P. v. Crawford

Filed 8/14/09 P. v. Crawford CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Thomson T. Ong, Judge. Affirmed.

Cheryl Barnes Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________________

Defendant and appellant Deron Maurice Crawford appeals from the judgment and sentence imposed after the trial court found defendant in violation of probation. On August 16, 2007, defendant pled no contest to possession of cocaine base for sale (Health & Saf. Code, 11351.5.) The trial court sentenced defendant to a suspended term of ten years in prison and placed him on formal probation for a period of five years with probationary conditions, including participating in periodic anti-narcotics tests and supporting his dependents as directed by the probation officer.

On September 11, 2008, the trial court summarily revoked probation and calendared a formal probation violation hearing. Defendant was found in violation of probation following the formal revocation hearing. The trial court imposed the previously stayed ten-year prison sentence, consisting of the midterm of four years for the narcotics offense plus six years for defendants prior violations pursuant to Health and Safety Code section 11370.2, subdivision (a).

In his timely appeal, defendant asserts that the trial court abused its discretion by revoking defendants probation because the prosecution failed to prove defendants willful noncompliance with the probationary conditions. Because there was substantive evidence to support the trial courts finding that defendant willfully violated probation, we affirm.

STATEMENT OF FACTS

Prosecution Case

Defendant failed to appear at the scheduled time for drug testing with Deputy Probation Officer Earl Miller on August 5, 2008. Defendant arrived after the testing deadline had passed, but said he was ready to be tested. Miller informed defendant that he was late, but told him to return the next day for testing. Defendant responded that he had a job and could not come in the next day. Defendant did not return for testing on August 6, and Miller submitted a violation report. Defendant did not return until his next scheduled test on September 3, 2008.^[1]

Miller also testified defendant had not met his court-ordered financial obligations. Miller was unable to verify defendants employment, as defendant never brought in any pay stubs. Miller recommended that defendants probation be revoked and the suspended sentence imposed, because defendant was argumentative and failed to appear for testing as instructed.

Defense Case

Defendant admitted he was scheduled for drug testing between 8:00 a.m. and 10:00 a.m. on August 5, but was not able to get there until 11:15 a.m., because his bus had been full and he had to wait for the next one. Defendant told Miller why he was late and wanted to be tested that day. According to defendant, Miller did not order him to return the following day. Defendant explained to Miller that he was on probation at his job, and Miller told defendant to fax him his time sheet and come in for testing the next month.^[2] Defendant faxed in the timesheet and was tested the following month as scheduled.

Deputy Probation Officer Melissa Shaw, who was assigned to write defendants probation violation report, testified that she recommended reinstating probation with a modification of a suitable amount of time in custody.

DISCUSSION

The trial court found two grounds for revoking defendants probation: failure to report for anti-narcotics testing and failure to meet his financial obligations. Defendant asserts the trial court abused its discretion in revoking defendants probation because there was no substantial evidence of a willful violation of defendants obligation to participate in anti-narcotics testing. Defendant does not address the second basis of the trial courts ruling.

At any time during the probationary period, the court may revoke probation when it has reason to believe the defendant has violated any of the terms and conditions of probation. (Pen. Code, 1203.2, subd. (a); People v. Johnson (1993) 20 Cal.App.4th 106, 110.) The prosecutions burden of proof in the trial court at a probation violation hearing is preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 440-446 (Rodriquez).) Revocation of probation, like its grant or denial, lies within the discretion of the trial court. (Id. at p. 443 [It has long been recognized that the Legislature . . . intended to give trial courts very broad discretion in determining whether a probationer has violated probation.].)

We will reverse the trial courts exercise of discretion only if that discretion was exercised in an arbitrary or capricious manner. (People v. Delson (1984) 161 Cal.App.3d 56, 62.) Defendants argument that the finding of a probation violation was an abuse of discretion turns on whether there was a legitimate evidentiary basis for the trial courts finding. [W]here the trial court was required to resolve conflicting evidence, review on appeal is based on the substantial evidence test. Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial courts decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision. (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.)

Defendant relies on People v. Zaring (1992) 8 Cal.App.4th 362, 379 (Zaring) for the principle that there can be no finding of willful violation of a probation condition when the uncontradicted evidence merely shows a de minimus deviation resulting from unforeseen circumstances. Defendant argues that, as in Zaring, the violation in this case was the result of unfortunate and unforeseen circumstances and not due to defendants irresponsibility or disrespect for court orders. In Zaring, the defendant was 22 minutes late for a probation hearing because her childcare and transportation arrangements fell through at the last minute. (Id. at p. 376.) The trial court accepted her excuse as being true, but nevertheless revoked her probation and sentenced her to prison. (Id. at pp. 367-368.) The Court of Appeal reversed, holding that the defendants actions did not show a willful violation of a probation condition and revoking the defendants probation was an arbitrary and capricious use of the courts power and constituted an abuse of discretion. (Id. at p. 379.)

This case is distinguishable from Zaring. Here, the trial court did not determine defendant violated his probation solely because he was one hour late for his narcotics test. Rather, the trial court determined that defendant disregarded Millers order to return the following day for testing. Of course, the trial court was entitled to accept the officers version of the events and to reject defendants.^[3]

Finally, we note that the missed drug test was not the only reason the trial court found defendant in violation of his probation. The trial court stated the reason defendant was put on probation in this case was because he represented that he had a job and was supporting his child. Although defendant was on a payment plan set at $100 per month, he only made six payments totaling $16 throughout the course of one year. Additionally, defendant failed to provide employment information to his probation officer as required. Thus, there exists a separate and independent justification of the trial courts decision.

The trial court did not abuse its discretion in revoking probation and ordering imposition of the previously imposed sentence.

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

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^[1] On cross-examination, Miller stated defendant tested negative on all 11 other tests he took, including on September 3, 2008.

^[2] Miller did not recall asking defendant to fax him paperwork.

^[3] Defendant also asserts the evidence does not support the trial courts finding that he intentionally refused to fulfill his probation testing conditions because defendant volunteered to be tested on August 5, and there was no reason for him to know that appearing at 11:15 a.m. would prevent him from being tested. That assertion misses the point; defendant admitted he knew he was obligated to present himself for testing between 8:00 and 10:00 a.m.