Opinion
NOT TO BE PUBLISHED
APPEAL from an order and a judgment of the Superior Court of Los Angeles County, No. KA074119 Robert M. Martinez, Judge.
Tara K. Allen, 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, Senior Assistant Attorney General, Susan D. Martynec and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Reinaldo Manuel Sosa, pled no contest to an assault rifle possession charge. (Pen. Code, § 12280, subd. (b).) He appeals from a probation revocation order. Defendant argues Judge Robert M. Martinez did not have jurisdiction to conduct a violation hearing and the order revoking probation was an abuse of discretion.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On September 27, 2005, defendant sold two assault rifles to a reliable informant. Execution of a search warrant on defendant’s home on January 12, 2006, led to the discovery of a loaded semi-automatic Glock firearm sitting on top of the television and a shotgun leaning against a wall in his living room. The Glock handgun had been stolen from Robert McIntyre approximately two years earlier. Defendant’s three children, who were under the age of 10, were present in the home during the search. The children were placed in protective custody. Defendant was advised of and waived his constitutional rights. Defendant then agreed to speak to Department of Justice Special Agent Anthony Baumgart. Defendant claimed a customer had dropped off the Glock handgun for cleaning. Defendant later admitted that he was lying. Defendant admitted purchasing the gun from a customer several months before. Also found in defendant’s home were: a black metal pistol magazine and Casio side handle baton; a .40 caliber magazine with nine rounds; a black Uncle Mike’s plastic holster; an empty .45 caliber magazine; a black leather holster; a gun cleaning kit; a set of Peerless handcuffs; two small gun locks; one box of .45 caliber ammunition; a box of .40 caliber ammunition; a blue U.S. armor bullet-proof vest; a white bullet-proof vest; a box of ammunition pouches and empty .40 caliber magazines; a blue bullet-proof vest; two Code .380 caliber magazines; and miscellaneous ammunition boxes. Defendant was charged with: transporting an assault weapon; receiving stolen property; child endangerment; and possessing a large capacity magazine.
On August 31, 2006, defendant pled no contest to one count of assault weapon possession. Defendant was sentenced to three years in prison and the execution of sentence was suspended. Defendant was placed on probation for three years. A probation condition required defendant to enroll within 30 days and then serve 120 days on a tree farm. At the time of the plea, defense counsel noted: “Well, since he is employed, my guess is he’s going to be doing that on weekends. I would suggest that probation supervise that, and that way we won’t have to be coming back to extend time.” Defendant was ordered to return to court on October 30, 2006, to show proof of his enrollment in that program. Judge Bruce F. Marrs, who presided when the no contest plea was entered, advised defendant: “Now, a couple of things . . . . You’re going to have to go to the tree farm folks, and you’re going to have to get started with them. You’re going to have to go down to probation today and get started with them. [¶] If you have any questions or problems with either the tree farm or the probation people, contact [defense counsel]’s office immediately. Do not wait until the last minute. He can only help you if you give him time. Time is the most valuable thing you can give to a lawyer. [¶] . . . [¶] And if you have any questions about terms, talk to him. Don’t guess. Don’t guess what the probation officer means when he has you fill out and sign a form. If you’ve got a problem with the form, show [defense counsel]. The tree farm people will require you to show up on time and sober and work. All right. If you got any problems with the terms of the tree farm, talk to [defense counsel].”
On September 1, 2006, defendant reported for his initial probation orientation interview. Defendant was given 30 days to begin his tree farm service. According to the supplemental probation report, in October 2006, defendant reported he had not completed any of his tree farm service. Defendant was advised that he should do something at the tree farm prior to his next court appearance. On October 30, 2006, defendant appeared in court for a progress report. The probation report noted that defendant was currently “in compliance” and he was willing to comply with the conditions of probation. Judge Jack P. Hunt ordered defendant to show proof of completion of at least 60 days of the 120 days of tree farm service by June 8, 2007. Defendant did not enroll at the tree farm until a few days before his appearance on October 30, 2006. However, defendant never commenced service of his 120-day tree farm commitment. At the June 8, 2007 progress hearing, defense counsel explained to the court that defendant had been unable to commence service in the tree farm program. The excuse posited for violating the orders concerning the tree farm service was that he worked Monday through Saturday from 9 a.m. to 6 p.m. for $350 per week and installed radios at a swap meet on Sundays. The tree farm required that participants complete an eight-hour day. Defense counsel requested that defendant be allowed to work with Cal Trans. Working on a Cal Trans crew would allow defendant to serve less than an eight-hour day. Judge Hunt denied that request and revoked defendant’s probation. Judge Hunt set the formal probation revocation hearing for June 22, 2007.
