Opinion
B162925.
7-14-2003
THE PEOPLE, Plaintiff and Respondent, v. WILLIE C. BROUGHTON, Defendant and Appellant.
Murray A. Rosenberg, under appointment by the Court of Appeal, for the Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan and Jeffrey A. Hoskinson, Deputy Attorneys General, for Plaintiff and Respondent.
Willie C. Broughton appeals from the trial courts decision revoking his probation and ordering into effect the prison term
previously imposed and suspended following his 1998 conviction for making a false bomb threat. Broughton contends the trial court abused its discretion in declining to reinstate probation because the evidence is insufficient he violated his probation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 17, 1998, appellant pleaded guilty to a single count of making a false bomb threat and admitted he had served a separate prison term. (Pen. Code, §§ 148.1, subd. (c); 667.5, subd. (b).) Imposition of sentence was suspended and appellant was placed on three years formal probation with various terms and conditions. Among them were that appellant "perform 300 hours of community service [in a manner] as prescribed by the probation officer" and "cooperate with the probation officer in a plan for psychological counseling."
On February 6, 2001, appellant admitted he had violated probation. Appellants violation was based in part on his failure to complete his community service hours as instructed and to cooperate with the probation officer in a plan for psychological counseling. The court revoked and reinstated probation under the same terms and conditions, and extended the term of appellants probation by two years to September 16, 2003.
On November 2, 2001, appellant again admitted he violated probation on the same grounds he was last found in violation of probation. The court revoked probation, sentenced appellant to total term of four years in state prison, suspended execution of sentence, and reinstated probation under the same terms and conditions.
On August 7, 2002, probation was summarily revoked. Evidence adduced at the probation violation hearing proved appellant had failed to complete his community services hours and to enroll in a psychological counseling program as instructed. Appellant testified in his own defense. He admitted his failure to complete his community service, but thought there was "no set schedule" for completing it. Appellant understood that he could request an extension if he ran out of time. Appellant also admitted he failed to participate in psychological counseling, but planned to enter a program when he could afford it.
At the conclusion of the hearing, the trial court determined that reinstating appellant on probation would not serve the interests of justice. The court revoked probation and ordered execution of the previously suspended four-year prison sentence.
DISCUSSION
Appellant contends the trial court abused its discretion by revoking his probation based on insufficient evidence that he violated his probation. Appellant argues: (1) the grounds in support of his violation were "unclear [because] he had made legitimate attempts to complete" his probation conditions; (2) his crime-free four years showed that he could be safely allowed to remain in society; and (3) over one year remained for him to comply with the terms of probation.
In assessing a challenge to the sufficiency of the evidence following a probation revocation hearing, we review the record in the light most favorable to the judgment to determine whether there is substantial evidence from which the trial court could find a probation violation. (People v. Kurey (2001) 88 Cal.App.4th 840, 848; see People v. Carpenter (1997) 15 Cal.4th 312, 387, 935 P.2d 708.) A trial court may revoke probation in the interests of justice if it has reason to believe the probationer committed another offense or otherwise violated the terms of probation. (Pen. Code, § 1203.2 , subd. (a); People v. Monette (1994) 25 Cal.App.4th 1572, 1575.) The facts supporting revocation of probation need only be proved by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447, 272 Cal. Rptr. 613, 795 P.2d 783; Monette, supra, at p. 1575.)
The trial courts decision to revoke probation lies within its broad discretion; it will not be disturbed on appeal absent an abuse of discretion. (People v. Rodriguez, supra, 51 Cal.3d 437, 443-445; People v. Zaring (1992) 8 Cal.App.4th 362, 378.) Discretion is abused when the decision is arbitrary or capricious or not supported by the facts before the court. (Zaring, supra at p. 378; People v. Smith (1970) 12 Cal. App. 3d 621, 626, 90 Cal. Rptr. 811.)
There is sufficient evidence appellant violated his probation. Appellant knew he was to work with the probation officer to complete his community service and to seek psychological counseling. He was also on notice that any further violations would result in a prison term. Yet appellant admittedly failed to comply with these conditions after twice being reinstated on probation. The trial court was not required to accept appellants most recent assurances that he would cooperate with the probation officer and satisfy these conditions in the future. Instead the court could reasonably infer that after four years of similar excuses appellant willfully violated his probation, by failing repeatedly to comply with these basic terms.
After considering the testimony and all the probation reports the trial court revoked probation and ordered execution of the sentence. In light of the record, there was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., and MUNOZ (AURELIO), J. --------------- Notes: Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.