Opinion
D075796
08-12-2020
THE PEOPLE, Plaintiff and Respondent, v. ANDREW ZAVALA MOLINA, Defendant and Appellant.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS282091) APPEAL from a judgment of the Superior Court of San Diego County, Theodore M. Weathers, Francis M. Devaney, Judges. Affirmed. Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Andrew Molina appeals from a judgment sentencing him to prison after the court revoked his probation based on four violations and denied reinstatement. One of the violations—possession of a deadly weapon—was incorrect because the item possessed, a pocketknife, is not a deadly weapon. The other three violations were supported by substantial evidence and sufficient to revoke probation. There is no reasonable probability that the court would have granted reinstatement of probation or sentenced defendant differently even if it had not considered this erroneous violation. Defendant was not prejudiced by counsel's failure to inform the court of the error. We affirm the judgment.
BACKGROUND
Procedural Background
In 2016, a jury found defendant guilty of assault by means likely to cause great bodily injury (Pen. Code, § 245, subd. ( a)(4), count 3) and corporal injury to a spouse (§ 273.5, subd. (a); count 8). Before trial, defendant pleaded guilty to misdemeanor possession of a controlled substance. (Health & Saf. Code, § 11377; count 9.) After trial, he pleaded guilty to robbery. (§ 211; count 2.) On July 8, 2016, the trial court suspended imposition of sentence and granted defendant three years of probation, on condition inter alia that he spend 365 days in local custody. The court said it was "going out on a limb" for defendant, because defendant had a felony strike conviction and had performed poorly on probation in the past.
Further unspecified statutory citations are to the Penal Code.
On February 22, 2019, the probation department filed a notice alleging that defendant had committed acts in violation of his probation conditions: (1) "6.d. Not knowingly possess . . . a deadly weapon"; (2) "6.i. Report to the [probation officer] as directed"; (3) 7.b. "Participate in treatment, therapy, counseling, or other course of conduct as suggested by validated assessment tests"; and (4) 10.b. Attend and successfully complete . . . "Certified 52-week Batterer's Program."
The court found all violations true on March 13, 2019, revoked probation, declined to reinstate it, and imposed a sentence of six years in custody. This term was composed of the upper term of five years for robbery (count 2), a consecutive term of one-third the middle term, or one year, for spousal corporal injury (count 8), a concurrent term of three years for assault (count 3), and time served for misdemeanor drug possession (count 9). The court based the upper term for robbery on defendant's prior convictions and the increasingly serious nature of those convictions.
Defendant filed a timely notice of appeal. Factual Background
Because this is an appeal from a judgment after revocation of probation and not from the underlying convictions, the record does not contain the trial proceedings. The facts are taken from the probation report and a supplemental probation report after defendant was arrested on the probation violations.
Corporal Injury to a Domestic Partner
On August 15, 2015, defendant struck his girlfriend, A.D., on the face with a pair of work boots. He threw her to the floor, tearing a ligament in her knee. Her face was scraped and bruised.
Possession of a Controlled Substance
Defendant was arrested the next day. He had a glass pipe and 0.7 grams of methamphetamine in his pocket.
Robbery and Assault by Means Likely to Cause Great Bodily Injury
On September 7, 2015, a male friend of A.D., J.L., was sitting in his car in front of A.D.'s apartment waiting for her. Defendant appeared and without provocation punched J.L. J.L. got out of his car, the two men fought, and J.L. fell to the ground. J.L. sustained injuries to his right eye and the bones in one of his fingers were shattered.
Defendant got into J.L.'s car, threatened to drive over J.L. if he did not move, and drove the car away.
Probation Violation Hearing
Probation Officer Robert Fernandez was the sole witness at the probation violation hearing. He testified that he had supervised defendant for about two years, since August 2016. Defendant met with Fernandez once or twice per month. Defendant did well and had no revocations for more than two years, from August 2016 through the end of 2018. He held a job and paid child support. He was tested for drugs and alcohol once or twice a month through that period. His test results were negative for about a year and a half. After defendant tested positive for alcohol and methamphetamine in late 2018, Fernandez gave defendant a second chance by assigning him to attend the McAllister drug and alcohol program, instead of revoking defendant's probation for the substance abuse. Defendant missed his scheduled assessment at the McAllister program on January 18, 2019. He did not enroll in the McAllister or any other drug treatment program.
