P. v. Hanson

Filed 4/2/07 P. v. Hanson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirmed and remanded with directions.

Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Pat Zaharopoulos, Deputy Attorneys General, for Plaintiff and Respondent.

Robert Zelner Hanson appeals from the trial courts order revoking his probation, implementing the prison sentences previously imposed in prior cases, and imposing a two-year sentence on the counts to which he had earlier pled guilty in the instant case. Hanson contends the court improperly based its probation revocation decision on the unsupported factual conclusion that he walked away from his residential drug treatment program, and abused its discretion in failing to reinstate his probation. Hanson also asserts that his sentence imposed in the current case must be reversed, because the court erred in failing to recite, on the record, its reasons for imposing it. We find none of these assertions to be persuasive.

The trial court based its decision to revoke probation on evidence that Hanson had attempted to fake a urine test administered as part of his program, and then became belligerent and uncooperative when his attempt was discovered. The court expressly found that Hansons alternative explanation of the relevant events was not credible. Moreover, the courts decision not to reinstate Hansons probation was well within its discretion, especially as Hanson had a prior history of probation violations. Finally, Hanson waived any contention that the court erred in failing to recite reasons for its sentencing decision in the instant case.

Hanson does raise one meritorious point. He notes that the abstract of judgment in this case inaccurately reflects higher amounts of restitution fines than what the court actually imposed, and requests that the abstract be ordered corrected. The prosecutor concedes the error, and we will consequently remand the case to the trial court with directions to make the correction. In all other respects, the order is affirmed.

* * *

In August of 2004, Hanson was charged with one count of felony possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)) and one count of misdemeanor possession of paraphernalia associated with the use of a controlled substance. (Health & Saf. Code,  11364.) Additionally, Hanson was alleged to have a prior strike for an attempted burglary in 1988, and to be eligible for 5 one-year enhancements (four for possession offenses and one for the prior attempted burglary strike) pursuant to Penal Code section 667.5.

Hanson entered a plea of guilty as to both counts, and admitted the prior strike and enhancement allegations. In exchange for that plea, the court struck the strike, suspended imposition of sentence, and placed Hanson on three years of probation. In connection with that probation order, the court also revoked and reinstated Hansons probation in two prior cases, Nos. 04WF1779 and 03WF2343. Moreover, as a condition of his probation, Hanson was ordered to [e]nroll in and complete a minimum 9 month probation approved residential drug rehabilitation program followed by a minimum of 18 months aftercare concurrent with Cases 04WF1779 and 03WF2343.

As of September 28, 2004, Hanson was enrolled in the Salvation Army residential program. Unfortunately, in February of 2005, Hansons counsel advised the court that Hanson had been terminated from the program, after testing positive for methamphetamine. After Hanson indicated he intended to contest the validity of that drug test, the court summarily revoked probation, set a dispositional hearing, and ordered Hanson remanded to custody.

On March 5, 2005, at Hansons probation violation disposition hearing, he admitted his probation violation, and the court revoked and reinstated his probation. The court also ordered Hanson to serve 90 days in jail, with credit for 9 days served, and re-referred him to the Salvation Army to restart a 9-month program, specifying [n]o further exceptions.

After completion of his jail time, Hanson re-enrolled in the Salvation Army program. However, in February of 2006, the prosecutor filed a petition seeking Hansons arraignment for another probation violation. The petition alleged that [o]n December 12, 2005, the probationer was terminated from the Salvation Army Residential Program after only seven months in the program. The petition explained the circumstances leading up to Hansons termination, i.e., that the probationer was seen in possession of a container of urine prior to a drug test and was written up for attempting to alter his drug test. The petition also recounted Hansons probation history, including his three prior probation violations, and concluded with a recommendation that his probation be revoked, and not reinstated.

Hanson opposed the revocation, and sought a full evidentiary hearing on the issue. The matter was set for hearing in April of 2006.

