P. v. Hall

Filed 7/23/07 P. v. Hall CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Rodney G. Forneret, Judge. Affirmed.

Sharon Fleming, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Herbert S. Tetef and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

Defendant and appellant Clellan James Hall appeals from the judgment sentencing him to three years in prison following his plea of no contest to committing a lewd act upon a child under the age of 14 years and misdemeanor unlawful touching, and subsequent revocation of probation. Defendant contends: (1) the finding that defendant was in possession of a firearm was not supported by substantial evidence; (2) it was an abuse of discretion to sentence defendant to prison rather than reinstate probation; (3) the record does not clearly indicate that the trial court understood it had discretion to reinstate probation; and (4) there was not an adequate statement of reasons for imposing a prison term. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged by complaint with committing a lewd act upon a child under the age of 14 years. On June 6, 2005, the date set for the preliminary hearing, Judge Rodney Forneret granted the Peoples request to add a second count charging defendant with misdemeanor unlawful touching; defendant entered a no contest plea to both counts in exchange for the following disposition: suspended imposition of sentence, five years formal probation, 52 weeks of sexual abuse counseling; after successful completion of one year of probation defendant would be allowed to come in and withdraw count 1. [] He will still have to maintain his registration and everything but will just have the conviction for count 2. The terms and conditions of his probation included the following:

        Do not own, use or possess any dangerous or deadly weapons, including any firearms, knives or other weapons.

        [Do] not use or possess any narcotics, dangerous or restricted drugs or associated paraphernalia, except with a valid prescription, and stay away from places where users congregate.

        Obey all laws, orders of the court, and rules and regulations of the probation officer.

On February 16, 2003, detective Dan White and probation officer Dawn Contreras, among others, performed a probation search of defendants home and the convenience store where defendant worked as a manager. At the store, when White asked defendant whether there were any firearms, defendant stated that there was a shotgun in the cashiers booth. Inside the cashiers booth, which was in a locked area protected by Plexiglas and inaccessible to store patrons, White found a loaded 12-gage shotgun. He also found a cigar box containing four small baggies of marijuana which defendant admitted were his. Regarding the shotgun, defendant told White that while working at the store, he usually locked himself in the cashiers booth where the shotgun was kept.

After defendant was arrested for possession of the shotgun and marijuana found at the store, the officers went to defendants two-bedroom apartment. In her search of that location, Contreras noticed that the apartment was filthy, the childrens beds were unmade and covered with clothing and toys, and there were piles of the childrens clothes in defendants room; based on these observation, Contreras concluded that the children were sleeping in defendants room. In defendants bedroom, Contreras found several empty dime-sized baggies that smelled like marijuana; she also noticed marijuana residue on defendants dresser and inside the trash can.

At a contested probation revocation hearing presided over by Judge Forneret on April 24, 2006, the prosecution argued defendant violated probation by: (1) constructively possessing a loaded shotgun; (2) possessing the four baggies of marijuana found at the store, as well as the marijuana-smelling empty Ziploc baggies found at his home; and (3) it appeared the children may well be sleeping in the bed with the defendant. The parties stipulated that defendants father owned the convenience store and was the registered owner of the shotgun, which he purchased and placed in the store several years earlier.

Finding defendant was in violation, the trial court revoked his probation and sentenced him to the three year low term for violation of Penal Code section 288, subdivision (a).[1] The trial court commented: Well, defendant was placed on probation on June 6, 2005, and hes been in custody for a little over two months. So were looking at roughly eight months from the time when hes placed on probation until the incident that occurred. [] You know, I think I did initially when [the prosecutor] advised the court of the disposition I did, in fact, indicate that I was concerned about the disposition, and but based upon -- I thought it should be state prison, but based upon her experience in evaluating the cases, I went along with the disposition, but I did caution [defendant] about violating any conditions of probation, especially guns and narcotics. Guns and narcotics, and thats what we have here. [] We have narcotics, even though its a small amount. Its only marijuana, but its a violation of his condition of probation. And then, further, we have the gun thats there at his disposal, and I accept the stipulation that the father owns the business, that it was the fathers gun, but he cant work in a business where weapons are readily available to him, and he knows that. He just didnt fall off the old apple truck, and you put yourself in those conditions. [] And then, you know, the living conditions while I cant conclude that, in fact, the children are not sleeping in their bedrooms, one at least questions whats going on, but primarily the violation is, in fact, based upon the weapon and the narcotics being in defendants possession. Therefore, the court finds the defendant in violation of probation.

