Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FWV035550. Gerard S. Brown, Judge.
Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Sharon L. Rhodes, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
Pursuant to a plea agreement, Defendant and Appellant Raul Villavicencio pled no contest to making criminal threats against his wife (Pen. Code, § 422) and stalking her in violation of a temporary restraining order. (§ 646.9, subd. (b).) The court imposed a total prison term of three years but suspended its execution and placed defendant on three years’ probation under certain terms and conditions. Approximately one year later, the court held a probation revocation hearing and found that defendant had violated two of his probation conditions. The court sentenced him to the three-year prison term previously imposed.
All further statutory references will be to the Penal Code, unless otherwise indicated.
On appeal, defendant contends: 1) there was insufficient evidence to show he violated the terms of his probation; 2) statements he made to the probation officer were inadmissible at the Vickers hearing because the probation officer failed to advise him of his Miranda rights; and 3) if this court finds he waived the above-stated issues, his trial counsel rendered ineffective assistance of counsel. We affirm.
People v. Vickers (1972) 8 Cal.3d 451.
Miranda v. Arizona (1966) 384 U.S. 436.
FACTUAL AND PROCEDURAL BACKGROUND
Because the issues on appeal do not involve the facts of the underlying offenses, we will only give a brief statement of the facts.
On June 16, 2003, defendant and his wife stopped living together, and his wife obtained a restraining order against him. On August 15, 2005, defendant entered his wife’s home without permission. While his wife was lying on her bed, defendant put his hands around her throat and threatened to kill her. She yelled for her daughter to help her. When the daughter came and started to call 911, defendant threatened to kill the daughter, and he pulled the telephone cord out of the wall. A few days later, defendant again threatened to kill his wife.
Defendant was charged by information with three counts of making criminal threats (§ 422, counts 1, 2, and 3), stalking (§ 646.9, subd. (b), count 4), residential burglary (§ 459, count 5), false imprisonment by violence (§ 236, count 6), battery (§ 243, subd. (e)(1), count 7), cutting a utility line (§ 591, count 8), and dissuading a witness from reporting a crime. (§ 136.1, subd. (b)(1), count 9.) Defendant entered into a plea agreement and pled no contest to counts 1 and 4. In exchange, the prosecution agreed to dismiss the remaining counts. On January 30, 2006, pursuant to the terms of the plea agreement, the court sentenced defendant to a total prison term of three years, but suspended its execution and placed him on probation for three years. Defendant’s probation conditions included the requirements that he serve 364 days in county jail (condition 1), report to the probation officer “in person immediately [upon release from custody] and thereafter once every fourteen (14) days or as directed” (term number 3), and “keep the probation officer informed of [his] place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes” (term number 7).
On September 29, 2006, the probation department filed a petition to revoke probation on the grounds that defendant violated term numbers 3 and 7. The petition alleged that defendant had failed to report to probation since he was released from custody on February 1, 2006, and that on March 20, 2006 and March 29, 2006, appointment letters were mailed to defendant’s reported address, and the letters were stamped “‘Return to Sender, Not Deliverable.’” Following a Vickers hearing, the court found that defendant violated probation. The court ordered his probation to remain revoked and sentenced him to state prison for three years.
ANALYSIS
I. The Court Properly Found That Defendant Violated Probation
Defendant argues there was insufficient evidence that he violated the terms of his probation, and that the court, therefore, abused its discretion in revoking his probation. We disagree.
A. Standard of Review
Under section 1203.2, a court may revoke and terminate 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.” “It has been long recognized that the Legislature, through this language, intended to give trial courts very broad discretion in determining whether a probationer has violated probation.” (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) “[P]roof of facts supporting the revocation of probation pursuant to section 1203.2(a) may be made by a preponderance of the evidence.” (Id. at p. 447, fn. omitted.) “A trial court abuses its discretion by revoking probation if the probationer did not willfully violate the terms and conditions of probation.” (People v. Galvan (2007) 155 Cal.App.4th 978, 983 (Galvan).)
We note that defendant cites People v. Kurey (2001) 88 Cal.App.4th 840, 848 (Kurey), in support of his position that the violations had to be proven by substantial evidence. Defendant erroneously cites to the portion of Kurey discussing a review on appeal based on the substantial evidence test “where the trial court was required to resolve conflicting evidence.” (Id. at p. 848.) There was no conflicting evidence here. Thus, the substantial evidence test does not apply. Kurey correctly stated that “[t]he burden of proof in a probation revocation hearing is a preponderance of the evidence.” (Id. at p. 849.)
