Opinion
E068483
12-06-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE VALDEZ, Defendant and Appellant.
Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FSB1405293) OPINION APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed. Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Jose Valdez physically abused his girlfriend's 11-month-old daughter resulting in 14 broken bones to her extremities. Pursuant to a plea agreement, defendant pled no contest to felony child abuse (Pen. Code, § 273a, subd. (a)). He also admitted that in the commission of the offense, he personally inflicted great bodily injury on a child under five years old. (§ 12022.7, subd. (d)). In return, the trial court suspended imposition of sentence, and placed defendant on formal probation for a period of 48 months subject to various terms and conditions of probation. Defendant subsequently violated several of his probationary terms and conditions. Following a hearing, the trial court found defendant in violation of his probation, and sentenced him to six years in state prison with 365 days of credit for time served.
All future statutory references are to the Penal Code unless otherwise stated.
On appeal, defendant argues (1) there was insufficient evidence to support the trial court's finding he willfully violated probation, and (2) the trial court prejudicially erred and violated his due process rights in refusing to allow his witnesses to testify at the formal probation violation hearing. We reject these contentions and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background of the underlying offense is taken from the probation officer's report.
In October 2013, defendant was in a dating relationship with a woman who had an 11-month-old daughter. On October 30, 2013, a San Bernardino County Sheriff's deputy responded to a call from St. Bernadine's Hospital regarding defendant's girlfriend's daughter who had severe swelling to her right arm and deformity to her left ankle. The deputy contacted the child's treating doctor who explained the child's injuries appeared to be older due to the bones starting to heal themselves. The child also had injuries to her left arm and 14 broken bones in her extremities. The child's mother and defendant gave inconsistent statements as to the cause of the child's severe injuries. The child's mother eventually admitted that she had lied to the investigating detective when she stated that she was the one who had stepped on her daughter's left arm because she knew defendant "did it."
B. Procedural Background
On November 21, 2014, a felony complaint was filed charging defendant with felony child abuse (§ 273a, subd. (a)). The complaint also alleged that in the commission of the offense, defendant had personally inflicted great bodily injury on a child under five years old (§ 12022.7, subd. (d)).
On November 24, 2014, defendant pled no contest to felony child abuse and admitted the great bodily injury enhancement allegation.
On December 19, 2014, the trial court suspended sentence and placed defendant on formal probation for a period of 48 months on various terms and conditions of probation, including serving 365 days in county jail. As part of his probation, defendant was also required to complete a 52-week child abuse prevention program, personally report to his probation officer, cooperate in a plan of rehabilitation, follow all reasonable directives of his probation officer, neither use nor possess any controlled substance without a medical prescription, and not possess any type of drug paraphernalia. Defendant accepted the terms and conditions of his probation.
On August 17, 2015, at defendant's request, the trial court modified two of defendant's probationary conditions. In relevant part, the trial court ordered defendant to attend a 52-week child abuse treatment program, enroll in the program by August 28, 2015, and submit proof of completion by August 17, 2017. Defendant accepted the modification of his probationary terms and conditions.
On February 8, 2016, at defendant's request, the trial court again modified defendant's child abuse treatment program condition. Specifically, defendant was required to attend a 52-week child abuse treatment program, enroll in the program by February 26, 2016, and submit proof of completion by October 17, 2017.
On November 9, 2016, a petition to revoke defendant's probation was filed. The petition alleged that defendant failed to (1) report to his probation officer as directed, (2) cooperate with his probation officer in a plan of rehabilitation and follow all reasonable directives of his probation officer, (3) not use or possess controlled substances without a medical prescription, (4) not possess any type of drug paraphernalia as defined in Health and Safety Code section 11364.5, subdivision (d), and (5) successfully complete a 52-week child abuse prevention program.
Defendant was taken into custody. On November 9, 2016, the trial court revoked defendant's probation, and set a formal hearing pursuant to People v. Vickers (1972) 8 Cal.3d 451 (Vickers). The court also referred the matter to probation for a supplemental report.
