P. v. Rodriguez
Filed 6/20/12 P. v. Rodriguez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
JUAN GUTIERREZ RODRIGUEZ,
Defendant and
Appellant.
2d Crim. No.
B232099
(Super. Ct.
No. CR42746)
(Ventura
County)
Juan Gutierrez Rodriguez
appeals the order revoking his probation and sentencing him to 11 years in
conviction on five counts of committing a lewd act upon a child under the age
of 14 (Pen. Code,
title="">[1] § 288,
subd. (a)). Appellant contends (1) the
evidence is insufficient to support the trial court's finding that he willfully
violated the terms of his probation; and (2) the court abused its discretion in
sentencing him to state prison instead of reinstating him on probation. We affirm.
FACTS AND PROCEDURAL HISTORY
From 1991 until 1996,
appellant repeatedly sexually abused his two stepdaughters, both of whom were
under the age of 14. On April 5, 1998, he pled guilty to five
counts of committing a lewd act on a child under the age of 14. In exchange for his plea, two additional
counts alleging a violation of section 288, subdivision (a), and one count for
continuous sexual abuse of a child under the age of 14 (§ 288.5) were
dismissed. In the felony disposition statement,
appellant acknowledged his understanding that if he was not a citizen of the
States he could be deported, excluded from admission, or denied
naturalization.
On June 4, 1998, the
court suspended imposition of sentence and placed appellant on five years
formal probation with various terms and conditions that required him to, among
other things, (1) serve one year in county jail; (2) register as a sex
offender; (3) report to the probation department within five days of his
release from custody; (4) be under the supervision of a probation officer and
report as directed; (5) refrain from leaving the state or changing his
residence without his probation officer's permission; (6) participate in a sex
offender treatment program as approved and directed by his probation officer;
(7) immediately seek and obtain individual psychotherapy approved by probation;
and (8) refrain from residing with any children under the age of 18 without the
probation officer's prior approval.
Appellant was also ordered to pay fines totaling $3,700, payable at $135
a month beginning on October 1, 1998,
and to "notify [the court] immediately if there is any problem with
payments." The agreement further
provided that appellant could "petition the court at any time to modify or
vacate th[e] judgment if there is a change of circumstances in [his] ability to
pay."
On September 23, 1998, appellant was released from
county jail to INS
title="">[2] detention.
Appellant was deported to
on October 22, 1998. On January
21, 1999, the court summarily revoked appellant's probation and
issued a bench warrant for his arrest after he failed to appear in court.
On July 28, 2010, appellant visited the immigration
office in Juarez, Mexico,
for the purpose of initiating the process to legally reenter the United
States.
Appellant was directed to the border in El Paso,
Texas, where he was detained on the warrant
for his arrest. He was subsequently
transported back to California. When appellant appeared in court on August 9, 2010, the court referred the
matter to probation for a formal notice of charged violations. On August
16, 2010, the probation department filed a notice alleging that
appellant had violated his probation by (1) failing to report to probation
since his release from custody; (2) failing to register as a sex offender; (3)
failing to pay restitution and fines; and (4) failing to submit a blood sample
for AIDS testing. An amended notice was
subsequently filed adding the allegation that appellant had violated his
probation by failing to participate in sex offender treatment.
At the conclusion of a
contested probation violation hearing, the court found appellant in violation
of his probation. The court revoked
probation and sentenced appellant to 11 years in state prison, consisting of
the low term of three years on the base count and consecutive two-year terms
(one-third the six-year midterm) on the remaining four counts. This appeal followed.
DISCUSSION
Appellant contends the
court abused its discretion in revoking probation because the evidence is
insufficient to show that his violation of probation was willful. We conclude otherwise.
Background
The amended notice of
alleged violations (notice) charged appellant with violating his probation by,
among other things, failing to (1) report to probation upon his release from
custody and thereafter report as directed; (2) pay $3,700 in fines and fees,
payable at the rate of $137 a month; and (3) participate in sex offender
treatment and psychotherapy as approved and directed by probation. At the probation violation hearing, the
parties stipulated that the court could consider the facts alleged in the
notice as true, the only issue being whether those facts established a willful
probation violation.
