Opinion
A111524
12-15-2006
THE PEOPLE, Plaintiff and Respondent, v. JOSE PRADO, Defendant and Appellant.
The trial court found Jose Prado in violation of probation for failing to report to the probation department after he was deported to Mexico. On appeal, Prado argues this finding was an abuse of discretion and violated due process because he did not willfully commit the violation. We affirm the judgment.
BACKGROUND
On July 23, 2001, Jose Prado pleaded no contest to a felony charge of continuous sexual abuse of a child under age 14. (Pen. Code, § 288.5.) After the district attorney struck a probation ineligibility allegation, the court suspended imposition of sentence and placed him on formal probation for five years. Among other conditions of probation, Prado was ordered not to return to this country illegally if he was deported.
On February 24, 2004, Prados probation officer filed a petition for revocation of probation alleging Prado had not reported to the probation department since December 2003 and his whereabouts were unknown. The court summarily revoked probation and issued a bench warrant on March 5, 2004. More than one year later, on April 15, 2005, Prado was arrested. At the revocation hearing, Prados probation officer testified that on December 18, 2003 she sent a letter to Prados last known address directing him to report to the department on January 8, 2004. Prado did not report, and the officer (who was newly assigned to Prados case in December 2003) never heard from him or met him. The defense submitted without presenting evidence or argument, and the court found Prado in violation of probation.
In a memorandum submitted to the court before the sentencing hearing, the probation department relayed Prados explanation that he did not report because he was deported to Mexico in January 2004. A federal agent confirmed this fact. Prado said he returned to the United States in June 2004. He failed to renew his sex offender registration (Pen. Code, § 290) "because `it was too late, " but claimed he and his wife did attempt to contact the new probation officer he was assigned in December 2003.
Having read and considered this updated probation report, the trial court decided not to reinstate probation. Instead, the court imposed the midterm sentence of 12 years imprisonment.
DISCUSSION
Prado contends the revocation of probation was an abuse of the courts discretion and violated his due process rights. A court may revoke probation "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, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses." (Pen. Code, § 1203.2.) "Revocation rests in the sound discretion of the court. Although that discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based upon the facts before it. [Citations.]" (People v. Buford (1974) 42 Cal.App.3d 975, 985.) A court may abuse its discretion by revoking probation based on a violation that was not willful. (People v. Zaring (1992) 8 Cal.App.4th 362, 379 [revocation based on probationers late appearance in court, due to unforeseen circumstances beyond her control, was an abuse of discretion].)
Almost 20 years ago, this court held that a defendant who is deported may properly be found in violation of probation for failure to report. (People v. Campos (1988) 198 Cal.App.3d 917 (Campos).) In Campos, the defendant pled guilty to grand theft and was placed on probation for three years, but he was deported to Mexico upon his release from county jail. (Id. at p. 919.) The trial court ultimately revoked probation on the ground that the defendant had never reported to the probation department and had returned to the United States illegally. (Id. at p. 920.) With respect to the first ground—the defendants failure to report—we held the trial court was not required to consider the defendants deportation as a mitigating factor even if deportation made it impossible for the defendant to report: "A defendant who is deported while on probation may be found in violation of that probation for failure to report to the probation department although his deportation makes it impossible for the defendant to fulfill this condition of his probation." (Id. at p. 923.)
Here, the argument for revocation is even stronger because there is no reason to believe Prados deportation made it impossible for him to continue reporting to the probation department. In November 2003, Prado mailed a reporting card to the department containing updated information about his whereabouts and employment, and in December 2003—the month before he was deported—Prados probation officer sent him a letter with her telephone number. Prado has offered no explanation for why he did not contact the probation department from Mexico by telephone or letter. Prado did not testify at the revocation hearing, and no evidence suggests he made any attempt to contact the probation department after November 2003. Moreover, there is no explanation for Prados failure to report after he returned to this country in June 2004. (See Campos, supra, 198 Cal.App.3d at p. 923 [observing deportation did not excuse defendants failure to report after his return to the United States].)
Prados attempts to distinguish Campos have no merit. Prado notes the defendant in Campos had never reported to probation, but this is a distinction without a difference. If anything, Prados situation provides a more compelling case for revocation, because his previous history of reporting demonstrates he was aware of the obligation to report and knew how to comply with it. Prado also observes that the defendants deportation was known in Campos in advance of the probation revocation hearing, whereas the trial court here did not learn of Prados deportation until after the revocation hearing. Nothing prevented Prado from presenting evidence about his deportation at the revocation hearing, however, and Prado offers no reason why the timing of this revelation makes any difference. The trial court revoked Prados probation based on uncontroverted evidence that he had failed to report for over a year. The fact that his reason for not reporting was presented to the court after the revocation hearing, rather than before, is not a principled basis upon which to distinguish Campos. Finally, Prado asserts probation was revoked in Campos due to the defendants illegal return to the United States. Putting aside the evidence that Prado also returned to this country illegally, apparently violating an express condition of his probation in doing so, this characterization of Campos is inaccurate, because the revocation in that case rested on two grounds—illegal return to the United States and the defendants failure to report. (Campos, supra, 198 Cal.App.3d at p. 920.)
Accordingly, the trial court did not abuse its discretion or violate Prados due process rights when it revoked probation. Nor did trial counsel render constitutionally ineffective assistance by failing to present evidence about Prados deportation at the revocation hearing or in support of a motion for reconsideration. Based on settled law holding deportation does not excuse a probationers failure to report, it is not reasonably probable such actions would have led to a more favorable outcome. (Strickland v. Washington (1984) 466 U.S. 668, 688; People v. Gayton (2006) 137 Cal.App.4th 96, 103.)
DISPOSITION
The judgment is affirmed.
We concur:
Pollak, J.
Siggins, J. --------------- Notes: Although he initially told the probation department his wife threw away the December 2003 letter, Prado also claimed that his wife had attempted to contact the probation officer on his behalf. The probation officers supplemental report advised the court she had never received phone calls from Prado or his wife, and she reported that Prado was lying in an attempt to blame her for his failure to report.