C. Probation Violation Hearing
The Vicker's hearing was held on May 19, 2017. At that time, two probation officers and defendant testified. San Bernardino County Probation Officer Danny Johnson went to defendant's residence on November 5, 2016, to conduct a compliance check. When he arrived, he saw defendant sitting in the driver's seat of a car. After defendant exited the vehicle, Probation Officer Johnson searched the vehicle. Inside the vehicle, Probation Officer Johnson found marijuana and paraphernalia. Probation Officer Johnson then searched defendant's bedroom where he found additional marijuana and paraphernalia. Defendant admitted that the items belonged to him and that he smoked marijuana every other day. Probation Officer Johnson asked defendant whether he had a medical marijuana card. Defendant indicated that he had a recommendation and that he believed it was "okay for him to smoke for medicinal purposes" due to a car accident.
San Bernardino County Probation Officer Renita Toleston also testified. She explained that she had reviewed defendant's probationary terms and conditions, including his reporting instructions and cooperation with his probation officer. Defendant was not in compliance with cooperating with his probation officer because he was terminated from his required child abuse treatment classes and he failed to report to probation as instructed. The last date defendant reported to probation was April 29, 2016. Probation Officer Toleston and defendant's assigned probation officer, Shae Craddock, conducted a compliance check at defendant's residence on May 5, 2016, and directed defendant to report to probation on June 8, 2016. Defendant failed to report on June 8, 2016. In response to the court's query of why it took from June 8 to November 5, 2016, to conduct another compliance check, Probation Officer Toleston responded that defendant's assigned probation officer was "unavailable due to personal reasons." On September 26, 2016, Probation Officer Toleston sent defendant a letter directing defendant to report on October 3, 2016. Defendant failed to report on that date as well.
Probation Officer Toleston also explained that as part of defendant's probationary terms and conditions, defendant was neither to use nor possess a controlled substance without a medical prescription nor possess any type of drug paraphernalia. Defendant never provided probation with medical documentation. Probation Officer Toleston further stated that probation received a letter dated May 23, 2016, from defendant's child abuse program, noting defendant had been terminated from the program because defendant had missed too many classes. Defendant had completed six classes out of 52, and he had missed four classes. Defendant explained that he was unemployed for the last three months, that he was trying to seek employment, and that he did not have money to attend his child abuse classes. Defendant also stated that he had not received the letter directing him to report to probation on October 3, 2016.
Following Probation Officer Toleston's testimony, defense counsel informed the trial court that "[w]e have a couple of witnesses for the defense, your Honor." In response to the court's question as to what these witnesses were going to testify to, defense counsel asserted: "They're going to testify that he [defendant] was hard at work, and that he was—had to travel due to his work, and that he . . . used marijuana for medical purposes due to some type of injury." The court responded: "How do those witnesses have anything to say in response to Terms 3, 4, and 27? Three is the reporting form, four is the cooperation clause, and [25] is the child abuse classes." The court continued: "There's a legal issue whether marijuana is a controlled substance in November. Federally it's a controlled substance. Statewide it's not. Whether that's a violation, I don't think we have to go—I don't think it is in this hearing." Thereafter, the following colloquy between the court and defense counsel occurred:
The court mistakenly refers to Term 27 here. The term for the "child abuse classes" is actually Term 25.
"[DEFENSE COUNSEL]: Well, I think they would also indicate that he lacked the money to go to classes.
"THE COURT: In terms of his budget, how much was going to marijuana, and how much of his inability to work was caused by him smoking marijuana every other day? In terms of the overall budget that he had, how short actually was he every week, when he was supposed to go to class?
"To be honest with you, I don't want to play games with this, but that's what it looks like we're doing.
"[DEFENSE COUNSEL]: I don't have—I don't think they have the details regarding that, your Honor.
"THE COURT: How can they offer anything to help the Court decide this issue, the issue that the Court has today?
"[DEFENSE COUNSEL]: Well, I mean, they also indicate that he has support in the community, and if the Court did give him another chance in terms of—that he would have that support. And so the fact that there are five people here, three of them that are ready and willing to testify
"THE COURT: I assume he's got some support, because somebody's got to be paying for the food and the roof and the heat in the house, 'cause he's not doing that. So I would accept an offer of proof as to those issues.
"Who's he living with?
"[DEFENSE COUNSEL]: Well—
"THE COURT: And who's paying the bills?
