P. v. Jimenez

Filed 7/13/07 P. v. Jimenez CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Pursuant to a negotiated plea agreement, defendant Jose Jimenez pleaded no contest to a charge of felony evasion of a police officer and was sentenced to the upper term of three years in state prison. The court suspended execution of the sentence, however, and granted probation. Seven and a half months later, defendant was charged with resisting arrest in an unrelated incident, leading to a court finding that defendant had violated the terms of his probation and the revocation of probation. Rather than reinstate it, the court ordered defendant to serve the three-year prison sentence. On appeal, defendant argues two errors: (1) the evidence did not support the probation violation finding; and (2) the trial court abused its discretion in declining to reinstate probation. We disagree, and affirm.

I. Background

A. The Underlying Offense[1]

On the night of April 3, 2005, Vacaville police officer David Spencer was on patrol when he spotted a car traveling at approximately 50 miles per hour in a 30‑miles‑per-hour zone. He began following the speeding car as it entered onto Highway 80, where the car began weaving in its lane at approximately 70 miles per hour. Spencer activated his overhead emergency lights, but the car did not stop. The officer then turned on his siren and spotlight, but the driver of the speeding car, now traveling at 70 to 85 miles per hour and weaving across four lanes of traffic, continued to ignore him, eventually exiting the freeway onto the streets of Fairfield.

The officer continued his pursuit, observing the car run two stop signs and three red lights, and nearly hitting a car in one of the intersections when it failed to yield to a red light. At that point, Spencer was instructed to terminate the pursuit so he turned off his emergency lights and siren and reduced his speed. As he did so, the speeding car slowed down, and the driver jumped out and ran off, leaving the car to roll towards a big bush. Spencer reactivated his lights and followed the driver as he ran down the sidewalk. The driver ultimately escaped capture that night, but paperwork found in the abandoned car identified defendant as the driver. Defendant was on parole from the California Youth Authority (CYA)[2] at the time of the incident, and records confirmed he had a lengthy juvenile criminal record.

By information filed May 9, 2005, defendant was charged with one count of felony evasion of a police officer in willful disregard for the safety of others (count 1; Veh. Code 2800.2, subd. (a)), and one count of misdemeanor driving on a suspended license (count 2; Veh. Code 14601.1, subd. (a)).

On July 7, 2005, pursuant to a negotiated plea agreement, defendant pleaded no contest to count 1, and the prosecution dismissed count 2. The court then referred defendant for a diagnostic study pursuant to Penal Code section 1203.03.[3]

After the Department of Corrections conducted the requisite study, defendants corrections counselors recommended against granting probation: [Defendant] appears to be an unsuitable candidate for a grant of formal probation, based on the circumstances surrounding the instant offense, as well as the fact that [he] was already on parole at the time he committed the instant offense. [He] displayed total disregard for human life and public safety by evading officers, and refusing to stop at traffic lights and stop signs. However, the psychologist who performed the section 1203.03 psychological evaluation recommended in favor of probation: It is my opinion that [defendant] could benefit from felony probation in lieu of a prison term given the fact that he has not had any new commitment offenses since 1999 other than the current instant offense. Additionally, he has multiple CYA incarcerations during his adolescence and young adulthood, which has [sic] provided him with some counseling psycho‑educational activities. It appears that these have had some positive effect with defendant.

Prior to sentencing, the probation department submitted a presentence report in which it made a very guarded recommendation for probation, explaining, defendant has an excessive juvenile history, which has included commitments to Fouts and CYA. In addition to failing probation, the defendants CYA Parole was revoked on two occasions, and the defendant was on parole at the time he committed this felony. However, the defendant has acknowledged wrongdoing, and has stated that he should not have run from the police. He indicated that he was scared because he was driving on a suspended license, and he did not want to violate his parole, and have his vehicle towed. The department also observed that defendant has been clean and sober since attending Alcoholics Anonymous/Narcotics Anonymous in 2004-2005 and has earned a 3.8 grade point average at Fouts Springs Youth Authority.

On October 11, 2005, the trial court followed the recommendations of the psychiatrist and probation department, sentencing defendant to the three-year upper term but suspending execution of the sentence and granting three years formal probation. The terms of probation included the standard terms, most notably for our purpose requirements that defendant obey all laws and submit to search and seizure at any time of the day or night with or without cause, notice, consent or warrant.

