P. v. Romero

Filed 3/2/07 P. v. Romero 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Arthur Harrison, Judge. Affirmed.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Kelley Johnson, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Victor Galvez Romero (defendant) challenges the trial courts order revoking his probation and imposing the previously suspended six-year sentence. As discussed below, we conclude the trial court did not abuse its discretion and so affirm the decision.

Statement of Facts and Procedure

On October 6, 2002, defendant and his daughter went to the eight-year-old victims home to watch a football game on television and to give the victims older brother a ride to soccer practice. The families knew each other because they had previously lived in the same apartment building. While the victims mother was away at work, defendant sent the older brother out on at least two occasions, to purchase soda and pizza. Defendant fondled the victim four separate times while she sat on his lap.

On January 21, 2003, defendant pled guilty to committing a lewd act on a child. (Pen. Code, 288, subd. (a).) Despite the anticipated plea agreement for probation with jail time, the probation officer recommended defendant serve six years in prison. The recommendation was based on defendants denial of the crime, the opinion of the interviewing psychologist that defendant presents a clear danger to children and should be barred from being around[ ] children[,] including his own, and the conclusion that defendant invests a great deal of planning in carrying out his molestation behaviors. Defendant had been arrested in 1999 for molesting three third-grade girls, and eventually pled guilty to battery (Pen. Code, 242), for which he received a 24-month conditional sentence and 15 days in jail.

On February 25, 2003, the trial court sentenced defendant to state prison for six years but suspended the sentence and placed defendant on five years of supervised probation with specified terms and conditions, including that he seek treatment and serve 365 days in jail. Defendants counsel objected to the proposed terms of probation that he submit to a field interrogation upon request and carry a copy of the probation terms with him at all times. The trial court struck the two terms.

On October 6, 2004, defendant met with his probation officer and obtained a copy of the terms and condition of his probation. The probation officer directed [defendant] to enroll in a Sex Offender Treatment Program at The Counseling and Psychotherapy Center. Defendant testified that this was the first time he had received direction from the probation department about enrolling in the sex offender treatment program. Defendant enrolled in the program in March 2005 and attended two sessions. Defendant met with his probation officer on August 1, 2005, at which time he provided a receipt from The Counseling and Psychotherapy Center dated March 15, 2005. Defendant told his probation officer that he had more current receipts at home. The probation officer instructed defendant to return on August 23, 2005, with the current receipts. Defendant did not do so.

When the probation officer visited defendant at his home on November 30, 2005, defendant said that he had attended the treatment program within the previous two weeks. The officer told defendant to call and schedule an office appointment so he could show proof of attendance. Defendant did not do so.

On March 15, 2006, defendant was interviewed at the probation department. He initially claimed he had attended the treatment program about three months prior. After questioning, he admitted attending only two sessions, and stated that he stopped going because he could not afford the $65 required for each weekly session. When the probation officer checked defendants identification, he found that defendants drivers license had expired on January 29, 2003, and contained an old address. Defendant was arrested that day.

Defendant worked as a saw machine operator in the construction field. The probation report listed his income as $14 per hour,^[1]which would be $560 per week or $2,426 per month. Defendant testified that his work hours diminished for awhile^[2]and during that time he worked three to four days per week for $300 per week. Defendant testified that he attempted to get part-time work in a restaurant where he was previously employed, but that he made no other attempts to supplement his income. Defendant also testified that he got behind in his house payments and in October 2005 he began the paperwork to refinance his home. Once the refinance was completed, which was two weeks after he was arrested for violating probation, defendant made the delinquent house payments, paid some credit card bills and made a $2,800 payment to the court. Defendants monthly mortgage payment was variously reported as $750 in the original probation report, $932 in other documents, and $1,500 after the refinance. Defendant had reported to the probation department via mail that he was working full time. Defendant testified that he knew about the sex offender treatment program condition of his probation, but did not tell the probation department about his financial difficulties, Because I knew I would get arrested for not attending. He also testified that he had a wife and two children, and that his wife did not work.

At the May 19, 2006, probation revocation hearing, the trial court found that defendant violated four of the terms of his probation. Specifically, defendant failed to complete a sex offender program (Term 18), report to the probation officer as directed (Term 3), cooperate with the probation officer in a plan of rehabilitation (Term 4), and carry a valid California drivers license or Deportment of Motor Vehicles identification card with his current address (Term 14). The court revoked probation and imposed the previously suspended six-year prison term. This appeal followed.