Defendant filed a timely notice of appeal.

DISCUSSION

A. There is Substantial Evidence that Defendant Violated Probation

Defendant contends the judgment must be reversed because there was not substantial evidence to support the finding that he violated the probation condition prohibiting him from possessing firearms.[2] Because it is undisputed that defendant violated other conditions of his probation, we conclude there was substantial evidence to support the trial courts finding that defendant violated probation without regard to whether the evidence established he possessed a firearm.

Section 1203.2, subdivision (a) authorizes the trial court to revoke probation if the court has reason to believe that the person has violated any probation condition. Facts supporting revocation of probation must be proved by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 439-442 (Rodriguez).) The issue at a probation revocation hearing is whether probation has failed as a rehabilitative device, as evidenced by the probationers failure to abide by the probation conditions. (People v. Herrera (2006) 136 Cal.App.4th 1191, 1203-1204, internal quotations and citations omitted.)

Here, it is immaterial whether the evidence supports the finding that defendant was in possession of the shotgun found in the cashiers booth. This is because there is no dispute that defendants admitted use and possession of marijuana violated the probation conditions prohibiting use or possession of illegal drugs and requiring defendant to obey all laws. Defendants failure to abide by these conditions of probation constitutes substantial evidence that he violated his probation without regard to whether he also possessed a firearm, and section 1203.2, subdivision (a) authorizes revocation of probation for the violation of any probation condition.

B. Imposition of a Prison Term Was Not an Abuse of Discretion

Defendant contends he was in possession of such a small amount of marijuana that it constituted an abuse of discretion for the trial court to have imposed a prison term for such a minor violation, particularly since the probation department recommended reinstatement of probation. We disagree.

A trial courts decision to revoke probation is reviewed for abuse of discretion. (Rodriguez, supra, 51 Cal.3d at p. 443.) In exercising its discretion to sentence a defendant following revocation of probation, the trial court is not required to follow the recommendations of the probation department. (People v. Downey (2000) 82 Cal.App.4th 899, 910.) An abuse of discretion will be found  whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.] We will not interfere with the trial courts exercise of discretion when it has considered all facts bearing on the offense and the defendant to be sentenced. [Citation.] (Id. at pp. 909-910; see Cal. Rules of Court,[3] rule 4.414(a) [facts relating to the crime][4] and (b) [facts relating to the defendant].[5]) Only in the very extreme case will an appellate court interfere with trial courts exercise of discretion in the matter of revoking probation. (Rodriguez, supra, 51 Cal.3d at p. 442.)

Here, the pre-plea report set forth facts relating to the defendant and the offenses to which he pleaded no contest. According to that report, defendants criminal history included a sustained juvenile petition for battery as well as adult convictions for misdemeanor theft by use of a credit card in 1984 and misdemeanor carrying a concealed weapon in 2001; also according to the report defendant admitted experimenting with PCP and cocaine and to smoking marijuana daily.

