Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR156283
Siggins, J.
Defendant Oscar Alvarez appeals from an order terminating probation and sentencing him to state prison for two years. He argues the court wrongly revoked probation due to his failure to pay restitution and wrongly denied his motion to substitute counsel. We affirm.
BACKGROUND
Defendant was convicted of one count of stalking his former wife. The court suspended imposition of sentence, placed defendant on a three years probationary term, and ordered him to pay restitution to the victim in an amount to be determined by defendant’s probation officer. This court affirmed the judgment in People v. Alvarez (May 30, 2003, A097968 [nonpub. opn.]).
The facts of the underlying offense are set forth in our unpublished opinion in A097968, of which we take judicial notice.
In November 2002, after a contested hearing, the trial court found defendant violated probation by failing to verify that he attended school and had applied for employment. On December 12, 2002, the court ordered defendant to serve 180 days in jail and extended probation for three years from that date.
In March 2003, the district attorney alleged defendant violated probation when he sent a letter to the Board of Vocational Nursing in which he falsely accused his ex-wife of stealing prescription medications from her employer. The probation report described defendant’s overall compliance as poor and said that, although he was attending a domestic violence program and had completed a parenting class, defendant had not made any payments towards his fines, fees and restitution, had not secured full-time employment; had perjured himself in court in October 2002, and failed on numerous occasions to follow directives of his probation officer and the court. The probation officer gave a “very guarded” recommendation for reinstatement of probation. Defendant admitted the violation and agreed to waive all previous credits. The court reinstated probation and extended it for another three years.
In November 2004, the probation department alleged defendant had again violated probation, this time by failing to pay restitution and fines or seek and maintain employment. Defendant had paid a total of $45 of $9,486.81 in restitution and fines. According to the probation report, “[t]his officer, and the defendant’s previous probation officers, have vigorously attempted to get the defendant to get a job and make his payments. He has resisted probation directions to apply for jobs and has not complied with probation officer instructions to provide verifiable proof of job application submissions. He did however provide job search information that could not be verified by probation. In fact, a check with many of the companies the defendant claimed to have submitted applications to revealed the fact that some of them either had no record of his applying for a position or of him following up on initial contacts. . . . [¶] . . . [¶] The defendant’s continued refusal to comply with court orders, and probation directives, to obtain full time employment and pay restitution, has been ongoing since he was placed on probation. The defendant has served two sentences in county jail, one for 180 days and one for 365 days, without a change in his behavior. Probation has exhausted all available resources in assisting the defendant to be successful to no avail.” The probation department recommended that the court impose the previously suspended state prison sentence.
A probation revocation hearing was scheduled for September 26, 2005, but defendant failed to appear. Probation was summarily revoked and a bench warrant was issued.
Defendant appeared in custody on May 18, 2006. On June 8, 2006, the court denied defendant’s motion to substitute in new counsel (Marsden motion) (People v. Marsden (1970) 2 Cal.3d 1188) and, after a contested hearing, found defendant violated probation when he willfully failed to appear on September 26, 2005, and failed to keep in contact with probation officials between that date and when he was apprehended in April 2006. On July 6, 2006, the court terminated probation, sentenced defendant to two years in state prison and ordered that he pay $9,936.81 in victim restitution. Defendant timely appealed.
DISCUSSION
I. Termination of Probation
Defendant argues the court abused its discretion and violated his constitutional and statutory rights because it terminated his probation in part for his failure to pay restitution in the absence of an allegation or finding that he had the ability to pay. The argument is meritless.
A. Legal Standards
Penal Code section 1203.2, subdivision (a) authorizes a trial court to 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 . . . .” While a reviewing court will not disturb the revocation of probation absent an abuse of discretion (People v. Self (1991) 233 Cal.App.3d 414, 417), the trial court’s discretion is limited by due process requirements that include written notice of the alleged probation violations; disclosure of the evidence to be used against the probationer; the opportunity to be heard and present evidence; the right to confront and cross-examine adverse witnesses, unless the hearing officer finds good cause not to allow confrontation; a neutral and detached hearing body; and a written statement by the factfinders as to the evidence relied on and the reasons for revoking probation. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 782 & fn. 4; Morrissey v. Brewer (1972) 408 U.S. 471, 489.)
All further statutory references are to the Penal Code unless otherwise noted.
Section 1203.2, subdivision (a) further requires that “probation shall not be revoked for failure of a person to make restitution pursuant to Section 1203.04 as a condition of probation unless the court determines that the defendant has willfully failed to pay and has the ability to pay.”
