Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and order of the Superior Court of Los Angeles County Super. Ct. No. NA064644, Gary J. Ferrari, Judge.
Cheryl Barnes Johnson, 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, Stephanie C. Brenan and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Isaiah Baker appeals from the postjudgment order revoking probation and the judgment executing a previously stayed three-year state prison sentence that the trial court modified to two years eight months at the time of sentencing. Baker contends the evidence at the probation revocation hearing was insufficient to support the court’s finding he had violated the terms of his probation, and the court abused its discretion in declining to reinstate probation. Following our request for supplemental briefing, we affirm the order revoking probation, reverse the judgment, and remand the cause for execution of the originally imposed and stayed three-year sentence.
FACTUAL AND PROCEDURAL BACKGROUND
Baker was charged by amended information on March 17, 2005, with one count of possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) and one count of carrying a dirk or dagger (Pen. Code, § 12020, subd. (a)(4)). The information specially alleged as to both counts that Baker had suffered one prior serious or violent felony conviction within the meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served one separate prison term for a felony conviction (Pen. Code, § 667.5, subd. (b)).
On July 11, 2005, Baker waived his constitutional rights to trial and entered an open plea of no contest to both counts and admitted the special allegations. The trial court found the plea had been freely and voluntarily entered, and there was a factual basis for the plea. Defense counsel joined in the plea. The court sentenced Baker on both counts to concurrent upper terms of three years in state prison, stayed imposition of sentence and placed him on three years formal probation. Among the conditions was that Baker must submit to “periodic anti-narcotic /alcohol tests.” The special allegations (including the prior strike allegation) were dismissed by the court in furtherance of justice.
Baker had represented himself briefly, but had retained private counsel as of July 11, 2005.
Probation officer Earl Miller of the “Narcotics Testing Unit,” reported that Baker had failed to appear for drug testing on October 21, 2005, November 9, 2005 and January 10, 2006. At the January 11, 2006 hearing on a possible probation violation, defense counsel acknowledged Baker had missed three drug testing appointments. Counsel explained Baker had received no notice of two appointments because he was in a drug treatment program at the time. After agreeing “to give [Baker] a break this time,” the trial court revoked and reinstated Baker’s probation. The court told Baker, “I’ll give you a chance. I appreciate the fact that you’ve completed a [drug treatment] program and I think we all agree that’s a good first step but you have to make yourself available [for anti-narcotics testing].”
In August 2006, probation officer Miller reported Baker had kept his August 8, 2006 appointment, but he had failed to submit a urine sample. Baker was told to return for testing the following day, but he missed the August 9, 2006 appointment.
When Baker failed to appear in court on September 5, 2006, his probation was summarily revoked and a bench warrant was issued. On September 9, 2006, Baker appeared without counsel. The court recalled the bench warrant, reinstated probation and admonished Baker to “make sure you keep in contact [with the probation officer] and make sure you test.”
In December 2006, probation officer Miller reported Baker had completed a six-month residential drug rehabilitation program on August 28, 2006 at the Weingart Center. However, on December 13, 2006, Baker tested positive for cocaine. Miller recommended that Baker’s probation be revoked and the previously imposed and stayed sentence be executed.
On January 19, 2007 Baker appeared with counsel, who acknowledged that Baker had one positive test for cocaine. The trial court summarily revoked Baker’s probation and scheduled a probation violation hearing.
At the probation revocation hearing of February 8, 2007, probation officer Miller testified that Baker had violated his probation by twice missing drug testing appointments (on August 8 and 9, 2006) and twice testing positive for cocaine (on December 13, 2006 and January 10, 2007). At the conclusion of direct examination, the court asked if Miller thought Baker would benefit from a residential treatment program. Miller opined that if Baker were admitted to “a live-in program, it might benefit him.” Asked the same question on cross-examination, Miller answered that a court-ordered residential treatment program would be Baker’s “last chance, his last hope.” Miller volunteered that Baker’s admission into a residential treatment program could be arranged within a few days.
The reporter’s transcript erroneously gives March 8, 2006 as the probation violation hearing date.
After both sides rested, the People argued against further probation, stressing Baker had twice been reinstated on probation after having been found in violation for failing to submit to drug testing. The People also maintained that Baker was not amenable to probation because he twice tested positive for cocaine after completing a drug treatment program. Defense counsel did not argue that Baker was not in violation of the terms of his probation. Instead, counsel urged the court to reinstate probation, and to order Baker into a residential treatment program, based on probation officer Miller’s offer to arrange for Baker’s admission into a live-in program.
Before rendering its decision, the trial court asked probation officer Miller if he were no longer recommending that the previously imposed and stayed sentence be executed. Miller explained he would “stand by” his earlier recommendation; but he would not oppose the reinstatement of probation under the circumstances.
After listening to the evidence and counsel’s argument, the trial court found Baker in violation of probation. The court declined to reinstate probation, commenting, “I think I have been very generous with [Baker] and nothing happened. In August he is missing tests. You presume it is a positive test because it is a missed test.” Defense counsel responded, “Yes.” The court concluded, “We have a dirty test in December and another dirty test in January of this year, not even a month ago. It is unfortunate, but I think [probation officer] Miller’s original recommendation that the sentence be pronounced is appropriate.”
