Filed 7/11/17 P. v. Varela CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
NEPTALI VARELA,
Defendant and Appellant.

A148718

(Solano County
Super. Ct. No. FCR312743,
FCR316296)


After Neptali Varela violated the conditions of his probation in two cases, the court revoked and terminated his probation and committed him to state prison. Varela appeals, contending the court should have reinstated his probation so he could enter a residential drug treatment program. We will affirm the order.
I. FACTS AND PROCEDURAL HISTORY
A. Vehicle Theft Case (FCR312743)
A February 2015 complaint filed in superior court case number FCR312743 charged Varela with vehicle theft (Veh. Code, § 10851, subd. (a)) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).
In March 2015, pursuant to a plea agreement, Varela entered a plea of no contest to the vehicle theft charge and the other charge was dismissed. The court suspended imposition of sentence, ordered Varela to serve 85 days in jail, and placed him on probation for three years.
In May 2015, the probation department filed a request to revoke Varela’s probation based on his failures to appear at probation appointments. The court revoked his probation and issued a bench warrant. Varela admitted the probation violation in June 2015, and the court reinstated his probation and ordered him to serve 64 days in jail.
In July 2015, the probation department filed a second request to revoke Varela’s probation based on his failure to report to the probation department. The court revoked his probation and issued a bench warrant.
B. Firearm Case (FCR316296)
An information filed in September 2015 in a new proceeding, case number FCR316296, charged Varela with possession of a firearm by a felon, carrying a loaded firearm with a prior felony conviction, and resisting a peace officer. (Pen. Code, § 29800, subd. (a); § 25850, subd. (a); § 148, subd. (a)(1).)
On October 22, 2015, Varela entered a plea of no contest to the count of carrying a loaded firearm with a prior felony conviction, and the other counts were dismissed. The trial court suspended imposition of sentence, ordered Varela to serve 136 days in jail with credit for time served, and placed him on probation for three years.
At the same hearing, Varela admitted the probation violation that had been alleged in July 2015 in case number FCR312743, and the court reinstated his probation in that case.
C. Probation Revocation Hearing and Sentencing in Both Cases
In February 2016, the probation department filed a request to revoke probation in both cases, alleging that Varela failed to report to the probation department as directed and tested positive for methamphetamine on multiple occasions. The court revoked Varela’s probation and issued a bench warrant.
At a contested probation revocation hearing in March 2016, the prosecutor stated that he would proceed on the basis that Varela committed “a new law violation.” Fairfield Police Officer Cole Spencer then testified that he arrested Varela on an outstanding warrant on February 6, 2016, and Varela had in his possession a pipe used to smoke methamphetamine. The court found that Varela violated probation by failing to obey all laws—specifically, possessing a smoking device in violation of Health and Safety Code section 11364.
In June 2016, the trial court declined to reinstate probation in both cases and sentenced Varela to two years eight months in prison, consisting of the two-year midterm for violation of Penal Code section 25850, subdivision (a) in case number FCR316296, plus a consecutive eight months (one-third the midterm) for the violation of Vehicle Code section 10851, subdivision (a) in case number FCR312743.
This appeal followed.
II. DISCUSSION
Varela contends the trial court abused its discretion in revoking his probation and sentencing him to prison. He maintains that the court should have instead reinstated his probation and sent him to a drug treatment program “to address the root cause of his aberrant behavior—chemical dependency.” Respondent counters that Varela forfeited this argument and that, at any rate, it has no merit.
A. Law of Probation Revocation and Termination
Under Penal Code section 1203.2, subdivision (a), “the court may revoke and terminate [probation] 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 supervision.” Thus, after finding that the defendant violated probation and revoking probation, the court may either reinstate probation on the same or modified terms, or terminate probation and order the defendant committed to prison. (See, e.g., People v. Harris (1990) 226 Cal.App.3d 141, 147.) If probation is revoked and terminated, the court may impose sentence for as long a term as the defendant might have been sentenced originally. (Pen. Code, § 1203.2, subd. (c).)