Defendant enrolled in a domestic violence program on January 25, 2018. He attended sessions for almost a year, until December 2018. Defendant was terminated from the program on December 13, 2018, because he had not attended for the prior two weeks.
Fernandez met with defendant on January 11, 2019, and told defendant to return to the probation office on January 22, 2019. Defendant did not return and did not contact Fernandez to explain his failure to appear.
Fernandez went to defendant's home on February 15, 2019, because defendant had failed to report and had not advised Fernandez why he failed to report or what he had been doing. Fernandez found a folding pocketknife in defendant's pants pocket. Defendant said it was for his work.
Defendant did not testify at the hearing. He responded informally to questions from the court during the sentencing hearing and attempted to justify or excuse his failures to comply. He said he had attended 14 domestic violence classes, did not finish, started the program again and completed 24 of the classes. Defendant said there was a failure of communication between the program coordinator and his probation officer about rejoining the classes. The probation officer confirmed that defendant had started two domestic violence programs but did not complete either one. He did not recall the back-and-forth discussion about reinstating defendant that defendant had described. Defendant said that after the January 11 appointment, he thought the next appointment was set for February 22. He said it was the first appointment he had ever missed. Defendant told the court he took responsibility for the violations and wanted to be reinstated on probation.
The court questioned the probation officer and talked with defendant's father. The probation officer recommended that defendant not be reinstated to probation.
The court said that sentencing was difficult in this case. Defendant had been performing well on probation until the end of 2018, and the probation officer had been working well with defendant to encourage compliance. At the original sentencing, the recommendation was for a term of seven years in prison based on defendant's violent actions and prior record. The court had taken a chance on defendant at that time and placed defendant on probation. Defendant had performed well for a while but ultimately failed probation. The probation officer advised the court that he again recommended prison for defendant. The officer opined that defendant would not succeed on probation if given another chance. The court sentenced defendant to six years in prison, as explained above.
DISCUSSION
Legal Principles
The goals of probation are to protect the public, ensure justice, restore losses to the victim, and rehabilitate the defendant. (§ 1202.7.) A court may revoke a defendant's 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 their [probation] . . . ." (§ 1203.2, subd. (a).) A violation of probation must be willful, in the sense that the defendant must have known what he was doing. (People v. Hall (2017) 2 Cal.5th 494, 501 (Hall).) We review the trial court's factual findings supporting revocation of probation for substantial evidence, and we review the trial court's decision to revoke probation for abuse of discretion. (People v. Butcher (2016) 247 Cal.App.4th 310, 318 (Butcher); People v. Rodriguez (1990) 51 Cal.3d 437, 443.) We review the trial court's decision to deny reinstatement of probation for abuse of discretion, as well. (People v. Downey (2000) 82 Cal.App.4th 899, 909 (Downey).)
A trial court abuses its sentencing discretion when its decision is arbitrary or capricious, inconsistent with the letter and spirit of the law, or based on circumstances that constitute an improper basis for decision. (People v. Sandoval (2007) 41 Cal.4th 825, 847; People v. Gibson (2016) 2 Cal.App.5th 315, 325 (Gibson).) When a trial court bases its sentencing decision on an improper factor, the error is harmless unless there is a reasonable likelihood that the defendant would have received a more favorable result without the error. (Gibson, at p. 328.) " 'When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.' " (Ibid.; People v. Price (1991) 1 Cal.4th 324, 492 (Price); People v. Leonard (2014) 228 Cal.App.4th 465, 503 (Leonard).)
Analysis
1. Possession of a Deadly Weapon
We accept the People's concession that defendant's pocketknife was not a deadly weapon, and therefore the court erred in finding a violation of condition 6.d., no knowing possession of a deadly weapon.
