P. v. Jesus

Filed 5/4/07 P. v. Jesus CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

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Defendant Joseph John Nubleo Jesus appeals from an order revoking probation and imposing sentence after a plea and a contested hearing. He contends: (1) The trial court abused its discretion and denied defendant due process by revoking his probation for failure to complete sex offender therapy. (2) The trial court abridged defendants constitutional due process rights by admitting a therapists hearsay statement to a probation officer about defendants progress in treatment. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In the underlying case, defendant was charged on May 15, 2003, in Butte County Superior Court with eight counts of violating Penal Code section 261.5, subdivision (c) (felony unlawful intercourse with a minor more than three years younger). Counts 1 through 4 involved C.M., aged 14 and 15 during the crimes; counts 5 through 8 involved T.P., aged 15 and 16 during the crimes.^[1]

On June 2, 2003, defendant pled guilty to counts 1 and 5 in exchange for the other counts dismissal. On August 18, 2003, the trial court suspended imposition of sentence and placed defendant on probation for three years, under terms and conditions which included 90 days in jail, 200 hours of community service, and completion of a sex offender treatment program.

On May 25, 2004, the probation department filed a petition alleging defendant had violated probation by being arrested in Calaveras County in possession of a concealed dirk or dagger (Pen. Code, 12020, subd. (a)(4)) and also by failing to notify his Butte County probation officer of the arrest. On July 28, 2004, the probation department filed an amended petition further alleging defendant had violated probation by terminating his participation in the sex offender treatment program.

On October 4, 2004, having pled to the Calaveras County offense, defendant admitted the probation violation in Butte County Superior Court. The trial court dismissed the remaining allegations with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754, 758). On November 22, 2004, the court reinstated defendants probation with new terms and conditions including 30 days in jail for the violation, re-enrollment in the sex offender treatment program within seven days, and beginning to do his community service and pay his fines (conditions he had not yet begun to perform).

On December 1, 2004, the probation department filed another probation violation petition, alleging defendant had failed to re-enroll in the sex offender treatment program; however, on December 13, 2004, the petition was withdrawn, probation was reinstated, and defendant was directed to re-enroll in the program.

On August 3, 2005, the probation department filed yet another probation violation petition, alleging defendant had been terminated from the treatment program on July 25, 2005. On December 5, 2005, defendant admitted the violation; his counsel stated the problem was defendants financial ability to continue treatment.

On January 25, 2006, the trial court denied probation and sentenced defendant to state prison for two years and eight months (the two-year midterm on count 1, plus eight months consecutive on count 5).

DISCUSSION

I

Defendant contends the trial court abused its discretion and abridged his constitutional rights to due process and equal protection by revoking probation for failure to complete sex offender therapy, because he presented unrebutted evidence that it was only his poverty which prevented him from doing so; furthermore, he had committed no further sexual offenses, had married his first victim,^[2]and was acting responsibly as a husband and father. He also contends we should not find the constitutional issue forfeited due to trial counsels failure to raise due process and equal protection claims at the probation revocation hearing. We conclude: (1) Defendants second point, which amounts to a claim of ineffective assistance of counsel, is forfeited because defendant has failed to raise it under a proper heading as required by the California Rules of Court. (2) Even assuming defendants constitutional claims are properly before us, they lack merit, as do his state law claims.

The trial court has discretion whether to revoke probation for any violation or to impose some lesser sanction, and we set aside its decision only for abuse of discretion causing a miscarriage of justice. (Pen. Code, 1203.2, subds. (a), (b); People v. Rodriguez (1990) 51 Cal.3d 437, 443; People v. Zaring (1992) 8 Cal.App.4th 362, 378.) Defendant shows none.

Under the heading, It was an abuse of discretion and a denial of due process to revoke appellants probation for failure to complete sex offender therapy in these circumstances, defendant puts the subheading, This issue [i.e., his constitutional claims] should not be found forfeited. Citing standard rules and cases on ineffective assistance of counsel, defendant then asserts his trial counsel provided ineffective assistance by failing to speak up for appellants rights at the hearing.

Rule 8.204(1)(B) of the California Rules of Court requires that each appellate brief [s]tate each point under a separate heading or subheading summarizing the point[.] Any argument not presented in accordance with this rule is forfeited. (See, e.g., Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4 [Cal. Rules of Court, former rule 15(a)].) Because defendants heading and subheading do not give notice of his ineffective-assistance argument, we decline to consider it.

Turning to the merits of defendants claims, we conclude the evidence amply supports the trial courts findings and rulings. The court did not revoke defendants probation solely because he failed to complete the sex offender treatment program, but rather because this was his second proven violation. Furthermore, defendants claim that only poverty prevented him from completing the treatment program was neither unrebutted nor credible.