B. The Probation Violation

Seven and a half months after the sentencing hearing, defendant was riding as a passenger in a car when Vacaville police officer Matthew Thoma stopped the car for a traffic violation. Thoma determined that the driver was driving without license, arrested him, and placed him in his patrol car. As he did so, defendant started complaining about Thomas actions, arguing that it wasnt fair and asking what he was doing. As Thoma was returning to the car, defendant opened the door and started to step out towards the officer. Thoma asked whether defendant had anything illegal on him, and defendant responded, Yeah, Ive got a gun. Thoma took defendant at his word and physically restrained him, pushing him up against the side of the car and grabbing his arms to prevent him from retrieving any weapons. Defendant continued his verbal protest, and then told Thoma that he was just joking and did not actually have a gun. He tried to turn away from Thoma as he was being held up against the car, twisting [a] couple of inches each way. Thoma then used verbal persuasion, rather than physical force, to restrain defendant, telling defendant he would kill him if he did not stop. Defendant was charged with resisting arrest in violation of section 148, subdivision (a)(1).

On June 14, 2006, defendants probation was summarily revoked. And following a contested revocation hearing on June 28, 2006, the court found defendant in violation of probation.

In a supplemental report, the probation department stated it was inclined to offer defendant a final opportunity to comply with Probation, as the defendant has accepted responsibility for his actions, and was in compliance with both Probation and Parole at the time of the instant offense. The prosecution agreed with the probation departments recommendation that probation be reinstated. Nevertheless, at the August 15, 2006 sentencing hearing, the court declined to reinstate probation, instead imposing the suspended three-year state prison sentence.

Defendants timely appeal followed.

II. Discussion

A. The Trial Court Did Not Abuse Its Discretion In Finding A Probation Violation

In his first of two arguments, defendant contends that the trial court erred when it found defendant in violation of probation. Section 1203.2 provides that the trial court may revoke probation if it has reason to believe the probationer has violated any of the terms and conditions of probation. The prosecution must prove the probation violation by a preponderance of the evidence rather than beyond a reasonable doubt. (People v. Rodriguez (1990) 51 Cal.3d 437, 447 (Rodriguez).) As the court explained in Rodriguez, section 1203.2, give[s] trial courts very broad discretion in determining whether a probationer has violated probation. (Rodriguez, supra, 51 Cal.3d at p. 443.) A court abuses its discretion only when it  exceeds the bounds of reason, all of the circumstances before it being considered.  (Denham v. Superior Court (1970) 2 Cal.3d 557, 566, quoting Loomis v. Loomis (1960) 181 Cal.App.2d 345, 348, 349.) Under the abuse of discretion standard, the reviewing court should not disturb the trial courts order unless the record reveals a miscarriage of justice. (Ibid.; see also People v. Lippner (1933) 219 Cal. 395, 400 [only in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. . . .].)

Applying this standard, the record here reveals sufficient evidence to support the trial courts determination that defendant violated the terms of his probation, namely that he was to obey all laws and submit to search and seizure at any time, such that there was no abuse of direction. Defendant was charged with violating section 148, subdivision (a)(1), a violation that occurs when an individual willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician . . . in the discharge or attempt to discharge any duty of his or her office or employment . . . . According to Officer Thomas undisputed testimony, when he was in the process of arresting the cars driver, defendant began mouthing off and becoming verbally aggressive. When the officer returned to the car after placing the driver in the patrol car, defendant began to exit the car and continued his verbal assaults. In response to a question from Officer Thoma, defendant then claimed to be carrying a gun. When the officer restrained defendant in order to prevent him from reaching for the gun, which, it later turned out, did not in fact exist, defendant began twisting his upper body in both directions. The trial court could reasonably have construed this testimony as describing an effort by defendant to resist Thomas attempt to restrain him and to break free from the officers grasp. In light of Thomas testimony, it cannot be said that the courts finding of a probation violation was arbitrary or capricious, and, accordingly, there was abuse of discretion. (See People v. Downey (2000) 82 Cal.App.4th 899, 909.)

Defendant attempts to refute this conclusion by arguing [t]here was no evidence whatsoever that [defendant] made any effort to escape or pull away from Officer Thoma . . . . In fact, that is precisely what Officer Thomas testimony describedan attempt by defendant to break free from the police officers grasp. Section 148, subdivision (a)(1) does not contain a requirement concerning the degree of struggle necessary to constitute resisting arrest, and it did not exceed the bounds of reason for the trial court to conclude that defendants act of trying to turn away from Thoma and twist[ing] his upper body was an attempt to avoid arrest.

Defendant also complains that [n]o one enjoys being grabbed by a larger, stronger police officer, restrained by both arms and shoved against the side of a car. The time for defendant to have thought of that was before he mouthed off to a police officer and claimed that he was armed.

Lastly, as to defendants theory that he was most likely moving a couple of inches to get more comfortable, this is nothing more than wishful thinking that runs contrary to a common sense understanding of Thomas testimony.