A probation condition of "no possession of a weapon" has been held to be not unconstitutionally void for vagueness "[b]ecause the qualifier 'dangerous or deadly' inheres in the commonly understood meaning of the term 'weapon.' " (In re Kevin F. (2015) 239 Cal.App.4th 351, 360 (Kevin F.), disapproved on other grounds in Hall, supra, 2 Cal.5th at p. 503, fn. 2; see also In re R.P. (2009) 176 Cal.App.4th 562, 568 [" 'dangerous or deadly weapon' " is clearly established in the law].) The Kevin F. court defined a "deadly or dangerous" weapon as " '[a]n instrument used or designed to be used to injure or kill someone.' " (Kevin F. at p. 360.) As stated years ago,
"There are, first, those instrumentalities which are weapons in the strict sense of the word, and, second, those instrumentalities which are not weapons in the strict sense of the word, but which may be used as such. . . . The instrumentalities falling in the second class, such as . . . pocket-knives, . . . are not weapons in the strict sense of the word, [i.e. are not dangerous or deadly weapons as a matter of law]. When it appears, however, that an instrumentality, other than one falling within the first class is capable of being used in a 'dangerous or deadly' manner, and it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon, . . . " (People v. Raleigh (1932) 128 Cal.App.105, 107-108.)
The pocketknife was neither inherently dangerous by itself, nor was it being used in a deadly or dangerous manner. A " 'dirk' or 'dagger' means a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death." (§ 16470.) A pocketknife is not a dirk or dagger unless its blade is exposed and locked into position. (Ibid.; People v. Castillolopez (2016) 63 Cal.4th 322, 330 (Castillolopez).) There was no evidence that the blade of defendant's pocketknife was locked into open position. Defendant was not using it in a deadly or dangerous manner, and there was no evidence implying that defendant intended to use it in such a manner. Absent evidence either that the blade was locked open or that defendant intended to use the pocketknife as a weapon, it was not deadly or dangerous.
Thus, there is no evidence that defendant's pocketknife was a deadly weapon within the meaning of probation condition 6.d. Similarly, although defendant was not charged with a violation of condition 12.f., he did not violate that condition either. That condition prohibits knowing possession of any weapon or any instrument used as a weapon. Probation conditions banning weapons, to provide sufficient notice of prohibited acts, inherently and implicitly include "the qualifier 'dangerous or deadly' " within the meaning of "weapon." (Kevin F., supra, 239 Cal.App.4th at p. 360.) The trial court was misinformed as to this one violation of probation, possession of a deadly weapon. As a matter of law, a pocketknife is not a deadly weapon unless it has a locked open blade or it is being used as a deadly weapon. (Castillolopez, supra, 63 Cal.4th at p. 330; Kevin F., at p. 360.)
2. Revocation of Probation
Substantial evidence supported the trial court's finding that defendant willfully violated three other conditions of probation—he did not report to the probation officer as directed, in violation of condition 6.i; he did not participate in drug treatment as suggested by the officer, based on defendant's positive tests, in violation of condition 7.b.; and he did not successfully attend and complete the 52-week domestic violence program, in violation of condition 10.b. (Butcher, supra, 247 Cal.App.4th at p. 318.) Violation of these conditions was willful, in that defendant acted consciously with knowledge of what he was doing. (Hall, supra, 2 Cal.5th at p. 501.) In People v. Zaring (1992) 8 Cal.App.4th 362, for example, the trial court revoked the defendant's probation for being 22 minutes late to a court appearance, but her lateness was due to an unforeseen circumstance regarding care for her children, a circumstance that was outside of her control. (Id. at p. 379.)
There is no testimony under oath or other evidence contesting the court's findings. Even if we examine defendant's proffered excuses, however, they were disputed by the probation officer. The court did not accept defendant's excuses for failing to attend the domestic violence program and for failing to attend an appointment or contact the officer. We accept the credibility determinations of the court. (Butcher, supra, 247 Cal.App.4th at p. 328.) Viewing the evidence in favor of the judgment, as we must, we conclude that the finding of three violations was proper.
