Opinion
C083905
01-29-2019
THE PEOPLE, Plaintiff and Respondent, v. TROY BARTON WALLERS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 08F1747)
Defendant Troy Barton Wallers appeals from the trial court's order revoking probation and imposing a previously suspended 12-year state prison term. He contends the trial court abused its discretion because it erroneously believed he was presumptively ineligible for probation; he also contends the court abused its discretion on the facts even aside from the presumption. Finally, he contends he is entitled to one additional day of presentence custody credit. Agreeing with the last contention but finding any other error harmless, we will direct the abstract of judgment to be corrected to award defendant an additional day of custody credit. We otherwise affirm the judgment.
PROCEEDINGS
In 2010, a jury convicted defendant of four counts of lewd acts on a minor under 14 (counts 1-3 and 6; Pen. Code, § 288, subd. (a) [statutory section references that follow are to the Penal Code unless otherwise set forth]) and two counts of misdemeanor annoying or molesting a minor (counts 7-8; § 647.6, subd. (a)). The trial court imposed a state prison sentence of 12 years, consisting of the middle term of six years on count 1, plus two years consecutive on counts 2, 3 and 6, plus one year consecutive on counts 7 and 8. The court then suspended execution of sentence for 10 years and placed defendant on formal probation, including 360 days in county jail. The terms and conditions of probation included (among others) not violating any laws, completing an adult sex offender treatment program, not possessing pornography, not being on a school campus without prior permission from the school authorities, and not being in any place where minors congregate unless his presence was approved by the probation officer.
This court affirmed defendant's convictions and sentence, modifying the last probation condition to read that defendant could not be in places "where he knows minors congregate [etc.]." (People v. Wallers (Aug. 21, 2012, C065153) [nonpub. opn.].) At defendant's request, we incorporate by reference the record on appeal in case No. C065153.
On January 19, 2016, the Shasta County probation department filed a petition to revoke defendant's probation, alleging that (1) he unlawfully possessed pepper spray, and (2) he possessed pornographic videos and images on his cell phone.
On June 13, 2016, the department filed a second petition to revoke defendant's probation, alleging that (1) without prior permission from the school authorities, he was on a school campus, and (2) without the probation officer's approval, he was in a place where minors congregate. Both allegations stemmed from defendant's attendance at a youth basketball tournament at Butte College on April 30, 2016.
On November 4, 2016, following a contested hearing, the trial court found the second and fourth allegations true. (The court did not sustain the pepper spray allegation, and made no finding as to the school campus allegation. We do not discuss these allegations further.)
On January 18, 2017, the trial court revoked defendant's probation and imposed the previously suspended state prison term.
FACTS
A. Prosecution Evidence Presented at the Probation Revocation Hearing
On September 29, 2010, Probation Officer Susan Vonasek met with defendant and reviewed the terms and conditions of his probation with him.
On December 10, 2015, during a probation search at defendant's residence, officers located a Samsung cell phone. Defendant denied it was his. When officers called the contact number defendant had given the department, the phone rang. Defendant said the phone was his son's but admitted he used it, then gave them the passcode. The officers told him they were looking for pornography. He said: "I do have porn. What do you expect me to beat off to?" The officers found pornographic videos and pictures, and the phone's browsing history listed pornographic web sites.
On December 15, 2015, Probation Officer Daniel Gallino met with defendant and gave him a copy of the terms and conditions of his probation.
On April 30, 2016, defendant attended an elementary and middle school basketball tournament at Butte College in Oroville, which was "a girl's tournament overall." He was seen with a child sitting on his lap. He had not contacted Marshall Gordon, his current probation officer, about attending the tournament, and Gordon had not given him permission to be on a school campus at a youth basketball tournament, to be in the company of a child under 18, to be on the Butte College Campus, or to be out of Shasta County. Defendant, a registered sex offender, did not seek or obtain permission from Butte College law enforcement to be on the campus.
B. Defense Evidence Presented at the Probation Revocation Hearing
Defendant's ex-wife, Elizabeth T., testified that after completing his sex offender treatment program, defendant asked her to contact probation to confirm that he could now attend their daughter's basketball games as long as they were not held at a grammar school. His then probation officer, Jeremy Kenyon, had already told her defendant would be allowed to do so. She invited defendant to attend the game at Butte College.