The revocation hearing took place on July 3, 2007, before Judge Martinez. Thomas Loria, who ran the Tree Farm Work Release Program, testified that defendant had enrolled. But, defendant had not performed any service. Defendant registered at the El Monte satellite office. But, defendant had not contacted Mr. Loria to request a modified schedule. According to Mr. Loria, the program is open seven days a week to accommodate those who work. Mr. Loria testified that although the program involves an eight-hour day, exceptions may be made for those requesting a shorter time period based upon hardships.
Defendant testified on his own behalf. At the time he registered, defendant was told that he must report before 7 a.m. and that the work involved an eight-hour day. Defendant was not advised that he could contact anyone for an exception to that requirement. Defendant explained that he was involved in court-ordered four-hour parenting classes and therapy two days each week as a result of his children being placed in foster homes at the time of his arrest. Defendant was also having financial problems. Defendant worked from 8 a.m. to 6 p.m. or 7 p.m. on the days when he was not in counseling. Defendant met with the financial officer at the probation department in May 2007 regarding payment of the court ordered restitution fine. As a result of that meeting, his obligation was lowered from $100 per month to $40 per month based upon his $1,400 monthly income. Defendant supported himself, his wife, and their three children. If defendant had known that he could have served a four-hour day in the tree farm program, he would have done that on Sundays after his work at the swap meet. Defendant acknowledged that he signed the plea agreement and was advised that his failure to comply with the court-ordered tree farm service would result in reinstatement of his state prison term. Defendant was asked why if he thought about his probationary obligations, he did not take steps to begin work in the tree farm program: “I wanted to start everything. I wanted to do everything, and everything was coming down at one time.” Defendant feared he would lose his children if he did not attend the parenting and counseling classes. Thereafter, defendant’s probation was revoked and he was sentenced to prison for three years.
First, defendant argues Judge Martinez was without jurisdiction to conduct a probation revocation hearing. Defendant’s plea was taken on August 31, 2006, before Judge Marrs. At the time the plea was entered, Judge Marrs noted that defendant’s case would be supervised by Judge Hunt. On October 30, 2006, defendant appeared before Judge Hunt for a progress hearing. The June 8, 2007 hearing was also before Judge Hunt. On July 3, 2007, Judge Hunt transferred the matter to Judge Martinez for the probation violation hearing. Defendant did not object to any of these proceedings. Moreover, the plea form signed by defendant specifically states: “I understand that I have the right to be sentenced by the same judge or commissioner who takes my plea. I waive and give up that right and agree that any judge or commissioner may sentence me.” Defendant’s initials appear next to that provision.
In People v. Arbuckle (1978) 22 Cal.3d 749, 756-757, the California Supreme Court held: “As a general principle . . . whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge.” (See People v. Adams (1990) 224 Cal.App.3d 1540, 1542-1543.) However, the Courts of Appeal have not extended the right to sentencing by the same judge to probation violation hearings. Our colleagues in Division Eight of this appellate district held: “Court have not, however, extended Arbuckle to probation violations. People v. Beaudrie (1983) 147 Cal.App.3d 686, explained ‘Arbuckle gave defendants the right to be sentenced . . . by the same judge who accepted a plea of guilty . . . . [But] there is a distinction between a sentencing hearing following a plea of guilty and a sentencing following a revocation hearing. [The defendant in this case] was sentenced by the same judge who accepted his original plea. Sentence was suspended and he was placed on probation. Once that sentence was imposed, Arbuckle no longer applied.’ (Id. at pp. 693-694, [italics omitted]; see also People v. Watson (1982) 129 Cal.App.3d 5, 8 [rejected as ‘absurd’ argument that ‘if probation is revoked years after the bargain is kept and sentence technically imposed for the first time, [the defendant] is entitled to have the same judge who accepted the plea impose “the sentence.”’].)” Moreover, “Multi-judge superior courts act as one superior court. [Citations.] Even if a superior court creates departments for administrative ease and judicial efficiency, the departments ordinarily operate under the presumption that they are jurisdictionally equivalent and fungible.” (People v. Martinez (2005) 127 Cal.App.4th 1156, 1159, citing Silverman v. Superior Court (1988) 203 Cal.App.3d 145, 150-151, Cal. Const., art. vi, § 4.) Defendant was sentenced and, upon suspension of its execution, placed on probation by Judge Marrs. Defendant did not have a right to have Judge Marrs conduct the subsequent probation violation hearing.
