P. v. Tardiff

Filed 6/20/07 P. v. Tardiff CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Bruce F. Marrs, Judge. Affirmed.

Marilee Marshall, 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, Lance E. Winters and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Michael Philip Tardiff appeals from the judgment entered following revocation of probation previously granted upon his guilty plea to inflicting corporal injury on a spouse/cohabitant (Pen. Code, 273.5, subd. (a)).[1]Defendant admitted personal infliction of great bodily injury within the meaning of section 12022.7, subdivision (e) and the alleged factors in aggravation. At defendants probation violation hearing, the trial court found that he had violated the conditions of probation that he (1) seek and maintain employment, and (2) attend 52 weeks of domestic violence classes. It revoked defendants probation and sentenced him to an aggregate state prison term of five years. Defendant contends that the trial court abused its discretion when it revoked probation and sentenced him to prison.[2]

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND[3]

The assault

On March 30, 2004, Yan Li (Li), who claimed to be defendants wife, was sitting in the drivers seat of their vehicle, parked in front of their residence. Defendant ran out of the house and tried to stop her from driving away by holding the drivers door. When he could not, he punched her in the face causing her to stop. Li suffered contusions to her left eye and her upper and lower eyelids, her left eye was swollen completely shut, and the orbital part of her eye was fractured. She was treated at her residence by paramedics and then at the hospital.

The plea and sentence

On September 14, 2004, defendant pled guilty to one count of inflicting corporal injury on a spouse/cohabitant and admitted personally inflicting great bodily injury and the alleged factors in aggravation. He filled out and signed a guilty plea form, after reading and fully understanding it, and discussed his constitutional rights, the consequences of his plea, and his legal defenses with counsel.

On May 11, 2005, the trial court suspended imposition of sentence and placed defendant on five years probation. As conditions of probation, he was to serve 365 days in county jail and ordered to seek and maintain training, schooling or employment as approved by the probation officer, support dependants as directed by the probation officer, obey all rules and regulations of the probation department, attend 52 weeks of domestic violence counseling as directed by the probation department, cooperate with the probation officer in a plan to curb impulsive behavior, obey all laws and orders of the court, and obey all rules and regulations of the probation department.

On October 19, 2005, defendant filed a Special Petition seeking to withdraw his guilty plea, which was denied on November 9, 2005.

Probation violation hearing

On December 27, 2005, the trial court conducted a probation violation hearing at which the following evidence was presented.

Oral evidence

Bonnie Patton, defendants probation officer who first met with him on June 29, 2005, was the sole witness for the prosecution. She testified that defendant was in violation of his probation conditions. He had ongoing problems in his counseling program. On October 11, 2005, she received a written report stating that his participation was unsatisfactory due to lack of cooperation. For the first six sessions, he was only required to pay $10 of the $25 per session fee, the balance being deferred until after those six sessions, when he was required to pay the full per session fee and arrearages. He failed and refused to pay any of the arrearages. Patton conceded, however, that he was in compliance with the reporting requirements to probation and had attended 14 sessions of the domestic violence program before he was terminated.

Defendant also failed to seek and obtain employment. Beginning at the first interview, and at each meeting thereafter, Patton ordered him to get a job. He said that he could not obtain one because of his felony conviction and asked to put the case back in court to get him off probation. He told Patton that he never went anywhere to attempt to gain employment, that he was not legally on probation, and that he wanted to withdraw his plea. He said that he intended to sue the court, district attorney, public defender, and judge, and use his intelligence to track them down on the internet.

Defendant denied to Patton knowing Li, hitting her, being married to her, and being the father of her infant son.[4] He failed to pay any of the $3,200 probation fee he was assessed, and Patton received no indication he was paying his child support. Patton concluded that although defendant had no re-arrests nor had there been any complaints from the victim of any violation of the stay-away order, he would not be manageable on probation. She believed he was mentally impaired and required a mental health evaluation.

