Filed 1/12/18 P. v. Jessop 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

DOUGLAS SAMUEL JESSOP,

Defendant and Appellant.


G053519

(Super. Ct. No. 14NF2841)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Vickie L. Hix, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed and remanded.
Susan L. Ferguson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
Defendant Douglas Samuel Jessop was on felony probation for numerous counts arising from a violent incident with his parents. The district attorney filed a probation violation petition, alleging defendant had failed to register in a batterer’s treatment program. The trial court granted the petition, revoked defendant’s probation, and sentenced him to five years in state prison. But because the evidence does not reflect that defendant was ever ordered to enroll in or complete the program by a specific date, there is not substantial evidence from which to find he willfully violated the terms of his probation. Accordingly, we reverse and remand for further proceedings.

I
FACTS
In July 2014, defendant punched his 68-year-old father, causing him “unjustifiable physical pain and personally inflicted great bodily injury on him.” He falsely imprisoned his parents by means of violence, threatened to stab his father, and “brandished knives in an angry and threatening manner.” Defendant was charged with elder and dependent adult abuse (Pen. Code, § 368, subd. (b)(1), count one), two counts of false imprisonment by violence/deceit (§ 236/237, subd. (a), counts two and three), criminal threats (§ 422, subd. (a), count four) and brandishing a deadly weapon (§ 417, subd. (a)(1), count five). The information also alleged that defendant personally inflicted great bodily injury as to count one. (§12022.7, subd. (a).)
On December 11, 2014, defendant changed his plea to guilty on each count and on the enhancement on count one. The court sentenced defendant to three years of formal probation. He was ordered to serve 365 days in county jail, among other probation conditions. One of those conditions was that defendant “attend and complete” a “52 week Batterer’s Treatment Program.” The probation term form did not list a date by which defendant must complete the program, nor do the minutes of his sentencing hearing. The oral transcript of defendant’s original sentencing is not part of the record on appeal.
In May 2015, probation officer Connie D. Schonert and supervising probation officer Jerrold K. Suclla filed a petition alleging defendant had violated the probation condition of violating no law. The petition stated defendant was arrested on two occasions for being under the influence in public. (§ 647, subd. (f).)
We glean from the petition that defendant had both substance abuse and mental health issues. The petition noted that defendant had not yet enrolled in the Batterers’ Intervention Program, stating his ability to do so had been hindered by his “non-compliance with a psychological program.” The petition did not state he had been ordered to register for or complete the program by any particular date. Defendant waived his right to a hearing, and the court revoked then reinstated probation.
On January 20, 2016, Suclla signed a petition alleging four probation violations. At the hearing on February 25, the prosecution proceeded on only one violation, specifically, that defendant had “failed to attend the Batterers’ Intervention Program ordered on December 11, 2014.” After the court struck various parts of the petition, the following statements remained: “The probationer has not enrolled or attended Batterers’ Intervention Program as directed. He has been given the provider list on several occasions,” and “[Defendant] has failed to enroll and attend Batterers’ Intervention after referrals have been made and he has been directed to enroll. This program would be a great benefit; however, he chooses not to enroll.” The probation officer did not appear and no further evidence was offered. The defendant testified on his own behalf, which we will discuss further below.
The court, before ruling, noted the conflict between the probation officer’s report and defendant’s testimony. “It says that you have not enrolled as directed, that you have been given provider lists on several occasions. The other part says, ‘ . . . Mr. Jessop has failed to enroll. . . .’ [¶] So, that is what I have. And, you told me yourself that you did not enroll. However, you are saying that you did not understand that you had to enroll by a certain date –”
Defendant replied: “I didn’t.” The court continued: “So, basically, based on what I have, I have one thing, I have you saying another; although, the common thread on both of these is that you did not enroll and you were ordered back in 2014 to do so. So, that was all of 2015 and a couple of months in 2016, where you could have been enrolled. [¶] So, based on that, I am going to find that there is, by the preponderance of the evidence, the court will find that you violated the terms of your probation.”
On April 6, the court revoked probation and imposed a sentence of five years in prison. Defendant now appeals.

