P. v. Decarie

Filed 3/27/07 P. v. Decarie CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Michael Decarie appeals from a judgment revoking his probation and executing the previously imposed prison sentence. He challenges the admissibility and sufficiency of the evidence supporting revocation. We affirm.

Background

On July 11, 2003, Michael Decarie was charged with second degree robbery with the personal use of a handgun. (Pen. Code,  211; 12022.5, subd. (a)(1); 12022.53, subd. (b).) He pled no contest to the robbery. Imposition of sentence was suspended and he was placed on three years formal probation. Decarie admitted a probation violation on January 5, 2005. The court imposed and suspended a three year prison sentence and reinstated probation with the new condition that he complete a Category 2 residential substance abuse treatment program. On June 14, 2005, Decarie admitted a second violation of probation, failure to complete the treatment program. Probation recommended placement in a Category 1 residential treatment program. [T]his will be Probations final recommendation for treatment. The court reinstated probation, extended its term to May 13, 2009, and ordered Decarie to complete a Category 1 program.

Decarie was placed in Genesis House August 17, 2005. He was terminated from the program February 15, 2006 and reported to probation, which had already requested a warrant for his arrest. Decarie petitioned for modification of the conditions of his probation on the ground that he was terminated for minor rules violations and . . . Defendant has otherwise complied with the terms and conditions of his probation. He sought permission to enter and complete a different residential treatment program.

Probation was summarily revoked and Decarie was remanded into custody. He denied the violation and the matter was set for a contested hearing. The only witness at the contested hearing was his probation officer, Jamie Nichols. She testified that Decarie informed her on February 17 that he had been terminated from the program but he didnt agree with it. The minimum time required to complete the Genesis House program was nine months and Decarie had been in the program only six months. Over Decaries objections on the grounds of hearsay, lack of foundation, best evidence, and his right of confrontation, Nichols read from a letter she had received from Genesis House, which said that Decarie had been terminated for being poor support and because he was unamenable to treatment in the program. On cross-examination, Decarie established that Nichols had no information that Decarie ever tested positive for drugs, missed required meetings, left the premises without permission, or possessed contraband while in the Genesis House program. When he asked Nichols to identify the program rule Decarie violated, she was unable to do so.

Decarie moved to strike all testimony regarding anything at Genesis House. He argued, [F]rankly, your Honor, him being a smart alec and trying stuff and making jokes that they didnt think were funny or something shouldnt cause this young man to be subjected to a prison commitment. [] Thats why the confrontation rule is so important, because the people from Genesis House should be required to be here so that we can question them about what they claim was a violation, because what was submitted, in my opinion, doesnt constitute sufficient grounds to terminate him. The court took the matter under submission. Following argument on the evidentiary issues at a subsequent hearing, the court summarily ruled, Based upon the admissible evidence, he is in violation of his probation, and I so find.[1]

In a supplemental report, probation recommended imposition of the suspended three year prison sentence. The defendant has had two opportunities to address his substance abuse, anger and lifestyle issues, but has failed to complete a program. He was well aware that failure to complete a Category 1 Program would result in a recommendation for state prison. After argument, the court imposed the suspended sentence without stating reasons for its decision.

Discussion

The focus of the appellate briefing is the admissibility of evidence originating from Genesis House that describes the reasons for Decaries termination from the program. We need not reach this issue. In the particular context of this case, the bare fact of Decaries early termination from the program for his conduct before successful completion was sufficient to support the trial courts finding that he violated probation and to support its decision to revoke probation and impose the suspended term.

Revocation of probation rests entirely in the sound discretion of the trial court. (People v. Smith (1970) 12 Cal.App.3d 621, 626.) While this discretion is broad, the court may not act arbitrarily or capriciously and its determination must be based on the facts before it. (Ibid.) If a probationer is in technical violation only and has a valid excuse for the violation, a revocation of probation may be an abuse of discretion. (Ibid.) Similarly, if a court revokes probation based on a violation that was not willful, revocation may be an abuse. (People v. Zaring (1992) 8 Cal.App.4th 362, 375.) The facts supporting revocation of probation must be proven by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 439.)

The trial court was presented with sufficient evidence to find a willful, nontechnical violation of probation in the particular circumstances of this case. As a term of his probation, Decarie was ordered to successfully complete a Category 1 treatment program. He acknowledged that he had been terminated based on his conduct in the program. There is no suggestion in the record that Decarie was or might have been terminated due to circumstances beyond his control. (Cf. People v. Zaring, supra, 8 Cal.App.4th at p. 379.) Rather, Decarie told his probation officer he did not agree with it, and he argued at the revocation hearing that his conduct was not significant enough to justify termination from the program. That is, he disputed the seriousness of his misconduct, dismissing it as smart-alecky and joking behavior the staff should have tolerated. Decarie essentially asked the trial court to weigh the severity of his misconduct to determine whether it justified his expulsion from Genesis House and amounted to more than a technical violation of probation.

The trial court was not obligated to probe further. This was Decaries third failure on probation and second failure in a treatment program. He had been warned that it was his final chance to avoid prison.[2] The court reasonably relied on the fact that Decaries conduct led the programs professional staff to conclude he was unamenable to treatment. When Decarie argued that the program staff should have been as thick skinned as the court itself needed to be with some probationers, the court rejected the argument as a weak analogy. This court is not a residential treatment program. The court did not err in finding a willful, nontechnical violation of probation.

Decaries unsuccessful completion of the program due to his own conduct was also a sufficient ground for the court to exercise its discretion to revoke his probation. Decarie had failed on probation twice before. Despite his serious crime of robbery, he had been given the opportunity to enter a treatment program in lieu of prison after the first probation violation. When he willfully failed in that program, he was given another opportunity to pursue treatment rather than serve time, but was warned it was his last chance to avoid imposition of the three-year suspended prison term. He failed again due to his own conduct in the program. The court did not abuse its discretion by revoking probation.

Disposition

The judgment is affirmed.

GEMELLO, J.

We concur.

JONES, P.J.

SIMONS, J.

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[1] Although Decarie repeatedly objected to the admission of the Genesis House directors statements at the hearing, moved to strike the evidence at the close of the prosecutions case, and argued the evidence was inadmissible at a subsequent hearing, the court never expressly ruled on the admissibility of the evidence.

[2] We infer from certain passages in the reporters transcript that the trial court had Decaries entire court file before it during the revocation hearing. At the start of the hearing, the prosecutor asked the court to take judicial notice of the August 2, 2005 order requiring Decarie to successfully complete a Category 1 treatment program. The court responded, All right. Its here. I see that. Ill be happy to take notice of it. Later, the court indicated that it had before it the probation officers request for an arrest warrant and an attached letter.