Opinion
2d Crim. No. B296570
05-14-2020
THE PEOPLE, Plaintiff and Respondent, v. LARRY LEON LEWIS, Defendant and Appellant.
Richard B. Lennon, Executive Director, Nancy Gaynor, Staff Attorney, under appointment by the Court of Appeal for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, David E. Madeo, Acting Supervising Deputy Attorney General, Lindsay Boyd, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F-09633)
(San Luis Obispo County)
Larry Leon Lewis, a convicted sex offender, appeals from the trial court's order revoking probation and sentencing him to three years state prison based on a 2016 conviction for two counts of failing to register as a sex offender. (Pen. Code, §§ 290.011, subd. (b), 290, subd. (b).) We affirm.
All statutory references are to the Penal Code.
In 2016, appellant pled no contest to failure to register after moving to a new residence (§ 290.011, subd. (b)) and failure to register after an address change (§ 290, subd. (b)). Appellant admitted two prison prior enhancements (§ 667.5, subd. (b)) and was granted three years supervised probation. On February 25, 2019, the trial court found that appellant violated probation when he failed to report to probation and violated a criminal protective order. Probation was revoked and a three-year state prison sentence was imposed.
Substantial Evidence
We review for substantial evidence and are precluded from reweighing the evidence or substituting our judgment for that of the trial court. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Probation is not a matter of right but an act of clemency, the granting and revocation of which are within the broad discretion of the trial court. (People v. Urke (2011) 197 Cal.App.4th 766, 773.) A trial court may revoke probation in the interests of justice if it has reason to believe the probationer committed another offense or willfully violated the terms of his or her probation. (§ 1203.2, subd. (a); People v. Rodriguez (1990) 51 Cal.3d 437, 443 (Rodriguez).)
The evidence shows that appellant reviewed his probation terms with Deputy Probation Officer Christine Carlton and signed a copy on November 7, 2018. As a term of probation, appellant was to report in person at the probation office when requested. Carlton told appellant "I need to see your face and we need to talk in person. Sometimes I need to do drug testing. . . . And so he was directed to see me the following Friday."
On November 16, 2018, appellant phoned and said he could not make his scheduled appointment. Carlton reminded appellant that he must report in person and told him to meet at her office on November 23, 2018. It was the day after Thanksgiving and a county holiday, but Carlton was working. The office was open 9:00 a.m. to 4:00 p.m. and next to the bus stop. Appellant did not show up or even call. On November 30, 2018, Carlton learned that appellant was arrested for violating a three-year criminal protective order issued in 2018, prohibiting appellant from contacting his ex-girlfriend, Ann Bell.
Appellant, in his reply brief, argues that he may have stopped by the probation office when Carlton was at lunch. Appellant and Bell did not say what the time was when they allegedly stopped by the office. They claim that appellant left a note, but no note was found. Appellant had a phone but left no phone message with Carlton. And although appellant cross-examined Carlton, he did not ask whether she took a lunch break or left the office at anytime between 9:00 a.m. and 4:00 p.m. on November 23, 2017. --------
Appellant claimed that he and Bell went to Carlton's office on November 23, but the door was locked and he left a note. Appellant admitted that the criminal protective order prohibited him from seeing Bell but said the order was "[not] in place" and that Carlton told him so.
The trial court credited Carlton's testimony that appellant failed to report in person for two consecutive weeks. Appellant, by his own admission, violated the three-year protective order by socializing with Bell. Both Bell and appellant were together on November 23 and on November 30 when appellant was arrested in Pismo Beach.
The facts supporting probation violation need only be proven by a preponderance of the evidence. (Rodriguez, supra, 51 Cal.3d 443.) Appellant had a lengthy criminal history with five failed probation attempts in other cases, some of which resulted in state prison commitments. Substantial evidence supports the finding that appellant understood his probation obligations, had the ability to comply, and willfully failed to comply with the probation terms and conditions. "'[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of . . . revoking probation. . . .'" (Ibid.) This is hardly an extreme case where we should interfere with the revocation of probation.
Disposition
The judgment (order revoking probation and sentencing appellant to three years state prison) is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J. We concur:
GILBERT, P. J.
PERREN, J.
Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
Richard B. Lennon, Executive Director, Nancy Gaynor, Staff Attorney, under appointment by the Court of Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, David E. Madeo, Acting Supervising Deputy Attorney General, Lindsay Boyd, Deputy Attorney General, for Plaintiff and Respondent.