At the hearing, the prosecutor offered the testimony of Paul Swain, the resident manager of the Salvation Army program. Swain explained that he managed the urinalysis testing for the programs residents. On the evening of December 12, 2005, another staff member had conducted routine urine tests of the residents, including Hanson. However, Hansons sample came up missing, so Swain decided to administer another test himself. Swain asked Hanson to go into the staff restroom (rather than the usual restroom used for urinalysis), handed him a cup for the sample, and waited until he heard the sound of urine. Swain, then observed Hanson squirting a liquid from a Visine bottle into the cup, rather than urinating into it. Swain then asked Hanson to turn over the bottle, and gave him the option of taking one more test.

Swain testified that Hanson became aggressive and defensive, in response to his accusation, and refused to cooperate. As a consequence, Swain asked Hanson to leave, and told him if he didnt, Swain would call the police. When Hanson heard Swain actually calling the police, he left the premises.

Swain also testified that approximately two weeks later, a groundskeeper found a Visine bottle that looked like it contained urine. The groundskeeper gave the bottle to Swain, who in turn reported the discovery to his superiors. The bottle was later disposed of.

Swain stated that Hanson was terminated from the Salvation Army program, although he did not personally know exactly why. As he explained: I dont handle terminations. Theres codes administered and reasons, and Im not sure as to why he was terminated.

Hanson told a different story. He offered evidence that during much of his stay at the Salvation Army facility, he and Swain had a friendly relationship. However, in October of 2005, that changed, and Swain began acting in an adversarial manner.

Hanson testified that on the night of the disputed drug test, he had personally observed Swain testing Hansons first urine sample. He said he had never heard anyone claim that first sample had been lost until Swain testified to that fact during the hearing. Hanson did agree that he had been summoned for a repeat test to be administered by Swain. When Hanson questioned the need for a second test, Swain wrote [him] up for arguing.

According to Hanson, Swain ordered him into the staff restroom for the repeat urine sample, rather than the usual restroom used for testing purposes. Only the two of them were present for the test. Hanson then provided his urine sample in the ordinary fashion, after which Swain inquired whats that? a question Hanson understood as an accusation that he had something secreted in his pants. Hanson told Swain it was nothing, because he had nothing hidden in his pants.

Swain and Hanson argued, and their argument continued as they moved into the facilitys lobby. Swain demanded that Hanson pull down his pants, which Hanson refused to do in front of others. After that, Swain called 911, and informed the operator that Hanson had been kicked out of the program, but was being combative. Hanson testified that once he heard Swain state to the 911 operator that he had been kicked out, he chose to leave the premises. Hanson explained that he assumed he would be taken into custody if he waited for the police to arrive, and chose instead to go home and see his wife.

Thereafter, Hanson did report to his probation officer, and informed him that he had been kicked out of the Salvation Army program. The probation officer told him to report back in 30 days, which Hanson did, and he continued to report thereafter, until the probation revocation hearing.

After both sides had presented their evidence, the court explained its thinking: Mr. Hansen himself says he left that program on . . . December 12 in the face of his fear that the police were going to come and arrest him. [] So he walked away from the program and he has been repeatedly warned over the course of the last two years . . . that hes not going to get any credits if he walks away, and if he doesnt successfully complete. The court further noted there is no evidence in the record that anybody forced him to leave that program. He could have waited. He could have talked to somebody else, Pastor Moses, he could have waited and talked to the cops when they got there and explained his side. He walked away. Nobody threw him out.

The court went on: And frankly, lets go to credibility. I found Mr. Swain credible. I think he was telling the truth. I believe him over what Mr. Hanson told me, so youve got a credibility problem too. But even exclusive of that, hes in serious trouble because he walked away. Nobody threw him out.

When Hansons counsel protested that Hanson had not left voluntarily, but only in response to Swains demand that he do so, the court clarified: I dont disagree with you that there was some comment made that he was going to be terminated, but what he himself said was that the reason he left when he did was he heard the cops were coming and he thought he was going to jail . . . . [] . . . So rather than stay and face the consequences and try to work this out, as anybody should have and Mr. Hanson especially given his history and how thin the ice was and how many chances he had been given to successfully complete this program, given all of those things . . . he cant just walk home to see his wife. . . . [] . . . [] . . . If you think somebody is making a false allegation, you have to stand there, take your lumps and sit and sort it out, not run home

. . . .