B. Analysis
Defendant’s claim that the court relied in part on his failure to pay restitution when it revoked his probation is premised on his focus on selected portions of the July 6, 2006, sentencing hearing transcript. To provide the necessary context, we set forth the relevant discussions from both that sentencing hearing and the revocation hearing that was held a month earlier.
At the revocation hearing the prosecutor confirmed it was going forward only on the allegations that defendant had violated probation by failing to appear on September 26, 2005, and failing to maintain contact with probation officials since that date. Defendant testified he had complied with all of his probation conditions. In rebuttal, the probation officer testified that defendant had failed to provide financial and employment information, that he was not current on his fines and fees, and that there had been “issues regarding his ability to pay.”
At the conclusion of the hearing the court found defendant violated probation by failing to maintain contact with the probation officer and for willfully failing to appear on September 26, 2005. The minute order from this hearing reflects that probation was revoked for defendant’s failure to stay in contact with his probation officer. The court referred the matter for a supplemental probation report and recommendation prior to sentencing.
At the outset of the sentencing hearing, the court summarized the supplemental probation report. In addition to two prior probation violations, the report noted that defendant “has continually failed to comply with the directives of Probation and the orders of the Court. That he has failed to maintain regular contact with Probation, failed to appear in court as directed. He has made a total payment on the restitution owing in this matter of $9,891 of $45 in three separate payments, the last of which was received in January of 2004.” Defense counsel pointed out that defendant had complied with some of his probation conditions and emphasized that the only violations at issue were his failures to appear in court and to maintain contact with his probation officer. The prosecutor responded that defendant had made at best minimal efforts at compliance and that he was “playing games” with the court and the probation department.
The court agreed and said: “It does appear that Probation has utilized all of its resources. The defendant has been given numerous opportunities to complete the terms. As you pointed out to the Court in four and a half years he’s made $45 in total payments on his restitution of $9,000 plus. [¶] In addition he’s missed numerous meetings. He’s been violated twice in the past. Once, a rather—well, the first violation had to do with him failing to get enrolled in anger management, had to do with him failing to appear at probation as directed, and there in the hearing when he was found in violation he was given an additional 180 days. [¶] He did complete anger management thereafter, but what is of concern to the Court that second violation appears to have been committed after he completed anger management, certainly while he was in there. But according to Probation he completed anger management in May of—he completed the parenting program in September of 2002, may have just completed the anger management program. [¶] Nevertheless, after the first violation he continued to harass Ms. Alvarez to the point that she was obviously suffering a lot of emotional turmoil. [¶] Even though Probation had originally noted that this, in their opinion, should be a zero tolerance grant of probation, the defendant was given yet another opportunity to complete all of the terms. He failed to come to court as directed. He failed to meet with Probation as directed. He failed to pay his fines as directed. [¶] And this is really just a continuation of how [defendant] has gone through the entire proceeding from start to finish. There hasn’t been one issue he’s acknowledged responsibility for, that he’s accepted responsibility for. He never showed the slightest amount of remorse or compassion for the victim.”
Defendant asserts this commentary shows the court revoked probation on a “finding” that he failed to pay restitution fines, without notice or proof of his ability to pay. We disagree. At no time did the court refer to defendant’s failure to make payments as a finding or conclude he violated probation because he failed to pay restitution. The supplemental probation report that the court accurately summarized correctly identifies the violations found by the court a month earlier as defendant’s failure to maintain contact with probation and willful failure to appear in court. It also describes defendant’s poor record of payments, but this discussion follows the report of the terms and circumstances of the two violation findings, and under the heading “Response to Other Terms of Probation.” (Italics added.) Read fairly in context, the court’s reference to such “other terms” does not mean that it improperly based revocation on defendant’s failure to pay restitution as well as on the two undisputed probation violations. Absent an affirmative showing of error, we must presume that the court properly followed the law. (See People v. Tang (1997) 54 Cal.App.4th 669, 677 [defendant’s burden to affirmatively demonstrate error on appeal].)
Defendant also argues his revocation must be reversed because of two factual inaccuracies in the court’s recitation of his record on probation. He argues that the court misconstrued the basis for his 2002 probation violation as (1) “failure to complete anger management classes,” when the violation was for his failure to provide information concerning his school attendance and job applications; and (2) sending the anonymous letter to his ex-wife’s employer during or after he completed anger management classes, when in fact he sent it in January 2002, the month he was sentenced. This contention is meritless. Defendant’s current probation revocation was properly based on his more recent failures to appear and to maintain contact with his probation officer. Any factual misstatement in the court’s commentary on defendant’s record is harmless by any standard. In any event, even assuming these fact-based issues could have made a difference in the court’s discretionary sentencing decision, defendant waived this issue for appeal because he failed to object at the sentencing hearing. (See, e.g., People v. Tillman (2000) 22 Cal.4th 300, 303; People v. Scott (1994) 9 Cal.4th 331, 350-354; People v. Evans (1983) 141 Cal.App.3d 1019, 1021; People v. McMahan (1992) 3 Cal.App.4th 740, 750.)
