Opinion
E052015 Super.Ct.No. FVI801503
08-31-2011
THE PEOPLE, Plaintiff and Respondent, v. ALBERT FREDERICK BEACH, Defendant and Appellant.
Gail Ganaja, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary W. Brozio and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Lorenzo Balderrama, Judge. Affirmed.
Gail Ganaja, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary W. Brozio and William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Albert Frederick Beach pled guilty to driving under the influence (Veh. Code, § 23152, subd. (a)) and admitted he had prior driving under the influence convictions within the meaning of Vehicle Code sections 23550 and 23550.5. Pursuant to the plea agreement, the trial court imposed the aggravated term of three years in state prison, suspended execution of the sentence, and placed defendant on probation. After a contested revocation hearing, the trial court revoked probation and imposed the suspended sentence. Defendant contends the trial court abused its discretion by imposing the suspended prison sentence rather than reinstating him on probation. We affirm.
BACKGROUND
Defendant had six driving under the influence convictions with five violations of probation arising from those convictions.
He entered his guilty plea and admitted his prior convictions on January 13, 2009, and was initially sentenced on February 20, 2009.
After defendant admitted using marijuana, the probation department did not file for a probation violation. Instead, drug terms were added as conditions of his probation. Subsequently, defendant's compliance with those drug terms was questioned, but a violation allegation was withdrawn and the probation terms were modified to address medical marijuana.
On June 29, 2010, a petition was filed requesting revocation of probation on the grounds that defendant had violated four of his terms of probation by: (1) not making scheduled payments; (2) not cooperating with the probation officer; (3) not cooperating with representatives of an electronic alcohol monitoring provider; and (4) not providing proof of attendance at NA/AA meetings. On October 5, 2010, a hearing was held on the revocation petition, and the facts and circumstances of the alleged violations were presented.
Defendant had been directed to have an alcohol monitoring device installed by February 12, 2010. He did not get it installed until March 5, 2010, due to financial reasons. He had been directed to comply with the maintenance routine, but was not cooperative with the representatives of the monitoring service provider and would use profanity when contacted by the provider.
A term of defendant's probation required him to "Attend NA/AA meetings as directed by the Probation Officer and show proof of attendance to the Probation Department." The probation officer had directed defendant to attend three meetings a week. Defendant had provided no proof for December 2009, January 2010, or February 2010. He provided proof of four meetings in March, five meetings in April, no meetings in May, five meetings in June, seven meetings in July, and two meetings in August, as well as some additional dates provided by defendant using a form different than had been provided to him by the probation officer.
Defendant told the probation officer that he was not making payments to the alcohol monitoring service or central collections because he was out of work. His use of profanity while speaking with representatives of the alcohol monitoring service was "the way he speaks. He doesn't mean anything bad by it." In addition, he was "working on his use of profanity." He also asserted he was attending NA/AA meetings three times a week or more but was not getting his proof of attendance forms signed every time he attended a meeting.
Defendant also provided phone records showing his calls to the alcohol monitoring service. The records showed defendant had made six calls between March 2010 and May 21, 2010. Each one of the calls lasted only about one minute, and occurred on the same three days. The service also called him, and he spoke with them, but he "didn't actually cuss them out."
The trial court found that defendant had violated two terms of probation. "Term Number 4, cooperating with the probation officer in a plan of rehabilitation and following all reasonable directives of the probation officer, and Term Number 21, attend NA/AA meetings as directed by the probation officer and show proof of attendance to the probation department. [¶] Particularly since the original offense that the defendant pled to was a felony DUI, it is extremely important that the defendant cooperate with . . . probation to attend these meetings. That will help him with his problem. [¶] The defendant himself is not a bad person by himself, but the best way to state it is, if he is under the influence or drinking, he becomes a problem. And the best way for him to deal with that problem is attending the NA or AA meetings. [¶] The Court finds that probation is no longer a viable alternative."
Defendant's trial counsel then noted the trial court's power to reinstate probation. The trial court responded, "I appreciate that; however, the defendant knew he was under the so-called hammer of the suspended sentence. And he had his chance to cooperate with probation and to attend those meetings. So it is my belief that the suspended sentence should be imposed." The trial court then imposed the suspended prison sentence.
DISCUSSION
Defendant contends that the trial court abused its discretion "in ordering that he be committed to prison rather than reinstating probation because there was insubstantial evidence to support a determination that [defendant] could not succeed on probation if it was reinstated." The People contend there was no abuse of discretion. We agree with the People.
Probation is a privilege, not a right (People v. Mancebo (2002) 27 Cal.4th 735, 754), which is granted as "an act of clemency" (People v. Howard (1997) 16 Cal.4th 1081, 1092).
A trial court may modify, revoke, or terminate probation if the probationer has violated any term or condition of probation "if the interests of justice so require." (Pen. Code, § 1203.2, subd. (b).) In considering whether to revoke probation, the court's inquiry is directed "to the probationer's performance on probation." (People v. Beaudrie (1983) 147 Cal.App.3d 686, 691.) "Thus the focus is (1) did the probationer violate the conditions of his probation and, if so, (2) what does such an action portend for future conduct?" (Ibid.) The trial court is vested with "broad discretion in deciding whether to continue or revoke probation." (People v. Jones (1990) 224 Cal.App.3d 1309, 1315.) " '[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. Rodriguez (1990) 51 Cal.3d 437, 443.) "We will uphold a trial court's sentencing determination where it is supported by substantial evidence. [Citation.]" (People v. Downey (2000) 82 Cal.App.4th 899, 917.)
Defendant has a long history of driving under the influence and violating the terms of probation when it is granted to him. Notwithstanding the gravity of defendant's history of repeat offenses and probation violations, in a true act of clemency the trial court placed defendant on probation pursuant to his negotiated plea agreement. Defendant admits he failed to obtain the proof of his attendance at NA/AA meetings required by his probation officer and the terms of his probation. Indeed, following the reinstatement of his probation, he did not even once provide proof of attending a sufficient amount of meetings. This consistent failure went to the very heart of the rehabilitation required by defendant. Accordingly, we find no abuse of discretion in the trial court's decision to revoke probation and impose the suspended prison term.
Defendant contends that the evidence was insufficient because he was partially complying, there was no showing that he was violating the other substance abuse terms of his probation, and there was no showing that the probation officer expressly discussed his reporting failure with him prior to filing the revocation petition. However, as noted by the People, defendant's admitted failure to provide proof of attendance "strongly implies" that he was not attending the NA/AA meetings as required. These meetings are so important to the rehabilitation of someone with as severe a problem as defendant that the trial court considered attendance to be "the best way" for dealing with his problem. Accordingly, given defendant's history, defendant's failure to attend meetings and submit proof of his attendance provides substantial evidence supporting the trial court's finding that probation was no longer a viable option.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur: HOLLENHORST
J.
RICHLI
J.