Defendant's nephew, Seth Miller, testified that defendant invited him to the game as a chaperone.
Kenyon, who was defendant's probation officer from January 2012 to January 2014, testified that defendant completed his sex offender treatment program during that period. The program's contract, which terminated at the end of the program, barred the possession of pornography. However, the contract's termination did not affect the terms and conditions of defendant's probation, which still forbade possessing pornography.
After defendant completed the program, he was placed on the "banks" caseload, which meant he could report monthly rather than weekly and electronically or telephonically rather than in person, and could leave the county for less than 30 days without the probation officer's permission. "Banks" status did not otherwise affect defendant's terms and conditions, however. Furthermore, defendant was later taken off that status.
Kenyon recalled that Elizabeth T. had initially not wanted defendant to visit their daughter, but later agreed to visits as long as she could supervise him.
Defendant testified on his own behalf that his ex-wife had called him before the game at Butte College inviting him to attend and saying that Kenyon had permitted him to be almost anywhere with his daughter except a city park or a K-12 school, as long as his ex-wife approved. Defendant knew his former prosecutor was his daughter's team's assistant coach, so defendant would never have gone if he had thought he would be breaking any laws. His first probation officer had told him that the prohibition against being on campus applied only to K-12 schools.
The cell phone the police found was his son's, but everyone in the house used it because there was no land line. Defendant admitted he had given the number to the probation office. He also admitted he had downloaded pornography. He thought once he had finished the sex offender treatment program, its "rules were over."
According to defendant, Kenyon told him that once he was on the "banks" program, he would no longer have to worry about the treatment program or "any of those rules." He would no longer have a probation officer, but only a contact number to report to. No one had told him he was not still on the "banks" program. He did not know he still had a probation officer until after he attended the basketball game on April 30, 2016. Marshall Gordon, his current probation officer, had recently tried to see him, "but I was in there to discuss some stuff and he wanted me to talk to [his] lawyer. He didn't want to talk to me."
On cross-examination, defendant admitted that someone gave him his terms and conditions "and judgment and sentencing paperwork" in December 2015, although he did not know it was a probation officer. He also admitted that his nephew, who went to the basketball game with him, was not a chaperone approved by probation, and he did not advise probation his nephew would be with him. Although he disclaimed owning the phone found by the officers, he had run Craigslist ads on it, giving its number and calling himself by his middle name. He admitted he told the officers: "What is a guy supposed to do when he is playing with himself[?]"
Sustaining the allegation of possessing pornography, the trial court found: "[A] probation officer didn't come in here and specifically define those things which are considered to be pornographic. However, multiple probation officers testified regarding going through his terms and conditions of probation, pornography is not a legal term of art, it is as it was said some other time about another word, obscenity is you know when you see. And . . . the word itself is certainly susceptible of a common meaning. [¶] In this particular circumstance, having been through the sexual offender treatment program with Dr. Blasingame, this is not a mystery here with what pornography is. He is aware of it and how to download it and cannot set his own standard with regard to [']Blasingame is over and all rules are out the window.['] If he really meant that it was probation rules that were also out the window, then there would be no reason for him to be worried about anything. He certainly knew that that was not correct. [¶] I found his testimony with regard to that, dubious for a number of reasons. [Defendant] seems to be a person searching for answers and the correct ones and many of his answers are just not logical in the common sense view with regard to other things. Downloading pornography on his son's phone is something that nobody would do. He was evasive and somewhat argumentative. He seems to have his own agenda while testifying. [¶] So with regard to the argument that it had to be . . . a . . . knowing violation, those observations by myself in viewing the quality and character of the testimony, [that testimony] is not believable."
Sustaining the allegation that without his probation officer's approval, defendant attended a place where minors congregate, the trial court found: "It was very clear from the testimony of Mr. Kenyon that . . . [defendant and] his ex-wife . . . were working on how he was to have contacts or visitation with his daughter. [¶] . . . [H]e was allowed to have contacts with his daughter under the supervision and permission of his ex-wife as long as it was consistent with his terms of probation. The very specific term of probation -- . . . it is not to be in places where minors congregate. That could be a lot of different places. In this particular situation, it was . . . Butte College. It's not necessarily relevant whether it was U-Prep Elementary School or this. The key piece here is where minors congregate. He went there and there was [sic] a lot of minors congregating. [¶] His . . . ex-wife . . . cannot change his terms of probation. And while it was certainly inferred . . . he can go anywhere he wants, regardless of who is there, so long as his ex-wife is present[,] [t]hat's not the term of probation. . . . And this was a place that he knew when he traveled there, that there would be minor children."
