligation he knew he had not fulfilled, and which he even took deliberate steps to avoid for seven or eight years after his return. Thus, in contrast to Zaring, here we may conclude that defendants failure to fulfill the terms of his probation was the result of irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court. (People v. Zaring, supra, 8 Cal.App.4th at p. 379.)

A more recent case, People v. Cervantes (2009) 175 Cal.App.4th 291, is also unavailing. There, the trial court accepted a guilty plea and granted probation to a defendant it knew was an undocumented alien. The defendant was unable to appear at a 30-day probation review because he was in the custody of the Immigration and Customs Enforcement agency (ICE). The defendant did appear at a probation revocation hearing. Under the circumstances, the defendant was not in violation of probation. The defendant had been continuously in ICE custody until returned to the custody of the sheriff for appearance at the probation violation hearing. Although the trial court agreed that the defendant had done no act which violated his probation, it revoked probation anyway, because it deemed the defendants immigration status such as to render him no longer suitable for probation. The Court of Appeal reversed. Probation may not be revoked unless the evidence supports a finding that the probationers conduct constituted a willful violation of the terms of probation. Where a probationer is unable to comply . . . because of circumstances beyond his or her control and defendants conduct was not contumacious, revoking probation and imposing a prison term are reversible error. (Id. at p. 295, citing Zaring, supra, 8 Cal.App.4th at p. 379.)

Although here defendant was unable to report for his jail sentence at the time ordered because of circumstances beyond his control, it was not beyond his control to have complied with the jail sentence condition of his probation while he was present in the United States and evading custody for seven years or more.

Defendant appears to argue that his probation was violated merely for the failure to report on a specific date, November 3, 2000, and that the failure to report was not willful. There is, however, nothing in the record to suggest that the trial court, or this court, has regarded the alleged violation in such a stringently narrow fashion. Rather, the terms of defendants probation required him to serve a term of imprisonment in the county jail, and defendant could have been under no illusions, regardless of the involuntariness of his deportation, that he had not complied with that requirement at any time since his return to the United States. Defendant had ample opportunity to comply, but intentionally chose not to. The trial court did not abuse its discretion in finding that defendant had willfully violated the terms of his probation.

II. Defense Counsel Was Not Incompetent

Defendant urges that his trial counsel provided constitutionally ineffective representation for failing to present evidence, aside from defendants own statements, to substantiate defendants claim that he had been deported and thus was unable to report timely to the jail.

In order to prevail on a claim of ineffective assistance of counsel (IAC), defendant must show by a preponderance of the evidence both that counsels representation fell below an objectively reasonable standard of practice, and that defendant was prejudiced by counsels deficiencies. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674].)

Defendants claim fails on both prongs. The gist of the violation was not merely a failure to report to a certain place at a certain time, but the failure to report at any time to fulfill the condition of probation that defendant serve a jail term. The prosecution did not contest defendants statement to the probation officer that he had been deported; there was no need to adduce further evidence of the fact. Counsel did not provide deficient representation in declining to proffer more evidence of a conceded fact. In any case, defendant could not have been prejudiced by the failure to proffer any such evidence. Defendants probation was not violated because of insufficient evidence of his deportation; his probation was violated because of his failure to serve 180 days in jail, a stated term of his probation, even though defendant had returned to the United States within a few months after his deportation and remained at large for seven to eight years thereafter.

DISPOSITION

The order revoking defendants probation is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKINSTER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ KING

J.

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