Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Super.Ct.No. FSB702410
Sharon M. Jones, 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, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Following a probation revocation hearing pursuant to People v. Vickers (1972) 8 Cal.3d 451, the trial court found true that defendant had violated four specified probationary terms and conditions. Defendant’s probation was thereafter revoked, and he was sentenced to a total term of five years in state prison. Defendant’s sole contention on appeal is that the trial court abused its discretion in declining to reinstate him on probation. We find no abuse and will affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In 2007, while still a ward of the juvenile court, then 19-year-old defendant pleaded guilty to one count of unlawful firearm activity (Pen. Code, § 12021, subd. (d)(1)) with an attendant gang enhancement (§ 186.22, subd. (b)(1)(A)). In exchange, on October 18, 2007, defendant was placed on three years of formal probation on various terms and conditions. The terms of defendant’s probation included the requirements that he (1) report to the local police agency gang detail with a copy of his probationary terms and show proof of such reporting by November 1, 2007; (2) register his address with the appropriate city or county law enforcement agency by October 28, 2007, and show proof of such registration by November 17, 2007; (3) refrain from displaying or possessing gang attire or paraphernalia as prohibited by his probation officer; and (4) refrain from appearing at any court building, including the lobby, hallway, courtroom, or parking lot, unless he is either a party, defendant, or subpoenaed witness to a court proceeding.
All future statutory references are to the Penal Code unless otherwise stated.
On December 6, 2007, Probation Officer Isaac Zaragoza, who had prior contacts with defendant and knew defendant had been placed on probation (as a juvenile) after a high-powered assault rifle and ammunition were confiscated from his home, saw defendant in the parking lot of a juvenile court building. Defendant was standing about three or four parking stalls away from the east entrance of the courthouse and was holding a red baseball cap in his hand. After telephonically confirming the terms of defendant’s probation conditions, Officer Zaragoza made contact with defendant.
When the two made contact, it appeared that defendant was trying to conceal his baseball cap. The officer asked defendant for the baseball cap, and defendant stated it was not his. Upon examining the front of the baseball cap, and based on his training and experience in the gang unit, Officer Zaragoza opined the baseball cap qualified as gang paraphernalia, as it had gang insignia on it. Defendant was a member of the Dizneyland criminal street gang, and its rival was the Projects Gang. Defendant admitted that he had no official business to conduct at the courthouse. Following further inquiry, the officer determined that defendant was with the sister of a documented Dizneyland gang member. About six hours earlier, Officer Zaragoza had made contact with a known member of the rival Projects Gang in the same juvenile court parking lot.
San Bernardino police gang detective Travis Walker was also familiar with defendant and saw him inside the courthouse that day. Detective Walker, who processed gang member registration, was also aware that as of date of the court proceedings, defendant had not fulfilled his registration requirement.
Defendant’s father claimed that he had twice attempted to get defendant registered with the gang unit but was informed each time that the officer who could assist him was unavailable. Defendant’s father also stated that about a week later he had his wife scheduled an appointment with this individual, but, upon getting stuck in traffic, he had asked her to cancel the appointment.
Defendant also stated that he had tried to register on October 18, 2007, the day he was placed on probation, and one other time prior to his arrest on December 6, 2007, but was unsuccessful. He admitted to being at the courthouse on the day in question and but claimed he was unaware of the probation term prohibiting him from being there. When asked if he had received a copy of the probation terms, he said, “I think so.” He also claimed that he was at the courthouse inadvertently when he was taken there by a friend who was driving him home. Regarding the baseball cap with gang insignia, defendant asserted the cap was not his. He further asserted that he was not a member of the Dizneyland gang but a mere “associate.”
Following the evidentiary hearing, the trial court found that defendant was in violation of his probation. The court then sentenced defendant to a total term of five years in state prison: the mitigated term of two years for the substantive offense and the middle term of three years for the gang enhancement allegation.
II
DISCUSSION
Defendant contends the trial court abused its discretion in declining to reinstate him on probation considering “the technical and minor nature of the probation violation,” his “relatively minor” criminal record, and the probation officer’s willingness to reinstate him on probation. We disagree.