The hearings

At the hearing on December 5, 2005, defendants counsel admitted that defendant had been terminated from the program, adding: Again, the issue is financial ability. So, well admit with that caveat. Defendant then personally admitted the allegation.

The trial court ruled: Court accepts the admission, finds the allegation to be true, probation will be revoked pending the -- an evidentiary hearing or a hearing regarding sentencing. If -- youve admitted it, but youve essentially admitted it in such a way that youre denying it at the same time. If there was any willful violation of the term of probation, thats what Im having trouble following. []  I generally in these cases, even though theres an admission, I dont refer to probation immediately for a supplemental report if theres an issue still outstanding. And the wilful [sic] nature of the admission, I dont feel that.

Trial counsel replied: I think theres kind of a difference of opinion as to whether [defendant] is completely financially unable or whether he is choosing to spend his monthly income on things other than the program and should probably learn to prioritize a little different so his butt doesnt end up in jail for a long time. But he hasnt figured that out yet. The court responded: Well refer it to probation then for a supplemental report.

At the next hearing, on January 25, 2006, the trial court noted it had received and read the supplemental report, as well as the original report and the supplemental report filed after defendants first probation violation. Defendants counsel (not the attorney who had appeared at the prior hearing) informed the court in addition that defendant had provided a receipt of enrollment in a new treatment program and had also said he had just gotten a job.

The supplemental probation report

The report set out defendants statement in explanation of his conduct, along with the probation officers comments.

Defendant said he had stopped attending the treatment program because he had money issues. When he worked he got paid only a little over a thousand a month, which was not enough to cover all his expenses. He had not worked for two months because hiring was slow and jobs were too far away (45 minutes from home); only his wifes welfare payments kept him financially above water.^[3] His mother was helping him pay for the program, but shes tight on money too. He did not know how many times he had been terminated from the program.^[4]

Defendant also said he did not think he should have to attend the program: People in there done things more serious than me. They have problems, I made a mistake.

Defendant said he intended to pay his fines, which he had not even begun to do yet, to complete the program, and to finish probation. He claimed, welfare is looking into sending me to college to become a mechanic. Asked how he would get to the college, which was 30 minutes from his home, if he could not travel 45 minutes from his home to seek work, he said, welfare will pay for it.

Defendant thought he should serve six months in jail and then come back out on probation. Asked how he would comply with his terms and conditions when he had failed to do so before, he said he had no plan at the moment. Ill have to figure something out. He needed to worry about his daughter, and his wife was pregnant.

The probation officer commented:

Defendant had a pattern of re-enrolling in the treatment program, attending for a short time, then accumulating absences which caused his dismissal. In almost two years, he had attended less than a years worth of sessions. This was not surprising, since defendant did not think he should even have to go. What he called a mistake had produced a child, whose needs he now cited as a financial excuse for not attending the program. Furthermore, he had made no serious effort to seek work, preferring instead to live off his victim/wifes welfare payments. He was now on dual grants of probation from Butte County and Calaveras County and had violated both; his recent Calaveras County violation would require him to serve four months in jail.

According to the probation officer, it was clear defendant did not take probation seriously. He had not met or tried to meet any of the requirements of his Butte County probation and still had no plan for doing so. In short, [he] has failed miserably.

The courts ruling

The court ruled: There are no statutory restrictions on continuing the defendant on probation. However, the Court is denying his application for continuation for the following reasons. He has been tried on probation in this matter and has failed, this being his second sustained violation of probation. (Italics added.)

In other words, having considered all the evidence, including the supplemental probation report, the court found that defendant had forfeited the privilege of continuing on probation by consistently failing to honor its terms (of which completing the treatment program was only one). This determination was well within the courts discretion.

Defendant asserts the record shows otherwise because: (1) The final probation report showed he was ready and willing to comply with the conditions of probation, to the extent he could stretch his budget to afford it; however, the probation officer unfairly discounted this because she did not care for his attitude. (2) His efforts to attend therapy when he was struggling to work enough to support his family were better evidence of his attitude than his demeanor in his meeting with the probation officer. (3) With the exception of the first probation violation, when he was found in possession of a knife, all of appellants difficulties with probation are attributable to his poverty.^[5] (4) The court abused its discretion by revoking probation based on circumstances beyond the probationers control -- lack of income -- which do not pose any threat to the public safety. We are not persuaded.