"[DEFENSE COUNSEL]: Your Honor, he's willing to testify. He can cover all those issues.
"THE COURT: I'm just saying I don't need to take the time up unless it's relevant to an issue the Court has to decide today. If you want me to consider that information, I have two points: 1, I am happy to consider it; and No. 2, I don't really think that those points that you're trying to make are in any dispute. I think we all understand that he's got support from his family.
"The problem is that he didn't report, according to the evidence, and he didn't do his class, and he's smoking marijuana every other day and not working.
"[DEFENSE COUNSEL]: Your Honor, he [defendant] wants to testify for that."
After the court stated that defendant has the right to be heard, defendant testified on his own behalf. He explained that he did not have to pay for the marijuana because his cousin worked at a dispensary and "just gave [him] weed." Defendant also noted that his marijuana usage did not affect what he did at work, which was installing turf, but that it made his back not hurt. He was fired when they found out he had a felony. He further asserted that he paid his grandma so that she could support him and that his grandma was paying the rent and he was helping her pay the rent too. He got food from her and he was giving her almost all of his money. Defendant stated that he missed the child abuse classes because he did not have money and that he did not want to ask his grandma for money to attend the classes. He also noted that "they" told him that if he missed too many classes, "they" would terminate him. He explained that "every time" he went, he "didn't have money," so when he first went to his classes, "they gave [him] three waivers, and they told [him] if [he] didn't get the minimum of three of them, they're going to terminate [him.]" Defendant further noted: "Even though I would be violated or something, I couldn't just ask her for money; I seen her struggling all the time. [¶] And now that I see that I violated, like it's really serious, I would really take it serious, because I think I was—wasn't in the right state of mind."
On cross-examination, defendant stated that he had tried to explain his money situation to his probation officer but the woman at the front desk told him "she was always out or something" and that they were going to send messages to her but defendant guessed that they never did. He also noted that he had showed the woman at the front desk his medical card, and she said she would inform his probation officer, but she never did. He also told the woman that he had no job so he could not go to the classes and that she responded that he should try his best to go to the classes. Defendant further claimed that he did not receive any letters directing him to report to probation on June 8 or October 3, 2016. He also denied having received a letter from his probation officer on May 5, 2016. He noted that the probation officers came to his house on May 5, 2016, but that they did not give him any letter directing him to report to probation on June 8, 2016, and told him to check in on August 7, 2016, or "something like that."
The People thereafter recalled Probation Officer Toleston on rebuttal. Probation Officer Toleston explained that she had no confirmation or documentation to support defendant's testimony that he reported to the probation office, or informed the probation office that he had a marijuana card, or had issues attending the child abuse classes. Probation Officer Toleston also stated that she and Probation Officer Craddock went to defendant's house on May 5, 2016, and personally gave defendant an appointment card directing him to report on June 8, 2016.
Following argument, the trial court found defendant in violation of probation. The court explained, "The Court will find that the defendant is in violation of Terms 3 [reporting clause], 4 [cooperation clause], and [25] [attend child abuse classes] of his grant of probation. I think they can technically find him in violation [of] Term 15 [not possess drug paraphernalia] also. The Court will find there's no violation of Term 13. That's the marijuana." The court terminated defendant's probation and sentenced him to a total term of six years in state prison with 365 days of credit for time served.
III
DISCUSSION
A. Violation of Probation
Defendant argues that the trial court's revocation of his probation was an abuse of discretion and a violation of his due process rights because the court's findings were not supported by substantial evidence since he did not willfully violate his probationary terms. We disagree.
A court may revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her supervision." (§ 1203.2, subd. (a).) " '[A] summary revocation gives the court jurisdiction over and physical custody of the defendant and is proper if the defendant is accorded a subsequent formal hearing in conformance with due process. [Citation.] [¶] Therefore, after the summary revocation, the defendant is entitled to formal proceedings for probation revocation. The purpose of the formal proceedings is not to revoke probation, as the revocation has occurred as a matter of law; rather, the purpose is to give the defendant an opportunity to require the prosecution to prove the alleged violation occurred and justifies revocation. [Citation.]' [Citation.]" (People v. Leiva (2013) 56 Cal.4th 498, 505.)