The court then announced its decision to revoke Hansons probation, and reinstate the six-year prison terms previously imposed in the two prior cases. The court ordered that those two terms would run concurrently. As to the instant case, in which sentencing had been suspended, the court stated: I think that the strike was stricken on that one also when you pled guilty. . . . So on that case, Im going to sentence you to the mid term of two years and that will run concurrent with the six-year sentences on the other two cases. [] All the [Penal Code section] 667.5[, subdivision] (b) priors are stayed. Hanson offered no comment in response to that pronouncement of sentence, and the court moved onto a discussion of Hansons custody credits.

Finally, the court ordered Hanson to pay $200 to the state restitution fund, $20 state security fund, and $200 to the parole revocation fund all through corrections. []The final $200 to the parole revocation fund is stayed pending successful completion of parole.

I

Hansons first argument is that the courts decision to revoke his probation was based upon the erroneous factual conclusion that Hanson had voluntarily walked away from the Salvation Army program, when the undisputed evidence demonstrated that Hanson had actually been kicked out by Swain. We cannot agree.

Of course, we are required to both view the evidence, and construe the courts findings, in the light most favorable to the courts decision. (People v. Hill (2000) 23 Cal.4th 853, 855; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.].) Applying those standards, we discern two problems with Hansons argument.

First, Hansons argument fails to acknowledge that in addition to expressing its disapproval of Hansons decision to walk away from the Salvation Army facility, the court also expressly found Swain to be a credible witness, while concluding that Hanson, by contrast, had a credibility problem. In other words, the court believed Swains claim that he saw Hanson using a Visine bottle to fake his urine sample, and that Hanson became belligerent and uncooperative when confronted with Swains accusation. Certainly, that alone was a sufficient basis for the court to conclude that Hanson was properly terminated from his residential program, which was, in turn, a proper basis for revocation of his probation.

Second, as the court attempted to make clear in its discussion with Hansons counsel, it had not misunderstood or ignored the evidence that Swain had actually asked Hanson to leave. What the court was focused on, instead, was that Hanson himself had testified that he chose to walk away, because he believed he would be taken into custody if he waited for the police to arrive. As the court explained, if Hanson felt he had been unjustly accused by Swain, then he should have waited until the police arrived, told his side of the story, demonstrated to them that he was not in possession of any Visine bottle, and provided another urine sample in their presence. Instead, what Hanson did was flee, because he personally concluded that waiting for the police to arrive would result in his incarceration. In other words, Hanson chose not to face the consequences of his confrontation with Swain, or to defend his right to remain in the program. He chose instead to go visit with his wife.

In the face of courts analysis, both Hanson and his attorney actually agreed that his decision to leave the facility, rather than stay and resolve his dispute with Swain, had been a mistake. We agree as well. There was no error in the courts analysis of the evidence.

II

Relying upon language found in this courts opinion in People v. Monette (1994) 25 Cal.App.4th 1572, 1575, Hanson also contends that the court could not revoke his probation in the absence of some distinct evidence that he could not be safely allowed to remain in society. That is not the law.

The courts authority to revoke probation is set forth in Penal Code section 1203.2, subdivision (a), which expressly authorizes the court to revoke and terminate . . . probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses. (Italics added.) Nothing in Penal Code section 1203.2 requires the court to make any distinct finding regarding the probationers inability to safely remain in society.

Moreover, Monette does not suggest otherwise. In Monette, the issue was whether the corpus delicti rule was applicable in a parole revocation hearing. The court concluded it was not, because [i]n placing a criminal on probation, an act of clemency and grace [citation], the state takes a risk that the probationer may commit additional antisocial acts. Where probation fails as a rehabilitative device, as evidenced by the probationers failure to abide by the probation conditions, the state has a great interest in being able to imprison the probationer without the burden of a new adversary criminal trial. [Citation.] (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) The role of the trial court at a probation revocation hearing is not to determine whether the probationer is guilty or innocent of a crime but whether he can be safely allowed to remain in society. (People v. Hayko (1970) 7 Cal.App.3d 604, 610.) (People v. Monette, supra, 25 Cal.app.4th at p. 1575, italics added.)