“Upon finding a probation violation (admitted or otherwise), a court has three options -- reinstate probation on the same terms, reinstate it on modified terms, or terminate it and order a commitment to prison.” (People v. Harris (1990) 226 Cal.App.3d 141, 147.) A trial court’s decision to reinstate or deny probation is discretionary, and that decision will not be reversed on appeal absent a showing that the trial court exercised its discretion in an arbitrary or capricious manner. (People v. Edwards (1976) 18 Cal.3d 796, 807; People v. Bolton (1979) 23 Cal.3d 208, 216.) Thus, “[a] heavy burden is placed on a defendant in attempting to show an abuse of discretion in denying a request for probation.” (People v. Marquez (1983) 143 Cal.App.3d 797, 803.) However, the concept of “‘judicial discretion’” does not import “‘a potential without restraint.’” (Bolton, at p. 216.) Discretion, as defined in the pertinent case law, “is . . . ‘controlled by sound principles of law, . . . free from partiality, not swayed by sympathy or warped by prejudice . . . .’ [Citation.]” (Ibid.) A court abuses its discretion “whenever the court exceeds the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.) We will not interfere with the trial court’s exercise of discretion “when it has considered all facts bearing on the offense and the defendant to be sentenced.” (People v. Vargas (1975) 53 Cal.App.3d 516, 533.)
Here, we cannot find that the trial court abused its discretion in refusing to reinstate probation. The criteria affecting reinstating probation, including the circumstances in mitigation and aggravation, were presented to the court in the probation report as well as by counsel’s argument. The court was well aware of defendant’s reasons for his noncompliance with the probation terms, having heard defendant and his father’s testimony. The court was also aware that defendant admitted to being at the courthouse and failing to register with the gang unit in violation of his probation. Even though defendant had been given opportunities to succeed on probation, he had failed to demonstrate a desire to change his noncompliant behaviors as evidenced by the record. The trial court considered defendant’s history, testimony at the probation revocation hearing, the arguments of counsel, and the probation report submitted at sentencing. It was not “required to set out its reasons for either rejecting or minimizing” the mitigating factors asserted in the reports and argument. (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637.) However, here, the court gave a reasoned explanation for its sentence choice-it stated as follows:
“[T]he biggest concern for this Court is that this town has such a vast and dangerous gang problem that it really does shock and sadden me that [defendant] did not comprehend the gift he was given from probation. [¶] He was pretty much given a credit for time served disposition. In other words, I think the plea bargain was for 120 days and with a gang enhancement where state prison should be imminent and that term was stayed, that should have been his first indication that he has been given a benefit and that he needs to respect his terms, and the Court has heard nothing in the testimony saying any of that, especially with regard to . . . wearing paraphernalia like this at a facility where other juveniles could be present, it could have been a very bad situation. I’m glad nothing happened. [¶] But it shows a complete disregard for obvious terms even if he was trying to help a friend of his who was on her way to court. Putting this on his head or having it in his possession could have caused untold mayhem at the juvenile facility where he shouldn’t have been in the first place. [¶] So with that, the Court clearly finds the defendant in violation of terms 18, 17, 13, and 14. Now the only other matter left is the sentence to be imposed upon [defendant]. At the last hearing, [defendant] rejected the Court’s mitigated offer of 3 years 4 months. The only mitigating factor the Court can see is [defendant’s] age. Factors in aggravation clearly include the two felonies that he suffered as a juvenile, and according to my notes in the presentence investigation report, he suffered another conviction, although it’s not clear whether it’s a felony or a misdemeanor.” Nothing in the record suggests that the trial court “focused entirely on defendant’s criminal history,” as defendant suggests, or that the court considered improper factors in declining to reinstate probation.
We also reject defendant’s assertion that there was no evidence in the record to suggest that the underlying offense was gang related or that he was a member of a gang. The record belies this contention.
In the absence of any showing that the court’s decision was arbitrary or capricious, we conclude the trial court did not abuse its discretion when it denied defendant’s request to reinstate his probation.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J., MILLER J.