Filed 12/11/17 P. v. DelaRosa CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL B. DELAROSA,

Defendant and Appellant.


E068144

(Super.Ct.No. FSB1503093)

OPINION


APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed.
Conrad Petermann, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis, and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Daniel B. DelaRosa pled guilty to unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). In return, the remaining allegation was dismissed, and defendant was placed on formal probation for a period of three years on various terms and conditions, including reporting to his probation officer as directed and keeping his probation officer informed of his place of residence. Defendant, however, failed to comply with both of these conditions. Following a hearing, the trial court found defendant in violation of his probation and revoked and terminated defendant’s probation. Defendant was thereafter sentenced to two years in county jail with 296 days’ credit for time served. On appeal, defendant argues the trial court abused its discretion in revoking and terminating his probation, rather than reinstating him on probation. We find no abuse of discretion and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
On September 9, 2015, a felony complaint was filed alleging defendant received a stolen vehicle (Pen. Code, § 496d, subd. (a); count 1), and defendant unlawfully drove or took a vehicle without consent (Veh. Code, § 10851, subd. (a); count 2).
On October 15, 2015, defendant pled guilty to count 2. In return, the remaining charge was dismissed and defendant was placed on probation for a period of three years on various terms and conditions. Among the terms and conditions of probation, defendant was required to report to his probation officer as directed and keep the probation department informed of his place of residence. The residence condition also mandated that defendant give written notice to the probation department 24 hours prior to any change in residence.
On December 8, 2015, defendant violated his probation by failing to report to his weekender/work release program and failing to report to his probation officer within 48 hours after being released from custody. Defendant also failed to keep his probation officer informed of his current residence.
On December 23, 2015, the trial court revoked and reinstated defendant on probation with the modified term of serving 120 days in county jail.
On December 9, 2016, a petition was submitted to revoke defendant’s probation. The petition alleged defendant violated probation by failing to report to his probation officer as instructed and failing to keep his probation officer informed of his place of residence.
On January 11, 2017, the trial court revoked defendant’s probation and issued a bench warrant for his arrest. Defendant was arrested in March 2017.
A contested probation violation hearing was held on April 13, 2017. At that time, San Bernardino County Probation Officer Manuel Melendez testified that he was assigned to supervise defendant in April 2016. Officer Melendez required defendant to report to him every 60 days or as otherwise directed. Defendant reported for the first several appointments but, over time, failed to attend as directed. On May 24, 2016, Officer Melendez told defendant to report to him on July 21, 2016. Defendant failed to show up as directed and instead came in on July 26, 2016.
Defendant was subsequently assigned to Probation Officer Yvette Suarez. On September 1, 2016, Officer Suarez mailed a letter to defendant ordering him to report to her on September 13, 2016. Defendant failed to report on September 13, 2016, and the letter was returned to Officer Suarez in the mail on October 4, 2016. During a telephone conversation on September 22, 2016, Officer Suarez ordered defendant to report in person on September 27, 2016. Defendant failed to report as directed. From September to December 2016, Officer Suarez attempted to call defendant approximately 12 times, but was unable to reach him. Officer Suarez had difficulty contacting defendant because his phone number was either disconnected or the call went straight to voicemail. Officer Suarez made phone contact with defendant on September 22, and November 4 and 7, 2016. During the November 7, 2016 phone conversation, defendant, upset and yelling, stated to Officer Suarez: “ ‘Show me a police report. I didn’t do anything.’ ” “ ‘I did 90 days for nothing. You put me on probation.’ ” Officer Suarez told defendant to come to the probation department the following morning on November 8, 2016, at 10:30 a.m. Defendant replied, “ ‘This is going to internal affairs,’ ” and ended the call. Defendant failed to report to Officer Suarez the next day as directed.
On December 8, 2016, Officer Melendez conducted a home compliance check at defendant’s listed address. During the compliance check, Officer Melendez encountered defendant’s ex-girlfriend, who revealed defendant had not lived at that address in two years. Officer Melendez then told Officer Suarez to prepare a petition to revoke defendant’s probation and a bench warrant for defendant’s arrest. Following defendant’s arrest, Officer Melendez spoke with defendant while he was in custody on March 8, 2017. Defendant admitted that he initially planned on reporting to his probation officer, but decided not to do so because he did not want to get arrested so he did not report.
Defendant testified that he kept the probation department informed of his place of residence and checked in with the probation department using the hand scanner kiosk. Defendant claimed Officer Melendez told him to report every 30 days, not every 60 days. Defendant also asserted that he was not required to report in person because it was sufficient for him use the hand scanner. Defendant stated that he did not miss a check-in date until October 2016, when his hand would not scan and Officer Comacho helped him check in. Defendant called the probation department the next day to ask if he had a warrant, and a woman informed him that Officer Comacho “cleared” him. The following day, defendant received a voicemail from Officer Melendez informing him that a warrant was issued for his arrest. Defendant claimed that “He’s been harassing [him] since [defendant] met him,” and defendant did not know why. Defendant testified that he then called Officer Suarez and asked if he had a warrant. Officer Suarez told him there was no arrest warrant and asked him if he wanted to file a complaint against Officer Melendez. Defendant did not hear from a probation officer for months after that. Defendant stated he called the probation department numerous times from November to December 2016 and left messages asking for a probation officer to call him.
