Opinion
A154352
11-15-2018
THE PEOPLE, Plaintiff and Respondent, v. JUAN PEREZ CORTEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR174186)
Defendant Juan Perez Cortez appeals from the trial court's order revoking his probation. Defendant argues the trial court erred by revoking his probation in the absence of any evidence that he willfully violated his probation. The People respond that the prosecution was not required to show defendant acted willfully because defendant's probation violation—his failure to successfully complete drug court—frustrated the assumptions underlying the grant of probation to him in the first place. We conclude that even if the People were correct about the law—which we do not decide here—they did not present any evidence that defendant's violation frustrated the assumptions underlying the grant of probation. Therefore, we must reverse.
BACKGROUND
In March 2015, defendant was sentenced to three years in prison for felony driving under the influence within 10 years of another drunk driving offense (Veh. Code, §§ 23152, subd. (b), and 23550.5, subd. (a)), and for driving while his driving privilege was suspended or revoked for driving under the influence of alcohol, a misdemeanor (id., § 14601.2, subd. (a)). The court suspended execution of the sentence and granted defendant three years' probation with certain terms and conditions, including that he successfully complete so-called "drug court."
In February 2018, the Napa County District Attorney petitioned to revoke defendant's probation. The district attorney alleged he had violated probation by not appearing in drug court as directed and not successfully completing drug court.
At a February 2018 hearing to determine if defendant should be released on his own recognizance pending a probation violation hearing, defendant said he had been in drug court for three years and acknowledged that he recently failed to appear there as required. He said this was the first time he had failed to appear. He also admitted that he had relapsed two months before.
The court held a probation violation hearing in March 2018. At the prosecutor's request, the court took judicial notice of the terms and conditions of defendant's probation, including the requirement that he successfully complete drug court; a January 26, 2018 minute order that showed defendant was present in drug court when he was ordered to appear on February 9, 2018; and a February 9, 2018 minute order stating that he was "unsuccessfully terminated" from drug court. The prosecutor did not present any other evidence.
At defense counsel's request, the court took judicial notice of a February 15, 2018 minute order indicating defendant was in attendance in drug court on that date, and also took judicial notice that February 12, 2018, was a court holiday. Defendant then testified. He said he did not appear in drug court on February 9, 2018, because a message was left on his niece's phone indicating that he did not have to appear, and that this was the only time he had failed to appear. He added that he went to court the day after he received a letter from the court. He denied willfully terminating himself from drug court and said he wanted to continue on probation. He acknowledged he had been in drug court for the previous three years, had relapsed four times in the past year and had a new case involving driving without a license and without an interlock device.
The court found defendant's failure to appear in drug court was not willful and ruled that, therefore, it was not a probation violation. The prosecutor pointed out that the People also alleged a probation violation based on defendant's unsuccessful termination from drug court. Defense counsel argued the prosecutor did not present any evidence of the reason for this termination and, therefore, did not show defendant had acted with the willfulness required to terminate his probation.
The prosecutor responded that drug court did not terminate participants just because they failed to appear once. She noted that defendant had four relapses in the past year, had committed new violations of law, had violated his probation terms and drug court requirements by resuming alcohol consumption and had been in his third year of drug court. The court noted that defendant was terminated from drug court on the same day that he failed to appear and that the drug court's minute order did not indicate the reason for defendant's termination. The prosecutor responded that it did not matter why he was terminated because "they don't automatically terminate people from Drug Court just because they fail to appear." She contended defendant was likely terminated because his probation was close to expiring, he had four relapses, he was having problems maintaining his sobriety, he had violated his drug court terms by drinking in violation of probation, and he was not being successful after three years in the program.
The court said it thought it would be appropriate to find defendant had violated his probation by failing to successfully complete drug court as directed and to refer the matter back to the probation department to determine whether or not drug court wanted to take him back into the program. Defense counsel sought clarification because of the absence of any evidence of the reason for defendant's termination. Defense counsel contended the drug court could have acted not because of any willful action by defendant, but because, for example, drug court might have wanted defendant "to go to a program that he couldn't pay for." Defense counsel asserted that the court had to find defendant's violation was willful to revoke his probation. The prosecutor disagreed.
The trial court agreed with the People. It stated, "No, there had to be a willful violation for failure to appear. And I found that that didn't take place. But as far as the failing to complete the program, I'll just make that finding that he failed to complete the program based on the judicial notice that is in front of me for which then he's in violation of probation. [¶] He'll be referred back to Probation for a presentence report and/or and also for re-referral as to whether or not he should be accepted back into Drug Court . . . ."
The probation department filed a report dated April 24, 2018. The department stated that since 2006, defendant had been convicted six times of driving under the influence of alcohol. He had been granted several terms of probation and ordered to serve multiple jail terms. Defendant's March 2015 probation was his "one last opportunity to remain in the community."
