Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 00F3550
SCOTLAND, P.J.
Defendant Charles Thomas Collins entered a negotiated plea of guilty to continuous sexual abuse of a child under 14 years of age with whom he had substantial sexual contact. Consistent with the plea agreement, he was sentenced to 16 years in prison, execution of the sentence was suspended, and he was placed on formal probation for five years on terms including incarceration in the county jail for 180 days.
After defendant admitted violating a condition of probation by failing to successfully complete a sex offender treatment program, his probation was terminated. The suspension of the previously imposed term was lifted, and he was committed to state prison for 16 years.
On appeal, defendant contends the trial court violated his right to due process of law and abused its discretion by terminating probation. We disagree and shall affirm the judgment.
PROCEDURAL BACKGROUND
Defendant signed a written plea agreement stating in part: “I plead guilty to count 1, violation of [Penal Code section] 288.5. I will receive a [Penal Code section] 288.1 referral. I understand that if the court denies me a grant of probation, I will receive no more than 12 years in state prison. If the court grants me probation initially, I will receive a stipulated sentence of 16 years in state prison with the execution of that sentence suspended during a 5 year period of formal probation with local time on initial sentencing. I agree as a condition of probation to participate in, comply with and follow all rules and requirements of, and successfully complete a court approved sex offender treatment program as directed by probation . . . .”
Penal Code section 288.1 provides that any person convicted of continuously sexually abusing a child under 14 years old “shall not have his or her sentence suspended until the court obtains a report from a . . . reputable psychologist . . . as to the mental condition of that person.”
The psychological evaluation prepared pursuant to Penal Code section 288.1 reported that defendant had a “low/average” range of intelligence and had been diagnosed as having characteristics of pedophilia and a personality disorder with schizotypal, obsessive, and dependent features. Nevertheless, he was considered a low risk to reoffend and an average candidate to benefit from treatment in a systematic program.
The evaluation is not part of the record, but its contents are summarized in the probation report.
The probation conditions imposed by the trial court required defendant to “meaningfully participate in, comply with and follow all the rules and requirements of, and complete a recognized adult sex offender treatment program as directed by the Probation Officer.”
Nearly four years later, defendant admitted violating one of the conditions of probation by failing to complete 30 days of community service that had been ordered “in lieu of arrest for [his] failure to comply with the Halloween night restriction and failure to comply with the distance requirements for schools.” The court reinstated probation with the added conditions that the period of probation be extended for three years and that defendant “participate/be evaluated for New Directions to Hope,” a sex offender treatment program.
Thereafter, defendant admitted violating his probation by being “terminated from his sex offender treatment program at New Directions to Hope.”
The supplemental probation report described his performance on probation as “poor at best.” Defendant had been terminated from two sex offender programs, he had “shown little or no progress in over 5 years in an adult sex offender treatment program, and there [was] little evidence. . . this would change” if probation were reinstated. While attending New Directions to Hope, he committed six program violations in less than a year. In addition to missing or arriving late for counseling sessions, he “frequent[ed] locations that [were] . . . inhabited by minors.” His performance improved only slightly after the program was tailored to meet his individual needs, “then quickly declined resulting in his termination” from the program.
The program director at New Directions to Hope said he would be willing to accept defendant back into the program if steps were taken to ensure that defendant took his medication as prescribed, attended his treatment and mental health appointments, and used his social security benefits appropriately.
The probation officer responded: “Though it is obvious that . . . defendant is in need of structured care services[,] there is little evidence that these services would guarantee that . . . defendant would make lasting changes for life.” Accordingly, the probation officer recommended that “defendant’s probation be terminated and that [he] be committed to state prison.”