The trial court executed the previously imposed and stayed three-year state prison sentence. However, immediately thereafter, the court engaged in an unreported side bar conference with counsel. When the hearing resumed, the court vacated its earlier sentence, without explanation on the record, and imposed a sentence of two years eight months (the two-year middle term for possession of cocaine base plus eight months, or one-third the two-year middle term, for possession of a dirk or dagger).
DISCUSSION
1. Substantial Evidence Supports the Probation Violation Finding
A probation violation must be proved by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441; People v. Jackson (2005) 134Cal.App.4th 929, 935.)In reviewing the sufficiency of the evidence to support the finding of a probation violation, we view the evidence in the light most favorable to the People and presume in support of the judgment the existence of every fact the court could reasonably deduce from the evidence. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.) “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge . . . to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the [finding of a violation] is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” (Jones, at p. 314.)
The record is clear here that the trial court found Baker had violated his probation based on the uncontroverted testimony Miller, Baker’s probation officer “for drug testing purposes,” and defense counsel’s statements. Miller testified that Baker had missed testing appointments on August 8 and 9, 2006, and had tested positive for cocaine on December 13, 2006 and January 10, 2007. Before the revocation hearing, defense counsel informed the court that Baker was prepared to admit he had one positive test. At the hearing, counsel acknowledged that Baker had “committed violations of probation for having positive tests.” Counsel also agreed the trial court reasonably assumed Baker had missed his appointments in August 2006 to avoid testing positive for cocaine. Counsel’s statements, in effect a stipulation Baker had tested positive for cocaine, coupled with Miller’s testimony constituted sufficient evidence to establish, by a preponderance of the evidence, that Baker had violated his probation.
Indeed, the focus of the revocation hearing was not whether Baker had violated his probation, but whether his probation should be reinstated for a third time.
2. The Trial Court Did Not Abuse Its Discretion in Declining to Reinstate Probation and Ordering Baker to Serve the Previously Stayed State Prison Sentence
Probation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court. (People v. Howard (1997) 16 Cal.4th 1081, 1092.) A decision to revoke probation when the defendant has failed to comply with its terms and conditions rests within the broad discretion of the trial court: Pursuant to section 1203.2, subdivision (a), “a court is authorized to revoke probation ‘if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his [or her] probation . . . .’” (People v. Rodriguez, supra, 51 Cal.3d at p. 440.) “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.” (Id. at p. 443.) “[O]nly 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. Lippner (1933) 219 Cal. 395, 400.)
The trial court’s decision not to reinstate probation and to order into effect the previously imposed and stayed state prison sentence was a proper exercise of discretion. The court properly considered Baker’s recent history of drug use, prior reinstatements and resulting poor performance on probation. Although at one point the court appeared to give serious thought to reinstating Baker’s probation, the court’s ultimate decision to the contrary was neither arbitrary nor capricious. (See People v. Carmony (2004) 33 Cal.4th 367, 376-377, People v. Thompson (1994) 24 Cal.App.4th 299, 308.)
3. The Trial Court Had No Authority to Reduce Baker’s Previously Imposed But Suspended Three-Year State Prison Sentence to Two Years Eight Months
In response to our request, Baker declined to file a supplemental brief. The People filed a supplemental brief arguing the trial court had no authority to reduce Baker’s previously imposed but stayed state prison sentence.
When a trial court imposes a state prison sentence, stays that sentence, places a defendant on probation, later finds the defendant in violation of probation and orders probation revoked, the court then has three options: (1) reinstate probation on the same or different terms, (2) terminate probation, revoke the stay of execution of sentence, and commit the defendant to prison for the term previously imposed, or (3) terminate probation, and decline to revoke the stay or to order confinement. (Cf. People v. Howard, supra, 16 Cal.4th 1081, 1087-1088, 1094-1095; People v. Medina (2001) 89 Cal.App.4th 318, 319-323; People v. Latham (1988) 206 Cal.App.3d 27, 29.) However, the court is without discretion to modify a previously imposed sentence once it revokes probation. (People v. Howard, supra, 16 Cal.4th at pp. 1087-1088; Pen. Code, § 1203.2, subd. (c).) The reduced sentence of two years eight months imposed in this case was an unauthorized sentence. (See People v. Scott (1994) 9 Cal.4th 331, 354.)
DISPOSITION
The postjudgment order revoking probation is affirmed. The judgment is reversed and the cause remanded to the superior court with directions to vacate the sentence of two years eight months and to execute the previously imposed and stayed three-year sentence, consisting of concurrent upper terms of three years for possession of cocaine base in violation of Health and Safety Code section 11350, subdivision (a) (count 1) and possession of a dirk or dagger in violation of Penal Code section 12020, subdivision (a)(4) (count 2). The superior court shall forward a corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: PERLUSS, P. J. ZELON, J.