Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS062006
Mihara, J.
Defendant Michael Brandon Bolick pleaded no contest to driving with a blood alcohol level of .08 percent or more and causing bodily injury to another (Veh. Code, § 23153, subd. (b)), and he admitted that he had personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)) in the commission of this offense. The court initially imposed a five-year prison term, suspended execution of that sentence, and placed defendant on probation for five years with conditions that defendant serve a year in jail and abstain from consuming alcohol. Less than three months after completing his jail term, defendant was arrested for violating his probation by drinking alcohol. He admitted violating his probation, and the court revoked his probation and ordered execution of the suspended prison term.
On appeal, defendant contends that the court abused its discretion in revoking rather than reinstating probation, and he claims that his trial counsel was prejudicially deficient. We find no abuse of discretion and conclude that defendant has failed to establish that his trial counsel was deficient. We affirm the court’s order revoking defendant’s probation.
I. Factual and Procedural Background
On the evening of June 21, 2006, defendant, who was then 23 years old, left the restaurant where he worked and drove his mother’s vehicle toward his home. Defendant lacked a driver’s license, because his license had been revoked for a prior driving offense. His mother’s insurance policy specifically excluded coverage for his driving. Before he left the restaurant, defendant had been drinking wine for a couple of hours. Defendant’s vehicle struck a bicyclist. The bicyclist was “grievously injured” and suffered a broken neck, a broken leg, a broken foot, a broken arm, broken teeth, and extensive bruising and lacerations to his entire body. At the time of the collision, defendant’s blood alcohol level was at least .26 percent.
The victim’s medical bills and other expenses exceeded $100,000, and he continues to suffer from memory loss and confusion.
Defendant did not stop his vehicle. He left the bicyclist on the side of the road and drove off. Defendant drove two miles away from the scene of the accident, abandoned the vehicle, and ran away. After an extensive police search, defendant was found in the bushes along the river and arrested. Defendant initially told the police that a coworker, who he could not identify, had been driving, and that he had “blacked out.” Defendant spent just one day in jail before being released on bail.
Defendant was charged by complaint with driving under the influence of alcohol or drugs and causing bodily injury to another (Veh. Code, § 23153, subd. (a)), driving with a blood alcohol level of .08 percent or more and causing bodily injury to another (Veh. Code, § 23153, subd. (b)), failing to stop at the scene of an injury accident (Veh. Code, § 20001, subd. (a)), and misdemeanor driving without a license (Veh. Code, § 12500, subd. (a)).
The prosecutor subsequently amended the complaint to add an allegation that defendant had personally inflicted great bodily injury (Pen. Code, § 12022.7) in the commission of the Vehicle Code section 23153, subdivision (b) count. Defendant entered a no contest plea to that count and admitted the great bodily injury allegation on the condition that he receive felony probation.
A probation report was prepared in September 2006 by probation officer Bill English. Defendant reported that he had worked in restaurants for three or four years, both in food service and as a bartender. He told English that he had consumed four or five glasses of white wine in the two hours before the accident, but an expert informed English that defendant’s blood alcohol level was consistent with consumption of 52 ounces of wine. Defendant told English that he “felt slightly impaired but capable of driving” at the time of the accident. However, defendant also asserted that he never saw the bicyclist. Defendant admitted that he “has an alcohol problem[,]” and he reported that he was attending AA meetings and working with a sponsor. English was unenthusiastic about recommending probation for defendant. “It must be said that the only reasons a prison sentence is not being recommended are due to the defendant’s lack of a prior criminal record and the huge amount of restitution owed in this case.”
At the sentencing hearing, the court stated that defendant was remorseful and “[t]here’s some indication he’s on the road toward getting a grip on how deeply his alcoholism has affected him and other people.” The court noted that the victim, who supported probation for defendant, was “far more” understanding than the court was “towards the defendant.” The court imposed a five-year prison term and suspended execution of sentence. Defendant was placed on probation for five years with numerous conditions. The probation conditions included a one-year county jail term, and required defendant to “[m]aintain gainful employment[,]” obey all laws, “abstain entirely from the use and possession of alcohol[,]” and “stay out of places when it is the main item of sale.” Defendant was also required to successfully complete the “Choices and Pride” program, an alcohol treatment and counseling program, while in custody. Defendant was ordered to pay restitution, and his driver’s license was suspended for one year. The remaining counts were dismissed.
Defendant was incarcerated in jail from November 8, 2006 to June 29, 2007, when he was released. Shortly after midnight on September 23, 2007, police officers saw defendant “attempting to flag down a vehicle” in the parking lot of a Chili’s restaurant. The officers made contact with defendant, and he told them he was trying to get a ride home. Defendant was slurring his words, and he smelled of alcohol. When the officers learned that defendant was on probation and that his probation conditions prohibited the consumption of alcohol, they arrested him for violating his probation.