The department stated that since probation was granted, defendant had "struggled with complying with the terms and conditions of probation" and "continued to consume alcohol and reoffend." He had "numerous probation violations and reoffended twice during this [present] term of probation." In June 2016, defendant was granted two years' summary probation and ordered to serve 30 days in jail for misdemeanor driving while his privilege was suspended or revoked for driving under the influence (Veh. Code, § 14601.2, subd. (a)). In June 2017, he was granted three years' summary probation and ordered to serve 45 days in jail for the same offense.
The department further reported that defendant showed on standardized scoring that he presented a high risk of reoffending. The department stated that he had "exhausted all the services that are available to him and it is believed he is no longer appropriate for further participation in the Drug Court Program." It recommended his probation be revoked and he be committed to prison.
The court held a sentencing hearing in May 2018, a different judge presiding than the judge who presided over the probation violation hearing. Defense counsel said defendant's performance in drug court was "not perfect" and requested that he be given one more chance on probation. The court noted he had been convicted of driving under the influence six times since 2006, and stated, "It's alcohol and getting behind the wheel and creating severe public safety risk that is at the heart here." The court continued, "[T]he drug court program works very hard to get people through the program . . . . [T]hey remove people . . . when they are simply not benefiting from the program and not following through with the program." It revoked his probation and ordered him to serve his three-year sentence in prison.
Defendant filed a timely notice of appeal from the court's order revoking his probation.
DISCUSSION
A trial court has the discretion to revoke and terminate a defendant's probation under Penal Code section 1203.2. It provides in relevant part that "the court may revoke and terminate the supervision of the person if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of the conditions of his or her supervision, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless of whether he or she has been prosecuted for those offenses." (Pen. Code, § 1203.2., subd. (a).)
Our Supreme Court has held that "[r]evocation of probation typically requires proof that the probation violation was willful." (People v. Hall (2017) 2 Cal.5th 494, 498 (Hall).) The facts supporting a revocation of probation must be proven by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.) We review the trial court's decision to revoke probation for abuse of discretion. (Id. at p. 443.) " '[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.' " (Ibid.)
In Hall, our Supreme Court declined to decide "whether sustaining a probation violation requires a showing of willfulness where the probation violation poses a direct threat to public safety or otherwise frustrates the assumptions underlying the grant of probation." (Hall, 2 Cal.5th at p. 499, fn. 1.) The People nonetheless contend that, as stated in People v. Jackson (2005) 134 Cal.App.4th 929, "Penal Code section 1203.2, subdivision (a) authorizes a trial court to 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 probation . . . .' " (Id. at p. 935.) Defendant disagrees, asserting that the People must show by a preponderance of the evidence that his probation violation was willful.
Even if we assume for the sake of argument that, as the People contend, the trial court could revoke defendant's probation for a violation that, while not willful, frustrated the assumptions underlying the grant of probation (in other words, in the interests of justice), this would not be a basis for affirming. The trial court did not make this finding and, in any event, there is not substantial evidence to support it.
Specifically, the trial court first found that defendant's failure to appear in the drug court was not willful, and the court did not conclude this probation violation frustrated the assumptions underlying the grant of probation to him. Instead, the court concluded that defendant's unsuccessful termination from drug court was itself a sufficient basis for the revocation of his probation. However, the court did not make any findings about the significance or reasons for this unsuccessful termination at the probation violation hearing. Nowhere during the hearing did the court state that this violation frustrated the assumptions underlying its grant of probation to defendant.
At the sentencing hearing, the court, with a different judge presiding, stated its concern that using alcohol and getting behind the wheel creates a severe public safety risk, and stated that drug court removes people when they are simply not benefiting from the program and not following through with it. This was not a factual finding, however, nor was the court's opinion of the drug court's termination practice based on any evidence in the record. --------
Nor was there substantial evidence to support the conclusion that defendant's failure to successfully complete drug court frustrated the assumptions underlying the grant of probation to him. The prosecutor contended defendant had violated probation in multiple ways and that these were likely the bases for his termination from drug court. This, however, was merely argument based on speculation. The prosecutor did not present any evidence showing why the drug court terminated defendant from its program. Further, as the trial court alluded to during the probation violation hearing, that the termination occurred at the drug court hearing for which defendant failed to appear suggests his failure to appear was the reason for his termination. And the trial court found this failure to appear was not willful, presumably based on defendant's explanation that his absence was due to confusion created by a message from the court left for him shortly before a court holiday. We fail to see how the trial court could have determined that the probation violation it found—defendant's termination from drug court—frustrated the assumptions underlying defendant's probation when the court had no knowledge of the reason for the termination and the only evidence presented indicated the termination was due to confusion and mistake rather than willful conduct.
Indeed, at the probation violation hearing the trial court appears to have understood the limits of the evidence before it when it ordered the probation department to determine whether the drug court wanted to take defendant back into its program.
Under these circumstances, the prosecution did not meet its burden to show that defendant's probation violation was willful, or that it frustrated the assumptions underlying the grant of probation to him. Therefore, we must reverse the trial court's order.
DISPOSITION
The order appealed from is reversed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.