P. v. Zarate

Filed 2/27/09 P. v. Zarate CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Sergio Zarate appeals from an order revoking his probation and lifting a stay of execution on a previously imposed sentence of 13 years and four months in state prison. His sole contention on appeal is that the court abused its discretion in revoking his probation. We reject the contention and affirm the order.

Factual and Procedural Background

On September 23, 2004, appellant pleaded no contest to two counts of attempted murder (Pen. Code,  664, 187, subd. (a)[1]), four counts of assault with a deadly weapon ( 245, subd. (a)(1)), and one count of actively participating in a criminal street gang ( 186.22, subd. (a).) Appellant also admitted personally causing great bodily injury in connection with the two attempted murder counts ( 12022.7) and committing a crime for the benefit of a criminal street gang in connection with all counts except one ( 186.22, subd. (b)). The court sentenced appellant to 13 years and four months in state prison but stayed execution of sentence and placed him on probation for five years. The court imposed various conditions of probation, including a requirement that appellant not associate with known gang members and not . . . consume any alcoholic beverages.

At sentencing, the court noted that the crime involved a vicious assault on two innocent bystanders, who came to Sonoma County to enjoy a family celebration, who stopped to use a bathroom at a gas station . . . . The court heard statements from the two victims who described how they were hit from behind, kicked, punched, and stabbed numerous times without provocation. After indicating it was going to place appellant and two of his codefendants on probation, the court stated: [S]hould [appellant and codefendants] violate the terms and conditions of their probation, the Court will not hesitate for a second to execute the sentence which is going to be ordered today, and they can begin serving their 13 years four months. [] So what the Court has done . . . is [to] offer them an opportunity to change the lifestyle which brought them before this Court. And if they fail to do that, then they will simply go to prison for the term that the Court is going to impose today. The court further stated: I will suggest to each defendant that this Court will not take any allegation of a violation of probation by these defendants lightly. [] . . . [] . . . And as I have indicated, this Court will not hesitate for a nanosecond in sending you to state prison. I suggest that if there is a violation of probation, [the district attorney] will have the bus outside the jail warmed up and ready to go. [] I also suggest to you that you will be living under a microscope, and that microscope will be looking for any violation of probation. You have to live not only a law-abiding life, but you must live a probation-abiding life. For instance, if you commit a law violation, that will constitute a violation of your probation and you could go to prison for the 13 years four months, which the Court is going to impose. Thats a violation of law. Its not a violation of law for most people to walk into a liquor store and buy an alcoholic beverage, or even for somebody to walk into a liquor store and find themselves drawn to the slim-jim canister and purchase that in a liquor store. That, for you, will constitute a violation of probation.

On August 22, 2005, the probation department submitted a request for summary revocation of appellants probation on the ground that appellant was stopped by police for driving a car with expired registration tags and playing his stereo too loudly, in violation of a local ordinance. A search of the car revealed a marijuana pipe in the trunk and four CDs of gang music. On September 15, 2005, the court declined to find a violation of probation and probation was reinstated on the original terms and conditions.

On August 26, 2006, appellant was stopped by police for reckless driving and was found to have a blood alcohol content of 0.19. On September 25, 2006, the court found appellant in violation of probation. The court stated it was dismayed that over two years ago a recommendation was made to [appellant] to participate in some sort of alcohol program, and he indicated he didnt have an alcohol problem at that time and declined participation in that. Nevertheless, the court stated that appellant is going to get one more shot on probation, one more opportunity to work with the probation office, work with the residential treatment program to address the alcohol problem. The court said to appellant: You have an opportunity to lead a meaningful and productive life outside the walls of the prison and the jail and Im going to give you that chance to do it. Call this your last chance or if I see you spitting on the sidewalk youre going to prison for 13 years would be meaningless [sic], but I think youve been if not literally, figuratively sobered by this experience and the idea is that you will literally be sober by this whole experience and understand that taking a drink, being in a place where alcohol is an item of sale, getting behind the wheel of a car when youre not properly license[d] and insured and certainly getting behind the wheel of a car while youre intoxicated is absolutely [a] guarantee of your future disaster . . . . The court reinstated probation and modified it to include residential treatment. At the end of the hearing, the court stated: Mr. Zarate, this is your chance to address it. You are obviously sober today and the court expects that to be the condition from now on, forever more. That is your best shot. Thats your chance to make good on this commitment, to remain with your family and to be part of this community.

On March 24, 2008, the probation department submitted a request for summary revocation of probation on the ground that appellant was found intoxicated while a passenger in a car. On April 11, 2008, the probation department submitted a supplemental report requesting that probation be summarily revoked on the additional ground that the driver of the car, Roberto Lopez, was an alleged gang member.

A contested revocation of probation hearing was held on May 22, 2008. At the hearing, Roberto Lopez testified he is the co-owner of a tattoo parlor. He testified he was arrested in 1997 on drug possession charges but had never been arrested or convicted of any gang-related charges. He testified he was a gang member in 1997 but had stopped running with [the gang], covered up a gang-related tattoo he had, and had been working for a beer distributor and at his tattoo shop. He worked with all types of customers including gang members but refused to do any gang-related work and denied any ongoing gang involvement. His nickname since childhood was Smurf, a small blue cartoon character, and he had a picture of Smurf on his old business cards. Lopez testified that appellant came to his tattoo shop to get a tattoo of his last name across his upper back. As Lopez worked on the tattoo, the two drank beer and talked. After he was finished, appellant made some phone calls, looking for a ride home. Lopez was closing the shop for the day and offered to give appellant a ride. On the way to appellants house, Lopez was pulled over and later pleaded guilty to driving under the influence.