Discussion

Standards of Proof and Review

The standard of proof that a trial court uses to determine whether a probationer has violated a term of his probation is preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) Trial courts are granted great discretion in deciding whether or not to revoke probation. (Id. at p. 445.) Absent abuse of that discretion, an appellate court will not disturb the trial courts findings. (People v. Self (1991) 233 Cal.App.3d 414, 417.)

Penal Code section 1203.2, subdivision (a) states in pertinent part: [T]he court may revoke and terminate such 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 . . . . This statute gives trial courts very broad discretion in determining whether a probationer has violated probation. (See, e.g., People v. Lippner (1933) 219 Cal. 395, 400 [. . . only 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. Martin (1943) 58 Cal.App.2d 677, 683-684; People v. Rodriguez, supra, 51 Cal.3d at p. 443.)

[T]here is no abuse of discretion in revocation where it appears from the record that the accused has violated the terms and conditions of probation. (People v. Nelson (1967) 257 Cal.App.2d 282, 285-286.)

1. Term 18 Sex Offender Treatment Program

Term 18 of defendants probation required him to: Participate in and complete a Sex Offender treatment program with a therapist approved by the Probation Officer until you are successfully discharged from the program, and be responsible for all program fees. Defendant argues the trial court abused its discretion when it found that he willfully violated this term because it did not consider his ability to pay for the treatment program.

In its ruling, the trial court stated: Court [sic] can be very sympathetic on the financial impacts to defendants, probationers; however, at the same time the treatment was an absolute necessity to [defendant] and thats what his probation is predicated upon. I find a violation of that as well. [] I understand there had been some economic problems and had he gone back to the probation officer to explain that, I am not sure what might have happened, but, at any rate, the Court does find the defendant in violation. (Italics added.)

Defendant cites several authorities for his assertion that the trial court was required to consider his ability to pay in determining whether to revoke his probation, and that its failure to do so violated his federal right to due process. As discussed below, each of the cited authorities is distinguishable.

In In re Antazo (1970) 3 Cal.3d 100, Mr. Antazo and his codefendant were both given a three-year suspended sentence and probation conditions that included payment of a large fine or in lieu of payment thereof one (1) day in the County Jail for each $10.00 unpaid. (Id. at p. 106.) The codefendant paid the fine and was released, whereas Mr. Antazo, who was indigent and unable to pay, went to jail. The California Supreme Court granted Mr. Antazos petition for writ of habeas corpus on the ground that requiring an indigent defendant to serve out a fine in jail at a specified rate per day because he cannot pay the fine violates the equal protection clause of the federal Constitution. In making its ruling, the Court stated noted that Mr. Antazo was unable to obtain his freedom only because he was poor. (Id. at p. 115.) The court further explained: [O]ur holding is simply that an indigent who would pay his fine if he could, must be given an option comparable to an offender who is not indigent. When the indigent offender refuses to avail himself of such alternatives at the inception, or defaults or otherwise fails to meet the conditions of the particular alternative which is offered him without a showing of reasonable excuse, the indigent offender becomes in the eyes of the court exactly the same as the contumacious offender who is not indigent. (Id. at p. 116.)

Here, defendants probation was not revoked only because he was poor. Rather, it was revoked because he did not attend the sex offender treatment program that was a key condition of his probation. Defendant did not object at sentencing to the condition that he pay for the treatment program. A timely objection allows the sentencing court to modify or delete any unreasonable conditions . . . . (People v. Campbell (1994) 21 Cal.App.4th 825, 832.) Neither did defendant ever tell his probation officer that he could not pay for the treatment until the day he was arrested for violating his probation. In addition, defendant did have a steady, if inadequate, income throughout the term of his probation, and he could have paid for the treatment program if he had chosen to make it a priority. Defendant was not completely without the means to pay, as was the defendant in In reAntazo.

In People v. Bethea (1990) 223 Cal.App.3d 917, the appellate court held that an offenders probation could not be revoked for failure to pay monetary sanctions that are a condition of probation, unless the court determines that the probationer had the ability to pay and willfully failed to do so. Here, defendants probation was not revoked because he failed to pay a sum of money. Rather, his probation was revoked because he failed to obtain the treatment that was the cornerstone of the agreement that allowed him to avoid a six-year prison term. In other words, defendant raises his alleged inability to pay as a defense or excuse for why he did not attend sex offender treatment, and thus the burden was on him to prove that inability. Defendant presents no convincing legal authority that the court had to first make a finding at the revocation hearing that he had the ability to pay. Again, defendant should have raised this issue previously, either at his sentencing hearing three years prior, or at any time informally with his probation officer, especially in lieu of lying to the probation officer about having attended the treatment sessions.

