P. v. Gomez

Filed 10/6/06 P. v. Gomez CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Trentacosta, Judge. Affirmed.

On August 6, 2003, Marcel O. Gomez entered a negotiated guilty plea to unlawful sexual intercourse (Pen. Code, § 261.5, subd. (c)), and disobeying a court order (Pen. Code, § 166, subd. (a)(4)). On the unlawful sexual intercourse conviction, the court suspended imposition of sentence and placed him on probation for five years including conditions he "attend and successfully complete a . . . counseling program approved by the P.O., if directed by the P.O." It imposed a sentence of credit for time served on the conviction of disobeying a court order. On April 29, 2005, the court revoked and reinstated probation. On August 30, the court held a hearing and again revoked probation. The court sentenced Gomez to prison for the two-year middle term. Gomez contends there was insufficient evidence to prove he violated the terms of probation.

FACTS

On August 30, 2005, the court held a probation revocation evidentiary hearing on the People's allegation that Gomez violated probation by not attending a counseling program as directed by his probation officer. Gomez's probation officer testified that she initially gave Gomez a list of approved counselors that included Dr. Larry Corrigan. Gomez attended group sessions provided by Corrigan's staff member Henry Concha for approximately nine months until Corrigan terminated him because Gomez's attorney had advised him not to discuss details of the case. The probation officer saw little improvement in Gomez's attitude and, at meetings on May 10 and May 20, she discussed Gomez entering into therapy with forensic psychologist Dr. James Revis. Gomez did not respond. He told the probation officer that he had an appeal pending. She postponed the discussion because Gomez was so adversarial. At a probation modification hearing on June 3, they spoke about Dr. Revis and Gomez became very angry. On July 11, Gomez claimed the earlier court order was suspended because he had an appeal pending. Apparently finding no appeal pending, the trial court ordered Gomez to go into a sex counseling program. At the evidentiary hearing, Gomez testified that on July 12, the probation officer told him he had 30 days to start the counseling program and he would begin therapy with Dr. Corrigan within the 30-day period. On July 15, the probation officer ordered Gomez to enter counseling with Dr. Revis. He refused to do so. Instead, that afternoon Gomez entered a counseling program with Dr. Corrigan. The program was to begin on August 4. On July 22, the probation officer again ordered him to enter counseling with Dr. Revis and again Gomez refused. He was arrested.

DISCUSSION

Gomez notes he applied for and was accepted to a counseling program with Dr. Corrigan and that the 30 days to begin counseling with Dr. Revis had not expired when the probation department had him arrested him for failing to comply with the probation condition.

We analyze this contention post, after setting forth the appropriate standard of review.

I. Standard of Review

"Probation is an act of leniency, not a matter of right." (People v. Walmsley (1985) 168 Cal.App.3d 636, 638.) Revocation of probation, like its grant or denial, lies within the discretion of the trial court. (People v. Walker (1963) 215 Cal.App.2d 609, 611.) Discretion is abused if exercised in an arbitrary or capricious manner. (People v. Delson (1984) 161 Cal.App.3d 56, 62.) In People v. Rodriguez (1990) 51 Cal.3d 437, 443, the California Supreme Court said, "[i]t has long been recognized that the Legislature . . . intended to give the trial courts very broad discretion in determining whether a probationer has violated probation." Thus, the question is whether the trial court's revocation of Gomez's probation was arbitrary or capricious.

II. Analysis

Among the probation conditions, Gomez was ordered to "attend and successfully . . . complete a counseling program . . . directed by the P.O." Gomez admits he did not apply for a program with the person the probation officer chose but argues that he did apply for a program with another person on the list the probation department provided and the time had not run to apply with the person the department chose.

Viewing the evidence in the light most favorable to the ruling below, Gomez refused to carry out his probation officer's order he attend a counseling program directed by the probation department. Gomez testified his probation officer asked him to attend Dr. Revis's counseling program and he refused because he did not want to attend. If Gomez was dissatisfied with the department's direction, he should have sought modification of the order, not merely refusing to comply with the direction. In light of the department's determination that Dr. Corrigan's program did not meet Gomez's need, revocation of Gomez's probation for failing to attend counseling as directed by his probation officer was not arbitrary or capricious. Regarding Gomez's claim that he was arrested within the 30-day "window" the probation officer gave him to enter counseling, assuming that the probation officer told Gomez on July 12 that he had 30 days to enter counseling with Dr. Revis, on July 15 Gomez refused to comply and entered a program that had previously been unsuccessful. He was arrested after he again refused on July 22 to enter counseling with Dr. Revis. While the July 22, 2005 arrest was before expiration of the 30-day period the probation officer had given Gomez to begin counseling with Dr. Revis, because Gomez twice refused to enter counseling with the person the probation officer directed and made an appointment with a non-approved therapist, the trial court was not arbitrary or capricious in revoking probation for the refusal.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

McDONALD, Acting P. J.

AARON, J.

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