The trial court referred the matter to probation.
C. The Supplemental Probation Report
The probation department's supplemental report, which also alludes to the original presentence investigation report, stated that after the probation violation hearing, defendant told probation officer Gordon that the victim in the underlying case had written a letter saying defendant did not do the crime for which he was convicted.
At a subsequent meeting, defendant talked about a polygraph test he had taken at the time of his trial which allegedly proved him innocent. Probation Officer Gordon recalled that the presentence investigation report had discredited this test.
During defendant's contacts with Gordon, he appeared to be trying to direct attention away from the subject at hand, to play on Gordon's emotions, and to continue to maintain his innocence, as he had done at the time of the presentence investigation report. He spoke of a letter from the victim that proved his innocence, and gave Gordon "a glance" at the discredited polygraph test. His "use of subterfuge" was also reflected in the sheriff's report as to his attempt to disclaim ownership of his cell phone. He consistently blamed his violations of his "clear and easily understood" terms and conditions on misunderstandings or misdirection by prior probation officers.
At the time of the presentence investigation report, defendant admitted acting inappropriately with his niece (the victim) by taking a shower with her ' "one and a half times." ' (One of those times she got in with him and he felt this was inappropriate, so he left.) He claimed the victim had tried to enter his room many times when he was changing clothes, and once ' "sh[ook] her bottom" ' provocatively in his face. He then decided to use ' "scare tactics" ' to convince her she would end up pregnant at an early age, like her mother, but he was now sorry things went as far as they did. He felt he should have been convicted only of the misdemeanor "annoying" charges, not of the felony "lewd act" charges.
According to a 2010 psychological assessment by Dr. Kent Caruso summarized in the presentence investigation report, defendant seemed immature for his age, attempted to portray himself in a favorable light, and might not be inclined to make good decisions. He was "more comfortable than the average adult in violating conventional norms and mores." Although more opportunistic than predatory toward the victim, in Caruso's opinion ' "he either gets an A+ in stupidity or is guilty as charged." ' His explanations were often not only ' "wholly lacking in insight and illogical, but irrational and bordering on bizarre at times." ' However, despite his blaming the victim and other family members and alluding to a conspiracy against him, Caruso thought he was at low risk for reoffense. A 2009 Static-99 assessment similarly determined defendant was in the "medium-low range of risk" to reoffend.
In Gordon's opinion, defendant's reiteration of his family responsibilities was "part of his front to avoid punishment after the fact," since he had not considered these responsibilities before violating probation.
Because defendant had not committed new crimes, he remained technically eligible for probation. Defendant had taken no real responsibility for his actions, continued to insinuate that the victim was not a victim, continued to mislead law enforcement and probation with false statements and documentation, and continued to act as though his terms and conditions did not matter or as though probation would not find out about any violations. Therefore, Gordon recommended imposing the suspended state prison sentence.
D. Judgment and Sentencing
Defendant requested reinstatement of probation, including 90 days in custody and 10 more sex offender counseling sessions, as recommended by probation officer Gordon before the probation violation hearing.
Defendant attached a number of supporting documents: (1) letters from family members and acquaintances; (2) a declaration proclaiming his remorse for his offenses, acknowledging his probation violations, and attaching his 2010 polygraph test "so the judge can have a full record of the items discussed by Mr. Gordon in his supplemental report"; (3) a police report from an unrelated case in which he had allegedly helped an officer subdue a suspect; and (4) a statement signed by T.T., the victim in his 2010 case, and Elizabeth T., his ex-wife, which read as follows: "After a lot of thought and consideration, in addition to years of growing up and maturity, I have come to the conclusion that [defendant] did not have an erection or sexual intent while in the shower with me. With that being said, I NEVER lied. At a young age, it is possible the questions regarding an erection or sexual intent were misunderstood. I do not want this case to be re-opened or have to relive any of what I have already gone through, while every other detail is accurate. I simply want to set the record straight. This is a detail that as I've gotten older I realize I did not fully understand. [¶] I have NOT spoken to [defendant] about this case nor have I been forced to write this document." (It is not clear why Elizabeth T. signed this document.)
