Opinion
G053542 C/w G053802
02-20-2018
THE PEOPLE, Plaintiff and Respondent, v. ANDREW MICAH CARMONA, Defendant and Appellant.
Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Barry Carlton, Anthony Da Silva and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15NF2983) OPINION Appeal from a judgment and a postjudgment order of the Superior Court of Orange County, John Conley, Judge. Affirmed. Melanie K. Dorian, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Barry Carlton, Anthony Da Silva and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
After a jury found Andrew Micah Carmona committed first degree robbery, the trial court found, inter alia, he had suffered a prior serious felony conviction. The trial court suspended imposition of sentence and placed Carmona on formal probation for three years on terms and conditions that included he violate no law. Carmona appealed from the judgment of conviction.
Days after he was sentenced, Carmona was arrested for falsely identifying himself to a police officer. A petition alleging Carmona violated probation was filed, and Carmona admitted he violated probation by falsely identifying himself to the officer. The trial court ordered his probation terminated and imposed sentence; Carmona appealed from that order. We have consolidated Carmona's two appeals for all purposes.
We affirm the judgment of conviction. Substantial evidence supported the finding Carmona intended to permanently deprive the victim of her purse during his struggle with her, in which he prevailed and carried away her purse. Even assuming the trial court erred by allowing the prosecution to elicit testimony that Carmona was homeless and unemployed at the time of the robbery, such an error was not prejudicial. The record did not support the trial court instructing the jury on the mistake of fact defense as to the robbery offense, and thus the court did not err by refusing Carmona's request to so instruct. The trial court properly allowed the court reporter to read back portions of the victim's testimony to the jury as requested; we find no error in the court's handling of the readback process. The record does not demonstrate the existence of cumulative errors rising to the level of prejudicial impact.
We also affirm the court's postjudgment order terminating probation and imposing sentence as well within the court's discretion.
FACTS
During the evening of November 2, 2015, Alba M. was cooking dinner for her children in her home when she heard someone pounding on her door. She looked through the peephole and saw a man she later identified as Carmona screaming for his sister to let him in. Alba told Carmona that he had the wrong place and asked him to leave.
Carmona continued to hit the door and shake the doorknob to try and enter. Alba told him: "Please get out of here. You've got the wrong place." Alba instructed her children to lock themselves inside one of the bedrooms, and they complied.
When Alba looked through the peephole again, Carmona was moving away from the door. He then jumped onto the patio just outside Alba's open sliding glass door. He continued to yell and bang on a window. Alba tried to close the sliding door to prevent him from entering. She could not get the door to latch because Carmona was pulling the door in the opposite direction to open it. After Carmona succeeded in opening the door, Alba tried to hold him; he pushed her, causing her to fall backward in between the television and the couch.
Carmona moved toward the bedrooms screaming for his sister, stating "you have my sister" and "let me see her." Alba told him to get out, and tried to grab the bottom of his pants to stop him but could not hold on. She grabbed him by the shirt and put herself in front of him to block his forward progress. She could smell a strong scent of alcohol coming from Carmona; his eyes were "really, really red," and he slurred his speech. He pushed her on the chest to get her out of the way, but she successfully wedged herself into a bedroom doorframe as he tried to push his way in.
Alba's purse was hanging in the hallway; it contained $600 in cash in a zipper pocket. At some point, Carmona stopped trying to get into the bedroom, took her purse, said something to effect of "got-cha" to Alba, and ran with the purse to the front door. Alba followed Carmona and tried to grab the purse. In response, Carmona "swung the purse" and "punch[ed]" Alba on the forehead causing her glasses to fall. Carmona left, taking the purse with him.
The record does not specify whether Carmona used his hand or the purse to punch Alba.
A police officer found Alba's purse in a nearby alley with its contents dumped out and returned it to her. The $600 was missing.
PROCEDURAL HISTORY
Carmona was charged in an information with one count of first degree robbery in violation of Penal Code sections 211 and 212.5, subdivision (a) and one count of first degree residential burglary in violation of sections 459 and 460, subdivision (a). As to the burglary offense, the information alleged that Alba M., who was not an accomplice, was present in the residence during the commission of the residential burglary. (§ 667.5, subd. (c)(21))
All further statutory references are to the Penal Code.
