P. v. White

Filed 6/19/07 P. v. White CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Following a hearing on the propriety of terminating appellant Kevin Ray Whites probation, the Marin County Superior Court terminated his probation as unsuccessful. Appellant challenges the courts designation of unsuccessful and asks that this label be stricken from the record. We direct that the designation unsuccessful be stricken from the termination order.

I. BACKGROUND

On August 23, 2005, the Marin County District Attorney filed a complaint against appellant alleging (1) one count of receiving stolen property (Pen. Code,^[1] 496, subd. (a)); and (2) one misdemeanor count of possessing stolen property with an altered serial number ( 573e, subd. (a)(1)). As to count 1, the complaint further alleged ineligibility for probation due to three prior felony convictions.

On October 17, 2005, appellant pled guilty to both counts. Despite appellants presumptive ineligibility, the court found this an unusual case and that the interests of justice would be served by a grant of probation. Accordingly, the court placed appellant on probation for three years on the condition that he serve one year in county jail. The terms of appellants probation mandated his entry and successful completion of a residential treatment program.

Appellant completed his jail sentence and was released to the custody of Sonoma County where he had matters pending in two felony cases that predated the Marin County offenses. Appellant was sentenced to five years in the California Rehabilitation Center (CRC) for the Sonoma County matters and was then transported to Contra Costa County, where he had pending matters which also predated the Marin County charges. There he received an additional three years concurrent in the CRC.

Thereafter, the probation department recommended termination of probation on grounds that there was no point to continuing appellants supervision by Marin County in light of his assignment to the CRC by Sonoma and Contra Costa Counties. At the hearing on the matter, the court accepted the probation departments recommendation and terminated his probation. However, it also indicated that probation was terminated as unsuccessful.

II. STANDARD OF REVIEW

Revocation of probation rests in the sound discretion of the trial court. Although such discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based on the facts before it. (People v. Buford (1974) 42 Cal.App.3d 975, 985.) We will not reverse a trial courts revocation decision [i]n the absence of a clear showing that its decision was arbitrary or irrational . . . . (People v. Zaring (1992) 8 Cal.App.4th 362, 378.)

III. DISCUSSION

Termination of Appellants Probation As Unsuccessful Was Erroneous.

Appellant contends that the trial courts decision that his probation be terminated as unsuccessful constituted error because he never had an opportunity to perform on probation. He asserts that following his jail sentence he was immediately transferred to Sonoma County and then transferred to Contra Costa County, and thus was never released from custody.

Section 1203.2, subdivision (a) states in pertinent part: [T]he court may revoke and terminate such 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 probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses.

When defense counsel objected to the unsuccessful language, the judge erroneously stated that the language was justified because appellant was out re-offending in other counties after he was sentenced in this county . . . . This statement is at odds with the facts. Appellant was incarcerated in Marin County until March 1, 2006, at which time he was released to custody in Sonoma County on two pending felony cases that predatedthe current offenses. After he was sentenced in Sonoma County, he was transported to Contra Costa County to face charges there, which also predated the current charges. Since the matters in Contra Costa and Sonoma Counties occurred prior to appellants probation assignment in Marin County, the offenses were not violative of the terms of appellants probation and did not constitute new offenses as asserted by the trial court.

The People claim that the designation of unsuccessful is justified because appellant did not complete the court-mandated residential treatment program. This argument is flawed because appellants failure to complete the treatment program was not intentional and was beyond his control. Appellant was never released from custody, never had an opportunity to perform, and had not reoffended. There can be no violation of probation where the offender does not have the opportunity to perform. (See People v. Bethea (1990) 223 Cal.App.3d 917, 922 [due process requires that probation not be revoked solely for failure to pay monetary sanction absent findings of ability to pay and willful failure].)

The Peoples contention that appellants failure to complete his treatment program warrants the unsuccessful notation also fails because the violation was not willful. (See People v. Zaring, supra, 8 Cal.App.4th at pp. 375, 378-379; People v. Buford, supra, 42 Cal.App.3d at p. 985.) The term willful implies that the individual intentionally commits an act and that he or she is a free agent at the time of commission. (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438.) In Zaring, the defendant was granted probation and ordered to appear in court at 8:30 a.m. on the following Monday. She arrived 22 minutes late causing the judge to revoke her probation. The defendant told the judge that the only way she could get to the courthouse was with her mother-in-law, who had to drop her children off at school at 8:00 before she could transport the defendant to the courthouse. (People v. Zaring, supra, 8 Cal.App.4th at pp. 375-376.) The defendant had registered with the probation department, had not used any drugs, and did everything [she] was supposed to do. (Ibid.) The Court of Appeal reversed, concluding that the trial courts discretion was not predicated upon reason and law and did not take into consideration that life is not always predictable. (Id. at p. 379.) Appellants lack of willful culpability is similar. Compliance with the condition of entering and completing a residential treatment program was physically impossible because appellant was in custody the entire time. This custody was clearly outside of appellants control, he was not a free agent and therefore failure to complete the residential treatment was not willful. The trial judge was informed of appellants continuous custody but chose to ignore this reality.

IV. DISPOSITION

We conclude that the trial courts decision to characterize appellants probation as unsuccessful was arbitrary and capricious because it did not take into account the facts presented. (People v. Zaring, supra, 8 Cal.App.4th at p. 378.) We direct that the term unsuccessful be stricken from the record. In all other respects, the judgment is affirmed.

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Reardon, J.

We concur:

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Sepulveda, J.

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Rivera, J.

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^[1]All statutory references are to the Penal Code.