Defendant testified on his own behalf, claiming that he did not miss any of his domestic violence classes and fully participated in them. He paid the $10 payment plan for the school, but was terminated because he did not have $25 per class that they were going to charge him. He requested to be placed in another school so that he could remain on the $10 payment plan, but his request was denied.

Defendant also testified that he tried to obtain employment, made application on employment websites, and was contacted by recruiters. His resume was posted on-line. He has an electrical engineering degree but could not pass a background check for the types of work he had done in the past and was qualified to do. He was told by recruiters that they could not help him until his felony was removed. He claimed he spoke to the probation officer about withdrawing his plea so he could get a job. On one occasion, he asked his probation officer if he could change his probation appointment to attend a scheduled interview, and his request was denied.

Defendant denied threatening any of the court staff, demanding to see the judge, or threatening to use his intelligence background to locate addresses. He denied being married to Li, having a child with her, and assaulting her. He said that if probation were reinstated he would like to transfer to another probation office for geographical convenience, but if required to remain with Patton, he would comply with everything she tells him within reason.

Probation reports

In connection with the hearing, the trial court also considered three probation reports. The probation report dated July 22, 2004, prior to defendants sentencing, indicated that his conviction of inflicting corporal injury was his first felony conviction. It nonetheless viewed him as presenting a serious danger to the community and being a poor candidate for probation because he displayed a violent and uncontrollable temper. It recommended a state prison term.

The probation report dated July 12, 2005, observed that defendant presented himself for the probation interview on June 29, 2005, and was in compliance with state law mandating a 52-week domestic violence treatment program. However, that probation interview was negative because defendant stated that he did not intend to remain on probation but was going to withdraw his plea and take the case to trial because Li would never testify against him. He also said that he was not employed and would not seek employment because he was retired from Boeing. He told his probation officer that he intended to sue the court, police department and district attorneys office for falsely prosecuting him. The report concluded: It is the probation officers opinion, that the defendant has significant mental health problems, and gave the appearance in probation offices of suffering from delusions. The defendant was untruthful, grandiose, contradictory and manipulative. The probation officer is of the opinion that the defendant is in need of significant psychiatric care. The report requested a psychiatric evaluation for defendant.

The probation report dated November 10, 2005, added that defendant said that probation was not suitable for a person of my upbringing and background, that he would not seek employment or support dependents, that he did not want to continue attending the domestic violence program or paying the counseling fees of which he was in arrears, and, after his petition to withdraw his plea was denied, that, What do I have to do, throw a rock at Judge Hunt, to get him to let me talk. This report reiterated the probation officers belief that defendant had mental problems and recommended revocation of probation and pronouncement of sentence.

Trial court ruling

The trial court found (1) after reviewing e-mails purportedly reflecting defendants efforts to obtain employment, that he had not acted diligently; (2) that he had previously admitted under oath having injured Li but denied it at the violation hearing; (3) that his statement that he would comply with conditions of probation within reason indicated that he was unsuitable for probation; and (4) that, worse than not attending the domestic violence classes, he attended and disrupted them by not cooperating. It ruled that defendant was in violation of probation, ordered probation to remain revoked, and sentenced him to the low term of two years for corporal injury to his spouse plus a consecutive three years for the great bodily injury enhancement. The trial court denied defense counsels request for a 90-day diagnostic or section 730 evaluation, stating that it would recommend that defendant be screened for psychological/psychiatric treatment or assistance during intake.

DISCUSSION

Defendant does not challenge the trial courts findings that he violated various conditions of probation. Rather, he contends that the trial court abused its discretion in revoking probation and sentencing him to five years in state prison based upon those violations. He argues that there were more fitting options . . . available to the court which more appropriately suited the alleged violations in appellants case. This contention lacks merit.