The notice included a
summary of the interview appellant gave after his arrest. Appellant stated that he had not reported to
probation because he lost the relevant paperwork when he was deported and did
not know how or where to report. He
lived in the same town the entire time he was deported and worked to support
his family by selling vegetables. He
tried to enroll in sex offenders classes, but was told "the classes would
not count" because he was in a different country.
At the probation
violation hearing, appellant testified that he had not enrolled in any sex
offender programs because he was told that "they didn't have anything like
that in Mexico." He acknowledged that he never tried to
participate in any form of therapy. He
further acknowledged that he had made no attempts to pay the fines and fees he
agreed to pay as a condition of his probation, but only because he "didn't
have the money to do it."
After hearing argument
from the parties, the court revoked appellant's probation on its finding that
he had willfully violated probation as alleged in the notice. The court stated: "I do find that based on the defendant's
testimony and the record and that of the probation officer, that his
county was not of his own doing. It was
apparently assisted by the U.S. Government, and he was deported. [¶] But he is in violation of
probation for failing to obtain the required treatment and failing to report to
the probation officer in any way during the time of his absence and failing to
make any payments whatsoever on his financial obligations in this case. [¶] I'm astonished that someone such
as the defendant, who was given probation, which I find surprising—I wouldn't
use the word shocking, but it is surprising to me that based on this record,
these violations, that [appellant] was placed on probation by the court. [¶] I don't mean to criticize the
judgment of people in the past, but it is a surprisingly good outcome for a
defendant such as him. And that for him
to simply blow off all of his obligations just because he crossed the border
doesn't make a lot of sense.
[¶] What he needed to do and what he didn't do was to
maintain contact with the Ventura County Probation Department, explain his
circumstances, and do his best to comply with the things he had agreed to do in
terms of probation. He didn't do
anything, anything like that. He just
acted as though because he was in Mexico none of this mattered."
With regard to
appellant's failure to participate in treatment, the court added: "[T]he safety and security of children
in Mexico is every bit as important as is the safety and security of children
in California. And someone such as the
defendant, who is a child molester, agreed to be undergoing treatment to make
sure that other kids weren't molested. And
he just blew off that obligation.
[¶] And I can't say this strongly
enough. The idea is to protect
children. I don't care where they
are. And the defendant acted as though
he had no responsibility to meet his obligations once he cleared the
border. That's wrong, and he's in
violation of probation."
Analysis
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 . . . ." (§ 1203.2,
subd. (a); People v. Galvan (2007)
155 Cal.App.4th 978, 981 (Galvan);
Cal.App.4th 61, 72.) We apply the
substantial evidence standard when reviewing a trial court's finding of a
probation violation. (
840, 848–849.) The facts supporting
revocation of probation may be proved by a preponderance of the evidence. (People
v. Rodriguez (1990) 51 Cal.3d 437, 439; Galvan,
at p. 982; People v. Kelly (2007)
154 Cal.App.4th 961, 965.) The evidence
must support a conclusion that the probationer's conduct constituted a willful
violation of the terms and conditions of probation. (People
v. Cervantes (2009) 175 Cal.App.4th 291, 295 (Cervantes); Galvan, at p.
982.) "Where a probationer is
unable to comply with a probation condition because of circumstances beyond his
or her control and defendant's conduct was not contumacious, revoking probation
and imposing a prison term are reversible error." (Cervantes,
at p. 295.) Trial courts have great discretion
in deciding whether or not to revoke probation.
(Galvan, at pp. 981–982.) Absent abuse of that discretion, we will not
disturb the trial court's decision. (
Appellant challenges the
court's findings that his failure to report to probation, pay his fines and
fees, and participate in sex offender treatment were willful.
He
claims that his deportation rendered it impossible for him to report to
probation or enroll in treatment. He
further claims that he lacked the ability to pay his fines and fees, and that
the court was required to make an express finding on his ability to pay.
We are not
persuaded. Appellant's deportation did
not prevent him from contacting the probation department by telephone or mail
to notify them of his deportation and give them his current address and other
contact information. Moreover, appellant
never purported to espouse a belief that his deportation absolved him of the
duty to report. Rather, he merely
claimed that he did not know how to report because he lost the paperwork. Under the circumstances, the court did not
err in finding that appellant was aware of his duty to report to probation and
had willfully failed to do so.