Defendant also cites the following provision from Penal Code section 1203.067, which requires certain sex offenders to attend and pay for an appropriate treatment program as a condition of probation. The court shall take into consideration the ability of the defendant to pay, and no defendant shall be denied probation because of his or her inability to pay. (Pen. Code, 1203.067, subd. (c), italics added.) By its very terms, this provision applies to the initial grant of probation. Again, defendant cites no authority requiring the court to make a second determination of the ability to pay at the probation revocation hearing where, as here, defendant violated his probation by failing to obtain treatment, not by simply failing to make a payment. Absent such authority, we conclude that the text of Penal Code section 1203.067 does not lend itself to the interpretation advocated by defendant.

Even if the court were required to find that defendant had the ability to pay for treatment before it could revoke his probation for failing to obtain treatment,^[3]we conclude that the evidence is sufficient to support such a finding. In Bearden v. Georgia (1983) 461 U.S. 660, a case involving the failure of a jobless probationer to pay a fine, the United States Supreme Court concluded that a probationer could be imprisoned for failing to pay a fine when the failure to make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution may reflect an insufficient concern for fulfilling the terms of probation. (Id. at p. 668.) Similarly, while defendants income appears not to have been adequate to pay all of his monthly obligations, his failure to make sufficient efforts to supplement the income or to make the treatment program a priority in his concededly stretched budget was willful. Defendant testified that the treatment program cost $65 per session. He also testified that he made $300 per week during that time, which was enough to cover the cost of treatment. Defendant testified that he looked for additional employment only once, and when that effort failed he did not continue looking. Thus, the trial court did not abuse its discretion when it found by a preponderance of the evidence that defendant willfully violated the term of his probation requiring that he attend and pay for a sex offender treatment program.

2. Terms 3 and 4 Report as Directed and Cooperate with Probation Officer

Term 3 of defendants probation required him to: Report to the probation officer in person immediately upon release from custody and thereafter once every fourteen (14) days or as directed. Term 4 required him to: Cooperate with the probation officer in a plan of rehabilitation and follow all reasonable directives of the probation officer. The record is clear that defendant failed to report to his probation officer as directed on August 23, 2005, and failed to make an appointment as directed on November 30, 2005. Thus, defendant violated Term 3. On both occasions, defendant was also instructed to bring proof that he was enrolled in and attending the sex offender treatment program, which he also failed to do. Thus, defendant also failed to fulfill the terms of Term 4.

3. Term 14 Carry Valid Drivers License with Current Address

Term 14 of defendants probation required him to: Carry at all times, a valid California drivers license or Department of Motor Vehicles identification card containing your true name, age and current address, and display such identification upon request by any peace officer and not use any other name for any purpose without first notifying the [probation officer]. The record shows that defendants drivers license expired four days after the date of his sentencing in 2003, and that he did not bother to have it renewed or changed to reflect his current address. Defendant argues on appeal that the trial court should have considered that he testified that he carried an identification card from the Mexican Consulate. However, Term 14 specifies that defendant is required to carry either a valid drivers license or an identification card from the Department of Motor Vehicles. The record indicates that defendant failed to do either, and so the trial court properly found by a preponderance of the evidence that defendant violated Term 18.

To conclude, it is clear from the record that defendant did not take very seriously the terms of his probation. Successful completion of probation would have allowed defendant to remain free of a six-year prison sentence that the probation department and the interviewing psychologist believed were appropriate based on his history of abusing vulnerable children. The record contains sufficient evidence to support the trial courts findings, by a preponderance of the evidence, that defendant willfully violated his probation by not attending the sex offender treatment program, by failing to comply with the probation officers directives that he return to the probation department with proof of attendance in the program, and by not bothering to renew his drivers license and list on it his correct address. Because of these violations and the circumstances under which defendant was fortunate enough to be placed on probation in the first place, we conclude that the trial court did not abuse its discretion when it chose to revoke defendants probation so that he could serve the full six-year prison sentence that he had initially avoided.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ King

J.

/s/ Miller

J.

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^[1]Defendant testified at the probation revocation hearing that he only made $14 per hour when he worked overtime.

^[2]Defendant testified that the reduction in hours spanned, All of 2005. Part of 2006.

^[3]We cannot stress enough that defendant never told either the sentencing court or his probation officer that he could not afford to pay for the treatment program, until the day he was arrested for violating the terms of his probation.