At the outset, the trial court made several rulings as to defendant's submissions. The court granted the prosecutor's motion to strike defendant's declaration. The court declined to consider T.T.'s statement because it contradicted the jury's verdict and amounted to inadmissible speculation as to defendant's past state of mind. The court stated that the purported polygraph results would be considered only as evidence of "manipulation" on defendant's part, since they had been debunked and defendant had recently tried to give them to his probation officer under suspicious circumstances. Lastly, the court accepted the parties' stipulation to the contents of the police report in the unrelated case and excused the officer from testifying.
Defendant called his girlfriend Loretta Catona, his ex-wife Elizabeth T., an acquaintance named Joseph Carpenter, and his adult son Brendon Wallers (all of whom had written letters for him) as witnesses; he also testified on his own behalf.
Catona testified that she and defendant had a five-year-old son and defendant was a great father. She had tried to contact probation officer Gordon to find out how she could help defendant follow the rules, but he never called her back.
Elizabeth T. testified that she had invited defendant to their daughter's basketball game (meaning that she had given him the schedule of the team's games, and this was the only one he could attend); he was aware that his former prosecutor, the assistant coach, might be there. She believed defendant was remorseful about his past acts and had learned a lot from therapy.
Joseph Carpenter, an administrator at Shasta County Department of Mental Health, testified that he had interacted with defendant and his five-year-old son and believed defendant was a good father. He had always been "proactive" about learning what procedures he needed to follow under his probation conditions in order to be around children. Having known him since before his conviction, Carpenter found that defendant had changed: he "carries an aura of remorse and regret." Although he worked hard to try to do the right thing, he seemed "more heavy hearted," because the consequences of his conviction touched every part of his life. Carpenter attended defendant's trial and knew the substance of the charges against him. Carpenter believed defendant had taken responsibility for his actions and had never pointed fingers at anyone else.
Brendon Wallers testified that he and defendant and defendant's young son were "just a big family, . . . always doing things that families do." Defendant had expressed remorse for his past conduct and "takes ownership of the things he did." He took his terms and conditions of probation seriously.
Defendant testified that he had been on probation for over six years, had never violated it before, and was willing to comply with his terms going forward.
Defendant had read the supplemental probation report and regretted that Probation Officer Gordon had misunderstood him. He had not intended to give Gordon the impression that he was not sorry about molesting his niece. However, he had been "a little excited about . . . some of the letters" he had received in support, and that might have given Gordon the wrong impression. Although it had taken awhile to sink in during therapy, it finally hit him that he had actually hurt somebody, and he now regretted it every day.
Asked how he had taken responsibility for his actions, defendant said: "Well, I [owned] up to what I did in therapy, and I took polygraph tests to do that. And I have been paying all my bills . . . [and] court fines, . . . and I tried to do everything right." He had been in therapy for over three and a half years; it had helped a lot. If ordered to go back to therapy, he would do so.
Asked about "manipulation," defendant said that in November 2015 he had told a "probation assistant person" named Jennifer: "I have been doing great, it's been over five years, I got this job, here's the phone number of this guy, he's going to hire me out of state, I want to get off probation." The first time he met with probation officer Gordon, Gordon asked immediately: "[W]hy are you manipulating Jennifer?" Defendant concluded she must have reported that he was trying to manipulate her to get off probation.
If defendant were sent to state prison, it would greatly impact his young son because "it's a lot more likely for him to be some kind of criminal if I go to prison, you know, if I'm not around. And I just know that his mom needs help." It would also hurt the whole family, and others besides, because "I help lots of people."
Defendant was "definitely sorry" he had pornography on the cell phone, and he had not downloaded anything since the probation search. After talking to his lawyer and his old probation officer (Kenyon), he knew what he had done wrong. He had been confused about the rules because he had been in Dr. Blasingame's program which said "no porn," but then had graduated from the program; he was supposed to check with his probation officer after that, but misunderstood.
As for the basketball game, he was "so sure that I had all my stuff in order to be at that game." However, "it's completely my fault, and I misread it." From now on, he would "go completely off the sentencing" and "whatever you tell me to do, I'm going to do that." Although he now knew what he had done wrong, he was proud to attend the game and felt he had "earned" it because he had been through the Blasingame program and had thought he had done what he was supposed to do to be at the game. From now on, he would "get my rules out and . . . read it every day."