At a Penal Code section 1204 hearing, Denise Morey, from Community Safety Net Plus, testified her organization was prepared to provide defendant with the services required for readmittance to New Directions to Hope, including housing, 24-hour supervision, and transportation to all of his appointments. She explained that “[t]he initial reason [defendant] was . . . sent out of the program is because he was not making his appointments because he was late. And we feel that under the circumstances, if he had . . . the other people in place, like maybe a nurse that’s monitoring his meds, a case manager and a therapist that’s working more directly and having an individual living with him, you know, 24-hour supervision, 24-7, that he would be able to complete the program and be successful.”
Penal Code section 1204 states in part: “The circumstances [in mitigation or aggravation] shall be presented by the testimony of witnesses examined in open court . . . . No affidavit or testimony, or representation of any kind, verbal or written, can be offered to or received by the court, or a judge thereof, in aggravation or mitigation of the punishment, except as provided in this and the preceding section. This section shall not be construed to prohibit the filing of a written report by a defendant or defendant’s counsel on behalf of a defendant if such a report presents a study of his background and personality and suggests a rehabilitation program. If such a report is submitted, the prosecution or probation officer shall be permitted to reply to or to evaluate the program.
In a supplemental report, the probation officer opined “that taking into account these services that Shasta Community Safety Net is willing to provide[,] . . . [defendant] may be successful in meeting the requirements of his probation. The concern of this officer is if this program will address [defendant’s] behavior in the long term and ensure the Probation Department’s goal of community safety.” Noting defendant’s “long history of rule breaking evidenced by his termination from two separate sex offender treatment programs,” the probation officer stated: “It is clear that the behavior that . . . defendant exhibited during his supervised probation period has been very poor. The question remains if the defendant is capable or willing to make better decisions after his term of probation is complete and this agency no longer provides these services for . . . defendant. This officer stands by the initial recommendation of state prison.”
Defendant argued that he “never really had the ability on his own to complete that program.” He observed “we have a program now that will allow [him] to be able to complete that [sex offender treatment] program” which, he asserted, was “what he[] [was] entitled to when he was given probation.” Thus, he asked the court to “give him one more chance.”
The People responded that while “the program could technically help [defendant] get through the . . . program,” it would not help him “get anything out of” it.
The court agreed with defendant that “[t]here was no chance that [he] was going to complete the program. . . . [H]e probably should have not been put in the program to begin with. That’s apparent. He’s failed two different programs. And he’s failed them for similar reasons.” The court further stated: “[W]hile I am very pleased with the offer made by the . . . Shasta Community Safety Net folks, . . . I think that that is simply only going to extend the time when the ultimate occurs. You can only lead someone around by the hand 24 hours a day for so long. . . . [¶] [My concern] . . . is that once this period of time has concluded, [defendant] will be in the same place where [he] has been. It’s simply that [defendant] has demonstrated that not only is he an individual who cannot comply with the rules and regulations which the Community Safety Net folks would help him do, but he’s also -- which the Community Safety Net people cannot help him do -- is an individual who is simply not going to benefit from the program. He’s simply not an individual who’s going to be able to apply himself to the programs. [¶] [The New Directions to Hope program director] has made a very generous . . . offer to take [defendant] back to the program, even though these programs that he failed had taken him out of the mainstream of the program, and had constructed individual programs for him, tailored to [him], which he then spectacularly failed. [¶] I think that we owe him to put off the inevitable that he’s going to fail again, either during his course of probation or soon after probation. And unfortunately for [defendant], failing puts the community in danger. Many of his transgressions here are absolute transgressions of matters that put people in danger. [¶] He’s in the vicinity of children. He’s doing the types of things that concern the community. It’s not that he’s failing because -- well, he is failing because he doesn’t go to the programs and do his work program, but more importantly, many of his failures are exactly the types of things that led him to have the convictions that he has.”
For the reasons expressed above, the trial court terminated defendant’s probation and executed the previously suspended 16-year prison sentence.
DISCUSSION
I
Defendant contends the trial court violated his right to “due process by sentencing [him] to the upper term in state prison without giving him the bargained-for chance on probation, which the court agreed [he] had no chance of completing.” In his view, “[b]ecause [he] was not capable of completing the [sex offender treatment] program as ordered, the promise of a chance on probation was illusory in violation of state and federal due process.”