" ' "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.]' [Citation.] The standard of proof in a probation revocation proceeding is proof by a preponderance of the evidence. [Citations.] 'Probation revocation proceedings are not a part of a criminal prosecution, and the trial court has broad discretion in determining whether the probationer has violated probation.' [Citation.]" (People v. Urke (2011) 197 Cal.App.4th 766, 772, fn. omitted (Urke); accord, People v. Rodriguez (1990) 51 Cal.3d 437, 445 (Rodriguez).)
"A court may not revoke probation unless the evidence supports 'a conclusion [that] the probationer's conduct constituted a willful violation of the terms and conditions of probation.' [Citation.] Where a probationer is unable to comply with a probation condition because of circumstances beyond his or her control and [the] defendant's conduct was not contumacious, revoking probation and imposing a prison term are reversible error. [Citation.]" (People v. Cervantes (2009) 175 Cal.App.4th 291, 295; see People v. Zaring (1992) 8 Cal.App.4th 362, 379 (Zaring) [unforeseen circumstances beyond the defendant's control].) A violation is not willful, for example, when the defendant is unable to appear in court due to deportation. (Cervantes, at p. 293; see People v. Galvan (2007) 155 Cal.App.4th 978, 982-983 [physically unable to report to probation in person due to deportation].)
"We review a probation revocation decision pursuant to the substantial evidence standard of review [citation], and great deference is accorded the trial court's decision, bearing in mind that '[p]robation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court. [Citations.]' [Citation.] [¶] 'The discretion of the court to revoke probation is analogous to its power to grant the probation, and the court's discretion will not be disturbed in the absence of a showing of abusive or arbitrary action. [Citations.]' [Citation.] 'Many times circumstances not warranting a conviction may fully justify a court in revoking probation granted on a prior offense. [Citation.]' [Citation.] ' "[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. . . ." ' [Citation.] And the burden of demonstrating an abuse of the trial court's discretion rests squarely on the defendant. [Citation.]" (Urke, supra, 197 Cal.App.4th at p. 773.)
Applying the substantial evidence standard here, we review the entire record of the probation revocation proceedings, viewing the evidence in the light most favorable to the trial court's order, presuming in support of the order the existence of every fact the court could reasonably deduce from the evidence. (See People v. Jones (1990) 51 Cal.3d 294, 314.) Most significant to our discussion in this case is the rule that "it is the exclusive province of the trial [court] to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the [order] is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]" (Ibid.) We do not reweigh the evidence and must draw all reasonable inferences in support of the order. (People v. Culver (1973) 10 Cal.3d 542, 548.)
Despite these constraints on appellate review, defendant's substantial evidence discussion consists of arguing that the evidence should be reweighed and the credibility of the witnesses should be resolved in derogation of the trial court's findings. Defendant argues that his probation violations were not willful because he reported he could not pay for his child abuse classes because he was unemployed. He also asserts that his failure to report was not willful because his failure to report was "due to confusion as to who he was required to report." Finally, he claims that the court could not find him in violation of probation due to possession of drug paraphernalia because "possession of a device for smoking marijuana is not a crime."
We will not address defendant's claim concerning his possession of drug paraphernalia because it appears the court found defendant in violation of probation based on defendant violating "Terms 3 [reporting clause], 4 [cooperation clause], and [25] [attend child abuse classes]." The court merely stated that it can "technically find him in violation [of] Term 15 [not possess drug paraphernalia] also," but it did not base its finding on that term in finding defendant in violation of probation. Indeed, a thorough review of the probation revocation hearing shows that the court was not focused on defendant's possession of drug paraphernalia in determining whether defendant violated probation. --------
Substantial evidence supports the trial court's finding that defendant willfully violated his probationary terms by failing to report to probation as directed, failing to cooperate with his probation officer in a plan of rehabilitation and follow all reasonable directives of his probation officer, and failing to attend and complete his child abuse classes. The record shows that defendant last reported to his probation officer on April 29, 2016, and that he was personally given an appointment card by his probation officers on May 5, 2016, directing him to report on June 8, 2016. Defendant was also mailed a letter on September 26, 2016, directing him to report on October 3, 2016. However, defendant failed to report as directed to do so on June 8 and October 3, 2016. There is no indication in the record to support defendant's assertion that he was confused as to when and to whom he should report or that the probation department provided him with inadequate direction. In fact, defendant never testified that he was confused or that he was given inadequate directions after his first assigned probation officer, Probation Officer Craddock, took a leave of absence. Rather, he adamantly claimed that he never received any letter or appointment card to report. He never asserted, as he does now on appeal, that he was confused as to his reporting requirements or that he was provided with inadequate reporting instructions.