Second, defendant argues “inappropriate factors” were used to revoke his probation. More specifically, defendant argues, “[T]he court myopically focus[ed] on the original offenses with which [defendant] was charged and failed to consider or even exhibit an awareness that it could reinstate probation on modified terms rather than committing [defendant] to prison.” We disagree.
The California Supreme Court has found proof by preponderance of the evidence is sufficient to revoke probation. (People v. Rodriguez (1990)51 Cal.3d 437, 446-447; Jones v. Superior Court (2004) 115 Cal.App.4th 48, 60; People v. Perez (1994) 30 Cal.App.4th 900, 904.) We review the trial court’s revocation decision for abuse of discretion. (People v. Rodrigues (1994) 8 Cal 4th 1060, 1124-1125 [trial court’s exercise of discretion “‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice’”]; People v. Rodriguez, supra, 51 Cal.3d at p. 443; People v. Jordan (1988) 42 Cal.3d 308, 316.) A probation revocation hearing is not a trial and serves a different public interest. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 788-789; Lucido v. Superior Court (1990) 51 Cal.3d 335, 347; Jones v. Superior Court, supra, 115 Cal.App.4th at p. 60; People v. Perez, supra, 30 Cal.App.4th at p. 907.) The Lucido court held: “The fundamental role and responsibility of the hearing judge in a revocation proceeding is not to determine whether the probationer is guilty or innocent of a crime, but whether a violation of the terms of probation has occurred, and if so, whether it would be appropriate to allow the probationer to continue to retain his conditional liberty. [Citation.]” (Lucido v. Superior Court, supra, 51 Cal.3d at p. 348; see § 1203.2; People v. Monette (1994) 25 Cal.App.4th 1572, 1575.)
Defendant agreed to the following probation condition, “E. Other Terms: High term, 3 years state prison is suspended, I will be on 3 years formal probation, I am to do 120 day[s] of tree farm plus other usual terms and conditions.” In addition, as set forth previously, defendant was advised by Judge Hunt and the probation department the tree farm service condition must be completed or the previously suspended three-year prison term would be ordered into effect. In reinstating the three-year prison term, Judge Martinez stated: “One of your original charges you could have been looking at over 10 years in state prison, but you had an angel looking over your shoulder and you got a deal that substantially avoided that ten-year potential. In fact, you had a deal with no additional time. The consequences of today have little to do with tree farm. They have more to do with assault weapons, discussions about procuring M-16’s, bullet-proof vests, stolen guns, loaded guns in a residence that posed danger to your children. Let’s not forget what brought you her. [¶] I know there’s competing demands upon parents. There are competing demands by family. I can understand that at times you have to make difficult decisions, make your priorities. If you had done 20 days, you would probably have an argument. If you had done five, the argument would have been more persuasive. But you kissed off your obligation. You kissed it off. You said, ‘To damn with the judge and his work because I’m not going to do 15 minutes. I’m not going to inquire. I’m not going to go back and talk to them. To damn with that judge.’ [¶] This is your decision; and, sir, you’re going to prison where you’re wrong, not for not doing tree farm but because of the crime that you committed.” Judge Martinez could reasonably find defendant violated the order granting probation.
The order revoking defendant’s probation and judgment are affirmed.
We concur: ARMSTRONG, J. KRIEGLER, J.