P. v. Nordstrom

Filed 6/22/07 P. v. Nordstrom CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Calaveras)

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Defendant Dan Alan Nordstrom pled no contest to felony hit and run with bodily injury. (Veh. Code, 20001, subd. (a).) The trial court imposed a three-year upper term, suspended execution, and placed defendant on probation for five years. The court subsequently sustained allegations that defendant violated the terms of his probation, revoked probation, and ordered execution of the original three-year term.

On appeal, defendant contends the courts finding that he violated probation is not supported by substantial evidence, and the decision to revoke probation and impose the original sentence is an abuse of the trial courts discretion. We reject the contentions and affirm.

BACKGROUND

Because defendant pled no contest, the facts of his offense are taken from the probation report. At about 5:15 p.m., defendant was driving westbound on Highway 26 in an unincorporated area of Calaveras County when he allowed his car to drift off the pavement to the right. Defendant overcorrected and swerved into oncoming eastbound traffic, hitting the door of William Bolins car. Bolins car rolled several times and came to rest against a barbed wire fence in a field adjacent to the highway. Bolins 10-year-old son sustained numerous lacerations to the head, requiring sutures and staples.

Defendant ran from the accident but was detained by witnesses. An officer detected the smell of alcohol on defendants breath, and defendant admitted to drinking [a] couple of beers. Defendant claimed he lost control of his car because of a flat tire, but the officer found no evidence to support defendants story.

Defendant failed to keep his appointment to report to probation on June 10, 2005, and failed to appear at jail on June 21, 2005, as required under the terms of his probation.

DISCUSSION

I

Defendant contends the trial courts finding that he willfully violated probation is not supported by substantial evidence.

Defendant was sentenced on May 31, 2005. He then reported to the probation department and scheduled a meeting for June 10, 2005. He did not make it to the scheduled meeting. As a condition of his probation, defendant was required to report to the county jail on June 21, 2005, and serve a one-year term. Defendant never reported to the jail. A bench warrant for his arrest was issued, and defendant was arrested on May 5, 2006.

Defendant testified at the probation revocation hearing and offered various excuses for his failure to keep the appointment with the probation department and report to jail. His mother died just before the scheduled meeting with the probation department. He badly injured his leg in a motorcycle accident on June 2 or June 3, 2005, which kept him from walking for eight months. He could not afford to go to a hospital for the injury but somehow secured an MRI five to six months after the accident. The MRI was not introduced into evidence.

The injury kept defendant from driving, thus preventing him from turning himself in. His ability to communicate by telephone was also compromised. He lived in a cell phone dead zone and did not have a telephone. A friend who came over to assist defendant had to climb a hill to use his cell phone. Nevertheless, defendant and the friend each called defendants probation officer before and after the scheduled appointment. They also separately contacted the receptionist before and after the scheduled appointment.

Defendant testified that he called the jail and told them he could not make it because of his accident. He was told that the best days to turn himself in would be Tuesdays and Thursdays. He talked to his probation officer five to six months after the accident, and the officer told defendant to come in whenever you can as there was a warrant out for his arrest.

Calaveras County Deputy Probation Officer Tammy Drew testified that there was no record of defendants making a call stating that he could not keep his appointment. There would be no record of the call if it was taken by the receptionist, but a record would be made in the file if the probation officer took the call.

Penal Code section 1203.2, subdivision (a) states that a court may revoke . . . 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 . . . or has subsequently committed other offenses . . . . The language of section 1203.2 gives trial courts very broad discretion in determining whether a probationer has violated probation on proof by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 442-443, 447 (Rodriguez).) We will not interfere with the trial courts exercise of discretion unless the record establishes a very extreme case of abuse. (Id. at p. 443.)

Where the trial court resolves conflicting evidence to determine whether a probationer willfully violated probation, review on appeal is based on the substantial evidence test. (People v. Kurey (2001) 88 Cal.App.4th 840, 848.) Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence . . . support[ing] the trial courts decision. (Ibid.) Substantial evidence supports the trial courts findings that defendant violated his probation.

There were ample reasons for the trial court to reject defendants story. He testified to calling his probation officer about his injury before the scheduled appointment, yet there was no record of such a call even though it would have generated a record had the call been made. Defendant also claimed to have personally called the probation department, his probation officer, and the jail. Yet defendant also testified that he did not have a phone, could not walk at this time, and that the only way to make a call was for his friend to come over and use his cell phone to call from a nearby hill. Defendant never explained how he could climb the hill to make the calls when he was unable to walk because of his alleged motorcycle accident. The glaring contradictions in defendants testimony demolish his credibility, providing substantial evidence to support the trial courts ruling.

Defendants conduct after missing the deadlines provides circumstantial evidence supporting the trial courts findings. Defendant never turned himself in, even after he was able to walk. There is no reason to believe that defendant ever would have appeared before the authorities if he had not been arrested on the trial courts bench warrant. This is inconsistent with defendants explanation that he meant to but was incapable of making his required appointments with probation and the county jail.

II

We also reject defendants contention that the revocation of probation and imposition of the original sentence was an abuse of discretion. Absent a clear abuse of discretion, we will not disturb the trial courts decision to deny or revoke probation. (Rodriguez, supra, 51 Cal.3d at p. 443.) The trial court concluded that while the death of defendants mother was tragic, it did not excuse the willful violation of the terms of defendants probation.

We agree with the trial court. Defendants failure to turn himself in compounds his culpability. Accordingly, the trial courts conclusion was neither arbitrary nor capricious and therefore not an abuse of discretion. (See People v. Buford (1974) 42 Cal.App.3d 975, 985.)

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

SCOTLAND, P.J.

NICHOLSON , J.

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