Defendant relies on People v. Buford (1974) 42 Cal.App.3d 975 (Buford) and Zaring, supra, 8 Cal.App.4th 362 to support the argument that his failure to report in this case was not willful and does not support the court's finding that he was in violation of probation. However, while both of the cases cited involved probationers who were found not to have violated their probation willfully, the cases are distinguishable from the facts of the present case, and do not support defendant's position.
In Zaring, supra, 8 Cal.App.4th 362, the court found that the defendant had not willfully violated her probation when she arrived for her court appearance 22 minutes late, because she was confronted with last minute, unforeseen circumstances that prevented her compliance with the court's order that she arrive on time for the hearing. The court found that the defendant's conduct did not show irresponsibility or disrespect for court orders. (Zaring, supra, 8 Cal.App.4th at p. 379.) In Zaring, the court further noted that there was nothing in the record to support a conclusion that defendant's conduct "was the result of irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court." (Id. at p. 379.)
In Zaring, the defendant was prevented from complying with the on-time term of her probation by circumstances beyond her control. Specifically, the defendant was prevented from arriving at court on time due to childcare responsibilities beyond her control. Here, unlike in Zaring, defendant failed to report to probation due to circumstances in his control. There is nothing in this record showing that defendant was prevented by circumstances beyond his control from complying with his reporting requirement. Defendant had control over his conduct and the circumstances of the reporting, and willfully failed to report to probation. Moreover, unlike in Zaring, the record shows that defendant's conduct "was the result of irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court." (Zaring, supra, 8 Cal.App.4th at p. 379.)
In Buford, supra, 42 Cal.App.3d 975, the defendant's circumstances were different from those in Zaring. Instead of being prevented from complying with the terms of probation because of circumstances beyond his control, the defendant in Buford was not given enough information from his probation officer about his probation conditions and what was required of him. As a result, when the defendant violated his probation, it was not willful. The court in Buford found that the trial court abused its discretion in revoking probation because the finding was not supported by substantial evidence. (Buford, at pp. 984-985.)
Here, unlike the defendant in Buford, defendant was fully aware and informed of his reporting requirement. This is supported by the fact that Probation Officer Toleston reviewed with defendant his probationary terms and conditions and that defendant did initially report. There is no indication in the record to support defendant's contention that he was confused or was provided with inadequate reporting instructions.
The court's finding that defendant willfully violated probation by failing to report to probation as directed is supported by substantial evidence. The court did not abuse its discretion in finding defendant was in violation of his probation based on violating the reporting term.
Likewise, there is substantial evidence to support the court's finding that defendant violated term No. 4 by failing to cooperate with his probation officer in a plan of rehabilitation and follow all reasonable directives of his probation officer. Defendant does not address the court's finding as to this term. In any event, as explained above, the record shows that defendant willfully failed to report on several occasions to probation as directed. In addition, defendant failed to attend his child abuse classes. As such, defendant willfully failed to cooperate in a plan of rehabilitation and follow all reasonable directives of his probation officer.
Citing Bearden v. Georgia (1983) 461 U.S. 660 (Bearden), defendant contends the trial court committed reversible error by failing to inquire and make findings regarding his ability to pay before finding his failure to attend child abuse prevention classes constituted a violation of probation. Alternatively, defendant argues the evidence at the probation revocation hearing established he lacked the financial ability to comply with that probation condition as he was unemployed, and therefore his failure to attend and complete his mandated child abuse classes was not willful. Neither contention has merit.
