Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR-176871
DONDERO, J.
Following a contested hearing defendant was found in violation of his probation for having contact with a minor without the approval of the probation department, and failing to complete his therapy as ordered. His probation was revoked and he was sentenced to one year in county jail. In this appeal he claims that the oral pronouncement of judgment did not include a condition that required approval of the probation officer before defendant had contact with a minor. He therefore argues that the finding of a probation violation is not supported by the evidence. We find that the content of the probation condition applies in its written form to prohibit contact with minors unless defendant obtained prior approval from the probation officer. We further conclude that defendant violated the no-contact condition, as well as the condition that required him to obtain counseling. We therefore affirm the revocation of his probation and imposition of a county jail term.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Pursuant to a negotiated disposition agreement, on January 5, 2009, defendant entered a plea of no contest to a single misdemeanor charge of contributing to the delinquency of a minor (Pen. Code, § 272, subd. (a)(1)). At the change of plea hearing defendant was placed on formal probation for a term of three years. Among other probation conditions defendant was ordered by the trial court “not to be in the presence of anyone under the age of 18 without a responsible adult present, ” and “to attend counseling and therapy as directed by probation.” He was also ordered by the court at the hearing to “go over formal probation” with the officer assigned to him by the probation department, and to “comply with all orders of his probation officer.” The preprinted order of probation and minute order for the hearing dated January 5, 2009, which was signed by defendant and the trial court, repeated that defendant was to “comply with all orders of the probation officer, ” and further enumerated, “Not be in the presence of any person under the age of 18 without a responsible adult present as approved by the probation officer.” (Emphasis in original.)
Charges of committing a lewd and lascivious act upon a child who is 14 or 15 years old by a person who is at least 10 years older (§ 288, subd. (c)(1)), and unlawful oral copulation of a person under the age of 18 (§ 288a, subd. (b)(1)), and unlawful intercourse with a minor under the age of 16 (§ 261.5, subd. (d)), were dismissed by the prosecution in exchange for the plea. ~(CT 238-40)~ All further statutory references are to the Penal Code.
A supplemental report (the report) was filed by the probation department on June 9, 2009. The report alleged that defendant violated specified conditions of his probation: to attend counseling as directed by probation; not to be in the presence of any person under the age of 18 without a responsible adult present as approved by the probation officer; and, to comply with the direction of the probation officer. The report stated that defendant attended sex offender counseling from December 12, 2005, to October 10, 2006, but did not complete or graduate from the program. Defendant repeatedly expressed to his probation officer that he “did nothing wrong, ” and did not “need to continue with counseling.” Defendant’s therapist indicated defendant retained a rigid attitude that his sexual relationship with a 13-year-old girl was “okay, ” and made “little progress” in counseling. The report also stated that defendant visited with his sister’s minor son, and proclaimed that “neither probation nor the court can tell me who I can or cannot see.” The report noted that defendant was unwilling to accept responsibility for his actions or comply with the terms of probation, and recommended revocation of probation.
Defendant’s probation officer, Laura Rios, testified at the subsequent probation revocation hearing that during her first meeting with defendant on January 30, 2009, she discussed the terms of probation with him, specifically the prohibition against his contact with anyone under the age of 18 without prior approval from her, and the requirement that he attend counseling as directed by her. Defendant advised her that on at least two occasions he attended church with his minor nephew, although Rios had not given him permission to do so. Rios also gave defendant a referral to therapist Michael Jereb to make arrangements for an evaluation for sex offender counseling. Defendant replied that he could not afford counseling, and “had completed counseling” with Dr. David SanGiovanni. Dr. SanGiovanni reported to Rios, however, that defendant made “little progress” with his counseling and “did not complete the program.” Dr. SanGiovanni testified that defendant “does not admit that he has an issue” or accept that he committed a sexual offense. Defendant also failed to complete the second objective of the program with Dr. SanGiovanni: to develop a comprehensive written relapse prevention plan.
Jereb told Rios he was willing to accept defendant into a counseling program. Defendant spoke with Jereb, but complained that he “didn’t have enough” to pay for the cost of counseling. Jereb directed defendant “back to the probation officer to discuss it” and “try to work something out.” Defendant never contacted Rios to discuss the counseling program. Nor did he call Jereb back or make any appointment for counseling.
At meetings with Rios defendant frequently proclaimed that “the Court or probation couldn’t tell him who[m] he could love or not love, or who[m] he could see or not see.” Defendant was also adamant that he did not need further counseling. The trial court also took note of a letter from defendant’s father to the probation department in which he stated that probation conditions “would be difficult, if not impossible, for his son.”