II. Marsden
Defendant argues the court erred when it denied his Marsden motion because, he maintains, there was a “breakdown in meaningful communication” with his appointed counsel that warranted a change in counsel. We disagree.
A. Background
At the start of the June 2006 probation revocation hearing, defendant told the court there had been a “breakdown in communication” between himself and his attorney and he did not “believe [his] lawyer [was] giving [him] an affirmative defense.” Defendant’s counsel agreed there had been a “breakdown in the attorney/client relationship. I don’t think a relationship exists at this point”; that “he and I simply don’t seem to communicate in any kind of meaningful way”; and that “I don’t know that I can properly do my job with the state of communication as it is.” When the court questioned defendant further about the nature of his problem communicating with counsel, defendant said his attorney “won’t give me an affirmative defense” and that “the entirety of the case was fraudulent” and “never set up for me to pass probation.” Defendant said he was “always getting violated for . . . being unable to pay restitution when I had hardships. Every motion I filed was denied. So I never got an affirmative defense.” After defendant had nothing else to add when asked, the court denied the motion.
B. Analysis
“A defendant ‘may be entitled to an order substituting appointed counsel if he shows that, in its absence, his Sixth Amendment right to the assistance of counsel would be denied or substantially impaired.’ [Citations.] The law governing a Marsden motion ‘is well settled. “When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].” [Citations.]’ ” (People v. Memro (1995) 11 Cal.4th 786, 857.) Denial “is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would ‘substantially impair’ the defendant’s right to assistance of counsel.” (People v. Webster (1991) 54 Cal.3d 411, 435.)
Here the court dutifully inquired into defendant’s complaints. Defendant responded vaguely that communication with counsel broke down and that counsel was providing an inadequate defense, but he supplied no specific information that could substantiate either claim. Nor did counsel’s concession that he and defendant “don’t seem to communicate in any kind of meaningful way” compel the court to appoint new counsel. “A defendant may not effectively veto an appointment of counsel by claiming a lack of trust in, or inability to get along with, the appointed attorney.” (People v. Smith (2003) 30 Cal.4th 581, 606; People v. Berryman (1993) 6 Cal.4th 1048, 1070, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800.) Moreover, “A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness.” (People v. Crandell (1988) 46 Cal.3d 833, 859, reversed on another point in People v. Crayton (2002) 28 Cal.4th 346; People v. Smith, supra, at p. 606; People v. Barnett (1998) 17 Cal.4th 1044, 1086.) There was no showing that defendant attempted to reconcile any differences with his lawyer; nor did defendant show that defense counsel did anything to cause a deterioration in their relationship. “[A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict.” (People v. Smith (1993) 6 Cal.4th 684, 696.) Denial of defendant’s Marsden motion was not an abuse of discretion.
III. Restitution
Defendant asserts he is entitled to a remand and hearing to set the amount of victim restitution. He is not.
Section 1202.4, subdivision (f) authorizes restitution to a victim for economic losses incurred as a result of the crime. However, “[t]he defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution.” (§ 1202.4, subd. (f)(1).) Here, while on probation, defendant was notified of the amount of restitution sought and he requested a hearing to contest that proposed amount. Although the record is not entirely clear, at a hearing on November 29, 2004, defendant’s counsel represented that the court had denied defendant’s motion to set the amount of restitution, and asked that it be reconsidered.
Ultimately, as described in the Background section, ante, a probation revocation hearing was scheduled for September 26, 2005, and defendant failed to appear. Defendant did appear in custody at the June 8 probation revocation and July 6 sentencing hearings, and made no objection to the amount of restitution. He thereby waived his right to contest the amount of restitution in this appeal. (People v. Le (1995) 39 Cal.App.4th 1518, 1523; People v. Gibson (1994) 27 Cal.App.4th 1466.) Having carefully reviewed the record, we find no basis for defendant’s claim that his failure is excusable because he could have reasonably concluded an objection would be futile, or because the court interrupted him when he attempted to raise other objections at the sentencing hearing. Defendant had an adequate opportunity to object to the amount of restitution and did not do so. The objection is therefore not cognizable on appeal.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.