The information further alleged: (1) pursuant to sections 667, subdivisions (d) and (e)(1) and 1170.12, subdivisions (b) and (c)(1), Carmona suffered a prior strike conviction; (2) pursuant to section 667, subdivision (a)(1), Carmona was convicted of a prior serious felony; and (3) pursuant to section 667.5, subdivision (b), Carmona had served a prior prison term. The trial court granted the prosecution's motion to dismiss the prior prison term sentencing enhancement allegation.
The jury found defendant guilty of committing the first degree robbery offense but not the first degree burglary offense. The court found the prior strike conviction and prior serious felony conviction sentencing enhancement allegations true.
At the sentencing hearing, the trial court exercised its discretion pursuant to section 1385 and struck the prior strike sentencing enhancement, explaining in the minutes the court did so "to give the defendant a chance to complete the Delancey Street program, crimes are due to alcohol, defendant is not a bad person and that there is some hope for the defendant." The court suspended imposition of sentence and placed Carmona on three years' formal probation on terms and conditions including that he "report to the Delancey Street program as soon as he is released from custody, cooperate with this program, and successfully complete this program." The terms and conditions of probation also included that Carmona "[v]iolate no law" and serve 364 days in jail. Carmona filed a notice of appeal from the judgment of conviction.
Carmona had accrued 366 days credit for time served.
Nine days after the sentencing hearing, the probation department filed a petition for arraignment on a probation violation alleging that Carmona violated the terms of probation by falsely identifying himself to a police officer. The petition also alleged that Carmona had been ordered to complete the Delancey Street program but left the program on the same day he enrolled without notifying the probation department: His whereabouts were unknown. The probation department submitted a warrant to the trial court.
The following day, the probation officer received a call from staff at the Dream Center program in Los Angeles, stating that Carmona had enrolled in that program. Carmona called the probation officer and stated he had enrolled in the Dream Center program and that he wished to remain there; he did not disclose his location. The probation officer told Carmona that he was required to petition the court to modify the order that he complete the Delancey Street program and that he needed to contact his attorney and report to the court. The probation officer attempted to cancel the warrant but was unable to do so because it had already been received by the court for review.
At the probation violation arraignment, Carmona waived a formal probation hearing and admitted the violation of probation. The trial court found Carmona in violation of probation, terminated probation, and sentenced Carmona to a nine-year prison term by imposing the middle term of four years for the first degree robbery offense and a consecutive term of five years for the prior serious felony conviction sentencing enhancement. Carmona appealed.
We granted Carmona's motion to consolidate his two appeals for all purposes.
DISCUSSION
I.
SUBSTANTIAL EVIDENCE SUPPORTED CARMONA'S FIRST DEGREE ROBBERY CONVICTION
Carmona argues his first degree robbery conviction should be reversed because insufficient evidence showed he intended to permanently deprive Alba of her purse either before or during their struggle over it. Carmona's argument is without merit.
"'In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Steele (2002) 27 Cal.4th 1230, 1249.) We presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We may reverse for lack of substantial evidence only if "'upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331.)
"Robbery is defined as 'the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.' [Citation.] Robbery is larceny with the aggravating circumstances that 'the property is taken from the person or presence of another . . . ' and 'is accomplished by the use of force or by putting the victim in fear of injury.' [Citation.] In California, '[t]he crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety.' [Citation.] It thus is robbery when the property was peacefully acquired, but force or fear was used to carry it away." (People v. Anderson (2011) 51 Cal.4th 989, 994.) "The intent required for robbery has been described as the specific intent to deprive the victim of the property permanently. [Citations.] Thus, 'the act of force or intimidation by which the taking is accomplished in robbery must be motivated by the intent to steal.'" (Ibid.)
Alba testified that after she blocked Carmona from entering one of the bedrooms in her condominium, Carmona grabbed her purse off the wall, said something to the effect of "got-cha," and ran toward the door. When Alba grabbed at her purse to try to stop Carmona from taking it, he swung the purse, punched her in the forehead, and left with the purse. Police later discovered the purse in an alley with its contents poured out and the $600 was missing. Sufficient evidence, therefore, supported the jury's finding that Carmona formed the intent to permanently deprive Alba of her purse no later than during their struggle over the purse.