Thus, understood in context, what Monette actually suggests is that evidence of a probationers violation of his probation conditions demonstrates the failure of probation, and that such failure can itself be equated with the conclusion that the probationer cannot be safely allowed to remain in society. Certainly, nothing in Monette suggests the court cannot revoke probation based solely upon a probationers violation of those conditions. Hansons assertion to the contrary is rejected.

III

Hanson next asserts the court abused its discretion in refusing to reinstate his probation. As he acknowledges, the court abuses its discretion only when its decision exceeds the bounds of reason, all of the circumstances being considered. (People v. Giminez (1975) 14 Cal.3d 68, 72.) Moreover, [w]hen the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. [Citation.] (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)

Unfortunately, Hansons abuse of discretion argument amounts to nothing more than an attempt to have us reconsider the evidence, and substitute our judgment for that of the trial court. Specifically, he asks us to give greater weight to the evidence suggesting that Swain had developed hostile feelings toward Hanson prior to the disputed incident, and to conclude that Swains hostility played a greater role in the incident than the trial court apparently believed. We cannot.

IV

Hanson also contends the court erred in the wake of its decision to revoke probation, by failing to recite reasons on the record for its sentencing decision in the instant case. As Hanson explains, the court merely implemented the prison sentences previously imposed but stayed in the prior two cases, and actually pronounced the sentence in this, the third case, since imposition of the sentence had been previously suspended. Under those circumstances, Hanson asserts the court was obligated to state the reasons underlying its sentencing decision, including its selection of imprisonment over reinstatement of probation, on the record. (See People v. Hawthorne (1991) 226 Cal.App.3d 789.)

The error, if any, was waived. In People v. Scott (1994) 9 Cal.4th 331, 353, the Supreme Court concluded that the waiver doctrine requiring that certain issues be raised in the trial court in order to preserve their viability on appeal -- applies to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices. As the court reasoned, Although the [trial] court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the courts statement of reasons are easily prevented and corrected if called to the courts attention. As in other waiver cases, we hope to reduce the number of errors committed in the first instance and preserve the judicial resources otherwise used to correct them. (Ibid.)

Here, the record establishes that Hanson raised no objection at the time the court pronounced the sentence he now challenges. Nor did Hanson ever make any offer of proof, or otherwise suggest there were mitigating factors which might have justified sentencing him to only the lower term of incarceration in the current case. Indeed, Hansons counsel made no comment at all after the court imposed the two-year sentence.

Of course, we hasten to add that our characterization of this issue as waived does not imply any disapproval. Because the trial court had also ordered that the two-year sentence pronounced in this case would run concurrently with the 2 six-year sentences that had already been imposed in the earlier cases sentences not challenged in this appeal it is difficult to see what advantage might have been gained by arguing, or even requesting further elucidation of, the issue. In short, we have a difficult time ascertaining how a challenge to the concurrent two-year sentence would have made any practical difference to Hanson. We assume trial counsel reached the same conclusion.

V

As Hanson points out, the abstract of judgment prepared in connection with his prison commitment reflects he was ordered to pay a restitution fine of: $600 per PC 1202.4(b) forthwith per PC 2085.5 and a restitution fine of: $600 per PC 1202.45, suspended unless parole is revoked. Those amounts are inconsistent with the $200 amounts which the court actually imposed for each of the two fines, as reflected in both the reporters transcript and the clerks minute order. The prosecutor concedes the abstract is in error, and we consequently direct that it be corrected.

The order is reversed and remanded, for the limited purpose of correcting the erroneous restitution amounts set forth in the abstract of judgment. On remand, the court is ordered to correct the abstract, so as to reflect the correct amounts of Hansons restitution fines. In all other respects, the order is affirmed.

BEDSWORTH, J.

WE CONCUR:

SILLS, P. J.

MOORE, J.

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