Concluding that defendant should be sentenced to prison following the revocation of probation, the trial court noted that it had reservations about the original grant of probation but I did caution [defendant] about violating any conditions of probation, especially guns and narcotics. Guns and narcotics, and thats what we have here. [] We have narcotics, even though its a small amount. Its only marijuana, but its a violation of his condition of probation. These comments indicate a determination by the trial court that probation had failed as a rehabilitative device in this case. (Herrera, supra, 136 Cal.App.4th at pp. 1203-1204.) This determination is supported by defendants recidivism reflected in the pre-plea probation report. And whether or not there was sufficient evidence of firearms possession, the trial judge was understandably concerned about the accessibility of marijuana and weapons at the same location. (See generally Health & Saf. Code,  11370.1 [enhancements for simultaneous possession of drugs and loaded firearms].) Although prison is contrary to the probation departments recommendation, defendant has failed to show that the trial courts determination that prison was a proper disposition was arbitrary or capricious, or exceeded the bounds of reason, all of the circumstances being considered. Accordingly, we uphold it on appeal.

C. The Trial Courts Understanding that It Had Discretion to Reinstate Probation
Can Be Inferred

Defendant contends the matter should be remanded for resentencing because it is unclear from the record whether the trial court understood it had discretion to reinstate probation. We disagree.

It is presumed that the trial court knows and correctly applies the law. (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The defendant has the burden of affirmatively demonstrating error. (People v. Henson (1991) 231 Cal.App.3d 172, 182.) A defendants request for reinstatement of probation can support a finding that the trial court was aware that it had discretion to reinstate probation. (People v. Jones (1990) 224 Cal.App.3d 1309, 1316 (Jones).)

Here, the probation report recommended that probation be reinstated and at the probation revocation hearing, defense counsel argued that prison time was not warranted under the circumstances. Thus, the issue of whether to reinstate probation was squarely before the trial court and nothing in the record suggests that the trial court believed it could not do so.

D. The Trial Court Adequately Stated Reasons for Imposing a Prison Sentence

Defendant contends the matter must be remanded because the trial court did not give a statement of reasons for imposing a prison sentence rather than reinstating probation. We disagree.

Where imposition of sentence was suspended and that suspension is later lifted, the trial court must state its reasons for choosing imprisonment over reinstatement on probation. (Jones, supra, 224 Cal.App.3d at p. 1315; see also People v. Cotton (1991) 230 Cal.App.3d 1072, 1081, and cases cited therein.) A reviewing court will presume that the trial court considered all the relevant factors even though it does not expressly so state. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1318.)

Here, the pre-plea report identified the following circumstances in aggravation, which are similar to the criteria affecting the decision to grant or deny probation: (1) the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness (see rule 4.414(a)(1) and (a)(4)); (2) the victim was particularly vulnerable (see rule 4.414(a)(3)); and (3) the defendant took advantage of a position of public trust or confidence to commit the offense (see rule 4.414(a)(9)). We presume the trial court considered these factors. In addition, the trial courts comments indicate that its choice of prison was also based on defendants poor performance on probation (see rule 4.414(b)(2)) and unwillingness to comply with the terms of probation (see rule 4.414(b)(3)). This was a sufficient statement of reasons for selecting prison over reinstatement.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

FLIER, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

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

[2] Defendant also contends there was insufficient evidence that defendant maintained inappropriate sleeping arrangements with his children. We interpret the trial courts remarks as indicating the living conditions did not violate probation.

[3] All further rule references are to the California Rules of Court unless otherwise specified.

[4] Facts relating to the crime include: (1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime. [] (2) Whether the defendant was armed with or used a weapon. [] (3) The vulnerability of the victim. [] (4) Whether the defendant inflicted physical or emotional injury. [] (5) The degree of monetary loss to the victim. [] (6) Whether the defendant was an active or passive participant. [] (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur. [] (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant. [] (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime.

[5] Facts relating to the defendant include: (1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct. [] (2) Prior performance on probation or parole and present probation or parole status. [] (3) Willingness to comply with the terms of probation. [] (4) Ability to comply with reasonable terms of probation as indicated by the defendants age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors. [] (5) The likely effect of imprisonment on the defendant and his or her dependents. [] (6) The adverse collateral consequences on the defendant's life resulting from the felony conviction. [] (7) Whether the defendant is remorseful. [] (8) The likelihood that if not imprisoned the defendant will be a danger to others.