On cross-examination, defendant admitted that he would not have taken his son to a park because he knew he was not supposed to be at a place where minors congregate. He did not understand at the time that a basketball game between teams of 12-year-olds with their families, including other children, was also such a place.
Asked what crimes he had committed, defendant said he had taken advantage of his eight-year-old niece: "In therapy we figured out that her in the shower with me -- or me in the shower with her was completely inappropriate. And I guess that during this time I washed her hair, and that's a 288. And I think that possibly my -- something on my body part touched her back, I'm not sure, but we discussed that in therapy, and there is no other thing that I did." Asked if the "body part" was his penis, he said: "Possibly." Reminded that the victim had testified his penis touched her back, he said: "It could have. We were in close proximity." These joint showers happened only twice during the time period covered by the charges against him.
Defendant denied telling the victim that he had had sex with her while she was sleeping and that she was on top. Asked whether he remembered that he had said he said those things because he was trying to teach her a lesson about sex so she would not get pregnant young, he denied saying that; he also did not remember making that claim in his written statement for the 2010 probation report. He did not remember trying to give her a pregnancy test and said he had not done so. He did not remember a conversation in which she told him she had not started her periods.
Defendant recalled that his 2010 statement discussed his polygraph test, claimed it was "very accurate," and showed that he was "honest" in saying he did not do anything wrong. He did not manufacture the test results: he paid for the test, went to Sacramento to take it, and passed. Asked if anyone had ever located the purported tester, he said: "The way I feel about it is I think she was a little company trying to start up. She had all the equipment. . . . I went to a legitimate place in this building, and I took a polygraph because I wanted to show my father-in-law."
Asked why he brought the polygraph results to his current probation officer, defendant said: "[T]hat kind of ran into the thing where I got excited about the letter that T[.]T[.] wrote me [the victim's letter purporting to prove his innocence, which the trial court declined to consider]. And I always wanted to drop my felonies to misdemeanors, and that's how I felt about it. And I wanted to maybe have a better life for me and my family. I -- as a felon I couldn't do anything, and nobody wants to talk to me and give me a job. And so I have to create my own money, so . . . and so basically I -- I wanted to talk to him about it." He was trying to show the probation officer that he did not "con" Jennifer, "so basically it all cascaded into me being excited, maybe I was looking for him, my probation officer for advice. I have nobody else to go to. I thought maybe he would say hey check this out. I did not show him the letter, I just -- I had a folder in front of me, and he says what do you got there. I said well this is the stuff, and I started talking to him, and he started getting mad at me." Defendant admitted he was trying to get off probation early.
After admitting that he "absolutely did" commit the four felonies and two misdemeanors he was convicted of, defendant tried again to explain why he kept talking about polygraph results: "I wanted to possibly show him the -- I always -- I always felt that I wanted to downgrade my felonies to misdemeanors so I could have a life." He was excited about T.T.'s letter because he thought it could help him do that. The letter stated that his erect penis did not touch her back, whereas in court she had said it did, which was "impossible. I told everybody that in the first place, it didn't touch her back. Something could have touched her back, but it wasn't my wiener. And I passed four polygraphs [including tests taken during his treatment program] saying that didn't happen." However, defendant was "definitely not calling [T.T.] a liar whatsoever."
The trial court rendered sentence orally in a statement that takes up eight closely spaced pages of reporter's transcript. We give the main points here (all italics added).
The court found that this "was not the easiest of decisions to make," partly because "there is a prison term with an executed suspended sentence which ties the hands of the Court down the line."
After noting that defendant's supporting letters and testimony mostly failed to recognize the seriousness of his crimes, the court stated: "1203(e) [§ 1203, subd. (e)] applies in th[ese] circumstances as it did at the time of the initial sentencing. And that is, probation may be granted only in unusual cases where the Court finds . . . the interest of justice would best be served [by] probation. Judge Bigelow apparently found those things. It can only be granted following the receipt and consideration of a report under Section 288.1."
"[T]he primary issues that that 288.1 report [summarized in the initial probation report] provides [sic] . . . is important to the Court now. And that is, the Court must find that rehabilitation is feasible and the Defendant is amenable to it."
