P. v. Butler

Filed 6/27/07 P. v. Butler 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Carol H. Rehm, Jr., Judge. Affirmed.

Jennifer L. Peabody, 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, Keith H. Borjon and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.

______________

Appellant James Butler appeals from the sentence imposed following a violation of probation. We affirm.

CONTENTIONS

Appellant contends that the trial court abused its discretion in revoking probation and executing the previously imposed four-year prison sentence.

FACTS AND PROCEDURAL HISTORY

On November 3, 2005, appellant pled nolo contendere to count 1, unlawful driving or taking of a vehicle (Veh. Code, 10851, subd. (a)) and count 2, hit-and-run driving by failing to stop at the scene of an accident (Veh. Code, 20002, subd. (a)). Appellant admitted that he had suffered a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).^[1]

Appellant was sentenced to state prison for a total term of four years, consisting of the high term of three years on count 1, plus one additional year for the prior prison term. Execution of the sentence was suspended and appellant was placed on probation on certain terms and conditions including that he spend 365 days in county jail with credit for 127 days and that within 24 hours of his release from custody he report to the probation department at the Ascot Intake Office in downtown Los Angeles. Appellant was ordered to pay a restitution fine of $200, probation administration fees, and victim restitution. Count 2 was dismissed.

On October 18, 2006, a probation violation hearing was held and appellant was found to be in violation of probation as a result of his failure to report to his probation officer after serving his county jail sentence.

Los Angeles County Deputy Probation Officer Tim Mosman testified at the probation violation hearing that when a probationer is released, he is supposed to report to the Ascot Intake Office where he receives instructions on where to report next. When Officer Mosman reviewed appellants probation file, his current rap sheet, and the computer database, he found that appellant had never reported to the Ascot Intake Office or to his probation officer in the Crenshaw office. Officer Mosman also determined that appellant had not been arrested for any new offenses since his release.

DISCUSSION

Whether the trial court abused its discretion in revoking probation and executing the previously imposed four-year prison sentence

Appellant contends that the trial court abused its discretion in revoking his probation and executing the four-year sentence previously imposed because the conduct of appellant that resulted in the violation of probation was a nonviolent, noncriminal act. We disagree.

Pursuant to section 1203.2, subdivision (a), a court is authorized to 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 of his or her probation . . . .

Our trial courts are granted great discretion in determining whether to revoke probation. [Citation.] Such discretion implies that in the absence of positive law or fixed rule the judge is to decide a question by his view of expediency or of the demand of equity and justice. [Citations.] (People v. Rodriguez (1990) 51 Cal.3d 437, 445.)

In placing a criminal on probation, an act of clemency and grace [citation], the state takes a risk that the probationer may commit additional antisocial acts. Where probation fails as a rehabilitative device, as evidenced by the probationers failure to abide by the probation conditions, the state has a great interest in being able to imprison the probationer without the burden of a new adversary criminal trial. [Citation.] (People v. Rodriguez, supra, 51 Cal.3d at p. 445.)

In People v. Towe (1984) 158 Cal.App.3d 368, Division Four of the Court of Appeal, Second Appellate District held that the trial court did not abuse its discretion in revoking probation where the defendant failed to report to his probation officer because of family problems. (Id. at p. 369.) On appeal, appellant makes a similarly unpersuasive argument. He argues that he did not report to the probation office as required, within 24 hours of his release from jail, because he had no place to stay in Los Angeles after his release from custody on Friday. Rather than reporting on Monday, appellant simply returned to Oakland where he was already on parole.

We simply are not convinced that the trial court abused its discretion in revoking probation. The record shows that initially, the trial court denied appellants request for a probationary sentence because appellant committed the instant crime while on probation for another matter. Appellant and the People then entered into a plea agreement under which appellant was to serve one year in county jail, with three years probation and a suspended sentence of four years. At the time he agreed to the plea, appellant was fully informed of the procedures for reporting to the probation department in Los Angeles upon his release. His attorney stated that appellant was required to report to his probation officer in Los Angeles who would then call his parole officer in Northern California to explain why he could not immediately leave Los Angeles. Appellant was warned repeatedly that if he violated any condition of probation, including the failure to report to his probation officer upon release from custody, that he would be found in violation of probation and the four-year prison sentence would be imposed. The trial court stated: I want you to understand you got a great break here, but your breaks arent going to continue. If you violate a term or condition of your probation in this case, you are going to be taken into custody. You are going to be held until the People conduct a probation violation hearing and if they establish you violated your probation, you are going to state prison for four years.

This case is not like People v. Buford (1974) 42 Cal.App.3d 975, 984-985 [overruled for its reliance on clear and convincing evidence rather than reason to believe as the standard in People v. Rodriguez, supra, 51 Cal.3d at p. 444, fn. 3], cited by appellant, where the First District found that the evidence did not support the trial courts conclusion that the defendant had not reported to his probation officer. There, the defendant initially checked in with his probation officer; was sometimes tardy and undependable in the reporting, but always made subsequent appointments; immediately responded to a letter that was sent to his last known address; and had never missed a prearranged appointment with a newly assigned probation officer. Here on the other hand, appellant never even bothered to report to the probation department. We conclude that the trial court did not abuse its discretion in concluding that appellant had failed to report to his probation officer as required by the conditions of his probation.

Appellant also contends that the trial court abused its discretion because it could have reinstated probation with the same terms or new terms such as additional fines, community service, or an additional term of probation. He urges that the trial court could have ordered appellant to serve additional county jail time instead of sentencing him to a lengthy prison sentence. In People v. Towe, supra, 158 Cal.App.3d at page 372, the appellate court recognized that by violating the terms of his probation, the defendant continued to do as he pleased, regardless of societys laws. The court held that after finding that putting the defendant on probation again would be a waste of time, the trial court had no real choice but to sentence appellant to state prison. (Ibid.)

Similarly here, the trial court noted that appellant made a lot of promises to maintain his freedom, but continually dishonored those promises. The trial court stated that had appellant done anything to comply with the terms of his probation, the trial court would then have been given an opportunity to find a way to avoid imposing a four-year state prison sentence.

We conclude that the trial court did not abuse its discretion in revoking appellants probation and sentencing him to a four-year term in state prison.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

ASHMANN-GERST

We concur:

__________________, P. J.

BOREN

__________________, J.

CHAVEZ

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