Opinion
E046219
8-18-2009
THE PEOPLE, Plaintiff and Respondent, v. NICHOLE MARIE ADAMS, Defendant and Appellant.
Patrick E. DuNah, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Gary W. Schons, Assistant Attorney General, Michael Murphy, and James D. Dutton, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
I
INTRODUCTION
On August 6, 2007, the San Bernardino County District Attorneys Office filed a felony complaint against defendant and appellant Nichole Marie Adams (defendant); it charged defendant with one count of forgery under Penal Code section 470, subdivision (d).
All statutory references are to the Penal Code unless otherwise specified.
On November 8, 2007, defendant pled no contest to the forgery count, with the understanding that she would receive 120 days in county jail, with eligibility for the weekender work-release program. On December 13, 2007, defendant was sentenced to supervised probation for three years and 60 days in county jail as a term of probation, with eligibility for the weekender work-release program (probation term No. 1).
On April 17, 2008, defendants motion to reinstate the weekender work-release program was denied, and a probation revocation hearing was set. On May 29, 2008, an evidentiary hearing was held regarding defendants failure to report to a scheduled work-release program. The trial court found defendant to be in violation of probation term No. 1. The court revoked defendants probation, and reinstated it, with modifications. Under probation term No. 1, as modified, the court ordered defendant to spend 180 days in jail, "straight time."
On appeal, defendant contends that the trial court abused its discretion in revoking her probation. For the reasons set forth below, we shall affirm the judgment.
II
The facts of the underlying case are not relevant to the issue on appeal; therefore, a separate statement of facts is not necessary.
ANALYSIS
The Trial Court Properly Determined That Defendant Violated
a Term of Her Probation.
Defendant contends that the trial court erred in revoking her probation because she did not willfully violate probation term No. 1 by failing to start her county jail commitment by April 9, 2008.
A. Background
At the December 13, 2007 sentencing hearing, the prosecutor agreed that the plea agreement could be changed from 120 days in jail as a condition of probation, to a 120-day "lid" to allow the trial court discretion to sentence defendant to less than 120 days in jail. On the same date, the trial court sentenced defendant to supervised probation for three years and 60 days in jail (probation term No. 1), with eligibility for the weekender work-release program. Defendant was to report to Glen Helen Rehabilitation Center on December 28, 2007 by 2:00 p.m.
On March 10, 2008, defendant admitted a violation of term No. 1 of her probation, and her probation was reinstated with term No. 1 being modified to 120 days in jail, and to report to the Glen Helen Rehabilitation Center on March 28, 2008 by 2:00 p.m. According to defense counsel, defendant was notified in the middle of a work-release weekend that her infant was in the hospital; she left the job site, stayed with the infant at the hospital, and missed weekends. Counsel also represented that defendants husband had abused the child.
On April 17, 2008, the trial court denied defendants motion to reinstate the weekender work-release program a second time, and set a probation revocation hearing for May 29, 2008.
At the revocation hearing on May 29, defendants 18-year-old neighbor, Rachelle Kick, testified. Kick stated that she promised to drive defendant to the work-release program on April 2, 2008. About 6:00 a.m. on April 2, 2008, Kicks mother told Kick that her sister had just been injured in a car accident, as her mother was driving the sister to school. Kicks sister suffered a rib fracture. At approximately 6:45 a.m., Kick called defendant and told her that Kick could not drive defendant to the program because of the accident. Kick had driven defendant to the detention center on March 28, 2008, for defendant to "get the work release started."
The trial court took judicial notice that April 2, 2008 was a Wednesday, and that the sheriffs documents returned to the court showed that defendants "no show was April 9," not April 2, 2008.
Defense counsel argued that defendant believed that she was scheduled to start the work-release program on April 2, 2008. When defendant heard that Kick could not drive defendant on April 2, 2008, she immediately contacted her attorney. The trial court noted that there was a request by the public defenders office, in a document dated April 2, 2008, to calendar "a modification, extension of time to enroll for work release."
The prosecutor argued that defendants compliance with her work-release program should have been defendants top priority, but was not.
Although the May 29, 2008 hearing was for a second violation of probation, the trial court viewed it as a first violation because defendant had "a legitimate reason to miss [her] weekends once [her] child [was] in the hospital."
Based on the testimony and evidence presented, the trial court found that there had been no evidence that defendant had an excuse for failing to go to the work-release program on April 9. The court summarized its finding as follows:
"What it appears to be is that [defendant] made a mistake on the dates. She signed up early, paid her $100. She was told to come back April 9, she didnt. She thought it was April 2nd. She lined up a ride, turned out to be [sic] not be able to bring her to jail on April 2nd. The fact of the matter is, even after being warned by the Court of consequences on her previous violation, she didnt follow through with the jail to such an extent that it ensured that she would do what she was told, and that is start her weekends."
