Opinion
E052452 Super.CtNo. FWV1001844
01-26-2012
THE PEOPLE, Plaintiff and Respondent, v. WILLIE THOMAS, Defendant and Appellant.
John Ward, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Shahla Sabet, Judge. Affirmed.
John Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
In exchange for being granted probation, defendant and appellant Willie Thomas pled no contest to inflicting corporal injury upon a cohabitant. (Pen. Code, § 273.5, subd. (a).) Due to defendant's criminal history, the trial court would only follow the plea bargain if defendant agreed to a suspended midterm prison sentence of three years. Defendant agreed to the modification. Subsequently, the trial court found that he had violated the terms of his probation and imposed the suspended sentence. Defendant contends there was insufficient evidence that he willfully violated the terms of his probation. Defendant also contends the trial court erred by not inquiring as to whether poverty was the reason he failed to enroll in a weekend work release program. We affirm.
BACKGROUND
On July 27, 2010, defendant pulled his live-in girlfriend's hair and punched her in the face.
Defendant entered his plea on August 12, 2010, and was placed on probation on September 8, 2010. Defendant received disability income of $840 a month. The parties urged the trial court to set defendant's fees and fines as low as possible; the prosecutor noted that she wanted defendant's "focus to be on being able to do his batterer's treatment," but that she would push for prison if he had any violations.
The bailiff confirmed for the trial court that the weekender work release program would accept defendant even if he was disabled. The first term of defendant's probation was that he serve 210 days in jail, with credit for time served and conduct credits for that time. The trial court told defendant he could "serve the balance on the work release weekender program, and you have until September 8th, 2011, to complete the program. However, [defendant], you have until October 1st, 2:00 p.m. to sign up for the program. Do not wait. [¶] Please listen to me very carefully. We'll give you those dates later. You don't need to write it down. [¶] October 1st is a Friday. 2:00 p.m. is your deadline. Do not wait until that date. Go a few days earlier to sign up because if you get stuck in traffic or for some reason you were ill that day, you miss your deadline, you're going to end up in state prison. Do you understand that? Do you understand that?"
Defendant responded, "Yes."
The trial court continued, "So you don't wait until October 1st. You go early so if you miss that day, you can go the next day. [¶] You need $100 cash and a valid photo I.D. or a driver's license. Otherwise, they will not sign you up. [¶] You can't afford missing a weekend or a scheduled assignment because you'll go to state prison if you did. Do you understand that?" Defendant responded, "Yes."
Additional probation terms were imposed, including, "Cooperate with the probation officer in a plan of rehabilitation and follow all reasonable directives of the probation officer," and "Keep the probation officer informed of place of residence and cohabitants and give written notice to the probation officer twenty-four (24) hours prior to any changes. Prior to any move provide written authorization to the Post Office to forward mail to the new address."
On October 8, 2010, a hearing was held in response to defendant's request to modify the terms of his probation. Defendant had originally been ordered to not have any negative contact with the victim, with whom he still lived. He was also ordered to not associate with persons known to him to be convicted felons. Defendant's trial counsel also reported that defendant had been evicted, had his vehicle impounded, and had been unable to start the weekender work release program. The trial court asked defendant's trial counsel if he had informed the court that defendant had a job, and then stated, "If he's unemployed, he has no place to live, and he didn't even have $100 to pay, he really should do his time straight time."
Defendant's trial counsel responded, "At the time of the arrangements, the agreement was made, it was my understanding that he had the $100 and was able to do weekends." Trial counsel later stated, "He does do side employment to supplement his income due to his disability."
The trial court replied, "Okay. Very good. All I'm asking, [defendant], is not to set you up for failure and not to set you up so that you will miss your weekender program again. It's much easier to get it done straight time. Do you understand that?" Defendant replied, "Yes."
The trial court modified defendant's custody condition to require enrollment by October 29, 2010. The probation officer interjected, "Your Honor, he's coming back for a review on November 5. Can we give him until November 3? And he also said he's going to get some money on the 1st of the month which will allow him to get that $100. So if we can have enroll [sic] by November 3, by 2:00 p.m., and then his review on the 5th."
