P. v. Tamboura

Filed 6/25/07 P. v. Tamboura CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

With a 14-year suspended prison sentence for injuring and threatening his wife,[1] Angela (Mrs. Tamboura), hanging over his head, defendant Aly Phillip Tamboura violated probation by disturbing her peace (Pen. Code, 273.6)[2] and failing to pay child support. On February 2, 2006, the trial court revoked probation and ordered execution of sentence and committed defendant to prison for the previously imposed 14 years. On appeal, defendant raises sufficiency of the evidence of the violations, judicial impartiality, and due process issues.

FACTS

On September 13, 2002, defendant took his wife out in a boat ostensibly to go scuba diving, but in reality to confront her with e-mail and Internet records which he believed showed that she was having an affair. Once out of sight of shore, defendant pulled a handgun out of a locker and for several hours held it on her, threatened to kill her, struck her in the face with an open hand, and made her beg repeatedly for her life. He played with the gun and repeatedly snapped the magazine into and out of position. Finally, he threatened to kill himself while she watched, made her tie a rope around a weight and then tied the other end around his neck, put the pistol to his own head and when she had convinced him not to kill himself, returned to the dock and threatened to kill her if she said anything about what had happened in the boat.

The next day, during their youngest daughters birthday party at their home, defendant drank alcohol and became increasingly hostile as the hours passed. Mrs. Tamboura could only get away from the house to telephone police when she went to pick up the birthday cake. She said she would come to the police station on Monday to give details. During the investigation that followed, officers seized multiple rifles, assault rifles, and a submachine gun and ammunition from the home.[3] Defendant unsuccessfully attempted to persuade Mrs. Tamboura to recant her report to the police.

After defendant pled nolo contendere to two counts of a 10-count information and admitted using a firearm in the commission of the offenses, the 14-year sentence was imposed and suspended and probation was granted. Defendant was ordered to serve a year in the county jail, pay restitution, fines, fees, and spousal support through the County of Monterey Department of Child Support Services, and stay 100 yards away from Mrs. Tamboura, her residence, vehicle and place of employment.

When defendant was released from his county jail sentence on February 27, 2005, Mrs. Tamboura sought an emergency change in the custody and visitation orders set in place by the family court pursuant to the divorce proceedings. She took the two youngest children on an airplane and left the area. Her request was denied.

Defendant did not see the youngest children for two weeks after he got out of jail. He was skiing in the Sierras when his lawyer called and told him to get home because he would have the children at 5:00 p.m. that day. Defendant stated, I took my skis off, jumped in my car and drove my ass as fast as I could back to San Jose because I wanted to see my kids.[4] Defendant also testified that he worked at a dive shop helping teach. It did not generate an income, but your trip gets paid for. So you get to have some fun paid for by the other people you take on the trip. Defendant made a trip to the Sea of Cortez with his probation officers permission, and was seeking permission from his probation officer for a trip to Santa Barbara when the probation officer told him he was being accused of violating probation by dropping off his children at Mrs. Tambouras door.

On October 11, 2005, defendant was charged with violation of probation for failing to make child support payments and disturbing Mrs. Tambouras peace. Mrs. Tamboura had not received the mandated child support payments of $1,421 in March or April. She received $1,000 around May 7. After May 17, defendant made all required child support payments.

Defendant testified that he had serious financial problems by the time he was released from jail. He was a partner in a business that was in trouble with the IRS. He did not own a home; his fiance, Jennifer,[5] and roommates made the rent payments on a house. The title to his truck was in his by then ex-wifes name and she had had it repossessed. A friend bought defendant a truck so he could go to work.

A month before defendants release the IRS held a hearing because he was behind on the Federal 941 taxes, and they were talking about shutting down my business [Sub Dynamics Inc., a partnership that did underground survey work using expensive equipment and other assets that it owned], and all kind [sic] of other stuff. The court refused to allow defendant a release from jail to attend the hearing. The IRS levied on defendants stock in the company, his bank account, and his payroll. After defendants release, it took him about a month to get back to work. The partnership paid defendant and the other employees from funds that went into the corporate account. Defendant put his first paycheck in the bank and [t]he IRS took it.

Defendant finally lost his share of the business late in November 2005, when he signed over half of his 60 percent interest in the company when he was fired . . . for [going] to jail a second time as the president. He did not receive any cash or capital gain but did receive a release of liability of what was owed, including $90,000 to the IRS. Defendant retained the other half of his interest in the company because he believed it could belong to his wife (she owned a 30 percent interest in the partnership) as part of the division of marital property.

On his release, defendant called Monterey County to inquire about paying child support and was told that he had to pay it through the county that he lived in. His probation officer in Santa Clara County told him he would have to start paying child support before he returned for his second visit with his children. At sentencing, the judge had told the prosecutor to have Mrs. Tamboura set up payments through child support services, but she did not. Defendant had called his attorney from jail four times to get him on calendar for a modification and a fifth time when he was released. The attorney kept telling him he was working on it. When defendant started making support payments, he sent them to his attorney to forward to Mrs. Tambouras attorney. Defendant stated he paid $1,000 in April, but he did not think Mrs. Tamboura received it until May. Defendant paid another $320 and some other small amounts in May. Although defendant was about $16,000 to $20,000 in arrears in total payments, there was a stipulation that there was no willful violation of the support provision of the probation order from May 17 on.