II.
ANY ERROR COMMITTED IN THE ADMISSION OF EVIDENCE OF CARMONA'S
HOMELESSNESS OR EMPLOYMENT HISTORY WAS HARMLESS.
Carmona argues the trial court prejudicially erred, on the one hand, by allowing a police officer to testify that Carmona was homeless and Carmona's sister Jolene to testify Carmona was unemployed, but, on the other hand, by precluding Carmona's father's testimony that Carmona was occasionally employed. He argues the admission of Carmona's homelessness and lack of employment constituted prejudicial error because evidence of poverty is generally inadmissible to establish a motive for robbery or theft. Carmona further argues the trial court erred by failing to admonish the jury regarding that evidence and by denying his motion for a mistrial on that basis.
During trial, Carmona called Newport Beach Police Officer Sam Sa as a witness to testify about the time he arrested Carmona for being drunk in public. Carmona had told Sa that he had consumed two bottles of vodka; Sa found an unopened bottle of vodka in Carmona's pants pocket. On cross examination, the prosecutor asked Sa if he had asked Carmona where he lived. Carmona's counsel objected on the grounds of relevance (not on the grounds it constituted inadmissible evidence of motive) but that objection was overruled. Sa testified that Carmona had told him he was homeless. On redirect examination, defense counsel asked Sa why Carmona's homelessness was relevant to whether Carmona was too drunk to care for himself. Sa explained that if an officer encounters a drunk person who can take a cab and has a home to go to, that person is generally not considered a danger to the public but a homeless person who has nowhere to go might be arrested because of the "safety factor" to the public.
Carmona's sister Jolene testified about Carmona's problems with alcohol. On cross-examination, she testified that a few days before the robbery, she saw Carmona "walking around with some beers" near apartments where "a lot of homeless people" were. The prosecutor asked Jolene whether Carmona had been working that day; she responded no. The prosecutor asked whether she knew when Carmona had last been employed. Defense counsel objected on the grounds of relevance and the trial court sustained that objection. The prosecutor argued during a side bar that Carmona's unemployment was relevant to show he "has got to steal to feed this habit" which would explain his motive to enter Alba's home to steal. The trial court, however, upheld its ruling, stating that "case law has pretty well kept out [of] people's financial situations in cases like this, so I'm sustaining the objection."
Carmona also called his father as a witness; he testified that Carmona had worked with him and was an excellent worker. The prosecutor objected to further questioning of Carmona's father regarding the timing of his most recent work on the grounds of relevance and the trial court sustained that objection.
Defense counsel moved for a mistrial based on the admission of evidence that Carmona was homeless. Counsel argued that the prosecutor had argued in connection with a section 1118 motion that "just the mere fact that my client was homeless and that he was an alcoholic made him not only [a] risk, but a probability that he would steal. That that would be his motivation for the residential robbery and burglary. . . . I'm going to ask for a mistrial. In the alternative I'm going to ask for that to be stricken and cured with the jury that, you know, it's not coming in that he is homeless."
The prosecutor responded: "[T]hen the court would also have to strike all of the saccharine sweet testimony from the . . . defendant's family where they all came in and testified that they bring him food and shelter to where he lives in the park, which was brought in entirely and exclusively by the defense. [¶] There's no reason for a mistrial here. The issue of the transient and that and him not working . . . but in the 1118 motion I didn't say that was the reason they did this, I said but it could provide a motivation for why the court should not find the 1118 on the 459. But this whole issue about him being homeless, it was delved into far deeper by the defense than anything by the People."
The court denied the motion for a mistrial, stating: "As the court looks at it being homeless could be looked at by some jurors, maybe a few, as a negative, but most jurors would feel sorry for someone who is homeless. And I agree with the prosecutor's characterization, really the defense has used it. [¶] The standard of a mistrial is under People versus Wallace, 44 Cal.4th 1032 at 1068 is, a mistrial—quote, 'A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on['] a mistrial motion. [¶] I think this is a very minor part of the case, and both sides have gotten into it, the defense much more than the prosecution. [¶] So the motion for a mistrial is denied. I'm not inclined to strike it because I agree with what the prosecutor said, if we strike the little that Officer Sa said, we would have to start striking a lot of what the defense witnesses said."