Defendant was also apparently charged with drunk and disorderly conduct (Pen. Code, § 647, subd. (f)), but this misdemeanor count was subsequently dismissed.
A petition was filed alleging that defendant had violated his probation by being arrested for “being under the influence of alcohol.” Defendant admitted the probation violation, and the court ordered a supplemental probation report. A brief supplemental probation report was prepared by probation officer Kevin Christian and filed on October 30, 2007. Christian expressed the belief that defendant needed “a more structured environment,” and he recommended that defendant be reinstated on probation on condition that he serve additional time in jail, and complete a residential treatment program.
At the outset of the November 15, 2007 hearing, the court asked whether there were “[a]ny additions or corrections” to the supplemental probation report. Defendant’s trial counsel responded: “No, there are none, Your Honor, from the defense.” The court then entertained argument by the attorneys.
The prosecutor argued that probation should not be reinstated. He contended that the probation officer had “so clearly miss[ed] the understanding of ESS [execution of sentence suspended].” He pointed out that defendant had not obtained employment or paid any restitution, “but he has money to go get drunk.” The prosecutor argued that defendant had been “[i]ncoherent and unable to take care of himself” when he was arrested for the probation violation. “Probation completely misses the point here. Mr. Bolick has done nothing.” “[H]e takes his freedom and gets plastered.” “[H]e is out in public drunk.”
Defendant’s trial counsel conceded that defendant “drank to excess” in violating his probation. He also conceded that defendant had not paid restitution or obtained employment, but he attributed this to the fact that defendant had been out of jail for such a short period of time. Defendant’s trial counsel attempted to put a positive spin on defendant’s probation violation. “[W]hen he realized he had too much to drink and his friends tried to take him home who had been drinking, he separated himself from them. He was in 647(f) [drunk and disorderly], but he tried to do the right thing by flagging down a police officer, telling him what happened. Trying to get somebody safe to deliver him to a safe home, and not to further endanger the community.” Defendant’s trial counsel asked the court to give defendant “one more chance shy of going to prison at his age.”
The court refused to reinstate probation and explained its reasoning. “Frankly, I was surprised that Mr. Christian would have recommended giving him continued probation. Mr. Christian has an excellent reputation, and I think there must have been something about Mr. Bolick that led him to that conclusion that that would be the appropriate disposition. And I think highly of Mr. Christian, but I disagree with him in this case. [¶] Your client was out of jail for basically not more than 90 days when he did exactly the same kind of thing that ruined the lives of the people that he ran into initially. I just don’t understand how he could have spent . . . three quarters of a year locked up in jail and not availed himself of any resources, not come to an understanding of how serious his situation was, and then violate probably the two most, for him, immediate and important conditions of his probation, which are, one, don’t go anyplace where alcohol is the main item of sale, and two, don’t drink anymore. [¶] And the fact that he, for whatever reason, decided to not get in a car and drive, you know, there may be some credit to him for that. But it’s a little late, and it’s not enough.” The court revoked defendant’s probation, and ordered execution of the previously suspended five-year state prison term. Defendant filed a timely notice of appeal.
II. Discussion
A. Court’s Decision to Revoke Probation
Defendant contends that the court abused its discretion in revoking probation because the “interests of justice” do not support its decision. He acknowledges that the court was concerned that he “would pose a danger to the safety of others” if not incarcerated, but he argues that the evidence before the court actually demonstrated that he “was not, and is not, the threat to others that the court found him to be.” He asserts that a prison term will not serve the interests of justice, while a residential treatment program would serve the public interest.
“Upon . . . the petition of the . . . probation officer or the district attorney . . ., the court may modify, revoke, or terminate the probation of the probationer . . . . After the receipt of a written report from the probation officer, the court shall read and consider the report and either its motion or the petition and may modify, revoke, or terminate the probation of the probationer upon the grounds [of a probation violation] if the interests of justice so require.” (Pen. Code, § 1203.2, subds. (a), (b).)
“The court has discretionary power to grant or to revoke probation.” (In re Larsen (1955) 44 Cal.2d 642, 645.) “A denial of a grant of probation generally rests within the broad discretion of the trial court and should not and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.” (People v. Edwards (1976) 18 Cal.3d 796, 807.) “It must be impartial, guided by ‘fixed legal principles, to be exercised in conformity with the spirit of the law.’” (People v. Wade (1959) 53 Cal.2d 322, 338, disapproved on other grounds in People v. Carpenter (1997) 15 Cal.4th 312, 381-382.) “A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.” (People v. Cluff (2001) 87 Cal.App.4th 991, 998; In re Bine (1957) 47 Cal.2d 814, 817.)