Late in 2005, defendant learned from his children and from a friend that Mrs. Tamboura had moved from her home about 12 to 14 miles away to a home about a mile from defendants. His friend told him that for a woman thats afraid of you, [Mrs. Tamboura] sure moved right down the street. Defendant testified he did not ask his friend or his children for the address, but he did go to his probation officer to ask what he was supposed to do. He told the probation officer he was afraid of running into his ex-wife when he went to the supermarket or walked his dog, for example, and asked the probation officer to show him on a map the area he should stay out of. She said Im not gonna tell you where she lives. And I responded by saying, I dont expect you to tell me where she lives. I dont want to know where she lives. I just dont want to be in violation of a protective order. [] . . . [] She shrugged her shoulders at me, and quote, said, I dont know what to tell you, just stay out of the area.

Defendant had 50 percent custody of his and Mrs. Tambouras children, Aly, Jr., and Alyssa, teenagers in 2006, and full custody of Mrs. Tambouras daughter, Samantha, then 17, whom he had adopted when she was a baby. Samantha was living with defendants fiance, Jennifer; and Aly, Jr., and Alyssa were living with their mother. Aly, Jr., had told his mother that he wanted to move in with defendant but had no idea that a custody hearing was scheduled for September 28.

When Mrs. Tamboura moved, she told her children not to tell their father where she lived. Mrs. Tambouras house was up Lyric Street with a right turn on Primavera and a left on Yamato.

From September 9 to 11, 2005, Aly, Jr., was spending the weekend at his fathers house. He forgot to bring his clothes. On Saturday, September 10, he started pestering his father to take him to his mothers house to get his clothes and his XBOX, but defendant refused because he was not permitted to go to his ex-wifes house. After about 30 requests, defendant agreed. He was going to pick up some cousins for a birthday party for Alyssa at his house, so he agreed to take Aly, Jr., there, but said he was not allowed near Mrs. Tambouras house. Aly, Jr., directed defendant to a spot at the bottom of Lyric where defendant parked so he would be further away. He had to wait about 15 to 20 minutes for Aly, Jr., to return.

Mrs. Tamboura was home and asked Aly, Jr., how he got there. He said his dad dropped him off down the hill on Lyric. She looked mad but Aly, Jr., got his stuff, said good-bye and walked back to his fathers car. They picked up the cousins and went home.

Mrs. Tamboura testified that she usually picked up the children at defendants mothers house. There were set times for the pick up and drop off, but occasionally, the children needed to come home at other times. Then, they would call her from their grandmothers house or from a park near defendants house. She was not surprised that Aly, Jr., was coming home to get his clothes because Samantha had telephoned her to say so. According to Mrs. Tamboura, when she asked Aly, Jr., what he was doing there, [h]e said, Im here to get some clothes. Um, father said he already knew where we lived. He explained he added the last part because his mother had given him that look. Mrs. Tamboura asked him where defendant was and Aly, Jr., pointed out to the street and said down the street. Mrs. Tamboura did not see defendant or his car. Mrs. Tamboura stated she was angry, upset, and scared because she had sat all [her] kids down and told them all under no circumstances were they to show their father or tell him where we lived because he didnt need to know.

On September 14, defendant, Jennifer, Samantha, and Aly, Jr., who was at his fathers house after school, went out for dinner. Aly, Jr., had telephoned his mother for permission. She agreed and told him to call her when they were done eating and she would pick him up. Aly, Jr., did not call her.

It was 7:30 p.m. and dark when dinner was over so defendant dropped Aly, Jr., off near his mothers house on the way home. Defendant turned up Lyric Street but Samantha asked him to drive further up because she did not want her brother to walk in the dark by himself. Defendant stated that Samantha was worried that her brother could be raped. Defendant complied by driving up Lyric past Primavera Street and stopped at the curve that Samantha and Aly, Jr., pointed out. Aly, Jr., got out and went home. Defendant testified he had gone past a point he thought was closer to Mrs. Tambouras house and let Aly, Jr., out of the car further up the hill.

On cross-examination, when the prosecutor suggested alternatives to defendant, defendant stated he did not tell Aly, Jr., to call his mother from his grandmothers house because thats second-party information[] [sic] and [Judge] Scott made it very clear to me not to do that. The district attorney suggested that defendant could have remained adamant in his refusal to take Aly, Jr., to get clothes, or that Aly, Jr., could have walked from defendants home to his mothers house, or that Aly, Jr., could have worn brand new clothes. Defendant said, [h]e could have if I was in a financial situation to do that. Owing the federal IRS, um, both personally and on the corporate level, I dont have any money, sir. The district attorney also suggested that defendant could have had Jennifer take Aly, Jr., home after dropping off defendant, but defendant stated he didnt think about it at the time, no.

Several days later, Mrs. Tamboura had Aly, Jr., point out the places where defendant dropped him off.

Samantha had the idea that defendant knew where her mother lived. At first Samantha testified her father told her he had some idea where Mrs. Tamboura lived before they went out to dinner, but later she stated it was after that night, and finally she said she was bad with dates and did not know exactly when that conversation occurred. Samantha stated the subject came up when they were talking about how defendant wanted to put the past behind him. Defendant testified that he had grown up in the neighborhood before it was developed and that he had ridden his bicycle up and down the roads before they were paved. He said he wanted to stay away from his ex-wifes house and obey all the court orders. In the course of this conversation, he said to get to his ex-wifes house, you would go up Lyric, turn, and her house was the second one down, but he ended the conversation by saying he really did not know where Mrs. Tamboura lived, did not want to know, and just wanted to stay away from the area.