[A] grant of probation is not a matter of right but an act of clemency. (People v. Covington(2000) 82 Cal.App.4th 1263, 1267.) Section 1203.2 provides in part: [T]he 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 probation . . . . ( 1203.2, subd. (a); People v. Taylor(1968) 260 Cal.App.2d 393, 395.) Once the court has decided that a violation of probation has occurred, the court must go on to decide whether under all of the circumstances the violation of probation warrants revocation. (People v. Avery (1986) 179 Cal.App.3d 1198, 1204.) While the court must consider a probation officers report, it is not bound by that report and recommendation, or, indeed, the record of the case. Rather, [i]t must be guided by considerations pertaining to psychology, sociology and penology, or, in the words of the code, to the ends of justice; by general rules of policy which have not been and in the nature of the case should not be crystallized into positive or definite rules of law. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 708; see also People v. Jones (1927) 87 Cal.App. 482, 497.)

The inquiry upon revocation of probation is not directed to the probationers guilt or innocence but to performance on probation, that is whether the probationer violated the conditions of probation and if so whatit portends for future conduct. The focus is on whether a probationer has shown he can conform his behavior within the parameters of the law. (People v. Beaudrie (1983) 147 Cal.App.3d 686, 691.) This distinguishes the considerations appropriate for determining whether a defendant should initially receive probation and whether a defendant should have probation revoked. In the latter case, the defendant has a track record of performance on probation which may be indicative of how he will continue to perform on probation if his probation is not revoked, and which should therefore be given substantial weight.

Granting or revoking probation is within the broad discretion of the trial court. (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) Denial of probation is an abuse of discretion where arbitrary and capricious. (People v. Edwards (1976) 18 Cal.3d 796, 807.) A probation violation must be proved only by a preponderance of the evidence. (People v. Jackson(2005) 134 Cal.App.4th 929, 935.)

We cannot say that the trial court abused its discretion here. Defendant violated the condition that he seek employment and the condition that he attend 52 weeks of domestic violence counseling. Despite the fact that Patton had reminded him at every probation meeting that he was required to obtain employment and that he had been on probation for seven months at the time of the violation hearing, defendant had not obtained employment and gave no indication of having made any serious efforts to do so. In fact, one probation report indicated that he told his probation officer that he would not seek employment. While he claimed to have posted his resume on-line and submitted it to various on-line, employment websites, the trial court found that the e-mails presented by his counsel did not reflect diligent efforts on his part, but suggested that he did not provide his resume or respond to e-mails regarding possible jobs. For example, one e-mail to him requested his resume and a list of jobs for which he was qualified, but there was no writing indicating that he had provided that information. Another e-mail he received suggested he had not sent a resume for several years. A third e-mail told defendant to respond if he was interested in the jobs listed, and he presented no indication he had done so.

The trial court also found that defendant had violated the probation condition that he attend 52 weeks of domestic violence counseling, as he was terminated from that program for lack of cooperation. It rejected his testimony that he fully participated and was terminated simply because he could not afford the $25 per session fee. The trial court had every reason to disbelieve defendants testimony as he had clearly been untruthful. At his preliminary hearing, he admitted injuring his wife, while at the violation hearing he denied not only responsibility for such injury, but even that Li was his wife. At the preliminary hearing, when the prosecution requested an increase in the bond because defendant had violated a protective order precluding him from having contact with Li, defendant responded that, I was at the residence because I was taking care of my son. (Italics added.) At the violation hearing, he denied that the child was his son.

Finally, defendant had a condescending attitude and demonstrated hostility towards probation; traits that virtually assured that he would not succeed on probation. He implied that he was intent upon following his own rules rather than abiding by the directions of the probation officer, stating that he would cooperate with the probation officer within reason.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

_____________________, Acting P. J.

DOI TODD

_____________________, J.

ASHMANN-GERST

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Appellant has filed a petition for writ of habeas corpus, case No. B190864, which is considered concurrently with this appeal. A separate order will be filed in that matter.

[3] Because there was no trial on the underlying charges in this matter, the facts are taken from the July 8, 2004 preliminary hearing transcript and probation reports.

[4] At an earlier hearing, when the prosecution asked for an increase in defendants bond because he had gone to Lis house in violation of a protective order, he said he went there to care for his son.