The evidence before the court was sufficient to support the court’s conclusion that the interests of justice required defendant’s incarceration. Defendant’s probation violation demonstrated that he had not reformed himself and continued to pose a significant risk to the community. Both defendant’s original offense and his probation violation were the result of defendant drinking to excess at restaurants distant from his home. On both occasions, defendant ended up drunk and in need of transportation to his home at night. His original offense occurred when defendant, highly intoxicated, drove his mother’s car in an effort to transport himself home. His probation violation occurred when defendant, highly intoxicated, tried to flag down a vehicle in an effort to obtain transportation home.
While defendant’s probation violation fortunately did not involve him driving, the fact that he was so intoxicated that the arresting officers concluded that he was unable to care for himself (see Pen. Code, § 647, subd. (f)) supports the court’s conclusion that defendant’s probation violation demonstrated that he continued to pose a danger to others. A highly intoxicated man, who is trying to flag down a ride after midnight in a restaurant parking lot to obtain a ride to his distant home, presents a significant danger to the community. Such a man may stagger into vehicular traffic and cause an accident, or, if he obtains a ride, his intoxication may endanger the person who provides him with a ride.
Violating his probation by becoming extremely intoxicated at night at a restaurant that was distant from his home was, as the court noted, “the same kind of thing” that had led to his original offense. Defendant’s inability to refrain from drinking alcohol to excess far from home, even after the tragedy of his original offense, a lengthy jail term, and participation in AA and in an in-custody treatment program, demonstrated that defendant remained unreformed and therefore continued to pose a significant danger to the community. On this basis, the court could have concluded that the interests of justice required defendant’s incarceration in prison.
Defendant suggests that the court was required to inquire further of Christian to discover what it was that had caused him to recommend reinstatement. The record does not suggest that any such inquiry was necessary or would have been fruitful. Christian had already explained in his report that he was recommending reinstatement because he believed that the more structured environment of a residential treatment program might be successful. The court’s comments did not suggest that it believed some fact about defendant was missing from Christian’s report, but instead reflected that the court believed that Christian had simply come away with a different overall assessment of defendant than the one the court had reached. While Christian’s report was brief, the court could have reasonably concluded that Christian had included all of the relevant facts upon which he had relied to support his recommendation.
On this record, we can find no abuse of discretion in the court’s decision to revoke defendant’s probation.
B. Ineffective Assistance of Counsel
Defendant maintains that his trial counsel was prejudicially deficient in failing to ensure that Christian’s supplemental probation report “presented complete information concerning appellant’s education, employment and income, and his medical/psychological condition” for the period between his June 29, 2007 release from jail and his September 23, 2007 probation violation. He also argues that his trial counsel was prejudicially deficient in “failing to assure” that the supplemental probation report “contained a sufficient reasoned discussion of the defendant’s suitability and eligibility for probation” and in failing to ensure that Christian was present at the hearing to provide additional information to the court.
When a defendant challenges his conviction based on a claim of ineffective assistance of counsel, he must prove that his counsel’s performance was deficient and that his defense was prejudiced by those deficiencies. (People v. Ledesma (1987) 43 Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, at p. 694.) “If ‘counsel’s omissions resulted from an informed tactical choice within the range of reasonable competence, the conviction must be affirmed.’ [Citation.] When, however, the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons. To engage in such speculations would involve the reviewing court ‘“in the perilous process of second-guessing.”’ [Citation.] Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, rather than on appeal.” (People v. Diaz (1992) 3 Cal.4th 495, 557-558.)
Defendant cannot establish that his trial counsel was deficient as the appellate record sheds no light on the reasons for his trial counsel’s conduct. The appellate record does not demonstrate that any information favorable to defendant was omitted from the supplemental probation report or could have been supplied by Christian if he had been present at the hearing. Defendant points to nothing in the record that suggests that defendant’s trial counsel failed to adequately investigate the facts or was aware of any facts favorable to defendant that were not included in the supplemental probation report.
Indeed, defendant’s trial counsel’s statements indicate quite the contrary. The supplemental probation report was filed more than two weeks before the hearing, and defendant’s trial counsel expressly stated at the hearing that he had no additions or corrections to the report. When the prosecutor argued that defendant’s failure to obtain employment and failure to make restitution weighed against reinstatement of probation, defendant’s trial counsel did not challenge these assertions or assert that there were favorable facts to counter these unfavorable facts. Instead, he conceded the truth of these unfavorable facts, which had not been mentioned in the supplemental probation report, and argued that the brief period between defendant’s release from jail and his probation violation simply did not afford defendant adequate time to obtain employment or make restitution.
The record does not reflect any basis upon which we can premise a conclusion that defendant’s trial counsel knew of, or could have reasonably discovered, additional favorable facts about defendant that were relevant to the decision whether to revoke his probation, but were not before the court. Without such a foundation, defendant cannot establish that his trial counsel was deficient, and we must reject his claim of ineffective assistance.
III. Disposition
The order revoking defendant’s probation is affirmed.
WE CONCUR: Rushing, P.J., McAdams, J.