Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR198431
Siggins, J.
Benjamin Rodrigo appeals from a judgment of conviction after the court terminated his probation and ordered him to serve a previously imposed and suspended three-year prison sentence. He contends the evidence was insufficient to prove that he willfully violated probation. We agree, and reverse.
BACKGROUND
In June 2008, defendant was apprehended driving a car with a front paper license plate and no registration tag. A stolen loaded handgun was found in the car’s glove compartment. Defendant was charged with having a concealed and stolen firearm in a vehicle, receiving stolen property, and driving with a suspended or revoked license. Pursuant to a negotiated resolution, he entered a no contest plea to having a concealed firearm in his vehicle in exchange for the dismissal of the remaining counts. The court suspended imposition of sentence and placed defendant on three years’ probation.
Defendant was arrested for second degree burglary in November 2008. He admitted the probation violation and probation was reinstated with the condition that he serve 180 days in county jail.
In September 2009, defendant admitted another probation violation after testing positive for drugs. The probation report noted defendant’s previous positive tests for methamphetamine in May, June and August 2009, his failure to attend Narcotics Anonymous meetings ordered by his probation officer, and his submission of what appeared to be falsified signatures as evidence of his attendance at some of the meetings. Defendant admitted he had frequently used methamphetamine for five years. He told his probation officer he did so “as a way to self medicate, given that he reportedly suffers from Cumulative Upper Extremities Syndrome; which often causes physical ‘pain and discomfort’ to his upper limbs.” The court again reinstated probation, ordered and stayed a one-year jail commitment, and ordered defendant to attend and successfully complete the HOPE intensive drug treatment program.
In December 2009, while attending the HOPE program, defendant again tested positive for drugs. At a December 15 probation violation hearing, defense counsel requested that defendant be placed in the Salvation Army residential drug treatment program. The court proposed to either sentence defendant to the 16-month low term, or, alternatively, commit him to the Salvation Army program after he served part of his term in jail. The court advised defendant to take the 16-month offer, because in the likely eventuality that he violated probation again he would serve two or three years in state prison. Defendant responded that he understood, and said he wanted the chance to prove he could stay clean and sober.
The court agreed to place defendant with the Salvation Army “[a]gainst my better judgment.” It imposed and suspended the three-year upper term sentence on the firearm charge, and ordered defendant to enroll in and successfully complete the Salvation Army program.
Defendant entered the Salvation Army program on January 19, 2010, and was discharged from it three days later. When defendant met with his probation officer on January 28, he told her he was discharged because of medical issues.
At the probation revocation hearing, the parties stipulated that defendant’s sister would testify defendant was “not walking very well” when she picked him up from the program on January 22. Defendant’s probation officer testified that on January 13, 2010, she and defendant discussed the possibility that his medical condition might prevent him from completing the Salvation Army program. Defendant said he had some “cumulative upper extremity syndrome, ” but that he would be “okay in the program without any medication.” Defendant told her he had read about the program while he was in custody and “knew of the program and the daily activities that he had.”
Defendant testified that the program required him to stand all day while sorting ladies handbags, and that he was physically unable to do this because of his medical restrictions. He elaborated that he had “actually carpal tunnel; had surgeries on both hands, and I have problems with my back and, um, also from standing. I’m not allowed to stand pretty much all day or sit, and um, it’s what I have is that cumulative upper extremity syndrome. I’m supposed to have also follow-up surgery on my right foot, which I have the x-rays and all that at home.” Defendant acknowledged that his probation officer told him he would be required to work in the program and that the physical requirements might prevent him from being accepted, but defendant said he would give it a try and that “it wasn’t necessary for me to really actually take” the Ibuprofen and Motrin he had been taking in custody. Defendant testified his wife gave his medical records to his attorney, but none were ever provided to defendant’s probation officer or to the court.
The court found defendant to be in violation of probation. Before sentencing, defense counsel argued there were mitigating circumstances because defendant’s violation was not willful and asked the court to reinstate probation and place defendant in a new program. After reviewing defendant’s history of repeated failures on probation, the court imposed the previously suspended three-year state prison sentence. Defendant filed this timely appeal.
DISCUSSION
The Evidence Was Insufficient To Support The Termination of Probation
I. Legal Principles
“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....’ [Citation.] ‘As the language of section 1203.2 would suggest, the determination whether to... revoke probation is largely discretionary.’ [Citation.] ‘[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.’ [Citation.] However, the evidence must support a conclusion the probationer’s conduct constituted a willful violation of the terms and conditions of probation.” (People v. Galvan (2007) 155 Cal.App.4th 978, 981-982.)
Although the court has broad discretion in making the probation revocation determination, it may not act arbitrarily or capriciously and its determination must be based upon the facts before it. (People v. Buford (1974) 42 Cal.App.3d 975, 985.)
II. Analysis
Defendant argues there was no evidence that his failure was due to anything other than his medical condition. Accordingly, he maintains, the People failed to prove by the requisite preponderance of the evidence that his failure on probation was willful or due to any fault on his part. We agree.
It is the People’s burden to prove by a preponderance of the evidence that a probation violation was willful. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) Here, the prosecutor presented no evidence, from either the Salvation Army program, defendant’s probation officer, or any other source, that showed why defendant was discharged from the program. Although the People argue defendant failed to support his claim that his medical problems made it impossible to perform the physical tasks required by the program, it was the People’s burden to prove the defendant’s violation was willful-not defendant’s burden to prove it was not. Testimony that defendant knew before entering the Salvation Army program that he would be required to perform physical work is not substantial evidence that his early discharge was due to “irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court” (People v. Zaring (1992) 8 Cal.App.4th 362, 379) rather than to medical limitations beyond his control, as he testified. (People v. Galvan, supra, 155 Cal.App.4th at p. 985.) Nor, separately or in combination with that testimony, can we reasonably view defendant’s statements to his probation officer that he wanted to try the program and would not need to take pain medications as substantial evidence that his discharge could not have been due to his physical limitations. Having carefully reviewed the record, we cannot conclude that the People proved a willful probation violation by a preponderance of the evidence.
DISPOSITION
The order and judgment terminating probation and executing the previously suspended prison sentence are reversed.
We concur: McGuiness, P.J., Pollak, J.