To answer this question, the court had to determine the impact of defendant's treatment program, as to which the record gave little information. That is, "did the . . . program, in its completion, create a change . . . such that when the Court considers those statutory directives it must believe that [defendant]'s been rehabilitated or that rehabilitation is feasible[?]" For reasons stated below, the court found it did not.
After reviewing the initial probation report and recommendation, hearing the testimony, and recalling Dr. Caruso's 2010 comment that defendant "either gets an A+ in stupidity or is guilty as charged," the court found that defendant did not "get[] the high grade in stupidity." Rather, the convictions "were based on more than substantial evidence" that defendant got into a shower with the victim multiple times and committed multiple offenses related to that conduct (as he had admitted to civilians at the time, though not to police or probation).
Dr. Caruso's observations about defendant's "irrational and bordering on bizarre" reasoning process were also born out in the 2010 probation report. Not only defendant's criminal conduct itself, but "the various activities which were reflected in the report, such as hostility toward [the victim's father], paranoia about being reported by his then wife . . ., and the ultimate explanation or excuse for having committed those acts," were consistent with Dr. Caruso's opinion. Nevertheless, Dr. Caruso had concluded defendant was at low risk to reoffend, which was probably what had led the sentencing judge to grant probation, while recognizing the seriousness of his conduct by imposing a suspended 12-year sentence.
As to the effect of the treatment program, defendant "has never actually accepted full responsibility to the elements of the offense. Didn't here, didn't then. He admits to being present naked in the shower with a young lady, that there were some physical contacts. But then, as now and yesterday, very carefully crafted testimony which establishes something that he didn't come out and say. And that is, I had no sexual intent. That's what he was trying to say. The facts bear out otherwise, given the extent and nature of the consistent contacts." The treatment program "should have provided you the information you needed to come to grips with that sexual intent, and it didn't."
The victim's father had talked about defendant's inability to accept responsibility and blaming other people. Defendant's discussion of the victim's allegedly provocative behavior was in keeping with that. So was "this odd issue regarding the polygraph examination," which "remains a bizarre fact to the Court" and spoke to defendant's "manipulation." So was the general character of defendant's testimony, in which he appeared to be "searching for an answer that would suit him rather than an answer based on the facts of the matter or what is truly going on in his head. And it becomes very evident when he carefully tries to say I accept responsibility, at the same time saying I didn't do anything wrong."
Defendant's probation violations "essentially go to the heart of the probation terms which are designed to keep people out of the circumstance which leads to reoffense." His explanations and excuses were, as Dr. Caruso stated, "bizarre." He had no evidence that his "banked" status changed his probation conditions, yet he seemed to feel that it did, based on "self-serving types of thoughts, feelings, or excuses. Not based on anything he was told. Not based on anything that was part of his probationary terms."
"And so what I have is a person who has not gained the types of insights necessary to make sure that the types of behaviors for which he has been convicted wouldn't occur again. That is, SART didn't appear to have the type of impact it should have. Because it was, as it was in the beginning, the excuses boil down to I did what I wanted to, when I wanted to do it. And that's why he did the things he did which violated him."
The court acknowledged mitigating factors, such as the support of "very good and decent people," the significant time defendant had gone without violating probation, and the help he had given others in the community. However, "this is a circumstance where probat[i]on is not to be granted unless the interest of justice would be served by granting it. And only if after the opinion of a proper doctor is taken into account that rehabilitation is possible through appropriate treatment, can probation be granted."
The answer was no. "[T]he same behaviors, the same shifting of responsibility, blaming probation and doing other things are present now as they were there. SART didn't have the impact it was supposed to have. He still doesn't have a full grasp of his molestation on the child; he still doesn't admit to the sexual gratification portion of it; he is still blaming others, like the probation department and people around him when he knew what his full terms were. No one told him they were changed."
"And for that reason, and going back to 1203(e), this Court can't find in hindsight, and knowing he's already been through treatment, that the interest[s] of justice now are served by an additional grant of probation. Or that if more rehabilitation or treatment is sought and used, that it's going to have any greater impact than it had initially. These are not insignificant violations."
Defendant "reached a period of time where you felt no one was looking at you or supervising you, and for that reason decided to do that and put yourself not only at risk for reoffense, because we are talking about the protection of children, but put yourself in a situation where you are exposed to 12 years in the Department of Corrections. Even given the fact that the stakes were so high and that there were people who were going to suffer."