California Highway Patrol Officer Shawn Harvey testified that he stopped a car driven by Lopez and that appellant was a passenger in the car. Harvey testified he believed Lopez was an active gang member because of his past admission to it, because his business card contained a gang moniker (the Smurf cartoon character), and because he associated with and had been arrested with gang members. Harvey opined that appellant was also a gang member because of his prior conviction and prior admission of a gang allegation. The parties stipulated that appellant had a blood alcohol content of 0.15 at the time of the stop.

Appellant testified he obtained a tattoo of the Virgin Mary at Lopezs shop several years ago and decided to return to get a tattoo of his name. His girlfriend dropped him off at the tattoo shop but he had trouble finding a ride home. He accepted a ride from Lopez because he had no other way of getting home. He admitted to drinking beer with Lopez but denied any ongoing association with gangs and testified he was working full time for a construction company.

The court found appellant did not violate the condition of his probation that he not associate with a known gang member. It found appellant violated the condition of his probation that he not consume alcohol. The district attorney argued that appellant had been given the chance of a lifetime to initially plead out for probation, had now violated probation twice and that it needs to stop someplace. Appellants counsel argued for another chance at probation, noting the conviction had occurred over six years ago and that appellant had made a lot of progress, including starting a family and raising a son, disavowing gang membership and any sort of violence, and becoming a long-time employee at a well-regarded construction company. Appellant also successfully completed a residential treatment program and had maintained at least a year of sobriety and compliance with an outpatient program. Appellants counsel noted that appellant had been accepted back into a residential treatment program and that professionals believed he could succeed in the program. Appellants counsel argued that lifting the stay of execution and imposing the suspended prison term would be punishing him for his addiction. Appellant submitted five letters of recommendation from various members of the community and a letter from his employer indicating his job was waiting for him.

The court stated: See, the problem that Im having is how long does this go on? You would think [that] under the circumstances where an individual is sentenced to 13 years and four months would be absolutely stellar in his conduct. So after that imposition of sentence was suspended, the defendant then violates probation twice and ends up here at which time the People understandably are asking the Court to lift the suspension and probation says hes not amenable to local supervision. [] And it has to stop someplace. The court revoked appellants probation and sentenced him to 13 years and four months in state prison.

Discussion

Section 1203.2, subdivision (a), authorizes a court to 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 . . . .  Probation and parole are granted in the hope and expectation that the conditional release, under supervision, will better serve to rehabilitate a defendant than would supervised incarceration. The court . . . need not wait until the defendant proves, by new acts of criminality, that the hope and expectation were unfounded. Acts short of criminality . . . may well . . . indicate that the hoped for rehabilitation is on the road to complete failure and that a more restrictive process is required both to protect society and to assist the defendant toward ultimate rehabilitation.  (In re Coughlin (1976) 16 Cal.3d 52, 59-60.)

Probation revocation proceedings are not a part of a criminal prosecution and a trial court has broad discretion to determine whether the defendant has violated probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) The appellant bears a heavy burden when attempting to show an abuse of that discretion, (People v. Aubrey (1998) 65 Cal.App.4th 279, 282), 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. Angus (1980) 114 Cal.App.3d 973, 988 [To warrant reversal [of the trial courts discretionary act of revoking probation] the record must suggest  a manifest miscarriage of justice  ]). 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. (People v. Rodriguez, supra, 51 Cal.3d at p. 445.)

Here, appellant does not dispute he was subject to the probation condition that he not consume any alcoholic beverages, and he also does not dispute that he violated that condition twice. He cites People v. Zaring (1992) 8 Cal.App.4th 362, 378-379, for the proposition that a trial court may not revoke probation for a violation that is caused by circumstances beyond [the] probationers control,[2] but acknowledges that he . . . cannot go so far as to claim that his drinking was outside of his control. He also does not dispute that avoiding alcohol was important to his rehabilitation. Appellant therefore argues only that the court abused its discretion in revoking his probation because his two violations were based on his consumption of alcohol and he had otherwise [led] a law-abiding and exemplary life.

Appellants progress in many areas of his life and his compliance with most of the conditions of probation, while relevant, do not excuse his acts of violating other probation conditions on two occasions. The original offenses appellant committed were very serious, were done without provocation, and involved a vicious assault on two innocent bystanders. Appellant admitted he participated in the attack, which resulted in great physical and emotional injury to the victims. There was an indication that the court had given appellant the chance of a lifetime by initially granting probation, and the court repeatedly warned that a violation of any of the probation conditions would result in execution of the stayed sentence. The court explained to appellant the importance of living not only a law-abiding life but also a probation-abiding life, and explicitly stated that acts involving alcohol, including buying an alcoholic beverage, while not illegal, would constitute a violation of his probation.

Despite these warnings, appellant placed the public in danger and violated the conditions of his probation by driving recklessly while under the influence of alcohol. At that time, the court gave him one more shot on probation, referred to the occasion as his last chance, allowed him the opportunity to participate in a residential treatment program, and indicated that even taking a drink again would result in imposition of his sentence. Despite being given that last chance, appellant violated that condition again by drinking alcohol. Under the circumstances, a court could reasonably find that a more restrictive process [wa]s required both to protect society and to assist [appellant] toward ultimate rehabilitation. (See In re Coughlin, supra, 16 Cal.3d at pp. 59-60.) We conclude there was no abuse of discretion.

Disposition

The order revoking appellants probation and sentencing him to 13 years and four months in state prison is affirmed.

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McGuiness, P.J.

We concur:

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Siggins, J.

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Jenkins, J.

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[1] All further statutory references are to the Penal Code.

[2]People v. Zaring, supra, 8 Cal.App.4th at pages 376, 378-379, held it was an abuse of discretion for the trial court to revoke probation for a late court appearance that was caused by circumstances beyond the probationers control.