B. The Vickers Hearing
At the Vickers hearing, defendant’s probation officer, Gary Caputo, testified that the records of the San Bernardino Sheriff’s Department showed that defendant was released from jail and taken by the border patrol on February 1, 2006. Caputo attempted to contact defendant after that time. On March 20, 2006 and March 29, 2006, Caputo sent appointment letters to defendant at 649 Lincoln in Calexico, California, the address defendant provided during the presentence investigation. Caputo said the letters came back to him, stamped “return to sender, address undeliverable.” Caputo specifically testified that defendant never reported to him after he had been turned over to the border patrol on February 1, 2006. Because defendant failed to comply with the terms of his probation, Caputo obtained a warrant for his arrest. The border patrol found defendant in the United States and arrested him. On April 9, 2007, defendant was booked on the warrant at West Valley Detention Center. Caputo interviewed defendant by telephone on May 1, 2007, and defendant explained that he was deported shortly after his conviction in the current case. Defendant admitted that he returned to the United States illegally, approximately three months prior to being arrested by the border patrol. He was living in Calexico and believed that people in the area reported him. Because there was a warrant, the border patrol brought him to the San Bernardino County Sheriff’s Department.
Defendant objected at the probation revocation hearing to the evidence of his admissions to Officer Caputo during the phone interview as inadmissible, since Caputo failed to advise him of his Miranda rights. Defendant raises the same issue on appeal, and we conclude that no Miranda warnings were required. (See post, § II.)
After considering the evidence, the court stated that it was clear from the record that defendant was deported before he finished his jail sentence, and that it was, so to speak, not his fault that he got deported. Thus, the court found that it could not fault him for not reporting to the probation officer prior to being deported to Mexico. However, the court stated that defendant had an obligation to report to probation immediately after he reentered the country. The court then stated that there were two possibilities here: 1) once defendant was released from custody by being deported to Mexico, he had to report to probation that he was in Mexico; and 2) once he returned to the United States, he needed to immediately advise probation. The court concluded that defendant clearly violated terms 3 and 7 by not reporting immediately to probation once he returned to the United States, and by not keeping the probation officer informed of his place of residence.
C. The Court Did Not Abuse Its Discretion
1. Probation Term Number 3
There was evidence to support the court’s finding that defendant violated term number 3, which required him to report to the probation officer in person immediately upon release from custody and thereafter once every 14 days. Probation Officer Caputo testified that the records of the San Bernardino Sheriff’s Department showed that defendant was released to the border patrol for deportation on February 1, 2006. Caputo attempted to contact defendant by sending letters to him at 649 Lincoln Street in Calexico — the address defendant had provided. However, both letters were returned as undeliverable. The evidence further showed that defendant was later arrested and booked at West Valley Detention Center on April 9, 2007. Officer Caputo testified that at no time after defendant was taken by the border patrol on February 1, 2006 did defendant ever contact the probation department to report his whereabouts. Based on this evidence, the court properly found that, under the circumstances of this case, defendant violated term number 3 by failing to report to probation immediately upon reentering the United States.
Defendant first argues that the terms of his probation did not address the requirement of reporting to probation immediately upon reentering the United States following deportation. That is true. However, at the time the court placed him on probation, it did not foresee that he would be deported soon thereafter. Under these specific circumstances, it was entirely reasonable for the court to find that defendant violated condition number 3 by failing to report to probation immediately upon his return to the country.
Second, defendant contends that he “was not released from jail; the border patrol took custody of him and deported him.” (Emphasis in original.) He further asserts that he could not have been expected to report in person to his probation officer since “it would have been impossible to do so from outside the country.” However, the court did not find a violation based on defendant’s failure to report before he was deported, or while he was in Mexico. Instead, the court found that defendant violated term number 3 by failing to report to probation immediately upon reentering the United States. Officer Caputo testified that at no time after defendant was deported did defendant ever contact anyone at the probation department to report his whereabouts.