"And so the presumption of ineligibility for probation now is not overcome. And for that reason, the sentence is set. It would have been quite a bit easier here if the Court had some ability to impose a sentence, but Judge Bigelow is the Judge who had ordered the term and then . . . suspended the execution of that term."
"For that reason, probation is revoked, it is not reinstated. The previously imposed term of 12 years in the Department of Corrections is now imposed."
DISCUSSION
I
Section 1203, Subdivision (e)
Defendant contends the matter must be remanded for resentencing. According to defendant, the court erred in finding that defendant was ineligible for reinstatement of probation under section 1203, subdivision (e) (hereafter § 1203(e)) unless the interests of justice required it. Furthermore, because the court presumed wrongly that defendant had to overcome a nonexistent "presumption of ineligibility," the court failed to understand the scope of its discretion and the decision cannot be upheld. (Cf. People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [["g]enerally," a sentencing decision made in the erroneous belief that the court lacked discretion must be reversed and remanded so that the court can exercise its informed discretion at a new sentencing hearing].) Finally, defendant contends that if this contention is forfeited for failure to raise it below, his trial counsel was ineffective.
The Attorney General concedes that section 1203(e) does not apply on these facts. However, the Attorney General gives two reasons why remand is not required. (1) The trial court expressly based its decision on a different statute that does apply: section 1203.066, subdivision (d) (hereafter § 1203.066(d)). While the court did not cite that statute by number, it employed and critically relied on language which appears only therein. Thus, the court actually applied the correct standard. (2) It would be an "idle act" to remand for resentencing (People v. Coelho (2001) 89 Cal.App.4th 861, 869 (Coelho)) because the court's long and exhaustive sentencing statement shows it is not reasonably probable the court would impose a different sentence on remand.
This probation revocation proceeding in this matter went awry when the court and, apparently, counsel concluded that the provisions of section 1203 and, specifically, section 1203(e) restricting grants of probation, applied to the proceeding. They do not. section 1203 applies to original grants of probation and sets forth various procedures and conditions attendant to a grant or denial of probation. The statute does not at any point state or suggest that its provisions apply to the revocation of probation that previously has been granted. And, as to the Attorney General's argument, for those same reasons, section 1203.066, setting forth circumstances where probation may not be granted, does not apply to revocation proceedings either.
"At any time during the period of supervision of a person . . . released on probation under the care of a probation officer . . . if any probation officer . . . has probable cause to believe that the supervised person is violating any term or condition of his . . . supervision, the officer may . . . bring [the supervised person] before the court. . . . Upon rearrest . . . 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 . . . officer . . . that the person has violated any of the conditions of his . . . supervision." (§ 1203.2(a); In re Larsen (1955) 44 Cal.2d 642, 645.)
"The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence." (§ 1203.3; In re Larsen, supra, 44 Cal.2d at p. 645.)
The court has discretion to grant or revoke probation. (In re Larsen, supra, 44 Cal.2d at p. 645; In re Dearo (1950) 96 Cal.App.2d 141, 143.) But, "[d]iscretion is delimited by the applicable legal standards, a departure from which constitutes an 'abuse' of discretion. (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298.) . . . ." (People v. Harris (1998) 60 Cal.App.4th 727, 736.)
Defendant argues that given the trial court's ruling, to the extent the court incorporated the provisions of section 1203 subdivision (e) in deciding to revoke defendant's probation, the court placed the burden of overcoming the provisions of that section on the defendant and, to that extent, erred.
While it is unclear from the record the extent to which the court relied on section 1203 subdivision (e) in deciding to revoke defendant's probation (we note the trial court did not, for instance, say or suggest that, but for the provisions of that section, it would have found no basis to revoke probation or would have reinstated probation) to the extent that the trial court thought it was bound by the provisions of that section in arriving at its decision, the trial court erred on the law and, to that extent, abused its discretion. (People v. Harris, supra, 60 Cal.App.4th at pp. 736-737.)
Even so, "[w]here sentencing error involves the failure to state reasons for making a particular sentencing choice . . . reviewing courts have consistently declined to remand cases where doing so would be an idle act that exalts form over substance because it is not reasonable probable the court would impose a different sentence. [Citations.]" (Coelho, supra, 89 Cal.App.4th at p. 889.)
While we do not deal here with an original sentencing, the principle applies equally to the matter now before us.
