P. v. Rodriguez

Filed 10/23/08 P. v. Rodriguez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles L. Peven, Judge. (Retired Judge of the L.A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Ricardo Rodriguez appeals from the judgment entered following revocation of probation, previously granted upon his guilty plea to selling a controlled substance (heroin) (Health and Saf. Code, 11352, subd. (a)). Rodriguez appeals the trial courts refusal to readmit him to probation as recommended by the probation department. We conclude the trial court did not abuse its discretion and affirm the judgment.

RELEVANT BACKGROUND

In January 1998, Rodriguez pleaded guilty to one count of selling a controlled substance (heroin) in violation of Health and Safety Code section 11352, subdivision (a). The trial court sentenced him to state prison for a term of three years but suspended imposition of the sentence and placed Rodriguez on three years probation. Rodriguez was ordered to, among other things, report to his probation officer within two business days of being released, and, if he left the country voluntarily or was deported, he was not to return unless he was legally entitled to do so. The court ordered Rodriguez to serve 180 days in jail.

In January 2000, the probation department filed a petition alleging that Rodriguez never reported to his probation officer, in violation of his probation. Rodriguez did not appear and preliminarily was found to be in violation of probation. A bench warrant was issued.

Rodriguez was picked up at the border on the bench warrant in 2007. A bench warrant hearing was held in May 2007 while he was in custody, and a supplemental probation report was ordered.

At the probation violation hearing on June 8, 2007, the probation officer testified that Rodriguez had never reported to him. Rodriguez testified that he was told at the time of his release from county jail that he was to report to probation, but they never told me where or what department to go to. He did not contact his lawyer to find out where and what department to report to because he was told they were going to come visit me to the location to the address that [he] had given them. He never reported because he had to move to Orlando in order to get work.

After three years in Orlando, Rodriguez returned to Mexico in 2001. He tried to return to California (illegally) in 2004 but then Immigration caught [him so he] couldnt go through. Rodriguez did not see a probation officer after he was caught because he was never told anything . . . until now . . . . Explaining to the court why he had not reported to probation, Rodriguez said, [w]ell, when I was released they really didnt explain to me well where I had to show up. Rodriguez testified that he was told, upon his release from county jail, that he just needed to have a family member who could be responsible for [him], and . . . [he] filled out the address of an uncle . . . but they did not give [him] a paper telling [him] where [he] had to show up. Asked whether he had anything else to tell the court about his failure to report to the probation department, Rodriguez said, I didnt have a job here. I didnt have the money to pay rent. So I couldnt really live there any more.

The trial court took judicial notice of the court file and transcript of the sentencing, then said: Judge Wiatt told you on January 21st of 1998 You are to report to the probation officer at the Rio Hondo area office located at 8240 South Broadway Avenue in Whittier, California, within two business days of your release from county jail; and if you leave the United States of America you must not reenter the United States illegally. If you do return, you are to report to the probation officer within two business days of your entry and present documentation which proves that you are in the United States legally. Rodriguez admitted that he remembered Judge Wiatts statement.
The trial court found Rodriguez in violation of his probation. The trial court was mindful of the fact that the original offense that [Rodriguez] was on probation for was the sale of controlled substance and in this case heroin. The court revoked probation and imposed a midterm sentence of four years in state prison.^[1]

Rodriguez timely filed the instant appeal on June 13, 2007.

DISCUSSION

A grant of probation is an act of judicial clemency, not a matter of right. (People v. Johnson (1993) 20 Cal.App.4th 106, 109.) Penal Code section 1203.2, subdivision (a) authorizes the court to revoke probation after proper notice and a hearing if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation . . . . The violation of the terms and conditions of probation must be willful (People v. Galvan (2007) 155 Cal.App.4th 978, 982) and must be proved by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 440-442.) The accuseds violation of any of the terms and conditions of probation is a ground for revocation within the sound discretion of the trial court. (People v. Nelson (1967) 257 Cal.App.2d 282, 286; People v. Slater (1957) 152 Cal.App.2d 814, 816 [[Revocation of probation] rests within the sound discretion of the trial court and there is no abuse of discretion where it appears from the evidence that the accused has violated conditions of probation].)

The trial courts decision to reinstate probation or to impose the original sentence also is reviewed for an abuse of discretion. (People v. Downey (2000) 82 Cal.App.4th 899, 909; People v. Medina (2001) 89 Cal.App.4th 318, 323.) Two fundamental precepts guide our review. First, the party attacking the sentence has the burden to clearly show that the sentencing decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Absent this showing, we presume the trial court acted to achieve the legitimate sentencing objectives, and we will not set aside its discretionary determination to impose a particular sentence. (Id. at pp. 977-978.) Second, a decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 377.)

Rodriguez argues the trial court failed to consider all the facts and circumstances of the case. Notably, he maintains the court did not take into account that he was an illegal alien, young, inexperienced, and transient. When a person has no job, no money, no supportive family in this country, and no place to stay, it is irrational to expect him to stick around and report to probation. In addition, Rodriguez maintains he had committed no other crimes in a 10-year period. He contends that the circumstances of the crime were not especially serious in comparison to other instances of the same crime: no weapons were involved, it was a sting, so there was no victim, vulnerability, money loss, abuse of a position of trust or infliction of injury; he had balloons in his mouth, but the record did not otherwise establish his precise role in the offense. Rodriguez concludes that the trial courts refusal to readmit him to probation was thus an abuse of discretion. We disagree.

Absent a clear showing the decision to deny probation is arbitrary or irrational, it is presumed the trial court acted to achieve legitimate sentencing objectives. (See People v. Giminez (1975) 14 Cal.3d 68, 72.) (People v. Birmingham (1990) 217 Cal.App.3d 180, 186.) California Rules of Court, rule 4.409, as Rodriguez acknowledges, similarly expresses this presumption: Relevant criteria enumerated in these rules must be considered by the sentencing judge, and will be deemed to have been considered unless the record affirmatively reflects otherwise. Rodriguez relies heavily on his youth and inexperience to explain and justify his failure to report to the probation officer. As discussed above, both of these factors were brought to the trial courts attention. The trial court simply was unpersuaded. Rodriguezs admission (after several attempts to feign ignorance) (1) that he knew he was supposed to report to his probation officer, (2) that he had been told where and when to report, and (3) that he elected nevertheless to move to Florida and back to Mexico demonstrated an unwillingness to comply with the terms of probation. (Cal. Rules of Court, rule 4.414(b)(3).) The trial court did not abuse its discretion.^[2] Accordingly, the judgment is affirmed.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

WEISBERG, J.*

We concur:

MALLANO, P.J.

ROTHSCHILD, J.

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*Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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^[1]Rodriguez received credit for the 73 days already served in county jail, plus the 42 days he spent there awaiting the probation violation hearing, plus 20 days good time/work time credit for a total of 135 days.

^[2]We note that the transcript of the probation violation hearing reveals another basis for the trial courts order: Rodriguez violated the term of probation regarding his reentry into this country. Specifically, he agreed that if he left the United States voluntarily or was deported, he would not return unless he was legally entitled to do so. At the probation violation hearing, he admitted he returned to Mexico in 2001, apparently voluntarily, and tried to reenter illegally in 2004. He testified that he also tried to enter illegally in 2007, was caught and detained on the warrant issued in this case. Even assuming Rodriguezs clean criminal record in the last 10 years, sufficient evidence supports the trial courts sentencing decision on this separate ground.