In Bearden, supra, 461 U.S. at page 672, the Supreme Court held that in probation revocation proceedings based on the defendant's failure to pay a fine or restitution, the sentencing court must "inquire into the reasons for the failure to pay." "If the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection." (Id. at p. 668.) "But if the probationer has made all reasonable efforts to pay the fine or restitution, and yet cannot do so through no fault of his own, it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available. This lack of fault provides a 'substantial [reason] which [justifies] or [mitigates] the violation and [makes] revocation inappropriate.' " (Id. at pp. 668-669, fn. omitted.) The court may not imprison a person for failing to comply with conditions of probation if the person did not comply "solely" because of an inability to pay. (Id. at pp. 667-668; see § 1203.2, subd. (a) [probation shall not be revoked for failure to make restitution as a condition of probation "unless the court determines that the defendant has willfully failed to pay and has the ability to pay"]; see also § 1203.1b, subd. (a) [before ordering defendant to pay reasonable cost of probation, court must determine defendant's ability to pay].)
Here, defendant was not ordered as a condition of probation to pay the costs of the child abuse prevention classes (cf. Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321-322 [defendant ordered to undergo polygraph testing at his own expense as a condition of probation]), and the record does not reflect whether his probation officer provided him with referrals to any low- or no-cost programs. There is also no indication in the record defendant informed the court or his probation officer of any purported inability to pay for the child abuse classes either when the condition was first imposed or on the two occasions when the court modified the condition and allowed defendant more time to complete the 52-week child abuse program.
In any event, the record establishes the trial court sufficiently inquired into defendant's ability to pay and provided defense counsel an adequate opportunity to present evidence of defendant's financial situation when it invited counsel to address defendant's failure to complete the program. (See In re I.M. (2005) 125 Cal.App.4th 1195, 1210 ["Due process requires only that a defendant in such cases be afforded an opportunity to present evidence on the issue of his ability to pay"].) Defendant testified that he was employed but terminated due to his felony conviction and that he was helping to pay for his grandma's rent. He explained that he gave her almost all his money. He also stated that he could not attend his child abuse treatment classes because he could not pay. However, with no affirmative evidence to support his argument, the trial court was fully justified in discrediting defendant's testimony. Furthermore, the record demonstrates that defendant's child abuse treatment program terminated defendant for nonattendance rather than nonpayment. The child abuse program sent defendant's probation officer a letter indicating that defendant was terminated from the program due to nonattendance. In addition, defendant admitted that the child abuse program informed him that they would terminate him if he missed too many classes. Moreover, defendant testified that the child abuse program provided him with waivers when he could not pay for the classes and that if he did not attend a "minimum of three of them, they're going to terminate [him]." The record also indicates that defendant had never made a good faith effort to attend and complete the child abuse program. It is a reasonable inference from this evidence that defendant did not intend to comply with this probation condition, whether or not he had the ability to pay.
The trial court's finding that defendant's failure to complete the child abuse treatment program was willful and voluntary, resulting in a violation of probation, is supported by substantial evidence.
Based on the foregoing, we find that substantial evidence supports the trial court's finding that defendant willfully violated his probationary terms and conditions by failing to report to probation as directed, failing to cooperate with probation, and failing to attend and complete his child abuse treatment program. As defendant has failed to show that the violations were unsupported by substantial evidence, he has not demonstrated an abuse of discretion. (See Urke, supra, 197 Cal.App.4th at p. 773.)
B. Rejection of Defendant's Witnesses
Defendant also contends that the trial court erred in refusing to allow his witnesses to testify at the probation violation hearing in violation of his due process rights and to call witnesses in his favor. We disagree.
Because revocation of probation is not part of a criminal prosecution, a probationer is not entitled to " 'the full panoply of rights due a defendant [in a criminal prosecution] . . . .' " (Rodriguez, supra, 51 Cal.3d at p. 441, quoting Morrissey v. Brewer (1972) 408 U.S. 471, 480.) In particular, the Sixth Amendment right to confront adverse witnesses does not apply to probation revocation hearings. (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1199 (Shepherd).) "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." (Morrissey, at p. 481.)