"Ordinarily, '[e]vidence of a defendant's poverty or indebtedness, without more, is inadmissible to establish motive for robbery or theft because it is unfair to make poverty alone a ground of suspicion and the probative value of the evidence is deemed to be outweighed by the risk of prejudice.'" (People v. Clark (2011) 52 Cal.4th 856, 929.)
We do not have to decide whether the trial court should have excluded the testimony regarding Carmona's homelessness or employment history because the admission of such evidence was not prejudicial. For the same reason, the trial court did not err by denying the motion for a mistrial. (People v. Gonzales (2011) 51 Cal.4th 894, 921 [denial of a motion for a mistrial reviewed for abuse of discretion].)
The evidence was overwhelming that Carmona stole Alba's purse by force or fear. In addition, the evidence of Carmona's homelessness was offered in the context of explaining why Carmona's public intoxication resulted in his arrest by Sa; it was not offered in a manner suggesting he had a motive to steal Alba's purse. Carmona acknowledges that the prosecutor did not bring up the fact of Carmona's homelessness or employment status in his closing argument. Any error in allowing such evidence was not prejudicial.
III.
THE TRIAL COURT DID NOT ERR BY REFUSING TO INSTRUCT THE JURY ON MISTAKE OF
FACT AS TO THE FIRST DEGREE ROBBERY COUNT.
Carmona requested that that the trial court instruct the jury on the mistake of fact defense in the form of CALCRIM No. 3406 with regard to both the first degree robbery and the first degree residential burglary counts. The trial court agreed that the instruction was appropriate for the residential burglary count but was not appropriate for the robbery count.
The trial court thereafter instructed the jury with the following modified version of CALCRIM No. 3406 on mistake of fact with regard to the residential burglary count only: "The defendant is not guilty of residential burglary in count 2 if he did not have the intent or mental state required to commit the crime because he did not know a fact or reasonably [and] mistakenly believed a fact. [¶] If you find that the defendant believed he was entering his sister's house or entering a house to find his sister, and you find that belief was reasonable, he did not have the specific intent or mental state required for residential burglary. [¶] If you have a reasonable doubt about whether the defendant had the specific intent or mental state required for residential burglary, you must find him not guilty of that crime."
In his opening brief, Carmona argues: "[T]he jury decided that [Carmona] entered the condominium, not to steal, but to look for his sister, and, as a result, he was not guilty of the burglary. Yet, [Carmona]'s mistake of fact was equally relevant to the robbery, because if he believed he was in his sister's apartment or that his sister was hiding in that apartment, the jury would have recognized that [Carmona] was motivated by something other than an intention to steal. [¶] The jury could have concluded that [Carmona] simply grabbed and swung the purse out of anger and frustration with his sister, but with no intention of keeping it. With respect to the $600, the jury could have concluded that [Carmona] intended to borrow the money, believing this was his sister's purse. Alternatively, the jury may have found that [Carmona] was not the person who had taken the money, and conversely, given no credence to Alba's testimony regarding the money at all and concluded that there had been no money in that purse, because he would not steal money from his sister."
Here, the evidence showed that after Alba persisted in struggling with Carmona to keep him away from the bedroom where her children were sheltered, he looked at the purse hanging on the wall, grabbed it, looked at Alba and said something to the effect of "got-cha" before trying to run out of the condominium. Alba followed him and tried to grab the purse away from him. In response, he swung the purse, punched her in the forehead, and fled the condominium, carrying the purse with him. No evidence suggested that he thought the purse was his sister's or that he merely displayed it to express his frustration with his sister. He struggled with Alba until he was able to successfully flee the apartment with the purse. The purse was later discovered overturned in a nearby alley without the $600 that Alba testified had been in a zipped pocket inside the purse.
The trial court is not obliged to instruct a jury on a defense if the evidence supporting the defense is minimal or insubstantial. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) As our record does not contain evidence supporting a mistake of fact instruction as to the first degree robbery count, the trial court did not err by refusing to give that instruction.
IV.
