Filed 9/28/17 P. v. Crain CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. Harry L. Jacobs, Judge.

Sara E. Coppin, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Danny Wade Crain appeals from the October 3, 2016, order terminating his probation and imposing a previously suspended six-year prison term in case No. 6559, and imposing a concurrent four-year term in case No. 32665.[1] Defendant contends statements made by the trial court presiding over the probation revocation hearing indicate it prejudged the case, thus abusing its discretion and denying him due process. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 20, 2014, defendant pled no contest in case No. 32665, to assault upon a peace officer (Pen. Code, § 245, subd. (c); count 1)[2] and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count 2). Pursuant to the plea agreement, the court suspended imposition of sentence and placed defendant on three years’ probation.

On December 12, 2014, the probation department filed its first affidavit of probation violation. The affidavit alleged defendant violated his probation in that he had tested positive for methamphetamine and marijuana, signed a statement admitting methamphetamine use, failed to report as directed, left the county without the permission of his probation officer, and failed to comply with his GPS monitoring.

On December 17, 2014, defendant admitted the probation violation. The trial court revoked and reinstated defendant’s probation. The court further ordered defendant to enroll in and complete the Salvation Army residential treatment program.

On December 31, 2014, the probation department filed a second affidavit of probation violation, alleging that defendant had failed to enroll in and complete the Salvation Army program.

On January 27, 2015, defendant admitted the second probation violation. The trial court revoked and reinstated defendant’s probation. In addition, the court ordered defendant to enroll in and successfully complete the Hobie House residential treatment program, remaining in the program a minimum of six months. The court ordered defendant to report to the program “directly after court.”

On February 20, 2015, the probation department filed a third affidavit of probation violation and motion for issuance of bench warrant, alleging defendant failed to complete the Hobie House program on February 10, 2015, and failed to report to the probation department on February 11, 2015, one business day of leaving the program.

At the February 24, 2015, probation revocation hearing, defendant failed to appear, and defendant’s probation officer advised the court that defendant had reportedly “left the program, went to his grandmother’s house, broke in and took all her pills.” The probation officer further advised the court that he thought defendant was in Arkansas, explaining that defendant’s “mom’s calling, saying he’s in custody over there.” The court revoked probation and issued a “no bail” bench warrant for defendant’s arrest.

On December 9, 2015, after defendant was back in county custody, the court recalled the warrant and denied defendant bail.

On January 19, 2016, new criminal charges were filed against defendant in case No. 6559. Defendant entered a plea agreement in that case which included another probationary term and order to enroll in a particular treatment program. However, after that program and others rejected defendant for admission, the parties stipulated to set aside the first plea agreement at a hearing on April 18, 2016.

Under the new plea agreement in case No. 6559, entered at the April 18, 2016, hearing, defendant pled no contest to committing first degree burglary (§ 459) on February 11, 2015, and admitted the offense was a strike under section 667.5, subdivision (c)(21). In accordance with the plea agreement, the trial court imposed a suspended six-year sentence for the burglary and admitted defendant to five years’ probation on condition he serve a one-year jail term with 134 days’ credit. The court further ordered defendant to report to probation within one business day after his release from custody, and to enroll in and complete the Behavior Intervention program for substance abuse issues.

With respect to the third probation violation charged in case No. 32665, on February 24, 2015, the trial court stated: “[W]e’re setting aside the prior violation of probation and taking judicial notice of the current plea, judicial notice that he failed to obey, which is a term and condition of that probation. And probation’s reinstated with all the terms and conditions previously imposed.”

On July 14, 2016, the probation department filed a fourth affidavit of probation violation. The affidavit alleged, among other things, that between May 24, 2016, and July 12, 2016, defendant failed to seek and maintain substance abuse counseling through the Behavioral Intervention program, tested positive for amphetamines, methamphetamine, and morphine, and signed a statement admitting methamphetamine use.

At the July 27, 2016, probation revocation hearing, defendant admitted the probation violation. The trial court revoked and reinstated defendant’s probation, noting “this will be the defendant[’]s last chance at probation.” The court also ordered defendant to enroll in and complete the Hobie House residential treatment program.

On August 18, 2016, the probation department filed a fifth affidavit of probation violation, alleging defendant failed to complete the Hobie House program, and failed to report to the probation department on August 8, 2016, which was one business day of leaving the program.

On August 24, 2016, defendant failed to appear for the probation revocation hearing and the trial court issued a bench warrant for defendant’s arrest.

On October 3, 2016, the trial court conducted a contested probation revocation hearing. Defendant did not dispute, but submitted on the testimony of his probation officer, which established defendant violated his probation. According to the probation officer’s testimony, on August 5, 2016, defendant was discharged from Hobie House for using methamphetamine offered to him by another resident of the program. Defendant then failed to report to his probation officer as required but eventually turned himself in on September 14, 2016.

After finding defendant violated his probation, the trial court listened to the arguments of counsel and the views of the probation officer on whether the court should sentence defendant to prison or reinstate defendant’s probation. Following argument, the court terminated probation and ordered defendant to serve the previously suspended six-year term in case No. 6559, and imposed a concurrent four-year term in case No. 32665.