First, defendant improperly views the evidence in the light most favorable to himself. Second, he does not even try to rebut the probation officers assessment of his self-serving financial claims, except to assert falsely that it was all a matter of her disliking his demeanor. Third, he does not mention his belief that he should not have to attend sex offender treatment, which might reasonably have led the trial court to conclude he was just as unlikely to obey all terms and conditions of probation in the future as in the past. Finally, he does not explain why the trial courts stated reason for revoking probation -- that he had now violated his Butte County probation twice -- was not sufficient grounds to make the order the court made.

Defendant bases his equal protection claim on Bearden v. Georgia (1983) 461 U.S. 660 [76 L.Ed.2d 221], which held that it violates the Fourteenth Amendment of the United States Constitution for a state trial court to revoke probation automatically because the probationer could not pay his fine, without inquiring into his good faith efforts to pay or the existence of adequate alternative forms of punishment. (Id. at pp. 661-662, 665-669 [76 L.Ed.2d at pp. 226-230].) Here, however, the trial court did not revoke probation on any such ground. To the extent it found defendants claimed financial excuse for not attending treatment did not mitigate that violation of his probation conditions, the court did so only after requesting and reviewing the supplemental probation report precisely to inquire into defendants good faith efforts to meet his obligations. Thus, Bearden does not assist defendant.

Defendant also cites In re Antazo (1970) 3 Cal.3d 100, which he claims held that revocation of probation for inability to pay a fine despite reasonable efforts to do so violated equal protection. It did not. It held that sentencing a defendant to prison in the first instance, rather than imposing probation, because the defendant was unable to pay a fine, violated equal protection. (Id. at p. 108.) Nothing of the kind happened here.

In short, defendant has failed to show any abuse of discretion in the trial courts order.

II

Defendant contends the trial court abused its discretion and violated his due process rights to confrontation and cross-examination by admitting Dr. Blankenships hearsay statement in the progress report into evidence.^[6] We conclude the contention is forfeited because defendant did not object to the admission of this evidence below, subpoena Dr. Blankenship to testify, or offer any contrary evidence.

As on the previous issue, defendant anticipates our finding and asks us to consider the issue under the alternative rubric of ineffective assistance of counsel. As on the previous issue, however, defendant fails to present this contention under a proper heading. As on the previous issue, therefore, it is forfeited. In any event, a plausible tactical reason appears for trial counsels omissions: he knew that, if called as a witness, Dr. Blankenship would give damaging testimony about defendant.

DISPOSITION

The judgment (order revoking probation) is affirmed.

SIMS , Acting P.J.

We concur:

RAYE , J.

MORRISON , J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] The record shows that in the summer of 2002, defendant, then 19 years old, had sexual intercourse with C.M. both before and after her fifteenth birthday; this activity resulted in her pregnancy. After paternity tests proved the baby his, defendant married C.M. In the fall and winter of 2002-2003, defendant (aged 20 as of December 2002) had sexual intercourse with T.P. (aged 16 as of February 2003).

^[2] The quotation marks are defendants. So far as he means that C.M. was not a true crime victim, or should no longer be deemed a victim because defendant married her after the fact, he cites no supporting authority and we know of none.

^[3] He looked for work by checking the newspaper or going out when he had money for gas.

^[4] According to the progress report filed by Dr. Jonathan Blankenship, defendant had been dismissed from the program twice before, on July 19, 2004, and on July 25, 2005. He had attended 42 sessions altogether and missed 19. He had not contacted Dr. Blankenships office regarding his absences.

^[5] Defendant supports this assertion partly by citing to the progress report on his participation in the sex offender treatment program, which was submitted by the probation officer along with the supplemental probation report. The progress report contains second-hand statements from defendant and Dr. Blankenship, giving different views of defendants financial circumstances. We discuss in part II post defendants claim that the court should not have considered Dr. Blankenships assessment.

^[6] That statement, as represented by the probation officer, is as follows: On September 20, 2005, the undersigned contacted Dr. John Blankenship, Sex Offender Program Provider[,] via telephone. Dr. Blankenship informed this officer, [defendant] knows the rules and has not complied on several occasions. He further stated [defendant] is not taking enough responsibility for his offense nor his treatment. In regards to the financial cost of his program, Dr. Blankenship reported participants are required to pay $40.00 per their weekly counseling session. Dr. Blankenship further reported he has the cheapest rates in the area and does not offer a sliding scale because he is already offering the cheapest rates he can to still make a living. Dr. Blankenship informed he is unsure if [defendant] or his mother pays for the program, as [defendant] has always paid with his mothers personal checks. He further felt if [defendant] can spend money on hot rods and three dollar sodas he can find a way to budget $40.00 a week for his Court[-]ordered counseling. Dr. Blankenship feels [defendant] is still amenable to treatment and explained if [defendant] would attend six solid months of treatment and do what he is suppose[d] to do he would complete the program.