P. v. Holliday








Filed 4/11/12 P. v. Holliday CA4/1



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.




COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent, v. REECE PETER HOLLIDAY, Defendant and Appellant.

D060508 (Super. Ct. No. SCN279332)

APPEAL from a judgment of the Superior Court of San Diego County, Timothy M. Casserly, Judge. Affirmed.

On February 15, 2011, Reece Peter Holliday was convicted of one count of burglary of an inhabited dwelling in which a person was present. (Pen. Code,[1] §§ 459, 460, 667.5, subd. (c)(21). On April 19, 2011, Holliday was sentenced to five years' formal probation. Holliday was released on probation on April 20, 2011, and arrested for potential probation violation on April 27, 2011.
On August 8, 2011, following an evidentiary hearing, Holliday was found to have violated his probation. On August 31, 2011, Holliday was sentenced to the low term of two years.
On appeal, Holliday first claims that he did not violate his probation. Second, Holliday claims that he did not receive proper notification of the alleged claims of violation in accordance with due process. As we explain, we conclude that the trial court properly held that Holliday violated his probation conditions and that he received proper notification of the allegations. The judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND[2]
The trial court in this matter found that Holliday violated his probation in two distinct ways, each discussed in turn.
A. Violation of Conditions 7 and 14
In sum, conditions 7[3] and 14[4] mandate that Holliday must comply, cooperate and take all prescribed medication as directed by his probation officer.
On April 27, 2011, Holliday met with his psychiatrist who informed him that he intended to prescribe injective medications to Holliday, but did not actually prescribe them at that time. Prior to meeting with this probation officer, Holliday threw away his pill medication in the lobby of the probation office. Holliday thereafter told his probation officer that he preferred herbal medications, had a fear of needles, and would not accept the injections.
The trial court found that the above actions constituted a probation violation.
B. Violation of Condition 6a
Condition 6a of Holliday's probation agreement requires that he obey all laws.
On April 24, 2011, Holliday and his mother attended a gathering at a relative's home in Thousand Oaks. At some point during the evening, Holliday's mother was told by a third party that Holliday had been masturbating in front of two children. She located and confronted Holliday immediately and was told by Holliday that he took his clothes off in front of the children because the children asked him to. Holliday's mother did not see what occurred and the children were not present when she confronted Holliday.[5] When confronted by his probation officer, Holliday claimed that the children had done something inappropriate but he did not believe he had done anything wrong.
The court found that the above conduct constituted a probation violation.
DISCUSSION
Appointed counsel has filed a brief summarizing the proceedings below. Counsel presents no argument for reversal but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel and Holliday refer to two possible, but not arguable, issues: (1) whether Holliday's probation was properly revoked in accordance with violating the above mentioned conditions and (2) whether Holliday received proper notice of the alleged violation in accordance with due process. We granted Holliday permission to file a brief on his own and he has responded with a supplemental brief.
A. Standard of Review and Governing Law
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 that the person has violated any of the conditions of his or her probation.[6] (See People v. Rodriguez (1990) 51 Cal.3d 437, 447 (Rodriguez).) " 'When the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period. [Citations.]' [Citation.]" (People v. Johnson (1993) 20 Cal.App.4th 106, 110.) The standard of proof in a probation revocation proceeding is proof by a preponderance of the evidence. (Rodriguez, supra, 51 Cal.3d at p. 447; People v. Stanphill (2009) 170 Cal.App.4th 61, 72.) "Probation revocation proceedings are not a part of a criminal prosecution, and the trial court has broad discretion in determining whether the probationer has violated probation." (People v. DeGuzman (1995) 33 Cal.App.4th 414, 419.)
We review a probation revocation decision pursuant to the substantial evidence standard of review (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681), and great deference is accorded the trial court's decision, bearing in mind that "[p]robation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court. [Citations.]" (People v. Pinon (1973) 35 Cal.App.3d 120, 123.)
"The discretion of the court to revoke probation is analogous to its power to grant the probation, and the court's discretion will not be disturbed in the absence of a showing of abusive or arbitrary action. [Citations.]" (People v. Silva (1966) 241 Cal.App.2d 80, 84.) "Many times circumstances not warranting a conviction may fully justify a court in revoking probation granted on a prior offense. [Citation.]" (People v. Vanella (1968) 265 Cal.App.2d 463, 469 (Vanella).) " '[O]nly 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. . . .' " (Rodriguez, supra, 51 Cal.3d at p. 443.) And the burden of demonstrating an abuse of the trial court's discretion rests squarely on the defendant. (Vanella, supra, 265 Cal.App.2d at p. 469.)
B. Analysis
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate issues. Competent counsel has represented Holliday on this appeal. In the supplemental brief filed by Holliday, Holliday raises the issue of proper notification and insufficient evidence of probation violation.
As mentioned above, giving high deference to the trial court's decision, we conclude that there was sufficient evidence to support the court's determination that Holliday violated his probation. Moreover, we conclude that there was sufficient notice to put Holliday on notice of the alleged violations as to allow him to prepare and defend against such allegations. (See People v. Mosley (1988) 198 Cal.App.3d 1167, 1173-1174.) In fact, the trial court ruled that sufficient notice was given because the facts and allegations regarding the incident and potential violation were set forth in all of the pre-hearing arrest and probation reports provided to Holliday as part of the alleged violation. Holliday has provided no credible evidence that he did not receive proper notification or that the evidence supporting a revocation of probation was improper.


DISPOSITION
The judgment is affirmed.



BENKE, Acting P. J.

WE CONCUR:



McDONALD, J.



IRION, J.

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