The cases appellant
cites in support of his position on this point are inapposite. In Galvan,
the trial court found a probationer who was deported upon his release from
custody in willful violation of the conditions that he "'report to the
probation office'" and "'contact the community assessment service
center in Tarzana and the probation officer assigned to that center' within 24
hours of his release from custody."
(Galvan, supra, 155
Cal.App.4th at p. 985.) In reversing,
the Court of Appeal concluded among other things that "a reasonable person
in Galvan's position would have understood these instructions to require a
personal appearance before the probation officer . . . [and] would have assumed
that, in these circumstances, the 24–hour reporting requirement would be
excused." (Ibid., fn. omitted.)
As we have noted, appellant
did not merely agree to report to the probation officer upon his release from
custody. He also agreed to "[b]e
under the supervision of a probation officer and report as directed." The trial court acknowledged that appellant's
deportation prevented him from reporting in person, yet faulted him for failing
to make any effort to contact the probation department during his 11-year
absence from the state. Under the
totality of the circumstances, we believe that a reasonable person in
appellant's position would construe the instruction that he "be under the
supervision of a probation officer and report as directed" as requiring
him to maintain contact with the probation department notwithstanding his
deportation. Indeed, appellant
effectively conceded that he interpreted the instruction in this manner.
Appellant's reliance on
224, is also unavailing. In
will have at best limited ties to the general community and, upon deportation,
such ties to the community as do exist will necessarily be terminated. Obviously, a convicted illegal alien felon,
upon deportation, would be unable to comply with any terms and conditions of
probation beyond the serving of any period of local incarceration
imposed." (Id. at p. 231.) Aside from
the statement being dicta, we disagree with the proposition that a deported
alien will be unable to comply with any term or condition of probation. For example, deportation does not prevent an
alien from notifying the probation department of his or her new address, nor
does it prevent the alien from sending payments for fees and fines he or she
agreed to pay. Moreover, appellant, unlike
the deported aliens in Sanchez, had
and continues to have ties to the general community. By appellant's own admission, he has an adult
daughter in the
States who was helping prepare his immigration papers. He could have just as easily asked her to
assist him in obtaining contact information for the probation department.
In arguing that his
failure to participate in sex offender treatment was not a willful violation of
his probation, appellant offers that he "was not ordered to seek treatment
in Mexico. Rather, [he] was ordered to
'participate as directed in any treatment program designated by the probation officer.'" Appellant fails to appreciate that no
treatment program could have been designated by the probation officer unless he
had contacted probation to notify them of his whereabouts. While he also asserts that California courts have no jurisdiction to
compel treatment or enforce probation conditions on individuals who are in
foreign countries (see People v. Espinoza
(2003) 107 Cal.App.4th 1069, 1076), this does not mean that our courts
cannot find those who willfully refuse to participate in treatment in violation
of their probation. The fact that
appellant was deported did not preclude him from seeing a psychotherapist for
treatment, and his unapologetic admission that he made no effort to do so is a
willful violation of yet another express term and condition of his
probation. Moreover, appellant's admission
that he sought out sex offender treatment in Mexico is a tacit acknowledgment
that he knew he was expected to comply with this term and condition of his
probation notwithstanding his deportation.
Appellant fares no
better in challenging the sufficiency of the evidence supporting the finding
that he willfully violated his probation by failing to pay the fines and fees
he was ordered and agreed to pay as a condition thereof. Appellant claims that the ruling cannot stand
because the court made no express finding that he had the ability to pay. (People
v. Cookson (1991) 54 Cal.3d 1091, 1096; People
v. Quiroz (2011) 199 Cal.App.4th 1123, 1129.) In this context, however, no such express
finding was necessary. Appellant not
only agreed to pay $3,700 in fines and fees by making monthly payments of $137,
but also agreed that he would immediately notify the court of any problems with
his payments. Appellant was also given
the opportunity to petition the court to modify the payment schedule if any
change arose with regard to his ability to pay.
Appellant made no effort to notify the court or seek modification of his
agreed-upon payments. Had he done so,
the court could have reduced or even terminated the payments if necessary. Moreover, over the course of more than 11
years appellant made no effort to make any payment toward his obligation. In these circumstances, the court could
reasonably infer that appellant had willfully violated the terms and conditions
of probation that required him to either make monthly payments, notify
probation of his inability to do so, or petition the court for
of the payment schedule.