Defendant testified at the hearing that he did not realize the probation condition that prohibited contact with minors included his family. He did not understand that he violated probation by going to church with his sister and nephew. Defendant declared: “There was nothing wrong with me going to church with my family.” Defendant asserted that he was “being mistreated” by Rios. He also believed, based on a file he had seen in Rios’s office, that he “completed the program” with Dr. SanGiovanni and “made progress.”
At the conclusion of the hearing the trial court found that defendant “violated his probation by failing to enroll and attend counseling and therapy as directed by probation, ” and by contacting a minor without prior approval from his probation officer. Defendant’s probation was revoked and he was sentenced to a term of one year in county jail, with credit for time served.
DISCUSSION
I. The Content of the Probation Condition that Prohibited Contact with Minors.
Defendant complains that the trial court erred by finding a violation of probation based on his contact with his minor niece and nephew in the presence of his adult sister. He points out that the oral pronouncement of judgment by the trial court specified only that he was “not to be in the presence of anyone under the age of 18 without a responsible adult present.” He emphasizes that the court did not additionally declare in court that he “needed the prior permission of the probation officer before he could be present with a person under 18.” Defendant acknowledges that the written order of probation indicates through a checked box that he must not “be in the presence of any person under the age of 18 without a responsible adult present as approved by the probation officer.” (Emphasis in original.) He contends, however, that the “material discrepancy” between the condition “pronounced by the court” and “checked on the written form, ” must be resolved in favor of the oral pronouncement of judgment. Defendant therefore argues that he “complied with the court’s oral pronouncement” of the no-contact provision, and the finding that he “violated this probation condition should be reversed.”
We recognize that the defense failed to object in the trial court to the content of the probation condition, and the discrepancy between the oral and written descriptions of the condition, but we exercise our discretion to resolve the issue on the merits in light of defendant’s related claim of ineffective assistance of counsel. (See In re Luis F. (2009) 177 Cal.App.4th 176, 180.)
with the established general rule that where there is a discrepancy with the established general rule that where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185–186; People v. Gonzalez (1990) 51 Cal.3d 1179, 1239; People v. Morelos (2008) 168 Cal.App.4th 758, 768; People v. Zackery (2007) 147 Cal.App.4th 380, 385–386.) As a threshold matter we observe that no fatal discrepancy exists between the oral and written recitation of the probation condition. True, the trial court did not specifically declare that contact with minors must be “approved by the probation officer.” Defendant was directly told by the trial court, however, that he must “go over formal probation” with his assigned probation officer, and “comply with all orders of his probation officer.” Defendant’s probation officer Rios advised him at their first meeting that he was prohibited from contact with anyone under the age of 18 without prior approval from her. Thus, even if we limited the no-contact provision to the terms specified in the trial court’s oral pronouncement of judgment, as defendant suggests, we must consider it in conjunction with the additional oral directive by the court to defendant to ascertain and comply with the orders of his probation officer, and the probation officer’s express admonition to defendant to avoid contact with minors unless she granted him prior approval. So viewed, the condition includes the prior approval term.
We also conclude that we are not restricted to the trial court’s oral pronouncement when determining the scope and meaning of the probation condition that prohibited against contact with minors. Despite the preference given to the oral record of the judgment over the clerk’s inconsistent recorded entry in a minute order (People v. Gonzalez, supra, 51 Cal.3d 1179, 1239), when imposing conditions of probation the trial court “need not orally pronounce probation conditions as long as the defendant knows what is required.” (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373, citing People v. Thrash (1978) 80 Cal.App.3d 898, 901–902 (Thrash).) Thus, in In re Frankie J. (1988) 198 Cal.App.3d 1149, 1154 (Frankie J.), the juvenile court released the minor to his father with only the declaration that “the ‘usual’ terms and conditions of probation” listed on a preprinted court document governed the minor’s probation. The minor thereafter violated two of the provisions that were stated on the preprinted form – one of which was a prohibition against possession of a weapon – but not orally articulated by the trial court. In response to the minor’s claim that the weapons condition “should have been orally communicated to him in court by the judge, ” (id. at pp. 1154–1155) the court in Frankie J. concluded: “This contention was specifically addressed and rejected in People v. Thrash (1978) 80 Cal.App.3d 898 [146 Cal.Rptr. 32]. ‘These conditions [of probation] need not be spelled out in great detail in court as long as the defendant knows what they are; to require recital in court is unnecessary in view of the fact the probation conditions are spelled out in detail on the probation order and the probationer has a probation officer who can explain to him the contents of the order.’ (Id., at pp. 901–902.) The probation officer went over each condition of probation with Frankie J. and had him initial those applicable. Frankie J. has failed to meet his burden of affirmatively showing error on the record.” (In re Frankie J., supra, at p. 1155.)