The trial court then modified the custody condition as requested; the trial court also modified the victim contact term to provide for no contact rather than the originally ordered no negative contact.
A petition to revoke defendant's probation was filed on November 5, 2010. The petition alleged defendant had violated his custody condition, and the condition requiring him to cooperate with his probation officer, by failing to enroll in the work release program by the November 3, 2010 deadline. At defendant's November 5, 2010 review hearing, defendant entered a denial of the allegation because both the People and the probation officer were recommending that the suspended sentence be executed. Accordingly, a hearing on the petition was set for December 3, 2010.
On December 3, 2010, defendant's probation officer testified that prior to coming to the November 5, 2010 review hearing, he had checked to see if defendant had enrolled in the work release program and discovered that defendant had not enrolled. On the morning of November 5th, defendant told the probation officer that he had gone to enroll a day late and was not allowed to enroll. He claimed he had forgot the date and went on the wrong date.
On October 27, 2010, the probation officer had also attempted to visit defendant at the address he had provided; defendant was not home. The apartment manager said that defendant still lived there but was in the process of moving out. The apartment manager said he had last seen defendant the day before. The probation officer left his business card on the door to defendant's apartment with instructions for defendant to call him.
Defendant testified as to what he remembered from the October 8, 2010 hearing. The continuance was granted because he did not have the money at the time to enroll. He did not remember the exact date the court gave him, but he remembered that the trial court had "said don't be late and to get there before . . . the end there." However, he had been given paperwork that he was to take with him when he enrolled; he claimed he did not look at the "exact date" on the paperwork.
Defendant testified that he went to register on Wednesday, November 3, 2010, around 10:00 in the morning, but "[t]hey wouldn't accept the money because they said [he] was supposed to be there the day before." He had brought $118 with him.
Defendant remembered speaking with the probation officer prior to the November 5, 2010 hearing. "He asked me did I enroll in the domestic class. I said yes, I already signed up, I already paid, and my date is for Monday. Then I told him I was a day late on registering for the work release, and they wouldn't accept my money."
Defendant had not found the card the probation officer left on his door because he was no longer living at that address. He had told the probation officer he had to be out of his apartment by October 29, 2010, and would let him know his new address when he came to court. He said he was trying to comply with all of the terms but that "between the 1st and the 5th, I had so much to do. I had to move, find a place to stay, move, and then notify the probation officer, and also enroll in domestic classes, and . . . come back [to court] on the 5th.
The trial court ruled, "This is a case after hearing the evidence, the Court finds that the defendant is in violation of two terms of his probation. Term Number 1 is to attend the work release program. Term Number 2 is to cooperate in a plan of rehabilitation. That's the allegation as opposed to exact Term Number 7 [keep probation officer informed of residence and provide written notice 24 hours before changes]. But under that finding I also find non-cooperation with [the] probation officer in a plan of rehabilitation. It's one of those terms that encompasses all the other terms of probation. [¶] [Defendant], you were noticed twice, sir, in this court. When I sentenced you, I noticed you, I told you that this is three years state prison, you have to be very careful with the terms and conditions. As [the prosecutor] mentioned, I reluctantly accepted that plea bargain agreement. I thought you should go to state prison then, but I gave you a chance. And giving you a chance means adhering to every letter and spirit of the probationary terms. It's not that my mind is so full of information that I don't remember, or I remember some of it or all of it and my life is so busy and hectic and chaotic that I can't keep everything straight. That should have been your number one priority, sir."
"I ordered you to serve your 210 days weekender program. I granted that request. You came back. This was done in September. You were ordered to start October 1, your weekender program. You came with excuses in court October 8, stating that you didn't have the money or the means to enroll. Because of three years state prison suspension I gave you another chance. And I gave you until November 3. And I ordered you back November 5 to make sure everything is in compliance. And you came back still confusing the dates, listening to part of what I said, not listening to the other parts. [¶] I have given you more than ample chance, sir. It's obvious you're not suitable for probation. It's not that -- with all your good intentions your life is in such chaos at this point that you don't have the money or means to comply with probationer terms. [¶] Also, we have given you two chances."
