Opinion
NOT TO BE PUBLISHED
Superior Court County No. 2003039305, of Ventura Glen M. Reiser, Judge
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, John R. Gorey, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Russell Patrick Merrick appeals the revocation of his probation and the imposition of a prison term. He claims there is insufficient evidence to support the finding of a violation of probation. We affirm.
FACTS
On March 4, 2004, the District Attorney of Ventura County charged Merrick with one felony count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and a misdemeanor driving under the influence of alcohol (Veh. Code, § 23152, subd. (b)). Only the felony count is subject to this appeal.
On June 1, 2004, Merrick pled guilty. The court suspended criminal proceedings and placed Merrick on a deferred entry of judgment program for 24 months. As conditions of the deferred entry of judgment, Merrick was ordered to be under the supervision of a probation officer, participate in any treatment program designated by the probation officer, and obey all laws.
On March 21, 2006, the court revoked deferred entry of judgment and reinstated criminal proceedings. The court placed Merrick on probation and ordered all terms and conditions previously imposed to remain in full force and effect.
On March 23, 2006, the court held a hearing on "Clarification of Sentence." The court placed Merrick on formal probation for 36 months. Among the terms and conditions of probation reflected in the minute order are: that Merrick be under the supervision of a probation officer, participate as directed in any treatment program designated by the probation officer, and avoid narcotics, dangerous drugs, controlled substances or paraphernalia. No reporter's transcript for the March 23, 2006, hearing has been provided on appeal.
On September 29, 2006, Merrick was arraigned on violation of probation. The probation department charged that Merrick violated his probation on the felony drug charge and in three separate misdemeanor cases. The probation report states that Merrick has violated probation by drinking alcohol, failing to enroll in drinking driver and domestic violence treatment programs, and by failing to pay court-ordered restitution. The report concludes that Merrick has no intention of enrolling in any form of treatment, and that his need for supervision far exceeds the scope of probation. The report recommends that probation be terminated and a substantial amount of time in custody be imposed.
Merrick's probation officer, Tressie Nickelberry, testified at the hearing. She said that Merrick was ordered in all four cases not to drink alcohol or be where alcohol was the chief item of sale. In July of 2006, Merrick admitted to her that he had consumed alcohol the previous weekend. Merrick has failed to enroll in a drinking driver program, a multiple conviction drinking driver program, and domestic violence classes, as ordered by probation. Merrick was required to meet with Nickelberry every month to two months. Merrick has met with her only twice since July of 2005.
Merrick testified on his own behalf. He said he did not enroll in the programs directed by probation because he is in the process of challenging the underlying convictions.
After the hearing, the trial court found Merrick to be in violation of probation by, among other matters, consuming alcohol, failing to enroll in alcohol school levels one or two, and not enrolling in domestic violence classes. The court stated, "[Merrick is] not supervisable by Ms. Nickelberry or anyone else over at probation . . . ." The court revoked probation and sentenced Merrick to the low term of 16 months in state prison.
DISCUSSION
Merrick contends there is no evidence he violated the terms of his felony probation. He claims the evidence and findings by the trial court all relate to misdemeanor cases.
The court may revoke a grant of probation where the interests of justice so require and there is reason to believe the person has violated any condition of his probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses. (Pen. Code, § 1203.2, subd. (a).) The prosecution has the burden of proving a probation violation by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.)
It is true that most of the probation violations relate to the misdemeanor counts. But one condition of Merrick's felony drug possession probation is that he participate in any treatment programs designated by his probation officer. Merrick's probation officer testified Merrick failed to participate in alcohol and domestic violence treatment programs. Merrick admitted as much when he testified he did not participate in the programs because he was challenging the underlying convictions. Drug use, alcohol abuse and domestic violence are sufficiently related that the trial court could reasonably conclude Merrick violated a condition of his felony probation. There is ample evidence to sustain such a finding.
Nor did the trial court abuse its discretion in revoking Merrick's probation. The evidence was clear that Merrick had no intention of submitting to the supervision of his probation officer. Under the circumstances, imposition of a prison term was appropriate.
The judgment is affirmed.
We concur: YEGAN, J.PERREN, J.