We similarly conclude that no inconsistency exists between the oral recitation in court and the written order of probation. The conditions of probation, including the specific prohibition against contact with a minor without prior approval of the probation officer, were articulated in detail in the probation order, which was signed by defendant. He was also instructed in the same terms orally by his probation officer. The record definitively establishes that defendant was on notice of the condition as specified in the written probation order. The record also establishes that, once advised by probation of the conditions regarding access to minors, the defendant never petitioned the court to challenge the nature of the no-contact provision as stated to him by Ms. Rios. We find that the content of the no-contact provision is as expressed in the written probation order and explained to defendant by his probation officer. (Frankie J., supra, 198 Cal.App.3d 1149, 1154–1155; Thrash, supra, 80 Cal.App.3d 898, 901–902.)
Before oral argument, appellant’s counsel suggested our recent decision In re D.G. (2010) 187 Cal.App.4th 47, should trigger support for his position on the probation condition. First of all, D.G. is a case that focuses on the validity of certain probation conditions, such as “stay away” orders, in light of People v. Lent (1975) 15 Cal.3d 481. It does not focus on the issue in this case. Additionally, the court document relied on by the probation officer here contained the prohibition regarding association with minors. The document in issue contained the applicable terms reviewed here and was signed not only by the defendant but also the sentencing judge. D.G. dealt with an improper condition, not a proper condition approved by the court and stated in papers received by the defendant.
We further conclude that defendant’s counsel was not incompetent for failing to challenge the discrepancy between the probation condition as stated by the court and recited in the probation order. Counsel cannot be found ineffective for declining to make an objection which would have been futile. (People v. Smithey (1999) 20 Cal.4th 936, 992; People v. Padilla (1995) 11 Cal.4th 891, 937.)
II. The Finding that Defendant Violated Probation.
We turn to defendant’s contention that the finding of a probation violation is not sustained by the evidence. In light of our conclusion that defendant was ordered to obtain approval of his probation officer before contact with minors, the evidence indisputably proves his violation of the condition.
“ ‘[S]ection 1203.2 provides the court may revoke probation if it has reason to believe that the person has violated any of the probation conditions....’ [Citation.]” (People v. McGavock (1999) 69 Cal.App.4th 332, 337.) “ ‘When the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period. [Citations.]’ [Citation.]” (People v. Johnson (1993) 20 Cal.App.4th 106, 110.) The evidence must prove a willful violation of a probation condition. (People v. Zaring (1992) 8 Cal.App.4th 362, 379.) “ ‘More lenient rules of evidence apply than at criminal trials [citations], and the facts supporting revocation need only be proved by a preponderance of the evidence [citation]....’ [Citation.]” (People v. McGavock, supra, at p. 337; see also People v. Bracey (1994) 21 Cal.App.4th 1532, 1548.) On appeal we must of course “view the facts in the light most favorable to the judgment, drawing all reasonable inferences in its support.” (People v. Cochran (2002) 103 Cal.App.4th 8, 13; see also People v. Bento (1998) 65 Cal.App.4th 179, 193; People v. Hayes (1992) 3 Cal.App.4th 1238, 1249–1250.)
The evidence also convincingly proves defendant’s violation of the probation condition that required him to attend and complete counseling as directed by his probation officer. Despite defendant’s protestations, testimony from his probation officer and therapist established that he failed to make more than minimal efforts or progress with his counseling, and did not complete any of the objectives of the program with Dr. SanGiovanni. He refused to accept responsibility for the sexual offense, and resolutely declined to recognize the necessity for further counseling that both probation officer Rios and Dr. SanGiovanni prescribed. He then failed to pursue additional counseling that was ordered for him by Rios. We realize that defendant legitimately expressed financial obstacles to entering into a program with Michael Jereb, but he never sought to find an alternative counseling program, otherwise make an effort to resolve the cost issue, or even contact his probation officer to discuss the matter. More importantly, defendant repeatedly manifested his apparently intractable unwillingness and inability to successfully pursue counseling as ordered. The evidence proves that defendant violated both probation conditions, and the trial court was thoroughly justified in revoking his probation.
Accordingly, the judgment is affirmed.
We concur: MARGULIES, Acting P. J., BANKE, J.