As our quotations from the trial court's sentencing statement make clear, the court's reasoning was meant to show, and did show, why the court could not find that rehabilitation of defendant was feasible, or that he was any more amenable to treatment at the time of the hearing than when he completed a program but failed to benefit from it. Given the thoroughness of the court's analysis, which encompassed all the evidence offered at the probation violation hearing and the sentencing hearing, we can see no reasonable probability the court would impose a different sentence on remand. (Coelho, supra, 89 Cal.App.4th at p. 889.)
Finally, for the above reasons, defendant cannot show prejudice from trial counsel's failure to object to the application of section 1203(e) below. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
II
Abuse of Discretion
Defendant contends the trial court abused its discretion by revoking probation, even aside from the section 1203(e) issue.
Defendant generally ignores the substantial evidence standard of review which we must apply to this issue, instead viewing the evidence most favorably to himself. He also mischaracterizes numerous specific pieces of evidence.
Defendant claims the trial court erred in its "heavy reliance on [defendant]'s minimization of culpability" because it was "historical. That is, to the extent [defendant] did not fully confess to molesting his niece with a lewd intent, this was something the original sentencing court already knew and did in fact consider." But the original sentencing court could not know whether defendant's treatment would work. The court here had to assess whether it had done so. If it had not changed defendant's attitude, that attitude was not merely "historical," and his prospects for rehabilitation looked far worse than before.
Furthermore, defendant minimizes the evidence that as of the probation violation and sentencing hearings, despite his completion of treatment and his pro forma acknowledgment of guilt, he still actually denied wrongdoing. Defendant presented the "letter" from T.T. supposedly proving that his penis did not touch T.T.'s back in the shower and that he had no sexual intent in anything he did, both to probation officer Gordon and to the court; that letter and his attitude toward it were not before the original sentencing court and added weight to the court's decision to revoke his probation here. While the court said it would not consider the letter, defendant's mere presentation of the letter certainly suggested that he still was trying to avoid the responsibility of what he had done that led to his conviction. Defendant also continued to hold up the discredited polygraph results as though they had been proved valid and established his innocence.
So far as defendant asserts that his probation violations did not show he would continue to violate probation if it were reinstated, he ignores the trial court's finding that the nature of his violations showed he did not care about honoring his probation conditions once he believed his supervision had loosened to the point where he could escape detection. As the court stated, his violations were not trivial, but rather went to the heart of the reason for his probation conditions: to avoid situations in which he might reoffend. Possessing pornography and attending a place where minors congregated, despite clear probation terms forbidding both, showed that defendant had not internalized the reason for these terms. Simply put, having proved unable to resist temptation in the past, he was required to shun tempting occasions in the future. If he could not do that, or even understand the need to do it, then the court had every reason to think he would continue to seek out such occasions if he thought he could get away with it.
Defendant insists that his belief he was no longer subject to the conditions of probation was "not without foundation." On the contrary, as the trial court found, it was entirely without foundation. Those conditions were repeatedly given to him and explained to him. They never changed. No probation officer ever told him they had changed. Neither his completion of treatment nor his "banked" status had any effect on them, and no one ever told him they did. If he was confused about any of that, it was his own fault for not asking the probation officers' advice.
Defendant continues to maintain that he was telling the truth about whether the cell phone containing pornography belonged to him. But the trial court found him not credible on that point, and we do not reweigh the court's credibility findings. In any event, whether or not he owned the phone, he admitted downloading pornography onto it, in blatant violation of a key probation term. His admission of that fact after he was caught red-handed does not mitigate the violation.
Defendant has shown no abuse of discretion in the trial court's decision to revoke probation.
III
Presentence Custody Credits
Defendant was awarded 241 days of actual presentence custody credit and 277 days of total credit. Based on his calculations, the trial court failed to include one partial day of custody, as required by the relevant formula, and he should therefore have been awarded 242 days of actual credit and 278 days of total credit. (People v. Browning (1991) 233 Cal.App.3d 1410, 1412.) The Attorney General agrees. We agree with the parties. We therefore direct the trial court to prepare a corrected abstract of judgment showing the additional day of credit.
DISPOSITION
The trial court is directed to prepare a corrected abstract of judgment as stated in part III of the Discussion. In all other respects, the judgment is affirmed.
HULL, J. We concur: RAYE, P. J. MURRAY, J.