P. v. Godown

Filed 10/25/06 P. v. Godown CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Shasta)

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In July 2005, defendant John Godown pled no contest to possessing methamphetamine and admitted he had served a prior prison term. The trial court suspended imposition of sentence and granted defendant probation pursuant to Proposition 36, which is codified in part in Penal Code sections 1210 and 1210.1. (Further section references are to the Penal Code unless specified otherwise.) Thereafter, defendant violated probation by failing to abstain from the use of narcotics, and the court revoked but reinstated probation. Defendant then violated probation again by using methamphetamine on January 9, 2006, and by resisting arrest four days later. (§ 148, subd. (a)(1).) As a consequence, the court revoked defendant’s probation and sentenced him to four years in state prison.

Defendant appeals, contending that there is insufficient evidence he resisted arrest and that the trial court abused its discretion in revoking probation. We disagree and shall affirm the judgment.

DISCUSSION

I

Defendant claims there is insufficient evidence he violated section 148, subdivision (a)(1), which requires proof that “(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.” (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109.)

In a probation revocation hearing, the burden of proof is by a preponderance of the evidence. (People v. Kurey (2001) 88 Cal.App.4th 840, 849.) “[O]ur review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court’s decision. . . . [W]e give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision.” (Id. at pp. 848-849, fns. omitted.)

Officer Todd Cogle testified that on January 13, 2006, he and other law enforcement officers went to a residence to arrest defendant for a probation violation. The officers, who were in uniform, entered the residence and announced they were conducting a probation search. While Cogle was in the kitchen, he heard officers giving commands and heard a scuffle. He turned around and saw Officer McGinnis and Agent Abney struggling with defendant in the bathroom, about 10 to 15 feet away. They were trying to get defendant out of the bathroom and he appeared to be resisting. The officers told him three times to put his arms behind his back so they could handcuff him. Defendant was bowing his arms to prevent them from doing so. Cogle went to assist, and it took all three of the officers to handcuff defendant. According to Cogle, “If [defendant] would just [have] put his hands behind his back, it would have been okay.”

Defendant, who admitted that he saw the “cops” through the bathroom window and suspected they were there because he had a “dirty test a few days prior,” denied resisting arrest. Defendant testified that he had shoulder injuries which prevented him from placing his arms together behind his back, and that the officers pulled him from the bathroom and twisted his arm behind his back, which caused him to tense up from the pain. Defendant admitted he had two prior “148’s” for resisting arrest.

Officer Sean McGinnis testified on rebuttal that when he arrived at the bathroom with Agent Abney, McGinnis advised defendant that he was under arrest but defendant did not react. McGinnis grabbed defendant’s left arm and said that he needed to handcuff him. Defendant, who kept questioning why he was under arrest, tensed up and was holding his arms straight out and rigid so that McGinnis could not handcuff him. McGinnis pulled defendant out of the bathroom, rather than giving him a chance to exit on his own, because defendant had fled from McGinnis during two prior arrests. Abney grabbed defendant’s other arm and while the two officers were struggling with defendant, Officer Cogle arrived and helped them to handcuff defendant.

This evidence amply supports the trial court’s finding that defendant obstructed or delayed the officers in the performance of their duty by resisting their lawful attempts to handcuff and arrest him.

II

Defendant also challenges the trial court’s decision to revoke probation. He acknowledges that the court had discretion to modify or revoke probation because one of his violations was non-drug related. (People v. Martinez (2005) 127 Cal.App.4th 1156, 1162; former § 1210.1, subd. (e)(2).)^[1] However, he asserts the court either abused its discretion or failed to exercise its discretion. This is so, he says, because (1) there is no evidence the court considered modifying the terms of probation, and (2) the probation report indicated that defendant was ineligible for probation pursuant to section 1210.1, subdivision (e)(2). Our review discloses the court properly exercised its discretion.

Where a Proposition 36 defendant has violated a non-drug related condition of probation, he “stands in the same shoes as any other probationer and he is subject to whatever sentencing statutes bear on his sentencing.” (People v. Dixon (2003) 113 Cal.App.4th 146, 153.) “Section 1210.1, subdivision (e)(2) says that following violation of a non-drug-related condition of probation, ‘[t]he court may modify or revoke probation.’ . . . This power is in the disjunctive. Thus, following violation of a non-drug-related condition of probation, the trial court retains discretion to ‘modify’ (and therefore reinstate) probation under section 1210.1, subdivision (e)(2), but only if some other statute (such as section 1203) does not countenance against a grant of probation. In the latter situation, the court must resort to the disjunctive command to revoke.” (People v. Dixon, supra, 113 Cal.App.4th at pp. 153-154.)

Here, the trial court observed that defendant had seven prior felony convictions, which meant he was presumptively ineligible for probation. (§ 1203, subd. (e)(4) [except in unusual cases, probation shall not be granted where the defendant has two felony convictions].) The court properly applied the statutory presumption against probation. (People v. Dixon, supra, 113 Cal.App.4th at p. 154.) In addition, the court noted defendant had violated prior grants of probation multiple times and his present performance on probation, which included three violations, was dismal. In light of the presumption against probation, and defendant’s repeated failures on probation, the court did not abuse its discretion in revoking, rather than modifying, his probation. As pointed out by the probation officer, “[f]urther probation supervision would be pointless.”

DISPOSITION

The judgment is affirmed.

SCOTLAND , P.J.

We concur:

DAVIS , J.

RAYE , J.

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^[1] At the time of the probation revocation, section 1210.1, subdivision (e)(2) stated: “If a defendant receives probation under subdivision (a), and violates that probation either by being arrested for an offense that is not a nonviolent drug possession offense, or by violating a non-drug-related condition of probation, and the state moves to revoke probation, the court shall conduct a hearing to determine whether probation shall be revoked. The court may modify or revoke probation if the alleged violation is proved.” (Stats. 2001, ch. 721, § 3, eff. Oct. 11, 2001.) Section 1210.1 was amended effective July 12, 2006, after the occurrence of all events pertinent to the present appeal. (Stats. 2006, ch. 63, § 7.)