Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA317758, Carol H. Rehm, Jr., Judge.
Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Emmanuel Galvan appeals the judgment (order revoking probation) entered following his plea of no contest to the use of false documents to conceal his true citizenship or resident alien status. (Pen. Code, § 114.) We affirm the order.
FACTS AND PROCEDURAL BACKGROUND
1. Report of the probation officer.
An “Early Disposition” report prepared by the probation officer for March 6, 2007, indicates that on February 23, 2007, 30-year-old Galvan was stopped driving a car that had been reported stolen by his wife. Galvan gave the police officers a false name. Investigators determined Galvan’s true name and that he had an extensive criminal background and had been deported twice previously. Galvan admitted he obtained a fake DMV identification card in order to work.
The probation officer recommended probation be denied because Galvan had a prior conviction for carrying a concealed weapon on the person. He also had an extensive juvenile record with sustained petitions for possession of a loaded firearm on school grounds, possession of a concealable firearm, petty theft, vehicle theft and receiving stolen property. The report indicated Galvan was a gang member who is in the United States illegally and has been deported previously. The probation officer recommended incarceration followed by deportation.
However, an “Early Disposition Criminal History Assessment” also prepared by the probation department for March 6, 2007, indicated Galvan was a suitable candidate for O.R. release. The assessment included a statement from Galvan’s wife who stated she has known Galvan for 13 years and he has lived locally his entire life. They have lived together for nine years with their children, ages seven and eight, on East 33rd Street in Los Angeles. They are buying the home with a mortgage payment of $1,577 per month. Galvan was welcome to return to the home and his mother also resides in the area. Galvan has been employed as a mechanic for the past nine years earning $400 per week.
The assessment recognized the seriousness of Galvan’s prior criminal history but noted his crimes occurred 10 years ago, he has had no known contact with law enforcement during the last 10 years and, with the exception of the instant matter, he seems to have assimilated well into the community. The report noted Galvan’s “lengthy community ties, locally supportive family and good employment history . . . .” The report concluded the lack of violence in the current matter, the absence of any outstanding warrants and Galvan’s “solid address and employment” history indicated Galvan was a “suitable candidate for release OR.”
2. Galvan is granted probation; bench warrant issues.
On March 6, 2007, Galvan pleaded no contest to a violation of Penal Code section 114. The trial court placed Galvan on probation on condition he serve 180 days in the county jail, keep the probation officer advised of his residence at all times and report to the probation department within 48 hours of his release from custody.
On June 6, 2007, the trial court revoked Galvan’s probation and issued a bench warrant for his arrest.
On December 14, 2007, Galvan was arrested on the warrant. A report from the probation department dated January 2, 2008, indicated Galvan was released to federal authorities on April 30, 2007, and was deported on May 3, 2007.
3. Probation violation hearing.
At the hearing on the probation violation, a deputy probation officer testified Galvan failed to report to the probation department and paid nothing toward his financial obligations. Probation records indicate Galvan did not comply with any of the conditions of probation. The probation officer did not know when Galvan returned to this country or whether Galvan suffered any new arrests after his return. The probation officer indicated Galvan would have been advised of his financial obligations when he reported for supervision.
In response to a question from the trial court, the probation officer indicated Galvan had never given any residence address to the probation department.
In arguing for reinstatement of probation, defense counsel cited People v. Galvan (2007) 155 Cal.App.4th 978, which held the failure to report to the probation department within 24 hours after release from jail was not a willful violation of probation where the defendant immediately was deported following release from jail. (Id. at pp. 983-984.) Galvan further held there was no evidentiary basis for revoking probation based on the failure to report within 24 hours of reentry to the United States because the record contained no evidence showing how long the defendant had been in the United States before he was arrested. (Id. at p. 985.)
Defense counsel argued Galvan was deported upon his release from jail and may have been arrested on the bench warrant immediately upon his return to this country. Therefore, the evidence was insufficient to support a finding he willfully failed to report.
The trial court noted Galvan could have reported between March 6 and May 3 and found Galvan in violation of probation for failing to report as ordered and failing to maintain a residence as approved by the probation department. Defense counsel then pointed out Galvan had been sentenced to 180 days in jail on March 6 so he was in custody after that date. The trial court agreed and conceded, “We have no evidence of when Mr. Galvan was released. But we do have the fact that Mr. Galvan apparently has . . . failed to maintain a residence as approved by the probation department. So on that ground, his probation is revoked.”
The trial court sentenced Galvan to five years in state prison.
CONTENTION
Galvan contends the evidence does not demonstrate he willfully violated the condition of his probation that he maintain a residence approved by the probation department.
DISCUSSION
Galvan contends he could not comply with the condition of probation before he was deported. Further, the trial court had no evidence as to when he returned to the United States after being deported. Thus, there was no evidence to support the finding of a willful violation of probation. (People v. Galvan, supra, 155 Cal.App.4th at pp. 983-985.)
Galvan notes the probation report indicated he and his wife were in the process of buying a home and his mother lived in the same area. Galvan claims his residence was unrelated to any issue involving probation supervision and the probation department knew his address in any event. Further, there is no evidence he ever resided anywhere but at the address where he lived at the time the probation report was prepared. Because Galvan had the same address throughout the proceedings, the probation department not only knew where he lived but apparently approved of his residence.
Galvan asserts the trial court’s decision finding him in violation of probation was arbitrary and capricious and constituted an abuse of discretion. Galvan concludes the evidence was insufficient to establish a willful violation of probation and reversal is required.
The applicable principles are well settled. Trial courts are afforded broad discretion in deciding whether to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) Under Penal Code section 1203.2, subdivision (a), probation may be revoked or terminated “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 . . . .” An appellate court will not disturb the trial court’s decision absent an abuse of discretion. (People v. Self (1991) 233 Cal.App.3d 414, 417.) “A trial court abuses its discretion by revoking probation if the probationer did not willfully violate the terms and conditions of probation.” (People v. Galvan, supra, 155 Cal.App.4th at p. 983.) In determining whether a probationer has violated the terms and conditions of probation, trial courts apply a preponderance of the evidence standard of proof. (Rodriguez, supra, at p. 447.)
Here, although the trial court found Galvan in violation of probation based on his failure to maintain a residence approved by the probation department, the actual condition imposed by the trial court required Galvan to keep the probation officer advised of his residence at all times. Unlike the condition of probation at issue in Galvan, the order that Galvan keep the probation officer advised of his residence at all times does not have a time limit for compliance. Thus, Galvan could have complied with the condition that he keep the probation officer advised of his residence prior to his reentry into this country and certainly could have complied with this condition immediately upon his reentry.
Consequently, Galvan is distinguishable from the present case. Because no abuse of the trial court’s discretion appears, we affirm the order finding Galvan in violation of probation.
DISPOSITION
The order revoking probation is affirmed.
We concur: CROSKEY, J., KITCHING, J.