Defendant also stated that he had lived with his girlfriend until November 2016, when he moved to his father’s house in Barstow, California. Defendant was unable to inform a probation officer of his address change because the probation department did not return his phone calls. Defendant claimed that he worked five days a week as a contractor for Morongo Casino, and that he bartended on the weekends at Morongo Casino.
A San Bernardino County Probation Department employee testified that she spoke with defendant on January 11, 2017. Defendant told her that he was working at the Morongo Casino. Defendant had asked to speak with a probation officer about his warrant and told the employee he believed the warrant was unjustified.
Defendant testified that he had called and had asked to speak with a probation officer numerous times since November 2016. The employee told him every call he had made was noted and she could see he had been calling since November 2016. Defendant wanted to speak to a probation officer about his warrant because he did not want to be arrested. Defendant also left messages with Probation Officer Perez. Defendant claimed that at the time of his March 2017 arrest, he was unaware that a warrant was issued for his arrest.
Defendant admitted that he did not personally report to his probation officer every 30 days. He further acknowledged that he failed to provide his new Barstow address to his probation officer. Defendant claimed he was unable to provide his change of address to the probation department because he could not get “ahold of” his probation officer. Defendant also admitted that he did not report to his probation officer between November 2016 and March 2017.
In rebuttal, Probation Officer Perez testified that he never received any phone calls or messages from defendant. Furthermore, Office Suarez disputed defendant’s testimony that he contacted her to notify her of his change of address. Officer Suarez also denied conversing with defendant about an arrest warrant and asking if he wanted to report Officer Melendez for misconduct. Officer Suarez also did not authorize defendant to report using the hand kiosk, but rather she had directed defendant to report to her in the office.
Following argument, the trial court found defendant violated the terms and conditions of his probation by failing to report to his probation officer and failing to keep his probation officer informed of his change in residence. The court also noted that the current violation was defendant’s third probation violation in the instant case. The court thereafter ordered defendant’s probation remain revoked and sentenced defendant to jail for two years, with 296 days’ credit for time served.
III
DISCUSSION
Defendant contends the trial court abused its discretion in revoking and terminating his probation, arguing his overall circumstances did not warrant the revocation and termination but a reinstatement on probation. We disagree.
A trial 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 supervision . . . .” (§ 1203.2.) To revoke probation, the trial court must find the violation to be willful. (People v. Gonzalez (2017) 7 Cal.App.5th 370, 382, disapproved on another ground as stated in People v. DeLeon (2017) 3 Cal.5th 640, 646; People v. Galvan (2007) 155 Cal.App.4th 978, 982.) Once the trial court decides to revoke probation, it may reinstate the defendant to probation or may terminate probation and impose sentence. (People v. Medina (2001) 89 Cal.App.4th 318, 323.)
“An order revoking probation is reviewed under the abuse of discretion standard. [Citations.]” (People v. Gonzalez, supra, 7 Cal.App.5th at p. 381.) The trial court’s decision whether to reinstate probation or order the suspended sentence executed is also reviewed for abuse of discretion. (People v. Downey (2000) 82 Cal.App.4th 899, 909.) “ ‘A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.’ [Citation.] A court abuses its discretion ‘whenever the court exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.] We will not interfere with the trial court’s exercise of discretion ‘when it has considered all facts bearing on the offense and the defendant to be sentenced.’ ” (Id. at pp. 909-910.) “ ‘[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. . . .’ ” (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) When the record reveals that the defendant’s violation of the terms of probation was not the result of irresponsible, willful, unlawful or disrespectful behavior, imposition of a prison sentence may be an arbitrary and capricious use of the court’s power. (People v. Zaring (1992) 8 Cal.App.4th 362, 379.)
Here, the trial court found defendant willfully violated probation by failing to cooperate with his probation officer and by failing to keep his probation officer informed of his place of residence. In deciding not to reinstate defendant on probation, the court found probation was not appropriate in this case and the current violation was defendant’s third violation. Indeed, the record shows that defendant had violated probation in the instant case on two previous occasions. And, both times, the court revoked and reinstated defendant’s probation. Although, as defendant notes, defendant had not committed further offenses, he was fully employed, and the probation officer had recommended reinstatement of probation with 365 days in county jail, we cannot find the trial court abused its discretion in failing to reinstate defendant on probation. Contrary to defendant’s argument, defendant’s “track record on probation” does not suggest “he would continue to perform satisfactorily on probation if it was reinstated.” Rather, the record indicates defendant’s performance on probation had been unsatisfactory.
The record supports the trial court’s decision to deny reinstatement of defendant’s probation. The court recognized its authority to reinstate defendant and appropriately decided it would be contrary to the interests of justice to do so. (See People v. Howard (1997) 16 Cal.4th 1081, 1094.) After twice being reinstated on probation, defendant was fully aware of the terms and conditions of his probation, including the reporting conditions. Yet defendant repeatedly failed to report to his probation officer and failed to report his change of address to the probation officer, two of the most basic terms of his probation. Although defendant had not committed further offenses and the probation officer had recommended reinstatement of defendant’s probation, we cannot fault the trial court for concluding defendant’s unsatisfactory performance during successive grants of probation warranted no further reinstatement. The trial court was neither bound by the probation report nor required to provide reasons for rejecting the probation officer’s recommendation. (People v. Downey, supra, 82 Cal.App.4th at p. 910; People v. Butler (1988) 202 Cal.App.3d 602, 607-608.)
In the absence of any showing that the court’s decision was arbitrary or capricious, we conclude the trial court did not abuse its discretion when it revoked and terminated defendant’s probation.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.
We concur:



RAMIREZ
P. J.



McKINSTER
J.