II
DISCUSSION
Defendant raises several issues on appeal, but we need only address one of them: whether his violation of probation was “willful.”
“A court may revoke 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 . . . .’ (Pen. Code, § 1203.2, subd. (a).) ‘As the language of section 1203.2 would suggest, the determination whether to . . . revoke probation is largely discretionary.’ [Citation.] ‘[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.’ [Citation.] However, the evidence must support a conclusion the probationer’s conduct constituted a willful violation of the terms and conditions of probation. [Citation.]” (People v. Galvan (2007) 155 Cal.App.4th 978, 982.)
On appeal, we review the trial court’s factual determinations supporting the existence of a willful violation for substantial evidence. We must determine “whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court’s decision.” (People v. Kurey (2001) 88 Cal.App.4th 840, 848.)
There is no single legal definition of the word “willful.” Generally speaking, “[w]illfully implies no evil intent; ‘“it implies that the person knows what he is doing, intends to do what he is doing and is a free agent.” [Citation.]’ [Citation.]” (People v. Bell (1996) 45 Cal.App.4th 1030, 1043, abrogated on another ground in People v. Athar (2002) 105 Cal.App.4th 479, 488.) In statutory language, “willfully” generally “defines a general criminal intent, absent other statutory language that requires ‘an intent to do a further act or achieve a future consequence.’ [Citations.]” (People v. Atkins (2001) 25 Cal.4th 76, 85.) In the context of a probation violation, it means that defendant had the intent to violate the probation condition. For example, “When a probationer lacks knowledge that he is in possession of a gun or weapon, his possession cannot be considered a willful violation of a probation condition. [Citation.]” (People v. Moore (2012) 211 Cal.App.4th 1179, 1186-1187.)
Thus, our inquiry here is whether there was substantial evidence defendant intentionally failed to register for the batterer’s program. The only evidence from the prosecution is the probation officer’s report: “The probationer has not enrolled or attended Batterers’ Intervention Program as directed. He has been given the provider list on several occasions,” and “[Defendant] has failed to enroll and attend Batterers’ Intervention after referrals have been made and he has been directed to enroll. This program would be a great benefit; however, he chooses not to enroll.” Defendant, however, testified that his probation officer had not given him a deadline to enroll, and he “always kept up-to-date with my probation officer about that.” He was under the impression he had the entire term of his probation to complete the program, and he had discussed enrolling with the probation officer “as soon as I had the means” – presumably financial – “to get it done.” He characterized his failure to enroll as a “misunderstanding,” and stated if he had known that not enrolling by that point was a violation of probation, “I would have done it. I mean, I simply would have done it . . . before.”
There is no question that defendant was required to complete the program before his probation expired, but the relevant question here is whether he was required to start or complete it by a certain date before his probation ended. There was no evidence from the prosecution at all on this point. Neither the probation officer’s report, defendant’s initial probation conditions, or anything else in the record indicated defendant was ever given a mandatory date to start or complete the program. The program duration was 52 weeks, and defendant’s probation was due to terminate on December 10, 2017. On the date the court revoked his probation, February 25, 2016, he had more than one year and nine months remaining – ample time to complete a 52 week program.
Perhaps if the probation officer had appeared and testified at the revocation hearing, or if the prosecutor had cross-examined defendant, facts sufficient to support a finding of substantial evidence would have been elicited. But given the very limited evidence offered by the prosecution in support of the petition, the evidence was uncontroverted that defendant’s violation of this probation condition (to the extent any violation existed at all) was not willful. The only evidence was defendant’s testimony that he was not told that he was required to complete the program by a certain date. Accordingly, the court’s ruling must be reversed for a lack of substantial evidence that defendant willfully violated probation.
Because we reverse on this point, we need not address defendant’s remaining arguments.

III
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court.



MOORE, J.

WE CONCUR:



O’LEARY, P. J.



FYBEL, J.