Moreover, defendant argues there was insufficient evidence to revoke his probation since the People failed to establish when he returned to the United States. He cites Galvan, supra, 155 Cal.App.4th 978, in which the appellate court found that the trial court abused its discretion by revoking the defendant’s probation. The trial court in Galvan revoked the defendant’s probation on the basis that he failed to report to probation after he reentered the United States. (Id. at p. 982.) The defendant’s probation condition required him to report to probation within 24 hours of reentry. (Id. at p. 982.) The appellate court concluded that there was no evidentiary basis for revoking probation on that ground, since the record contained no evidence showing how long the defendant had been back in the United States before he was arrested. (Id. at pp. 982-983.) By contrast, defendant here was required to report to probation immediately. Thus, it was not necessary for the prosecutor to establish exactly when he returned to the United States, since it was reasonable to assume that he was not arrested immediately upon his return. In other words, defendant had time to report to the probation department once he returned to the country but failed to do so. Furthermore, although the court decided not to consider this evidence before resolving the Miranda issue (see post, § II), defendant told Caputo that he had been in the United States approximately three months before he was rearrested.
Defendant points out that, in the instant case, term number 3 did not state that he had to report to probation upon reentering the United States, as in Galvan. That is true. Since the probation department and trial court apparently did not anticipate that defendant was going to be deported, the requirement to report to probation upon reentering the United States was not made specific. Nonetheless, the crux of the requirement was that defendant was to report to probation as soon as he was out of custody, and that he failed to do.
2. Probation Term Number 7
Even if defendant did not actually violate term number 3, the court properly found that he violated term number 7, which required defendant to keep probation informed of his place of residence and give written notice 24 hours prior to any change. The evidence showed that defendant was deported and then returned to the United States. However, he failed to notify the probation department that he had returned to the United States or to let the probation officer know where he was living. It is undisputed that after he was deported, defendant never contacted anyone at the probation department to report his whereabouts. As pointed out by the court, the only reason Probation Officer Caputo found out defendant was back in the country was that defendant was arrested and brought to the San Bernardino County Sheriff’s Department.
Defendant argues that term number 7 was reasonably construed to require notification of only a volitional move, and then asserts that he did not willfully move, but rather was deported. He also contends that term number 7 was reasonably construed to require notification of a move that changed his mailing address; he then asserts that the prosecution did not establish that he was not living at the address in Calexico upon his return. These arguments miss the point of term number 7, which was simply that defendant keep the probation department informed of his place of residence. Although defendant argues that the prosecution “failed to establish a willful non-compliance with Term 7,” there was no other reasonable conclusion for the court to make from the evidence. In sum, the evidence showed that defendant was deported to Mexico, returned to the United States, and never reported any of his whereabouts to the probation department. He was only discovered when he was arrested.
Ultimately, we cannot say that the court abused its discretion in finding that defendant violated one, if not two, of his probation terms. Accordingly, the court properly revoked his probation.
II. Caputo Was Not Required to Give Miranda Warnings
Defendant contends that his statements made to Caputo during a telephone interview on May 1, 2007, which apparently took place from jail, were inadmissible because Caputo failed to advise him of his Miranda rights. He argues that his statements were the product of a custodial interrogation. Defendant’s claim has no merit.
During the probation revocation hearing, when the prosecutor asked Caputo if he spoke to defendant while he was in jail and if defendant told Caputo he had been deported, defense counsel objected, based on the ground that defendant’s answer would tend to incriminate him. The court confirmed that defense counsel’s objection was based on Caputo’s failure to advise him of his Miranda rights. After hearing argument and conducting research, the court provisionally admitted Caputo’s testimony regarding defendant’s statements, but stated that it would not take the testimony into consideration unless it found that Miranda was inapplicable to questioning by probation officers. The court later stated that the issue of whether Caputo was required to advise defendant of his Miranda rights was not dispositive in this case, since the probation department had not alleged that defendant violated probation by violating the law. Nonetheless, the court stated that for purposes of the hearing, it would take the position that Caputo was required to issue Miranda warnings. Thus, without considering defendant’s statements made to Caputo, the court found that defendant violated his probation.
Defendant’s claim on appeal is therefore meritless. First, the court did not consider the evidence in making its decision. Thus, defendant cannot show that the court erred, or that he was prejudiced. Second, there is no apparent requirement for a probation officer to give a convicted defendant Miranda warnings, or otherwise advise the defendant of the consequences of an admission of any fact. (People v. Santana (1982) 134 Cal.App.3d 773, 786-787.)
We note defendant’s third argument on appeal, that if this court deems he waived any of the above-stated issues, his counsel provided ineffective assistance of counsel (IAC). The People do not contend that defendant waived any of his claims. Likewise, this court does not find that defendant waived any of the issues either. Therefore, there is no need to address the IAC claim.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J., MILLER, J.