THE TRIAL COURT PROPERLY HANDLED THE JURY'S REQUEST FOR A READBACK OF A
PORTION OF ALBA'S TESTIMONY.
Carmona argues the trial court prejudicially erred in its handling of the jury's request that a portion of Alba's testimony be read back to them during deliberations.
"'Pursuant to section 1138, the jury has a right to rehear testimony and instructions on request during its deliberations. [Citations.] Although the primary concern of section 1138 is the jury's right to be apprised of the evidence, a violation of the statutory mandate implicates a defendant's right to a fair trial conducted "'substantially [in] accord[ance] with law.'"'" (People v. Ayala (2000) 23 Cal.4th 225, 288.) Section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
During deliberations, the jury submitted the following written request to the trial court: "We, the jury in the above entitled action request the following: Transcript of Al[b]a M testimony—around taking of purse." The trial court discussed the jury's request with the prosecutor and defense counsel. Defense counsel stated that she believed "the best course of action" would be to have all of Alba's testimony read back to the jury and not just the portion involving Carmona's taking of Alba's purse. She argued that approach would obviate the need to negotiate what parts of her testimony were being requested. The trial court and counsel thereafter engaged in the following colloquy:
"[The prosecutor]: The jury asked for one specific thing. I don't see what our thoughts matter.
"[Defense counsel]: I guess my thought is how are you going to give them that one specific thing?
"The Court: I'm going to send the court reporter back and she will read it to them. If they feel there's something missing, they can ask.
"[Defense counsel]: What part is the court reporter going to decide is responsive to regarding taking of the bag?
"The Court: The parts about taking of the bag. I think you're making a mountain out of a molehill. It's just a simple thing, the taking of the bag. Now, if they want more they are always able to give them more."
Defense counsel confirmed with the trial court that the court reporter would decide what she feels is responsive and moved that the court order all of Alba's testimony reread. The court denied the motion.
Discussion of the readback of Alba's testimony continued:
"[Defense counsel]: May I be present when that occurs? Or is that going to happen—I know that the rules that we completely agreed to was that she would, the court reporter would go alone into the jury room. She would make the election or decisions and then she would read. Is there a possibility in the alternative that I could be present? Obviously the D.A. can be present as well. I'm not excluding him. But just so that I can make sure that what is being said, or are you confident that it's going to be somehow recorded through what the court reporter—how is it going to be recorded what she decides to read and what she decides not to read?
"The Court: It isn't going to be recorded.
"[Defense counsel]: Okay. I guess the defense has a problem with that, because I'm not going to be able to later on appeal designate what I would have believed would have been responsive to the question, versus what someone else would be responsive to the question. And I would submit.
"The Court: All right, if that's a renewal of your motion, it's denied."
Carmona argues the trial court erred by allowing the court reporter to decide which portions of the testimony should be read, without permitting defense counsel to be present during the readback, by abdicating its duty to satisfy the jury's request, and by failing to oversee the readback proceeding, all in violation of Carmona's constitutional rights. Carmona's arguments are without merit.
The trial court did not abdicate its responsibility to oversee the readback proceeding. The court complied with section 1138 by notifying counsel of the jury's request to rehear portions of Alba's testimony regarding the taking of her purse—which was a discrete portion of her testimony— and by directing the court reporter to read that portion of the testimony, noting that if the jury requests that more testimony be read, it could ask. The jury's request was not ambiguous. Carmona was not entitled to have more testimony readback to the jury than what was requested by the jury, and he does not offer any legal authority holding otherwise.
Defense counsel's comments suggest she had entered into a prior agreement with the prosecutor and perhaps the court that in the event of a readback of testimony, the court reporter would go into the jury room alone and read back the requested testimony. Nevertheless, defense counsel requested that, in the alternative, she be permitted to be present during the readback; the court rejected that request.
Carmona does not cite any California or United States Supreme Court authority supporting his argument that he was entitled to have counsel be present for a readback of certain portions of a witness's testimony.