The trial court then executed the suspended sentence.
VIOLATION
Defendant contends there was insufficient evidence that he willfully violated the terms of his probation. In particular, defendant contends "financial straits and lack of life skills are quite different from a willful or contumacious disregard of the conditions of probation." The People contend that defendant has forfeited his arguments based on financial straits or a lack of life skills by failing to raise them below; the People also contend the evidence was sufficient.
Preliminarily, we reject the People's forfeiture contention because claims of insufficient evidence do not have to be raised in the trial court to be preserved on appeal (People v. Butler (2003) 31 Cal.4th 1119, 1126), and defendant's characterization of the evidence is inseparable from his claim that the evidence was insufficient.
We review claims of insufficiency of evidence by examining " 'the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value.' " (People v. Story (2009) 45 Cal.4th 1282, 1296.) The standard is the same even if circumstantial evidence was relied upon. (Ibid.) Because it is the trier of fact, and not the appellate court that must be convinced, " ' " ' " '[i]f the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " ' " (Ibid.) In examining the evidence, we focus on the evidence that did exist rather than on the evidence that did not. (See id. at p. 1299.) The scope of the evidence includes both the evidence in the record as well as "reasonable inferences to be drawn therefrom." (People v. Coffman & Marlow (2004) 34 Cal.4th 1, 89.) In deciding whether substantial evidence supports the decision of the trier of fact, we do not resolve issues of credibility or evidentiary conflicts. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Resolution of conflicting evidence and credibility issues is for the trier of fact to decide. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.)
Defendant had limited financial means, had his car impounded, and had to move. He had also been informed of his probation conditions, including being provided paperwork regarding his enrollment into the work release weekender program. Nonetheless, he claimed to have forgotten the deadline to enroll and did not review the paperwork he had been given for the exact deadline. Thus, the trial court could infer that defendant willfully failed to enroll. (See People v. Barker (2004) 34 Cal.4th 345, 358 [forgetting sex offender registration obligation is willful unless "resulting from, for example, an acute psychological condition, or a chronic deficit of memory or intelligence"].)The enrollment and completion of this program was an integral part of defendant's plan for rehabilitation through probation. Thus, defendant's failure to enroll in the program was a failure to cooperate in his rehabilitation plan. Accordingly, sufficient evidence supported the trial court's findings.
Because "we consider the correctness of the trial court's ruling itself, not the correctness of the trial court's reasons for reaching its decision" (People v. Letner & Tobin (2010) 50 Cal.4th 99, 145), we do not address the parties' contentions as to whether failure to notify the probation officer of his new address, an unalleged violation of a separate term of probation, was sufficient to justify the trial court's finding that he failed to cooperate in his rehabilitation plan.
POVERTY INQUIRY
Defendant contends the trial court prejudicially erred by failing to inquire whether defendant's poverty was the reason he did not enroll in the weekender program. The People contend no inquiry was necessary because defendant testified that he did not enroll on time because he forgot the exact date rather than because he lacked the enrollment fee. We agree with the People.
In Bearden v. Georgia (1983) 461 U.S. 660, 672, the Supreme Court held that "in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment."
Relying on Bearden, defendant contends the trial court should have inquired if he attempted to enroll a day late because he had difficulty obtaining funds. However, Bearden is inapplicable because defendant's probation was not revoked for failure to pay a fine or restitution, it was revoked for the failure to enroll in the weekender work release program. While enrollment required a fee, and defendant is of limited financial means, defendant had the funds when he attempted to enroll a day late. Moreover, the date by which he was required to enroll was extended from October 29 to November 3, at the request of the probation officer, so that defendant would be able to use the income he received at the beginning of the month.
Defendant asserts that he may have been too ashamed or frightened to assert that he lacked the financial resources to enroll. However, defendant provided information on his finances to the probation officer, and proactively sought modification of his probation when his eviction and the impounding of his vehicle left him unable to enroll by the first deadline set in his probation conditions. Furthermore, the trial court had expressly indicated it did not want to set defendant up for failure, and was reassured by defendant's trial counsel that defendant did have the means to enroll in the program.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.