Sentencing
Appellant argues that
the court abused its discretion in sentencing him to prison instead of
reinstating him on probation. He claims
the court failed to state its reasons for choosing prison over probation and
imposed a sentence that was not supported by the evidence.
The first claim is
forfeited because it was not raised below.
(People v. Scott (1994) 9
Cal.4th 331, 353-357.) In any event, the
claim lacks merit. Although the
imposition of a state prison sentence
following a revocation of probation is a sentencing choice requiring a statement
of reasons (Cal. Rules of Court,
name="_ftnref5" title="">[5] rule 4.406(b)(2); § 1170, subd. (c)), the
court gave such a statement here. In
arguing to the contrary, appellant highlights the court's comment, "There
is no need to talk about probation.
That's really out of the question at this point." That comment was made, however, while the
prosecutor was arguing against probation.
While the court may have bluntly revealed its thinking on the point, it
did not, as appellant suggests, preclude defense counsel from arguing in favor
of probation.
Moreover, the court gave
a detailed statement of reasons in support of its decisions to sentence
appellant to prison in lieu of probation and impose an 11-year term.
record compels or supports a conclusion that the court's statements in support
of its sentencing decision were confined to its determination whether to impose
the lower, middle, or upper term.
Although the court did not expressly identify as an aggravating factor
that appellant's prior performance on probation was unsatisfactory (rule
4.414(b)(2)), its statement plainly reflects such a finding. Moreover, this aggravating factor is
sufficient by itself to support the court's decision to deny probation and
sentence appellant to prison. (
366, 369.)
The record is also
sufficient to support the court's decision.
"'The grant or denial of probation is within the trial court's
discretion and the defendant bears a heavy burden when attempting to show an
abuse of that discretion.
[Citation.]' [Citation.] 'In reviewing [a trial court's determination
whether to grant or deny probation,] it is not our function to substitute our
judgment for that of the trial court.
Our function is to determine whether the trial court's order granting
[or denying] probation is arbitrary or capricious or exceeds the bounds of
reason considering all the facts and circumstances.' [Citation.]" (People
v. Weaver (2007) 149 Cal.App.4th 1301, 1311.)
Appellant fails to meet
his burden of showing that the court's decision to sentence him to prison
amounts to an abuse of discretion. He
claims our decision in Cervantes compelled
the court to consider reasonable alternatives to prison in light of appellant's
immigration status (Cervantes, supra,
175 Cal.App.4th at p. 298), then offers that the court should have reinstated
him on probation with instructions on how to comply after he was again deported
to Mexico. Cervantes, however, does not purport to establish a requirement
that other alternatives must be considered where, as here, a previously
deported defendant has been found in willful violation of probation. Even assuming that such a requirement exists,
appellant fails to demonstrate that the alternative he advocates would have
been reasonable under the circumstances.
His attempt to make that showing minimizes the willful nature of his
failure to comply with any of the terms and conditions of his probation, the
granting of which allowed him to avoid a lengthy prison sentence.
As the court put it,
"[For appellant] to simply blow off all of his obligations just because he
crossed the border doesn't make a lot of sense.
[¶] . . . He just acted as though because he was in Mexico none of
this mattered." The court found
only one mitigating factor, i.e., the negative impact of his incarceration on
his wife and minor children. By
contrast, the court was faced with a convicted child molester who "blew
off his obligation" to comply with the terms and conditions of his probation. Considering the relevant facts and
circumstances, it cannot be said the court acted arbitrarily or capriciously or
exceeded the bounds of reason in deciding to sentence appellant to prison in
lieu of a second grant of probation.
Appellant's claim that the court's sentencing decision amounts to an
abuse of discretion accordingly fails. (
1311.)
The judgment (order
revoking probation) is affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P.J.
YEGAN, J.
James
P. Cloninger, Judge
Superior
Court County of Ventura
______________________________
Eric R. Larson, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Colleen M. Tiedemann, Nima Razfar,
Deputy Attorneys General, for Plaintiff and Respondent.
are to the Penal Code.
stands for the Immigration and Naturalization Service. After appellant's deportation, the agency was
reorganized and is now known as Immigration and Customs Enforcement, or
"ICE." (People v. Villa (2009) 45 Cal.4th 1063, 1066-1067, fn. 1.)
