P. v. Ortega

Filed 4/17/07 P. v. Ortega CA4/1

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.

Denise Irene Ortega contends the trial court abused its discretion in revoking her probation. We affirm.

FACTUAL BACKGROUND

On April 1, 2004, Denise Irene Ortega pleaded guilty to a charge of robbery, and admitted an allegation that she performed an overt act related to a count of conspiracy to commit a crime to benefit, enhance and promote a criminal street gang. (Pen. Code

211, 186.22, subd. (b)(1).) On June 29, 2004, the court found that she was presumptively ineligible for probation, but suspended the execution of her 12-year prison sentence in the interest of justice, and instead ordered her to serve 5 years on probation.

A probation report dated June 1, 2004, lists several robberies and thefts for which Ortega was convicted between 1995 and 2000; during that period she was granted probation five times, and each time it was revoked. The court noted that the probation report stated, "She began using marijuana at age [14] until age [19] and then began using methamphetamine and inhaling the drug. [] At age 31 she began injecting heroin and at the time of her arrest, she was using one gram daily."

On June 29, 2004, Ortega informed the court about her medical ailments as follows: "My Hep-C became active again. I have my liver load, which is 18. [] I was taken to the hospital three weeks ago for heart pain, and it was the did an A.K.G., and it was due to the swelling of my arm heart muscle. Unicarditis? I can't think of it. Endocarditis? It's caused from using. And pretty much I have polluted my body. Did a lot of damage. Not only physically, but mentally."

The court observed, "This in many ways I think is an unusual case, given the defendant's age, given her lack of previous violence, given the clear pattern of substance abuse, given the extreme conditions that have led her to a life of substance abuse.

"I think her willingness to address that issue, given her medical situation, I think all of those things create an unusual case, and although I am in extreme doubt as to whether or not this individual can step away from the criminal lifestyle, and although I am in extreme doubt as to whether or not she has the ability to address her substance abuse problem, it is a condition of her situation, and it will be a condition of her situation that she has to do it or face the 12-year prison sentence."

As conditions of the June 2004 grant of probation, the court ordered her to attend and successfully complete a residential drug treatment program; attend meetings of Alcoholics/Narcotics Anonymous; totally abstain from alcohol; not use or possess any controlled substance without a valid prescription; and submit to testing for the use of controlled substances when required by the probation or law enforcement officer. The court stated, "I expect on this probation that if there is even the slightest bit of deviation from the norm, that it be reported to me so we can execute the twelve-year prison sentence." The court advised Ortega, "And I am sure that many judges have said this before, but and I am sure many people thought the judges meant it, but I don't think there has ever been, in my opinion, a more serious statement of this is one last chance." At the close of the hearing, the court reiterated, "I am deadly serious. You are gone for twelve years if you give me or the probation officer even the slightest excuse to drop the bottom out on you. Got it?" Ortega responded, "Yes."

At the April 21, 2006 hearing, the court formally revoked her probation after she admitted that in March 2006, she had violated the terms of her probation by twice testing positive for methamphetamines; once missing an appointment with the probation officer for a drug test; and, not reporting an address change to the probation officer. At the May 11, 2006 hearing in which Ortega explained that she had resumed using drugs after finding out her father had molested her two daughters, the court declined to reinstate probation. The court ruled, "I do not believe that she has the reasonable chance of succeeding on probation. I don't think the interest of justice would be served by continuing her on probation."

DISCUSSION

Ortega claims the trial court abused its direction in not reinstating her probation, given the extenuating circumstance that she violated probation after she found out her father had sexually molested her two daughters.

Under Penal Code section 1203.2, subdivision (a), the court may revoke probation "if the interests of justice so require and the court, in its judgment, has reason to

believe . . . that the person has violated any of the conditions or his or her probation. . . ." The facts supporting revocation need only be proved by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.) Moreover, the courts have very broad discretion in determining whether a probation violation has occurred. (Id. at p. 443.)

" '[O]nly 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.' " (Ibid.)

"The concept of judicial discretion is difficult to define with precision. In the past we have described it as 'the sound judgment of the court, to be exercised according to the rules of law.' [Citation.] More recently we have said (quoting from another case) that the term judicial discretion 'implies absence of arbitrary determination, capricious disposition or whimsical thinking.' [Citation.] Moreover, discretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.] However, in the absence of a clear showing that its sentencing decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate sentencing objectives." (People v. Giminez (1975) 14 Cal.3d 68, 72.)

We are mindful that Ortega's father stands accused of molesting her daughters, and that she probably was negatively affected by this situation. Nonetheless, on this record, the trial court did not abuse its discretion in declining to reinstate probation, given Ortega's failures on probation. The court initially exercised leniency in granting her probation, and sternly warned her to fulfill the terms of probation; specifically, the provisions relating to abstention from drugs were in part for her own medical benefit, but she was unable to avoid using drugs.

DISPOSITION

The order is affirmed.

O'ROURKE, J.

WE CONCUR:

NARES, Acting P. J.

McDONALD, J.

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