Because the court found three proper violations of probation, we set aside the revocation of probation only if it is reasonably probable that the trial court would not have revoked probation had it known that some of its reasons were improper. (Gibson, supra, 2 Cal.App.5th at p. 328; Price, supra, 1 Cal.4th at p. 492; Leonard, supra, 228 Cal.App.4th at p. 503.) Revocation was not an abuse of discretion because substantial evidence supported three valid violations of probation.
3. Reinstatement of Probation and Sentencing
We now turn to the effect of the error on the court's decision to deny reinstatement of probation and to sentence him to prison. We conclude there is no reasonable probability that the court's actions would have been different with the three valid violations but without the weapon violation. (Gibson, supra, 2 Cal.App.5th at p. 328; Price, supra, 1 Cal.4th at p. 492; Leonard, supra, 228 Cal.App.4th at p. 503.)
The trial court had extended leniency and an opportunity for reformation at the initial sentencing hearing, despite the recommendations of the prosecutor and probation officer that defendant be sentenced to seven years in prison. The defendant had complied with probation for over a year, but then seemed to "fall off the wagon" at the end of 2018 by using controlled substances, failing to complete the domestic violence program, failing to enroll in the assigned drug program, and failing to report to his probation officer as required. The court said, "Here's the bottom line though. The court put you on probation, took a chance with you on probation in spite of the fact that the original recommendation was for seven years in prison. And that seven years was based upon the serious nature of the crime and your prior criminal record, sir. [¶] . . . [¶] Probation basically puts it back into your hands, Mr. Molina. It's up to you to either succeed on probation or fail on probation. And although you did well for a while, you did essentially fail on probation." The probation officer was not willing to work further with defendant, having given him benefits of the doubt earlier. The court did not mention the pocketknife, defendant's prior violence, or any threat of future violence in making its decision to sentence defendant to prison instead of reinstating probation. Defendant's overall failure to comply with staying sober, drug rehabilitation, the domestic violation program, and the duty to maintain contact with his probation officer were the important issues to the court in its decision to deny reinstatement and sentence defendant.
The defendant gave excuses for his lapses, but the court was not obliged to accept defendant's excuses. Defendant had been on probation for about 18 months, and had started two domestic violence programs but had missed classes at both. He had attended some self-help classes starting late in 2018, but had no evidence of complying with the requirement to attend the more formal McAllister Institute drug rehabilitation program. Defendant had a lengthy history of seeing his probation officer once or twice per month, but claimed that he thought the period between reports had stretched out to six weeks between January 11 and February 22.
The circumstances here are similar to the circumstances in Downey, in which the defendant claimed the trial court had lost its impartiality when it failed to reinstate probation, because it was acting as a probation officer who had failed in efforts to rehabilitate the defendant. (Downey, supra, 82 Cal.App.4th at p. 909.) The appellate court found the trial court's decision neither arbitrary nor capricious, though the court's decision "might reflect the same frustration that any other judicial officer might have felt." (Id. at p. 910.) It would not be an abuse of discretion to refuse to reinstate probation based on the three valid probation violations here, and we conclude it is not reasonably probable that the court would have reinstated probation without the weapon violation, because it mentioned nothing about a weapon or violence in refusing to reinstate defendant's probation. Neither the current crime nor defendant's past crimes involved weapon use and the court did not discuss the weapon violation when explaining the basis for its sentencing choices. The court imposed the upper term on defendant's robbery conviction due to his prior convictions and their increasingly serious nature. Those prior convictions were misdemeanor spousal battery, in 2006; misdemeanor disturbing the peace, in 2009, as a reduction from a domestic violence charge; and two counts of driving under the influence, from 2014 to 2015. The first two misdemeanors involved violence but not a weapon, as did the current robbery of a car effected by an assault on the driver. A weapon was not used in his prior or current crime, and there was no evidence that the defendant possessed the pocketknife for use as a weapon. The record indicates that the court was concerned that defendant was not able to maintain a sober life and comply with his probation conditions. The court did not mention use of a weapon by defendant. We find no reasonable probability that the result in this case would have been different had the court known that possession of the pocketknife was not a probation violation.
DISPOSITION
We affirm the judgment.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. IRION, J.