At a probation revocation hearing, a probationer is entitled to the opportunity to be heard in person and to present witnesses and documentary evidence. (People v. Arreola (1994) 7 Cal.4th 1144, 1152-1153; Vickers, supra, 8 Cal.3d at pp. 460-461.) However, our Supreme Court has held that " '[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice. [Citations.]' " (People v. Cudjo (1993) 6 Cal.4th 585, 611, quoting People v. Hall (1986) 41 Cal.3d 826, 834-835.) Furthermore, the California Supreme Court has concluded that " '[t]he trial court has broad discretion in determining the relevance of evidence [citations]. . . .' [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 973, quoting People v. Scheid (1997) 16 Cal.4th 1, 14.) "A trial court's decision to admit or exclude evidence in a probation revocation hearing will not be disturbed on appeal absent an abuse of discretion." (Shepherd, supra, 151 Cal.App.4th at pp. 1197-1198.)
Here, contrary to defendant's assertion, the trial court did not refuse to allow defendant to present his witnesses. In fact, the trial court stated that it was "happy to consider" anything relevant to the probation violation allegations that defendant "didn't report, according to the evidence, and he didn't do his class, and he's smoking marijuana every other day and not working." The court at no point informed defendant that his witnesses could not testify and even asked defense counsel for an offer of proof as to whether the witnesses had "anything to say in response to Terms 3 [reporting clause], 4 [cooperation clause], and [25] [attend child abuse classes]." When defense counsel informed the court that he had a couple of defense witnesses, he stated that the witnesses would testify that defendant was hard at work, had to travel due to his work, and used marijuana for medicinal purposes. Defense counsel did not provide an offer of proof as requested by the trial court, but informed the court that defendant had support in the community. The court acknowledged that defendant had support and accepted the offer of proof as to that issue, but explained to defense counsel that it did not "need to take the time up unless it's relevant to an issue the Court has to decide today." Indeed, the court clarified that it was "not denying any rights" and reiterated that the court just needed information that was relevant to what it had to "decide today." The court could reasonably conclude that defendant's offer of proof as to what defendant's witnesses would testify to was not relevant to the specific facts of defendant's probation violations.
A thorough review of the probation violation hearing shows that the trial court did not prohibit defendant from presenting witnesses on his behalf. Rather, the court impliedly excluded defendant's witnesses from testifying because their testimony was not relevant to the disputed issues presented at defendant's probation violation hearing. Defense counsel admitted that the witnesses did not have details about defendant's financial circumstances, and he did not inform the court how testimony about defendant's work habits in general would address his reporting requirements and child abuse classes. As noted above, the court stated that it was already aware that defendant had support in the community. Thus, such testimony would not have provided the court with any new information. At trial, a defendant's right to present evidence contemplates the presentation of evidence that has a significant probative value. When a trial court applies the ordinary rules of evidence, it does not generally infringe on a defendant's constitutional rights. (People v. Boyette (2002) 29 Cal.4th 381, 427-428.)
Even if we assume, for the sake of argument, the trial court erred in excluding defendant's witnesses from testifying at the probation violation hearing, such error was harmless under either Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), or People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). Here, there is no indication in the record that defendant's witnesses would have provided exculpatory evidence concerning defendant's willful failure to report to probation as directed, defendant's willful failure to cooperate with probation, or defendant's repeated failure to attend and complete his required child abuse prevention classes. Furthermore, evidence had already been presented that defendant informed his probation officer on November 5, 2016, that he had only been unemployed for about three months. Even if defendant was working before that three-month period, testimony that he was hard at work or traveled for work would not have excused his failure to report to probation on June 8, 2016, or his failure to contact his probation officer to reschedule. Furthermore, even if defendant's witnesses testified that defendant had support in the community, it would not have made a difference to the trial court. The court informed defense counsel that it assumed defendant had support from family because someone was paying for his living expenses. The court also stated that "we all understand that he's got support from his family." The fact that defendant had support from his family and/or friends would not have been exculpatory for the specific and disputed probation violations defendant committed, as noted by the court. The court's statements indicated that defendant had sufficient opportunity to succeed on probation yet had not done so even with the support of his family.
Evidence Code section 354 in pertinent part provides: "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice . . . ." In sum, even if the trial court erred in excluding defendant's witnesses from testifying at the probation violation hearing, it is not reasonably probable that a result more favorable to defendant would have been reached absent the error. (Watson, supra, 46 Cal.2d at p. 836.) The error also would have been harmless beyond a reasonable doubt. (Chapman, supra, 386 U.S. at pp. 23-24.)
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. SLOUGH
J.