P. v. Marsh

Filed 9/27/06 P. v. Marsh CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Robert R. Fitzgerald, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.

The trial court did not abuse its discretion when it revoked and terminated defendant’s probation and sentenced him to state prison. We affirm.^[1]

I

FACTS

Defendant Robert Scott Marsh pled guilty to violation of Penal Code section 290, subdivision (g)(2). (All further statutory references are to the Penal Code.) He had previously been convicted of violation of section 288, subdivision (a) and faced increased punishment under sections 667, subdivisions (d) and (e)(1), 1170.12 subdivisions (b) and (c)(1), otherwise known as the “Three Strikes” law.

In sentencing defendant to probation, the court struck the prior strike offense. He was ordered to serve 270 days in jail, pay a restitution fine, cooperate with the probation officer and report to the probation department within 72 hours of release from jail.

On July 28, 2004, Deputy Probation Officer Veronica Gaxiola instructed defendant regarding the terms and conditions of his probation. She said defendant was given permission to use a knife at work. While she did not specifically remember the exact contents of the indoctrination she gave defendant, she said “all my indoctrinations are pretty much done the same.” Gaxiola said she tells probationers who have to use a knife at work that they should leave the knife in a locker or toolbox at work “but not on their person outside of work.” She recalled informing him his residence must be approved by the probation department. She told him his probation officer would be Bonnie Pressey. Defendant, who had known Pressey from a previous probation, was not happy she would be his probation officer. Gaxiola ordered him to report for an appointment with Pressey on August 19.

On August 17, 2004, Pressey and her partner visited defendant’s home. She testified: “There was a locked gate with a closed-circuit camera on it, and you couldn’t go from the gate to the door. So I believe there was a buzzer. We buzzed, someone came out, they looked, and they ran back in. . . . There were several people that came to the door, looked out, went back in, came to the door, looked out. There was -- like I would say three or four different people that came to the door. Nobody opened the gate, but they came to the door.” Eventually someone opened the door after the police were called for assistance. Defendant was handcuffed and searched. A knife was found in his pocket.

Pressey told defendant she wanted him in her office the next day, August 18, at 1:00 p.m. to submit to drug testing. She ordered him to change his residence by the next day. She told him to phone her office during the night to leave the address of his new residence on her voice mail.

Pressey did receive a message from defendant which was left at 5:30 a.m. on August 18. He said he was very upset and unable to move. He did not come to her office at 1:00 p.m. as ordered.

Defendant called his doctor’s office and told the secretary he was having suicidal thoughts. She told him to go to South Coast Hospital. He arrived at the hospital at approximately 1:30 p.m. on August 18. He asked the doctor to call his probation officer and overheard the doctor place the call. Defendant was given a half dose of his regular medication and was released from the hospital at approximately 7:30 p.m. the same evening.

Defendant did not show up for the August 19 appointment Gaxiola ordered. He left his residence on August 25 “and started driving.” On August 31, he was arrested.

Defendant testified when Pressey told him he was not allowed to live behind a security gate with a closed-circuit camera and that he had to leave his residence, he became an emotional wreck. He said he had been living on the streets before finding his residence. He explained: “I registered; I got a job. I got my driver’s license, my truck, car insurance and everything. And then you are out of there.”

The court found defendant violated his probation. When sentencing defendant, the court stated: “The court’s going to aggravate the defendant. As to Penal Code section 290, the sentencing range -- because the court initially struck the strike -- is 16, two and three. I impose three years in state prison. And I state the reason is the defendant’s prior performance on probation and parole certainly has been unsatisfactory. Three years in state prison. Other reasons: Defendant’s prior conviction[s] as an adult are numerous and the increasing seriousness. There’s a reason why people have to register under 290 of the Penal Code. You are a child molester. You have been a convicted child molester for a long time. We in society need to know where you are at all times. We don’t know where you are when you violate your probation and when you abscond from probation as you did in this case. So when you get out, which won’t be that long because I don’t have enough time to keep you in like I should -- you will undoubtedly violate again because your record goes back to ‘71. You haven’t remained free of custody for any lengthy period of time since all of that time. The bottom line is, you must register under 290 when it’s required, and you must do it immediately on release. So three years in state prison; you are going to state prison committee [sic] under 667.5; I add one year consecutive, not concurrent. Total term: four years in state prison.”

II

DISCUSSION

Defendant argues the court abused its discretion when it revoked his probation. He also contends there was insufficient evidence defendant’s violation was willful.

“Revocation rests in the sound discretion of the court. Although that discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based upon the facts before it. [Citations.]” (People v. Buford (1974) 42 Cal.App.3d 975, 985.) “Requiring proof of probation violations by a standard stricter than preponderance of the evidence would diminish the flexibility with which probation revocation may be employed by judges and could, in some instances, force our already overburdened trial judges to give probationers virtually a second trial of their violations. [Citation.] This could result in poor-risk convicted criminals remaining at large [citation] and would further tax limited judicial resources by complicating and lengthening revocation proceedings.” (People v. Rodriguez (1990) 51 Cal.3d 437, 445-446.)

Here, defendant, a convicted child molester, was living in a residence behind a locked gate where no one answered the door and the probation officer could not easily contact him. Contrary to directions from the probation department, he carried a knife in his pocket. Nonetheless, the probation officer did not violate him. Instead, defendant was given an opportunity to locate a new residence and report for drug testing.

Defendant characterizes his failure to report on August 18 as non-willful because he was in the emergency room around 1:00 p.m., the time he was ordered to report. But he was not in the emergency room on August 19, the date Gaxiola ordered him to report. Instead of reporting, defendant chose to abscond.

Although defendant asks us to reweigh the evidence submitted to the superior court, we decline to do so. The appellate standard for reviewing a revocation of probation is abuse of discretion. We find no abuse of discretion in the court’s revocation of defendant’s probation.

III

DISPOSITION

The judgment is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

O’LEARY, J.

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^[1] Defendant’s motion for appointed counsel to be relieved, filed in propria persona in care of Ramsey Najor, was denied on August 11, 2006.