The district attorney investigator measured the distance to Mrs. Tambouras house from the two locations at which defendant stopped. Straight line points from the stopping points to Mrs. Tambouras house were 193 feet on September 14 and 225 feet on September 10, measured by a computer program. By steel tape, the September 14 measurement was 170 feet. A defense investigator measured the street travel distance rather than the straight line distance to Mrs. Tambouras house from the September 10 drop-off point. That distance was 322 feet, 4 inches.

The trial court found defendant to have willfully failed to pay child support, although that was not the important violation. The important violation was the violation of the stay-away order. As regards the latter, the court stated that defendants impossibly conflicted story showed that he was getting closer and closer [to Mrs. Tamboura], that youre feeling like its okay to do this when its not. The court recalled defendants ability to locate [Mrs. Tamboura] at the [Morgan Hill] police station when she made the initial complaint. Defendant had tracked her down by the use of GPS.[6] The court reimposed the suspended sentence. This appeal ensued.

ISSUES ON APPEAL

Defendant contends: (1) the court originally imposed and suspended a 14-year sentence and again imposed a 14-year sentence when it revoked probation, however the minute order and abstract of judgment show 14 years, eight months. Defendant argues the record of the oral pronouncement of judgment controls over the abstract of judgment (People v. Mitchell (2001) 26 Cal.4th 181, 185) so the latter must be corrected. The People agree and we shall so order.

(2) The courts finding that defendant violated the probation condition prohibiting second-party contact with his ex-wife violated due process because he was not given notice of that alleged violation. (3) There was insufficient evidence to support the finding that defendant willfully failed to pay child support during the first two months after his release from custody because there was no evidence defendant had the ability to pay. Insofar as the court relied on the ski trip to find that defendant had the ability to pay, counsel was ineffective for failing to present evidence at the hearing that defendant paid nothing for that trip. (4) There was insufficient evidence to support the finding that defendant willfully violated the order requiring him to stay at least 100 yards away from his ex-wifes house. (5) The court violated due process when it promised to impose the suspended prison sentence regardless of the nature of any probation violation and when it refused to consider mitigating evidence. (6) Defendant was deprived of his constitutional right to an impartial judge and his case should be remanded and assigned to a different judge.

SUFFICIENCY OF THE EVIDENCE

1. Child Support

Defendant contends that there was insufficient evidence that he had willfully failed to pay child support during the first two months after his release (March and April) because there was no evidence that he had the ability to pay. Defendant asserts that when a probation condition requires payment of monies, willfulness requires proof the probationer had the ability to pay when he failed to make required payments. Since the prosecutor introduced no evidence that defendant had the ability to pay child support during March and April, the finding must be reversed.

A trial court may revoke probation if it has reason to believe that the probationer has violated any of the terms and conditions of probation. ( 1203.2.) The court has broad discretion in determining whether a probationer has violated probation and a revocation order will not be set aside if it is supported by substantial evidence unless there is a strong showing of an abuse of discretion. (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) Facts supporting revocation of probation may be proved by a preponderance of the evidence. (Id. at p. 447.) However, a violation of a probation condition will support the revocation of probation only if the violation is willful. (People v. Zaring (1992) 8 Cal.App.4th 362, 378-379.) If the allegation is that the probationer failed to comply with an order to pay, there must be proof the probationer willfully failed to pay and had the ability to pay before probation can be revoked. (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1393-1394.) [T]he trial court must make apparent on the record, prior to exercising its discretion, that it has considered and weighed relevant factors in making the determinations required by the statute. (People v. Self (1991) 233 Cal.App.3d 414, 418.)

The record showed that at the time defendant was released from jail and until November 2005, he was a partner owning 60 percent of the stock in Sub Dynamics, Inc., a company which owned expensive equipment and other assets which it used to generate income from which it paid its employees, including defendant. Until November 2005, defendant remained president and part owner of Sub Dynamics and received paychecks from the partnership. Defendants first post-incarceration paycheck was seized by the IRS but later paychecks were not seized. Defendant was living rent free in a house with his fiance, oldest daughter, and roommates. He either owned or had the use of a truck bought for him by a friend which he used for work. He also worked as a scuba diving teacher and went on at least one boating trip to the Sea of Cortez off of Mexico. It is not clear from the record if he made the second trip to Santa Barbara. Finally, defendant took his fiance, oldest daughter, and son out to dinner at the Outback restaurant and he gave a birthday party for his youngest daughter and a number of her friends and relatives. It is reasonable to infer that defendant had funds available from which he could have brought himself into compliance for March and April and did not.[7]

The trial court was much struck by defendants attitude. In ruling, the court stated, you sit and listen and you ask yourself whether or not knowing what the obligation is and knowing what I told the defendant his responsibility would be in that regard, and that is to support his children because that is the very first thing that is pulled, its the first string thats pulled, its the first rub that can be made. Its like sandpaper over a wound in the domestic violence relationship. If you want control, youve got it. Support is the force that you can use to manipulate.

So I look carefully at what the law requires, which is for you to make every effort to support and to do everything you can to support. It is not something that is an obligation that you are to do if its convenient to you. It is your life dedicated to support.