DISCUSSION

“Sentencing choices such as the one at issue here, whether to reinstate probation or sentence a defendant to prison, are reviewed for abuse of discretion. ‘A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.’ ” (People v. Downey (2000) 82 Cal.App.4th 899, 909-910.) It is the defendant’s burden to demonstrate affirmatively an abuse of discretion. (People v. Vanella (1968) 265 Cal.App.2d 463, 469.) “In the absence of any showing that the court’s decision was arbitrary or capricious, we will uphold it on appeal.” (People v. Downey, supra, at p. 910.)

Defendant claims the trial court abused its discretion and violated his due process right to an impartial decision maker because the court’s comments during the October 3, 2016, hearing, indicate the court failed to “consider whether the circumstances of the violation mitigated [defendant’s] conduct and whether termination of probation and imprisonment was the appropriate disposition.” Defendant suggests the court imposed sentence based solely on statements the court made at previous hearings warning defendant he was on his “last chance” of probation.

Defendant has not met his burden of showing the trial court prejudged the case and failed to exercise its discretion to consider whether it would be appropriate for defendant to remain on probation. The record provides no basis to conclude the court here did not listen to or consider the various mitigating circumstances defense counsel argued in favor of reinstating probation in making its sentencing decision. The primary mitigating factor defense counsel asserted was defendant’s youth (i.e., 24 years old). In this regard, defense counsel stated:

“[T]he U.S. Supreme Court is recognizing in the course of its cases in the Juvenile Court setting and allowing juveniles sentenced to life, that they should get a chance at parole. And in that setting, the Supreme Court is strongly being influenced by psychological and neurological or neuroscience research in that—that finds that adolescents typically are less developmentally mature in their decision making than adults. And they’re finding further evidence that it’s not until the average human brain is 25 that it’s fully developed to make decisions. And [defendant] is not yet 25; he will be soon. But one of the problems with the brain and decision making and its development before the age of 25 and they pointed out is impulse control.”

After listening to counsel and the probation officer, the trial court made the following statements in ruling:

“All right. In this matter, the Court has read most of the file, including the transcript, the original transcript that Judge Hansen—in which Judge Hansen makes a very clear record regarding why he’s giving him this suspended time, and why he believes that that’s in the interest of justice to do that. And a very clear dialogue with the defendant ensues in which he says ‘This is your last chance. You understand that the risk of any violation, sending you to prison is very real.’ And it appears from the answer given by the defendant that he understood that. I have also read the materials, including science articles regarding … brain development and I am—I’m very cognizant of those. And I will say that in the future it may be that, because of that science, that the criminal justice system is reformed thereby to allow for those kinds of things and to change the whole philosophy about how we look at sentencing. … I am cognizant of it, but that is not the system that we are dealing with. Accountability is what is the main focus of the justice system today.

“In addition, I also note that methamphetamine, particularly methamphetamine, alters the brain pathways and it particularly alters the inhibition of the frontal cortex so much that it allows the impulse of the mid-brain to control the activities of the person who takes methamphetamine. And therefore, it is very likely, [defendant], that because of your use of methamphetamine your brain development is significantly altered and hindered, in addition to the fact that you’re young. And it’s also my belief, based on what I read, that that may never fully be reversed, no matter how long you stop taking it, which is very sad indeed.

“So in this matter, probation in this case is terminated. And the defendant is ordered to serve the previously suspended six-year term in the Department of Corrections & Rehabilitation. It’s the upper term of six years.”

Despite defendant’s contrary assertions, the trial court’s comments do not demonstrate that the court failed to conduct an impartial assessment of whether it would be appropriate to reinstate probation. Although the court had given defendant warnings that he was on his last chance of probation at previous hearings, the court’s comments at the October 3, 2016, hearing do not show the court relied on these warnings to impose sentence or saw these warnings as limiting its discretion in any way.

Nor do the trial court’s comments demonstrate “it incorrectly believed that it did not have the discretion to consider the mitigating factors asserted by defense counsel,” such as the relationship between defendant’s youth and brain development.

As defendant acknowledges, the trial court’s comments, both in the above ruling and earlier in the hearing, indicate it had read the literature on brain development referenced by defense counsel. Far from showing the court believed it lacked discretion to consider the issue of brain development, the court’s comments indicate it did consider it and was of the opinion that defendant’s lack of impulse control could not be attributed solely to his youthful brain development. Thus, the court pointed out to defendant that it was likely his brain development was “significantly altered and hindered” by his use of methamphetamine “that may never fully be reversed, no matter how long you stop taking it, which is very sad indeed.”

The court’s comments imply that it did not think defendant was a suitable candidate for probation because of his repeated relapses into methamphetamine use, which were likely to continue, even as he aged. Given defendant’s prior conduct on probation, which supports the court’s observations, the imposition of sentence was not arbitrary or capricious, and defendant has not met his burden to demonstrate otherwise.

DISPOSITION

The judgment is affirmed.