Opinion
A147905
04-14-2017
THE PEOPLE, Plaintiff and Respondent, v. EDWARD ROBERT STARSKI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUKCRCR14791472)
In January of this year we affirmed the conviction of Edward Robert Starski for "the unlawful practice of law . . . , the misdemeanor charge that was the cornerstone of felony charges of attempted grand theft and two counts of conspiring to commit those offenses." (People v. Starski (2017) 7 Cal.App.5th 215, 218.) Imposition of sentence was suspended, and defendant was admitted to probation upon specified conditions, one of which was that he not leave the state without the approval of his probation officer or the court. The question presented is whether defendant was legitimately found to have violated that condition, and thereafter ordered to serve 30 days in the county jail.
The actual written condition states: "You shall not leave the State of California without the prior written approval of your Probation Officer." However, at the time of defendant's sentencing the court added the unwritten modification that if permission to travel out of the state was denied by the probation officer, defendant could apply to the court for permission, but in any event defendant "won't be allowed to travel outside of the state without court or probation permission."
As defendant acknowledges, the essential and salient circumstances are without dispute. On Friday, January 15, 2016, defendant was telephoned by the Medical Examiner of Wayne County, Michigan, and told that his father had died "under suspicious circumstances." His father's body was in the morgue, but it could not remain there for more than a few days. Defendant was advised that if he did not identify and claim his father's body within a few days, the body would be listed for "pauper's cremation."
Also on January 15, defendant telephoned his probation officer. Defendant did not actually speak with his probation officer. He did leave a recorded message with his name, California telephone number, and asked the probation officer to call back. No further information was provided. Defendant did not mention an emergency, describe its nature, or ask for permission to leave California. Once in receipt of the message, the probation officer called defendant's California telephone number on Wednesday, January 20, and left a recorded message. Defendant had left California the day before, Tuesday, January 19. Defendant did not explain his absence to the probation officer until Monday, January 25, while he was still in Michigan. The probation officer ordered defendant to return to California, which he did on January 26.
Concluding that defendant had shown "disdain for the probation conditions," which was "clear and unequivocal," the trial court found that defendant had violated that condition, and ordered him to serve 30 days in the county jail (which with time served meant that defendant was immediately released). The court was not unsympathetic to defendant's situation. In light of the circumstances, the court stated, "I can understand why he went," and the simple departure from the state would not, by itself, have been treated as a violation. It was defendant's silence thereafter that was dispositive: "[T]here was a period of time, a number of days where he could have and should have contacted Probation, told them where he was and why he was there." Probation was reintstated.
Although there is some language in defendant's opening brief that might indicate he was challenging the validity of the condition, it is too late to do so. A defendant cannot challenge the validity of a condition of probation on an appeal from the revocation of probation. (E.g., People v. Howard (1997) 16 Cal.4th 1081, 1095; People v. Quiroz (2011) 199 Cal.App.4th 1123, 1127.)
Seizing upon the trial court's comments about how a violation would not have been found, defendant fashions an argument that appears to run as follows: "[I]t is an abuse of discretion to revoke probation for conduct over which the probationer has no control." The situation in which defendant found himself was one in which any person sensible of family obligation and duty, would have behaved the same way. The tug and power of that perceived obligation defendant sees as shading into "a defense of necessity." Because his violation was not willful, it "was at best a technical, de minimus violation . . . and not intended to show disrespectful or irresponsible behavior to the court." We are not persuaded.
A violation of probation need only be proved by a preponderance of the evidence. (E.g., People v. Rodriguez (1990) 51 Cal.3d 437, 447; People v. Urke (2011) 197 Cal.App.4th 766, 772.) However mightily defendant labors to validate his departing the state, it is a misguided use of resources, because it was not, as the trial court was at pains to emphasize, why probation was revoked. It was not the departure, itself, but the continuing failure to tell the probation office that was the violation. The trial court clearly did not credit defendant's explanation that he tried to do so, accepting instead the probation officer's testimony that defendant's silence lasted from January 20 until they spoke on January 25. That is enough to sustain the finding that defendant violated his probation. (Evid. Code, § 411.)
Defendant's reliance on People v. Zaring (1992) 8 Cal.App.4th 362, is misplaced. There, probation was revoked when the probationer was 22 minutes late for a hearing because she unexpectedly had to drive her children to school. (Id. at pp. 366-367, 376.) The Court of Appeal held revocation was an abuse of discretion: "[A]ppellant was confronted with a last minute unforeseen circumstance as well as a parental responsibility common to virtually every family. Nothing in the record supports the conclusion that her conduct was the result of irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court." (Id. at p. 379.) By contrast, here we are talking about days, not minutes. Moreover, there was a basis for the court here to conclude that defendant's "disdain" evidenced an attitude and mental state that was antithetical to the rehabilitative purpose of probation.
The imposition of the 30-day jail sentence as a condition of defendant being readmitted to probation was a sentencing decision (see People v. Davis (2016) 246 Cal.App.4th 127, 140, fn. 5), and thus is reviewed according to the very deferential abuse of discretion standard. "Once a probation violation occurs, the trial court has broad discretion in deciding whether to continue or revoke probation." (People v. Jones (1990) 224 Cal.App.3d 1309, 1315.) "And the burden of demonstrating an abuse of the trial court's discretion rests squarely on the defendant." (People v. Urke, supra, 197 Cal.App.4th 766, 773.) In this context, that means reversal follows only if defendant establishes that putting him behind bars for a month exceeded the bounds of reason. (E.g., People v. Warner (1978) 20 Cal.3d 678, 683; People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)
That cannot be said of the trial court's decision here. The court had ample evidence that defendant was inclined to split hairs in any wording restricting his untrammeled freedom to do as he wants. It was entirely legitimate that the court would seek to halt defendant's "disdain" for his probation conditions, by showing that their violation would have adverse consequences. Defendant establishes no abuse of the trial court's discretion. (People v. Urke, supra, 197 Cal.App.4th 766, 773.)
We are here referring to defendant's attempt, which he does not renew on appeal, to justify his departure with his interpretation that the condition at issue here was subject to an exception, namely, that the sentencing court had already ruled that he could travel to Colorado without seeking the probation officer's permission. Nothing in either record on appeal furnishes the least support for such a belief. It was demonstrated at the revocation hearing that defendant initially tried to convince the probation officer that he had already secured this blanket approval but he was unable to provide the probation officer with documentation that he had, in the prosecutor's language, "standing permission to travel out of state." Defendant testified at the hearing "I was under the impression that the judge was going to tailor a specific term for me," but he conceded "I don't think I've ever seen it on paper." In any event, defendant admitted that even if such an order existed, it would not apply to his traveling to Michigan without permission.
The order of probation is affirmed.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.