B. The Trial Court Did Not Abuse Its Discretion In Denying Defendants Request To Reinstate Probation

Defendant next argues that the trial court abused its discretion in refusing to reinstate probation. Again, the trial court's decision lies within its broad discretion and will not be disturbed on appeal absent an abuse of discretion. (Rodriguez, supra, 51 Cal.3d at p. 445; People v. Zaring (1992) 8 Cal.App.4th 362, 378.) Discretion is abused when the decision is arbitrary or capricious or not supported by the facts before the court. (Zaring, supra, at p. 378; People v. Smith (1970) 12 Cal.App.3d 621, 626.) That was not the case here.

Prior to rendering its decision, the trial court represented that it had read and considered a supplemental report submitted by the probation department. The report explained that not only was defendant on probation for the evasion charge, he was also on parole from CYA at the time of the probation violation. As described by defendants parole agent to the probation officer, defendant had been complying with parole directives, but he was argumentative and disrespectful with Parole and was disruptive to the House of Acts Treatment Program. According to the report, defendant admitted to his probation officer that he resisted arrest, but says he felt disrespected by the officer because he didnt ask him his name first. The report went on to opine, The defendants comments and behavior during the incident is of concern as he purposefully aggravated the situation by falsely stating he had a firearm, simply because he felt disrespected. The defendant has an extensive criminal history as a juvenile, which was detailed in an attachment to the report.

Also notable was the fact that defendant had his CYA parole revoked two times before the May 27, 2006 arrest. Combined with his probation violation in this case, defendant has demonstrated an inability to comply with the law while on supervised release from custody. Given the above circumstances, it was well within the trial courts discretion to decline reinstatement of probation and order defendant to serve the three‑year prison sentence.

Defendant identifies numerous factors in claimed support of his position that the refusal to reinstate probation constituted an abuse of discretion. For example, defendant notes the probation department ultimately recommended reinstatement of probation, a recommendation that even the prosecutor supported. The recommendations were not without reservations, however, and the court is free to reject them. (See People v. Delson (1984) 161 Cal.App.3d 56, 63 [recommendations by the probation department and Department of Corrections are not binding on the court].)

Defendant also points to the following factors as evidence that he should have been reinstated on probation: he was not in possession of a weapon or drugs; he did not commit a crime of violence against another person; nor did he burglarize a residence; he had been in full compliance with the terms of his probation including appearing for scheduled appointments and agreeing to make monthly payments toward the probation fines and fees; and he had tested negative for drugs, was enrolled in Napa Junior College and was about to begin employment. These accomplishments are no doubt commendable, and we hope defendant continues down the path of righting the course of his life. Nevertheless, these facts do not negate the above‑detailed circumstances that weigh against reinstatement of probation and do not warrant interference with the discretion exercised by the sentencing court.

Defendant next points to a statement made by the court at the sentencing hearing when it explained the basis for its decision: The defendant has tried and failed on probation even though he washis state prison sentence was suspended, he continued to violate the law because he failed to respect. According to defendant, this passage shows that the trial court declined to reinstate appellant on probation . . . because he believed [defendant] disrespected Officer Thoma. The fact is defendant disrespected the law by resisting arrest. It was that disrespect, which constituted a violation of probation, in conjunction with the factors discussed above that support the trial courts decision. The record does not support defendants interpretation that the trial court declined to reinstate probation simply because defendant was disrespectful to a police officer.

Additionally, defendant claims reinstatement of probation was not justified because his was a very minor claimed transgression. We need say nothing more of this argument beyond observing that resisting arrest is by no means a minor transgression.

On a final note, the courts refusal to reinstate probation should have come as no surprise to defendant. At the October 11, 2005 sentencing hearing on defendants evasion case, defense counsel literally begged the court to grant probation: [Q]uite honestly he is begging for another chance at probation with the understanding if he so much as J-walks he is going to go to prison. He understands that. After deciding to grant probation, the court then engaged in the following exchange with defendant:

THE COURT: Do you understand that if you come back here the next sentencing for me or any other judge will be very, very easy?

DEFENDANT: I do.

THE COURT: It will not be a tough call at all. Today was the tough one. Next time you come back here for a violation of probation it will be easy.

DEFENDANT: I do understand, your Honor.

Despite this abundantly clear warning, defendant did violate the terms of his probations and must now live with the consequences.

III. Disposition

The judgment is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Lambden, J.

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[1] Because defendant entered into a plea agreement prior to trial, portions of this factual recitation are derived from the preliminary hearing transcript.

[2] Effective July 1, 2005, CYA has been redesignated as Division of Juvenile Facilities.

[3] All statutory references are to the Penal Code except where otherwise noted.