B. Forfeiture
An objection to the “trial court’s failure to properly make or articulate its discretionary sentencing choices” cannot be raised for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 353–356.) Respondent contends that defense counsel did not object after the trial court denied reinstatement of probation and sentenced Varela to prison, so his claim that the court abused its discretion is forfeited.
We find no forfeiture. The revocation hearing pertained to the violation of probation in case numbers FCR316296, FCR312743, and FCR314607. Defense counsel stated, with respect to case number FCR316296, “I would ask the court to reinstate Mr. Varela on probation,” pointing out that it was his first violation in that case and he was accepted into the “Jericho program” and had taken steps to address his substance abuse. The court denied reinstatement of probation in case number FCR316296, and then it immediately denied reinstatement in case numbers FCR312743 and FCR314607 without requesting further argument from counsel. The reasonable inference is that the court and the parties all understood that no additional or separate argument was necessary as to probation in the latter two cases, and defense counsel’s request for reinstatement of probation in case number FCR316296 was sufficient to inform the court that Varela wanted his probation reinstated in case numbers FCR312743 and FCR314607 as well. Furthermore, in light of the court’s decision to decline reinstatement in case number FCR316296 due to Varela’s poor prior performance on probation, there is no apparent likelihood that an express objection by defense counsel with respect to the probation in the other two cases would have resulted in a different outcome. (See People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) We therefore proceed to the merits.
C. Merits
A probation report filed before the June 2016 sentencing hearing recommended against reinstatement of probation and for the imposition of a state prison sentence, in light of Varela’s criminal history and unsatisfactory prior performance on probation. The report observed: “[Varela’s] criminal record is significant and has been growing in length and severity at an alarming rate. [Varela] has suffered five convictions in the last five years, and four of those convictions occurred in a one[-]year period. It is particularly concerning that the offenses include vehicle theft related offenses and weapon possession. Also of concern is the circumstance of the jail incident report, especially given [Varela’s] history of gang involvement. [¶] [Varela] continues with the same pattern of behavior. [Varela] initially reports to probation and complies with his terms and conditions for a short period after being released from custody, only to discontinue reporting to probation and losing contact. [Varela] has several excuses for his poor performance on probation and uses them as rationale for his behavior instead of accepting responsibility for his actions. [¶] [Varela] appears to be minimizing the severity of his substance abuse issues and until he chooses to address his issues with substance abuse, the likelihood that he will be able to refrain from illegal drug use and future criminal behavior is very low.”
In denying reinstatement of probation and sentencing Varela to state prison, the court explained that Varela had been “tried on probation, failed, kind of across the board failures, failures on all fronts if you want an alternative way of saying it.” This was consistent with the fact that Varela violated his probation on three occasions. A defendant’s failures to comply with the terms of probation constitute sufficient cause to refuse reinstatement of probation. (People v. Jones (1990) 224 Cal.App.3d 1309, 1316.) In light of the facts asserted in the probation report—which were not contested by defense counsel at the hearing or appellate counsel in the briefing in this case—the court did not abuse its discretion in denying reinstatement and sentencing Varela to prison.
Varela contends the court did not consider that drug addiction was the root cause of his criminal behavior and that he was ready to address the addiction, he had recently been accepted into a residential treatment program, and he had not previously participated in one. Although the court did not specifically mention these matters at the hearing, defense counsel had described to the court Varela’s substance abuse problems and acceptance into the residential treatment program, and nothing in the record leads us to believe the court ignored counsel’s assertions. To the contrary, we presume the court “knows and applies the correct statutory and case law [citation] and is able to . . . recognize those facts which properly may be considered in the judicial decisionmaking process. [Citations.]” (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1068, fn. 13.) We conclude the court considered, but rejected, Varela’s arguments.
Varela also asserts that his most recent probation violation—possessing the methamphetamine pipe—was only his first violation of probation in case number FCR316296, and that justice and public safety would best be served by allowing him to seek treatment in a treatment facility. Although it was his first violation of probation in case number FCR316296, it was his third violation of probation in FCR312743. His multiple violations of probation support the court’s decision not to reinstate probation in either case.
Varela fails to establish an abuse of discretion.
III. DISPOSITION
The order is affirmed.



NEEDHAM, J.



We concur.




SIMONS, ACTING P.J.




BRUINIERS, J.