We agree with the People that defendant’s “claim challenges the validity of his plea by claiming the bargain was illusory and should be barred because he has not secured a certificate of probable cause.” When a person enters a plea of guilty, as defendant did, he may not challenge the validity of the plea on appeal unless he “has sought, and the trial court has issued, a certificate of probable cause ‘showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.’” (People v. Emery (2006) 140 Cal.App.4th 560, 562; see Pen. Code, § 1237.5.) Here, by effectively claiming that a term of his plea agreement is invalid, defendant challenges the validity of his plea. Therefore, we must dismiss the appeal on this point because he did not obtain a certificate of probable cause. (People v. Emery, supra, 140 Cal.App.4th at p. 562.)
In any event, the claim of error fails on the merits. The court’s statement “[t]here was no chance that [defendant] was going to complete the program” does not, as defendant claims, make “the promise of a chance on probation . . . illusory.” When considered in context, it was an expression of the court’s conclusion that defendant was “simply not an individual who’s going to be able to apply himself to the program[],” and thus, was “not going to benefit from the program.” When the parties entered into the plea agreement, they and the court assumed that defendant was capable of completing a sex offender treatment program. There is no evidence anyone knew at that time that defendant would be unable to complete such a program. It was only after he failed two such programs, and the circumstances of his failures were revealed, that the court concluded defendant was not capable of successfully completing a sex offender treatment program.
We also reject the assertion that the trial court breached the plea agreement by not giving defendant “a true chance at probation.” Actually, defendant was given two chances to complete a sex offender treatment program, including one that was specially tailored to meet his individual needs. He failed both times. The court’s refusal to give him a third chance based on its determination that he would not benefit from such a program--even with the additional services that were being offered--was not a breach of the plea agreement.
II
We also reject defendant’s contention that the trial court abused its discretion by terminating probation and sentencing him to the upper term in state prison.
According to defendant, (1) “the record does not support the court’s finding that [he] would fail probation and put the community in danger,” and (2) “the possibility of post-probation failure was not a proper consideration.” We disagree.
Ample evidence supports the finding that defendant was incapable of successfully completing a sex offender program, a condition of his probation. As the trial court recognized, successful completion of a sex offender treatment program required more than defendant simply showing up; it required the ability to apply himself. Based on defendant’s termination from two sex offender programs, including one specially tailored to meet his needs, the court reasonably could infer that defendant would not benefit from a sex offender treatment program even with the additional services that were being offered. Thus, termination of probation on this basis was not an abuse of discretion.
We now turn to the trial court’s statement that defendant is “going to fail again, either during his course of probation or soon after probation. And unfortunately for [defendant], failing puts the community in danger.” (Italics added.) Generally speaking, the possibility of post-probation failure is not a proper basis for terminating probation. (See Pen. Code, § 1203.2, subd. (a).) However, having considered the court’s statement in context, we are satisfied that the decision to terminate probation was based on the trial court’s finding that defendant was incapable of successfully completing a sex offender treatment program, and that the court was referring to the consequences of this when it noted defendant was “going to fail again, either during his course of probation or soon after probation.”
Having properly exercised its discretion in terminating probation, the trial court’s only option was to execute the previously suspended 16-year sentence. (Pen. Code, 1203.2, subd. (c); Cal. Rules of Court, rule 4.435(b)(2); People v. Howard (1997) 16 Cal.4th 1081, 1088.)
DISPOSITION
The appeal is dismissed to the extent it challenges the validity of the plea without defendant having obtained a certificate of probable cause. To the extent the appeal challenges the trial court’s exercise of discretion in terminating defendant’s probation and sentencing him to state prison, it lacks merit. Accordingly, the judgment is affirmed.
We concur: SIMS, J., MORRISON, J.