P. v. Cuneo
Filed 1/21/09 P. v. Cuneo CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM CARL CUNEO, Defendant and Appellant. | A121534 (Solano County Super. Ct. No. VCR172469) |
Defendant William Carl Cuneo appeals from a judgment revoking his probation and sentencing him to one year in the county jail. In revoking his probation, the trial court determined that defendant had violated numerous conditions of his probation, including that he attend intensive outpatient treatment; attend Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings as directed; appear for all scheduled appointments with his probation officer; and register as a narcotics offender. (Health & Saf. Code, 11590.) The instant appeal pertains solely to the trial courts finding that defendant failed to register as a narcotics offender. Defendant contends the registration condition was never imposed by the trial court and was, thus, an invalid basis upon which to revoke his probation. Finding no prejudicial error, we affirm.
I. BACKGROUND
On October 14, 2004, defendant pleaded no contest to one charge of cocaine (base) possession. (Health & Saf. Code, 11350, subd. (a).) The trial court suspended the imposition of judgment and sentence and placed defendant on probation for three years. The probation order included various conditions, including that defendant obey all laws; complete Proposition 36 treatment (Pen. Code, 1210); attend AA or NA meeting three times a week; attend therapy and counseling as directed by the probation officer; and submit to random drug testing.
On May 30, 2006, defendant admitted to violating his probation by failing to obey all laws and by failing to stay in contact with his probation officer. Sentencing was continued until June 2, 2006, at which time defendant also admitted to violating his probation by failing to comply with his Proposition 36 treatment, failing to attend AA/NA meetings, and failing to submit to drug testing. The trial court ordered that defendant remain on probation subject to the same terms and conditions previously imposed.
On September 22, 2006, defendant admitted to violating his probation by failing to appear at a court-ordered progress report hearing on July 21, 2006, by failing to attend AA/NA meetings, and by failing to attend his Proposition 36 treatment program. On September 29, 2006, the trial court terminated defendant from Proposition 36 treatment, and concluded defendant was no longer available for such treatment. Sentencing on the probation violation was continued to November 6, 2006.
At the November 6, 2006 hearing, the trial court modified defendants probation, as well as imposed and suspended a state prison sentence of two years. The trial court extended defendants probation for another three years effective from November 6, 2006. The trial court ordered defendant to serve one year in the county jail with 85 days credit for time served and good conduct. At the conclusion of the hearing, the trial court expressed its dissatisfaction with defendants compliance efforts and provided the following admonishment: [W]ere finished playing games with you. You miss one time testing, you do what youve been doing regularly for the last two years and youre going to be doing it from inside the Department of Corrections because we . . . have way too much going on. Its nothing personal, but if you dont want to be on probation Ive got a hundred people that want it and are willing to comply with [it]. So, its really up to you, sir. . . . [W]e dont have time to babysit people who just arent interested. Its really not what you say but your actions.
Following his release from the county jail, defendant continued to violate the conditions of his probation by failing to attend AA/NA meetings, failing to appear for numerous scheduled appointments with his probation officer, and by otherwise failing to contact his probation officer as directed. Thus, on September 17, 2007, the trial court revoked defendants probation and issued a bench warrant due to defendants failure to appear in court.
At the contested probation revocation hearing held on April 8, 2008, defendant admitted that, at his November 6, 2006 hearing, he recalled the trial court looking [him] right in the eye and telling [him], If you violate probation again, you are going to prison. Defendant further admitted that he did not attend the recovery program, that he had been arrested for driving without a license, and that he failed to appear at the September 2007 hearing. The trial court found defendant in violation of his probation due to his [f]ailure to attend intensive outpatient treatment, failure to attend AA and NA meetings as directed, failure to register pursuant to [Health and Safety Code section] 11590, [and] failure to appear for all scheduled appointments with the probation officer.
The trial court revoked and reinstated defendants probation, and ordered him to serve one year in the county jail with 60 days credit. The instant appeal followed.
II. DISCUSSION
Defendant contends the judgment should be reversed because the trial court erroneously relied on his failure to register as a narcotics offender in revoking his probation since the trial court had never ordered defendant to comply with the registration requirements set forth in Health and Safety Code section 11590. Preliminarily, we note that defendant failed to object on these grounds below. However, even assuming that this issue has been preserved on appeal, defendants claim of reversible error fails on the merits.
Probation may be revoked if there are reasons for the court to believe from the probation report that defendant has violated any of the terms or conditions of probation. (People v. Taylor (1968) 260 Cal.App.2d 393, 395, italics added; see Pen. Code, 1203.2, subd. (a).) However, [b]efore a defendants probation may be revoked, a preponderance of the evidence must support a probation violation. (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197; see also People v. Rodriguez (1990) 51 Cal.3d 437, 447.) Trial courts have very broad discretion in determining whether a probationer has violated probation, and only 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. (People v. Rodriguez, supra, 51 Cal.3d at p. 443; see also People v. Michael W. (1995) 32 Cal.App.4th 1111, 1119 [revocation of probation decisions are reviewed under an abuse of discretion standard].)
Here, although the record reflects that defendant failed to register as a narcotics offender, there is no indication that this was, in fact, a condition of his probation. Specifically, other than the probation officers report stating that Health and Safety Code section 11590 registration had been ordered by the Court, there is no evidence that this registration was a condition of defendants probation. Neither the original probation order nor the subsequent modifications include the registration requirement as being a condition of defendants probation. Also, the reporters transcripts from the various hearings do not establish that the trial court verbally imposed this condition.
Assuming, without deciding, that the trial court erred in considering defendants failure to register as a narcotics offender, we nevertheless conclude the trial court did not abuse its discretion in revoking defendants probation. We base this conclusion on the ample evidence in the record, which indisputably demonstrates that defendant had violated several known and established conditions of his probation. Specifically, there is sufficient evidence that defendant violated his probation by failing to attend drug treatment, failing to attend AA/NA meetings as directed by his probation officer, and failing to appear for scheduled appointments with his probation officer. Defendant does not challenge the sufficiency of the evidence supporting these violations.
Considering the entire record in the light most favorable to the judgment, we conclude there was more than sufficient evidence to support the finding that defendant had violated at least three conditions of his probation. The trial court, therefore, did not abuse its discretion when it revoked defendants probation. As an order revoking probation may properly be based on a single ground (see Pen. Code, 1203.2, subd. (a); People v. Taylor, supra, 260 Cal.App.2d at p. 395), to the extent the trial court erred in considering the registration requirement, this error was harmless beyond a reasonable doubt. We are not persuaded by defendants contentions to the contrary and accordingly affirm.
III. DISPOSITION
The judgment is affirmed.
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Reardon, Acting P.J.
We concur:
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Sepulveda, J.
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Rivera, J.
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