Now when you start there and then on March 15th youre being called by an attorney to get your, as you put it, ass back for this thing, interrupting your ski trip in Tahoe, that tells me that . . . dedication and commitment to supporting your family is maybe not on the top of your list. [] . . . [] Not only that, but you drove all the way back from Tahoe. So we know youve got mobility. You can get yourself to Tahoe. You ought to be able to get yourself to work. Those are the kinds of things that Im looking at. [] . . . [] The truck, the trips, San[ta] Barbara, [Sea of] Cortez. You want to go have fun. Maybe at someone elses expense, I dont know.

Defendant also claims that his attorney was ineffective for failing to elicit evidence that Jennifer paid for the Tahoe trip and provided the car, thus contradicting the inference that defendant had funds available for child support. However, counsel apparently did not know anything about Jennifers involvement before defendant testified.

At the sentencing hearing trial counsel stated, I know your Honor was struck and the District Attorney was struck and I was, too, by that testimony my client gave about when he heard that he had finally gotten the right to visit his children two or three weeks after he had gotten out of custody [when] he happened to be skiing . . . and rushed down to see his children. I shook my head too, you probably saw me shake my head because that was the first time I heard that, too, and I knew how everybody would react to it. It sounds like hes not paying his support but he can manage to go on a ski trip. His girlfriend tells me that it was her vehicle and her money from her that took this man after he had been in custody for nearly a year and took this man on a brief one day trip to get some exercise up in the Sierra. I hope you dont count that against him. It sure looks bad but the man hasnt been perfect, thats for sure.

Defendant asserts counsel should have inquired of Jennifer (who was outside the courtroom) about the trip and then called her to testify that she paid for the entire trip and provided transportation. Defendant claims that if the evidence had been presented at the revocation hearing, the court could not have concluded that defendant had the ability to pay some child support when he was released from custody, and the ability to transport himself to work, but was instead spending his money and time on ski trips.

To prevail on a claim of ineffective assistance of counsel, a defendant must show not only (1) that counsels performance fell below an objective standard of reasonableness under prevailing professional norms, but also (2) that, as a result, the defendant was prejudiced, i.e., there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different. (People v. Benavides (2005) 35 Cal.4th 69, 92-93.) If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed. (Strickland v. Washington (1984) 466 U.S. 668, 697.)

In the instant case it is not reasonably likely that the outcome would have been more favorable to defendant if counsel had called Jennifer to testify. There was substantial evidence, as stated above, that defendant held a position of importance in a partnership with substantial assets which was paying him on an ongoing basis until he gave up his interest in the company in November 2005. Furthermore, defendant was supported by friends and relatives who supplied him with housing, child care, and transportation when he was ready to resume work. Thus defendant had options available to him to arrange short term financing if needed to fulfill his child support obligation. The court could rationally have inferred that defendant chose to use money available to him for recreational activities rather than for child support.

The courts inferences are supported by substantial evidence in the record. There was no abuse of discretion.

2. Violation of the Stay-Away Order

Defendant asserts there was insufficient evidence to prove that defendant knew he was within 100 yards of his ex-wifes home when he parked on another street late at night and more than a block away from where she lived. Defendant claims there was no rational connection between the prior incident mentioned by the judge (the GPS tracking of Mrs. Tambouras car to the Morgan Hill police station) which happened more than three years before the probation violation hearing and the issue whether defendant knew exactly where Mrs. Tamboura lived in September 2005.

In September 2005, Mrs. Tamboura was no longer driving a company car. There had been no further incidents between October 2002 when defendant was first arrested and 2005, although defendant was out of custody during most of that time. Defendant claims the evidence supported his insistence that he wanted to put it all behind him and had no interest in knowing where his ex-wife lived, and the testimony of the children at the hearing supported his claim that he did not know where Mrs. Tamboura lived.

Defendant claims the evidence does not show willfulness, i.e., that the person knows what he is doing, intends to do what he is doing, and is a free agent. (People v. Bell (1996) 45 Cal.App.4th 1030, 1043.)

In stating its ruling, the trial court moved from child support to the protective order. The support issue here, though, really isnt the significant issue. I would start where [the prosecutor] left off.

What is going on in your mind on the 14th is anybodys guess, sir. . . . But knowing everything about the underlying facts of your conviction, youre intelligent, resourceful and--well, you have a very difficult time emotionally dealing appropriately with your difficulties. . . .

On the 14th, your daughter supposedly according to your testimony is so concerned about your son getting raped that she wants you to drive closer. And yet, doesnt say stop when youre closer. She says stop when youre further away. You drive up believing youre getting closer, and you dont want to get closer so you drive, you want to double the distance. . . . To get further away so that your son could walk down the hill in the dark and be raped. Your daughter is not going to give up her concern, if I believe what you said at the bottom of the hill was true, at the top of the hill. Shes going to have that same concern.

So what is it that you are saying? Why is this impossibly conflicted story being presented?

And then I go back to your ability to locate her at the police station with GPS. I know that you are resourceful. I know that. There isnt any doubt when you set your mind to it you are going to find out exactly where she is. When shes calling you from the police station, you have that ability.

Theres no doubt that you knew where she lived. . . . And there is no doubt that when you went up that hill and you dropped that child off that you knew where you were in relationship to it. You see, if at the bottom of the hill youre [sic] intention was not to get closer, you would have said get out, you can walk from here. Instead, you drove closer and then the story goes that you passed where you want us to believe you . . . just drove past that so you can [sic] get further away. . . .