The trial court proceeded to find defendant in violation of probation term No. 1, and that she failed to follow the lawful orders of the sheriffs department. The trial court gave "her one more chance" and reinstated her probation with a modified probation term No. 1: 180 days of straight time.
B. There Was No Abuse of Discretion
Section 1203.2, subdivision (a), states in pertinent part: "[T]he court may revoke and terminate such 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." This statute gives trial courts very broad discretion in determining whether a probationer has violated probation. (See, e.g., People v. Lippner (1933) 219 Cal. 395, 400 ["only in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation"]; People v. Martin (1943) 58 Cal.App.2d 677, 683-684; People v. Rodriguez (1990) 51 Cal.3d 437, 443.)
"[T]here is no abuse of discretion in revocation where it appears from the record that the accused has violated the terms and conditions of probation." (People v. Nelson (1967) 257 Cal.App.2d 282, 285-286.)
In this case, defendant had a history of failing to comply with probation term No. 1. She initially failed to complete her jail term in the weekender work-release program because of her babys hospitalization. She admitted violating term No. 1 and the court modified her probation term to increase her jail time to 120 days in the weekender work-release program. After reinstatement, it appears that defendant believed that her first day to report for her work-release program was April 2, 2008, instead of the actual date of April 9, 2008. Defendant, however, failed to show up for either date. On April 2, 2008, Kick—the neighbor who had promised to take defendant to the program—could not drive defendant to the program because of a family emergency. Although defendant was notified by Kick at 6:45 a.m. on April 2, defendant did not try to get to the work-release location by other means. Moreover, there is nothing in the record to indicate that defendant even attempted to contact the work-release program. Had defendant done so, she would have discovered that her actual report date was one week away on April 9, 2008. Instead of trying to comply with her probation term, defendant contacted her attorney, who calendared a hearing on April 17, 2008.
The trial court recognized that "[t]he fact of the matter is, even after being warned by the Court of consequences on her previous violation, she didnt follow through with the jail to such an extent that it ensured that she would do what she was told, and that is start her weekends."
Notwithstanding the fact that this was the second time defendant violated probation term No. 1, the trial court decided to treat the violation "as though it was her first violation." The court then went on to state, "given the fact that I am treating this as a first violation of probation, I will not sentence [defendant] to state prison at this point. I will give her one more chance." The court therefore reinstated defendants probation, modifying probation term No. 1 to 180 days in jail, "straight time."
Nonetheless, relying on People v. Zaring (1992) 8 Cal.App.4th 362 (Zaring), defendant argues the probation violation was hyper-technical and therefore the trial courts ruling revoking her probation was arbitrary and capricious. In Zaring, the trial court ordered the defendant to be in court for a hearing at 8:30 a.m. and advised the defendant that failure would result in probation revocation. The defendant appeared 22 minutes late due to an unexpected delay on the way to court. The person who was going to take care of defendants children became ill the morning of the hearing and, as a consequence, the defendants children had to be dropped off at school on defendants way to court. The trial court revoked the defendants probation for being late on the ground the defendant willfully violated her probation.
The Zaring court reversed the ruling, concluding the trial court abused its discretion. The court explained: "[T]he appellant 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 . . . . Collectively, we cannot in good conscience find the evidence supports the conclusion that the conduct of appellant, even assuming the order was a probationary condition, constituted a willful violation of that condition." (Zaring, supra, 8 Cal.App.4th at p. 379, fn. omitted.)
This case is distinguishable. Here, defendant was informed at 6:45 a.m. that Kick could not take her to the work-release program. She had ample time to find an alternative ride to the program. Unlike the defendant in Zaring who made it to her hearing only 22 minutes late, there is nothing in the record to indicate that defendant made any attempt to get to the program later on April 2nd. Had defendant made an effort to get to the program late, or had defendant contacted the program to indicate why she could not be there on April 2nd, she would have discovered that she was one week ahead of schedule. Therefore, she would have had ample time to show up on April 9.
In conclusion, given the facts of this case and the courts careful consideration of them, defendant has failed to satisfy her heavy burden of demonstrating the trial courts order "exceeds the bounds of reason, all of the circumstances being considered." (People v. Giminez (1975) 14 Cal.3d 68, 72.)
III
DISPOSITION
The judgment is affirmed.
We concur:
Hollenhorst, Acting P.J.
Gaut, J.