In People v. McCoy (2005) 133 Cal.App.4th 974, 976, the appellate court rejected the defendant's argument, which the court noted was a question of first impression, "that a readback of testimony to the jury over express defense objection out of his and his attorney's presence violated federal and state constitutional rights to counsel and due process." The court noted the United States Supreme Court has never held that a readback of testimony is a critical stage of trial. (Id. at pp. 982-983.) The California Supreme Court has held "[t]he reading back of testimony ordinarily is not an event that bears a substantial relation to the defendant's opportunity to defend." (People v. Horton (1995) 11 Cal.4th 1068, 1121; see People v. Ayala, supra, 23 Cal.4th at p. 299 [the rereading of testimony is "not a critical stage of the proceedings"].)
V.
THERE WAS NO CUMULATIVE ERROR
Carmona asserts he was prejudiced by cumulative error. "[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill (1998) 17 Cal.4th 800, 844.) We have rejected all of Carmona's contentions of error on appeal except for his contentions of evidentiary error, of which we did not reach the merits, because we concluded any such errors would not be prejudicial. Thus, there was no cumulative error.
VI.
THE TRIAL COURT DID NOT ERR BY TERMINATING PROBATION AND IMPOSING
SENTENCE.
Carmona argues the trial court's decision to terminate probation and impose sentence on him instead of modifying probation and allowing him to enroll in a faith-based program constituted an abuse of discretion and a violation of his right to due process. We disagree.
"In placing a criminal on probation, an act of clemency and grace [citation], the state takes a risk that the probationer may commit additional antisocial acts." (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) Section 1203.2, subdivision (a), provides that "[a]t any time during the period of a supervision of a person (1) released on probation under the care of a probation officer pursuant to this chapter . . . if any probation officer . . . has probable cause to believe that the supervised person is violating any term or condition of his or her supervision, the officer may, without warrant or other process . . . rearrest the supervised person and bring him or her before the court or the court may, in its discretion, issue a warrant for his or her rearrest . . . . Upon rearrest, or upon the issuance of a warrant for rearrest, the court may revoke and terminate the supervision of the person if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of the conditions of his or her supervision . . . or has subsequently committed other offenses, regardless of whether he or she has been prosecuted for those offenses."
"Our trial courts are granted great discretion in determining whether to revoke probation. [Citation.] Such discretion 'implies that in the absence of positive law or fixed rule the judge is to decide a question by his view of expediency or of the demand of equity and justice.'" (People v. Rodriguez, supra, 51 Cal.3d at p. 445.) Interference with the trial court's exercise of discretion regarding probation is not justified when the court "has considered all facts bearing on the offense and the defendant to be sentenced." (People v. Vargas (1975) 53 Cal.App.3d 516, 533.)
Here, Carmona admitted he violated a term of probation. The record shows the trial court considered all facts bearing on the offense and Carmona's criminal history in deciding to terminate probation. The court stated at the hearing: "This was a serious case. I'm looking at my notes from the probation report. Significant level of violence. A forced entry into the victim's home, which was a single woman who had several children. He forced his way in. He was drunk at the time. That was some mitigation. Caused the victim to fall. Eventually struck her several times, and took her purse. Which had, wasn't it $800 in it? Something like that.
We understand the court's reference to Carmona striking Alba several times as referring to the pushes and the punch that occurred during their struggle. --------
"Has arrests and convictions going back to 2001 of increasing seriousness, and served prior prison terms. On parole at the time. And prior performance on probation and parole were not good.
"Despite that, I struck a strike and placed him on probation because I thought the main problem is the alcohol. That didn't make the victim's evening with him any more lik[e]able, however. She had to go through the whole thing.
"But the problem is alcohol. So Delancey Street is the one program I'm familiar with which has some success. Many other programs try and they are good and so on, but Delancey Street was, to me, the Cadillac of programs.
"So with some misgivings I placed him on probation on condition that he complete Delancey Street, and of course violate no laws.
"And what was the result of that leniency? He lasted one day in Delancey Street. And did he immediately return to court? No. He kind of went on the lam and ended up committing a new crime.
"He knew Delancey Street was not a religious program. He didn't return to court and ask for a modification. And my feelings of giving him one last chance are over."
Carmona has therefore failed to demonstrate the trial court abused its discretion in terminating probation in this case or otherwise run afoul of Carmona's constitutional rights.
DISPOSITION
The judgment and the postjudgment order are affirmed.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.