You road [sic] a bike down that street when it was unpaved. You drove by each street sign. Yet, you say today is the first day you knew what the name of the street was. [] . . . []

Well, that may be. Its not a technical violation. Its as the bird flies. Its not--if we build a fence around a house and the one side of the fence was two feet away from the house but you had to travel 150 yards in order to get to the gate to let you in, the fact that youre at the backside doesnt mean that youre not violating it when youre two feet away from the house . . . . []. . . []

One other . . . observation that should be made is . . . your testimony . . . that your son would typically show up every other week without clothes. And typically, every other week during this entire period of time, there was another way that worked. Now two days . . . in a weeks time, you decided that you were going to do it some other way. And that would necessarily cause communication to their mother that youre getting closer and closer, that youre feeling like its okay to do this when its not.

. . . [I]ts clear to the Court that you did willfully violate probation, as alleged in the petition.

Substantial evidence supported the trial courts conclusion. The children testified that defendant knew where Mrs. Tambouras house was. Defendants friend told him she was right down the street. Defendant stated he grew up in the area, knew it well, and rode his bicycle all over the area before the roads were paved and it was built up. Aly, Jr., communicated to defendant Mrs. Tambouras anger the first time defendant dropped him off near her house. Knowing that, defendant repeated the action three days later. Both drop-off points were within 100 yards of Mrs. Tambouras house. There were other alternatives for defendant to use to get Aly, Jr., home on both occasions--defendant could have called his mother to pick Aly, Jr., up, could have had Jennifer take Aly, Jr., home after taking defendant home, could have dropped Aly, Jr., off at the park or the school, etc.

Finally, defendants attitude in the domestic violence program and his attitude toward the court orders and his past resourcefulness in tracking Mrs. Tamboura down persuaded the court that defendants failure to pay child support in March and April and his two violations of the stay-away order were not de minimus. The court had handled the case from the preliminary hearing through the change of plea, original sentencing, and the probation violation proceeding. The court recalled that at preliminary hearing, it had found astounding the conduct defendant had meted out to Mrs. Tamboura. The court stated it had held defendant to answer to attempted murder because it was so clear to the Court that the minute you stepped foot on that ship with her, you intended to kill her.

The supplemental probation report stated that on October 17, 2005, defendant was terminated from the domestic violence program he attended pursuant to the probation order. The program reported that defendant had attended 30 classes, was making marginal progress, and showed a lack of remorse toward his ex-wife.

The original probation report perceived defendant as maintain[ing] an exterior of a law abiding citizen, who is both well thought of in the community and who has been the victim of circumstance[.] [However], the evidence suggests that he has a darker side of his nature which upon ample provocation, causes him to strike out against perceived threats. This darker nature, while carefully concealed from colleagues and friends, is what drove this defendant to attack his wife on the boat, and now provides motivation to demonize his wife and portray her as both unstable and unbelievable.

Defendant gave support to this assessment when at sentencing, he stated his first goal [wa]s to make sure that I never ever ever put myself or let my emotions take over any part of my life, which would cause danger or harm to anybody else. The courts concern then about the effect of defendants emotions on his dealings with his ex-wife caused the court to issue an inflexible, no contact, probation order which superceded the order of the family law court which had allowed defendant, using his mother as a go-between, to arrange with Mrs. Tamboura pick up and drop-off times for visitation on an ad hoc basis. This information provides the context why the court interpreted defendants two violations of the stay-away order in a weeks time as a communication to their mother that youre getting closer and closer, that youre feeling like its okay to do this when its not.

Finally, for the sentencing on the violation, defendants supporters, relatives and friends, submitted 17 letters to the court. Most spoke of how good a father defendant was, and how much they appreciated him for his friendship and in some cases, help over the years. However, two criticized Mrs. Tamboura. Steven Pierre, a friend of defendants, professed himself stunned and shocked by Mrs. Tambouras false testimony. He declared he always had a sixth sense or gut feeling that [Mrs. Tamboura] was out to get her husband in some way.

The other letter, by Adam D. Litwin, declared that he spent a lot of time with defendant and that he personally knew defendant to go to great lengths to assure that he strictly adhered to his probation protocol. It would be a gross travesty of justice if [defendant] were sent to prison for something he didnt do. He went on to denigrate Mrs. Tambouras character and fitness as a mother and roused the deputy district attorney to fume that counsel decided to submit in his judgment to this court, and [Litwin], in that letter, . . . suggested that the victim in this case . . . Ill read. I can only pray once this is resolved Ill [sic, defendant [will]] get custody of the children because in my opinion she-- referring to the victim--is completely an unfit mother. Your Honor, Im astounded and actually angry.

I apologize for losing a bit of my professionalism at this point. How someone can write that in a letter, I suppose because they dont have to stand up and say it in court its easy to say things like that. But Im wondering what criteria was used [as a] basis to make the declaration that Ms. Tamboura is an unfit mother. Was she violent? Did she threaten to kill people? Did she take a premeditated act to take the information which enraged her out on a boat to take the intended victim out on that boat and put a gun to his head? I dont think so.

Perhaps she has a problem with alcohol abuse. No, that would be [defendant]. Perhaps she has a problem with substance abuse. No, that would be [defendant]. Perhaps she has a problem with trying to dissuade children from testifying and putting pressure on them. No, that would be [defendant] and his mother. I have no knowledge why it is Ms. Tamboura, the victim in this case, has been attacked, most funny thing is in this letter is by other submissions by this supposed supporters of [defendant]. The [o]nly thing that comes to mind because my understanding is Mr. Litwin has very little or no experience in the presence of [Mrs.] Tamboura.

This information must come in deed [sic] from [defendant] and his mom. [Defendant]--and I seldom use this word in court--is a lier [sic]. Theres not a word that comes out [of] his mouth that can be trusted. And Im afraid that the people who come and sit here in support are either fooled or have something to gain by being present in his support. This is the first time in my entire career I have ever cast doubt on the credibility of someone who submits a letter for a defendant.

The prosecutor praised Mrs. Tamboura as a very good mother who has done her best to minimize the damage caused by [defendant] . . . directly to her children. He divulged that Mrs. Tamboura had not wanted to pursue the violation of probation because she was afraid defendant would go over the edge, that these events would trigger him to do that which shes been afraid of for quite some time. . . . I said, He violated probation. Hes beginning the controlling acts again. You cant give him any rope to run with. Its going to progress. Its going to get more serious. [8]

Under the totality of the circumstances, namely, the judges knowledge of the facts of the underlying offense, his concern, supported by the record, about defendants self-control and judgment when defendants emotions were aroused, and his appreciation of defendants attempts to weaken the strictures of the probation conditions by pushing the boundaries little by little and terrifying Mrs. Tamboura as defendant did, justified the court in finding defendant in willful violation of the probation orders and needing more punishment and rehabilitation than a reinstatement of probation could provide. There was no abuse of discretion.

DUE PROCESS VIOLATIONS

1. No Notice of the Second-Party Contact Violation

Defendant asserts that the court found that defendant violated the probation condition that he not have contact with the victim . . . including telephone, written or second-party contacts or via computer. He complains that since the petition alleging violation of probation did not contain an allegation that he violated that probation condition, he did not receive notice that he had to defend against that charge.

The subject came up when the trial court was stating the finding that defendant willfully violated the stay-away order. Explaining why the court believed that when defendant dropped Aly, Jr., off he knew exactly which street Mrs. Tamboura lived on [y]et, you say today is the first day you knew what the name of the street was. [] THE DEFENDANT: Thats not true. [] THE COURT: Well, that may be. Its not a technical violation. Its as the bird flies. . . . [] And then the Court doesnt ignore a couple of other facts in making this decision and comments. The wifes comment that she knew before your son showed up that he was coming . . . because the daughter called in advance. Not after you had to wait 15 minutes it would seem. And that is a second-party contact all by itself. [] . . . [] One other . . . observation that should be made is that . . . your son would typically show up every other week and be without clothes.

Contrary to defendants assertion, the court did not make a finding of an independent probation violation that defendant violated the second-party contact prohibition. The context makes clear that the court was drawing inferences of knowledge of the stay-away prohibition and willfulness of defendants actions from the evidence presented to support a violation of the stay-away order.

Defendant admitted telling his daughter to call his ex-wifes house, although he stated it was because he had been waiting about 15 minutes for Aly, Jr., to get his clothes and defendant had a lot to do to get ready for the party. Aly, Jr., did not have his own phone, so defendant called Samantha to tell her to call Aly, Jr., at his mothers house and hurry him up. The court found that defendant did not make that request after he had to wait 15 minutes. Defendant asked Samantha to make the phone call as he was on his way. The court interpreted that as evidence that defendant knew that the call would result in communication with Mrs. Tamboura which, supported the finding that defendant willfully violated the stay-away order.

The courts finding was clear: you did willfully violate probation, as alleged in the petition. The court did not add any findings on allegations that were not alleged in the petition. There was no failure to give defendant notice of the charges against which he had to defend.

2. Pre-existing Determination to Impose 14 years and Judicial Bias

Defendant complains that the courts repeated emphasis at the original sentencing, at the arraignment on the violation, and at the sentencing on the violation that if there was a violation defendant would go to prison for 14 years violated due process.[9] He also claims that the courts promise to impose the suspended prison sentence regardless of the nature of any probation violation demonstrates the court unconstitutionally prejudged evidence which had not yet been presented and shows that the court also violated due process by refusing to consider whether the circumstances mitigated any violation of the probation.

Specifically, the courts refusal to permit evidence of defendants intent and motives when he dropped off his son near Mrs. Tambouras home and its disregard of the fact that defendant failed to pay child support for only the first two months after a 10-month incarceration, and the IRS seizure of his first pay check violated his due process right to show [. . .] that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition. (Black v. Romano [(1985)] 471 U.S. [606,] 612.)

A promise to reimpose prison regardless of the circumstances of a probation violation violates the principle of due process. (Gonzales v. Johnson (N.D. Tex. 1997) 994 F.Supp. 759, 763-764.) The fundamental role and responsibility of the hearing judge in a revocation proceeding is not to determine whether the probationer is guilty or innocent of a crime, but whether a violation of the terms of probation has occurred and, if so, whether it would be appropriate to allow the probationer to continue to retain his conditional liberty. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 348.) [A]n impartial decisionmaker is one who . . . does not prejudge the evidence and who cannot say . . . how he would assess evidence he has not yet seen. (Patterson v. Coughlin (2nd Cir. 1990) 905 F.2d 564, 570.)

Where the court regains the discretion to continue probation even after finding a probation violation, the . . . probationer is entitled to an opportunity to show not only that he did not violate the conditions, but also that there was a justifiable excuse for any violation or that revocation is not the appropriate disposition. (Black v. Romano, supra, 471 U.S. at p. 612.) Even when sentence is imposed and suspended upon a grant of probation, the court retains discretion after finding a probation violation to reinstate probation under the same or modified conditions unless probation was both revoked and terminated. (People v. Medina (2001) 89 Cal.App.4th 318.)

The record does not support defendants claims. At the original sentencing hearing, the court made it very clear to defendant that despite the egregiousness of his conduct, he was being given one last chance and reminded him repeatedly that a violation of probation would mean Fourteen years.[10] When defendant reappeared in court a year and a half later to be arraigned on a petition alleging the probation violations, defense counsel stated it might be helpful to have a prehearing conference on the alleged probation violations. The court stated it was not sure that a conference would be productive. If theres a violation of probation, hes going to prison for 14 years. When defense counsel said there was no violation, the court set the matter for a hearing. The court said the case would not be negotiated because the court and parties had agreed that defendant would receive a suspended 14-year sentence to be imposed if defendant violated probation.

Importantly, however, the court added, If he gets found in violation, it will be sent out for supplemental report. You are welcome to present any kind of information at the sentencing. Im not interested in negotiating this.

The probation violation hearing was held on December 16, 2005 and covered 268 pages of reporters transcript. Six witnesses were heard and 18 exhibits were entered into evidence. Defendant testified at length. Contrary to his claim, the court did not limit his testimony or prevent him from presenting mitigating evidence with respect to the conduct alleged. Defendant explained his thoughts, motives, and actions not only with respect to the alleged probation violations, but with respect to many other matters as well.

For example, defendant claims the court excluded as irrelevant evidence about defendants initial refusal to take Aly, Jr., to pick up some clothes and only relented because he had to go that way anyway to pick up some birthday party guests. However, defendant testified to that evidence, and when the prosecutor questioned its relevance, defense counsel responded, Goes to the issue of the willfulness of the alleged violation. The court stated, Well, so far what I understood him to testify to is he got into a car and he intended to go take the son to get clothes at the mothers house. [] So willfulness impacted by other children. So clarify that for me before we get into this. After counsel explained defendants anticipated testimony, the court responded that it did not think that evidence reduces or impacts the issue of whether or not it was willful, the fact that he also had to do something else. The court sustained the prosecutors objection; there was no motion to strike and the evidence remained in the record.

Relevant evidence means evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, 210.) The trial court correctly determined that defendants having to pick up other children at their homes or give his son a ride to get clothes had no tendency in reason to disprove the inference that he willfully placed himself within 100 yards of Mrs. Tambouras home knowing that he was under court order to stay away.

Similarly, defendant complains that the court viewed as irrelevant his counsels question to Aly, Jr., whether, when he and defendant left the restaurant after dark on November 14, there was any discussion about where his father could leave him so he would be in a safe place to get back home. Actually, the prosecutor objected on hearsay and vagueness grounds and it was the prosecutor who said, Im curious as to its relevance in view of these proceedings. The court asked defense counsel, Relevance? Counsel replied, Maybe I cant show any. Ill ask a different question.

There was no ruling on the prosecutors objection; defense counsel abandoned the question. However, the court was not deprived of the evidence. Samanthas and defendants testimony that Samantha was concerned about Aly, Jr.,s safety and that she and Aly, Jr., directed defendant where to stop was in the record.

Defendant also faults the court for failing to recognize that the stay-away order issue did not merely concern whether there was a technical violation, but whether there were circumstances which excused or mitigated the behavior. Defendant acknowledges that if one flew in a straight line like a bird, the September 14 drop-off point was within 100 yards of Mrs. Tambouras residence. But, defendant argues, it was not visible from that location, it was one street over, fenced-in houses and a whole city block separated the parked car from the residence, and the only way to reach Mrs. Tambouras home from the stopped car was to walk down Lyric, turn left at Primavera, turn left at Yamato, walk up two houses, and then cross the street to Mrs. Tambouras home, a distance of more than 100 yards. Defendant concludes [t]he courts narrow focus on the straight-line distance was unfair [and] [i]ts refusal to consider the attendant circumstances violated due process.

A court has broad discretion in determining whether a probationer has violated probation. (People v. Rodriguez, supra, 51 Cal.3d at p. 443.) The court in this case was clearly concerned with defendants state of mind--whether he could comply with the terms and conditions of probation, [whether] you wouldnt let the emotions and the impulses control you, [whether] you would be able to control your behavior, strictly, because any violation of probation, as I told you then, would result in a prison commitment of 14 years.

As the court assessed defendants behavior, we arent talking about some hidden obstacle here that you tripped over or ran against[;] this is not an iceberg that had some, like a land mine exploded by surprise on [defendant]. . . . [Defendant] is a very bright, bright, man, . . . [] . . . [T]his isnt like you accidentally ended up . . . within 100 yards of that house. You knew exactly where it was, as I said[,] and you were letting everybody know it. The court concluded, you knew what was going to happen and you intended it to happen. [] . . . You knew exactly what you were doing, and thats why were here.

Defendant had ample opportunity to show why he went within 100 yards of Mrs. Tambouras house. What he demonstrated to the court was not a necessity to approach Mrs. Tambouras house or mitigating reasons for approaching Mrs. Tambouras house, but a willful decision to approach the house. As stated ante, the court had reason to worry about the safety of the victim in the light of defendants renewed misbehavior toward her. Defendant has not demonstrated that the court failed to consider the circumstances of the violation, its severity, or mitigating circumstances. There was no showing that the court had a predetermination to impose a 14-year sentence.

Next, defendant declares the courts promise to impose the suspended prison sentence regardless of the nature of the probation violation demonstrates the court unconstitutionally prejudged how it would assess evidence which had not yet been presented. Defendant did not raise the issue below. He relies on Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 244, for authority to raise the claim on appeal because it is a matter involving public interest and the due administration of justice. Catchpole did not, however, discuss the mechanism set forth in Code of Civil Procedure section 170.3 for presenting claims of judicial disqualification, nor did it discuss the limitations on appellate review contained in the statute.

In 2006, the California Supreme Court addressed the necessity of raising a claim of judicial bias in a timely manner, noting that defense counsel made no effort to comply with the procedures under Code of Civil Procedure section 170.3, subdivision (c)(1), and seek disqualification of the judge. (People v. Guerra (2006) 37 Cal.4th 1067, 1110-1111 (Guerra).)

If a judge refuses or fails to disqualify [himself or] herself, a party may seek the judges disqualification. The party must do so, however, at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification. (Code. Civ. Proc., 170.3, subd. (c)(1).) [Citation.] . . . [D]efense counsel was fully aware before and during trial of all the facts defendant now cites in support of his claim of judicial bias. But he never claimed during trial that the judge should recuse himself or that his constitutional rights were violated because of judicial bias. It is too late to raise the issue for the first time on appeal. [Citations.] For the same reason, defendant has forfeited his additional claims that the trial judges alleged bias affected his subsequent trial rulings. (Guerra, supra, 37 Cal.4th at p. 1111.)

Like Guerras counsel, defense counsel here was fully aware of the facts defendant now cites in support of his claim. His failure to seek the judges recusal or raise any claim of judicial bias in the trial court forfeits his claim on appeal. At any rate, as we have discussed exhaustively above, the evidence in the record amply supports the trial courts decision to revoke and terminate probation and order execution of the suspended sentence.

DISPOSITION

The clerk of the superior court is ordered to correct the abstract of judgment to show the trial court orally imposed a 14-year term of imprisonment in state prison and forward a corrected copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] In case No. H027846, (filed Aug. 19, 2005 [nonpub. opn.]) defendant pled nolo contendere on July 29, 2004, to inflicting corporal injury on a spouse (Pen. Code, 273.5, subd. (a)) and threatening violence (Pen. Code, 422). He admitted using a firearm in the commission of a felony as to each count (Pen. Code, 12022.5). It is unclear when the marriage was dissolved but a final divorce decree was expected shortly after the sentencing in July 2004.

[2] Further statutory references are to the Penal Code unless otherwise stated.

[3] During the original sentencing hearing, the parties stated, although 20 or 24 weapons were registered to defendant, no weapons were confiscated, only a pickup truck full of ammunition, various calibers and types.

[4] At sentencing, defense counsel stated the car belonged to defendants fiance, Jennifer, and she also paid for the ski trip.

[5] The court and parties variously described Jennifer as a fiance and a girlfriend.

[6] At defendants original sentencing, the court had asked defendant what he did to determine Mrs. Tambouras location. Defendant stated that all the company vehicles and employees personal cars were equipped with Global Positioning Satellite (GPS) tracking devices for billing purposes like [ON] STAR for Chevrolet. You can call and say, wheres my vehicle. Thats what I did. Defendant stated he called his office and asked one of the employees to open up the Web page and find out where the vehicles his family used were. The employee told him. The court asked if defendant could have located Mrs. Tambouras vehicle directly. Defendant said he could not then, but that at the time of sentencing he could because the company had changed to Nextel and he could personally check the locations with his cell phone. The court warned defendant then not to personally monitor or have anyone else monitor Mrs. Tambouras activity.

[7] In argument to the court before it ruled on the revocation petition, defense counsel stated that on May 17 a motion had been made in family court for a modification of the support order based on the de facto change in custody caused by Samanthas return to defendants home and actual custody from the day he got out of jail. Under the terms of the modified order, net support was owed to defendant. The support Mrs. Tamboura owed defendant for Samantha was applied to the arrearages and was made retroactive to May 17, thus bringing defendant into compliance with the probation order.

[8] In response to the letter, defense counsel stated that his office tr[ies] to be very careful, very carefully [sic] screening the letters that are sent by well-meaning people, and I have to just tell you, . . . that that got past us. We had [a] very large number of letters, . . . [v]ery large number of letters, many of them quite long. . . . That got past our office, and I apologize. Defense counsel then apologized to Mrs. Tamboura and added that in spite of the stressful circumstances surrounding the case, she treated us with nothing but complete courtesy and professionalism. We appreciate it, and we intend in every way to reciprocate. I apologize for that.

[9] At sentencing the court stated several times that if defendant violate[d] probation in any way, that you will go to state prison for the 14 years, and if you violate probation, you are going to prison and you will not be released. . . . It will be merciless. At the arraignment on the probation violation, the court stated, [i]f theres a violation of probation, hes going to prison for 14 years . . . and it doesnt matter what kind of violation that is. [E]ither there is a violation or there isnt. If there is, hes going to prison for 14 years. At sentencing the court stated, There isnt any question, you violated probation. The Court made you a promise; you made me a promise. Im living up to my promise, you didnt. Probation is terminated[;] defendant is committed to the Department of Corrections for the period of 14 years.

[10] Before imposition of the