Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB047521 Colin J. Bilash, Judge. Affirmed.
John F. Schuck, 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, and Rhonda Cartwright-Ladendorf and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI Acting P.J.
Following a probation revocation hearing, the trial court found defendant Kevin Brown to be in violation of his probation for failing to keep his probation officer informed of his place of residence (term No. 6) and failing to cooperate with his probation officer (term No. 3). Probation was thereafter revoked, and defendant was sentenced to a total term of two years in state prison. Defendant’s sole contention on appeal is that there was insufficient evidence to support the court’s finding that he had violated his probation. We reject this contention and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On April 18, 2006, defendant pled guilty to one count of possessing a controlled substance in violation of Health and Safety Code section 11350. On May 31, 2006, entry of judgment was deferred, and defendant was placed on probation in the diversion program (Pen. Code, § 1000). Defendant was terminated from the diversion program on September 20, 2006, for having a positive drug test.
On October 19, 2006, defendant was placed on three years of formal probation. As a condition of his probation, defendant was ordered to “keep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes.” He was also ordered to “[c]ooperate with the probation officer in a plan of rehabilitation and follow all reasonable directives of the probation officer.”
Defendant’s probation was revoked, reinstated, and extended on February 14, 2007.
A petition to revoke defendant’s probation was filed on May 27, 2008. The petition alleged that defendant violated the terms of his probation by violating the law and failing to keep the probation officer informed of his place of residence. A warrant was thereafter issued for defendant’s arrest.
On July 18, 2008, defendant denied the allegations in the petition to revoke his probation.
A probation revocation hearing pursuant to People v. Vickers (1972) 8 Cal.3d 451 (Vickers) was held on September 26, 2008. At that hearing, the court took judicial notice of the terms of defendant’s probation and that defendant had accepted those terms. The court also heard testimony from defendant’s probation officer, Isaac Zaragoza.
On April 13, 2008, San Bernardino police officers went to defendant’s last reported address, on Colorado Street in San Bernardino, to investigate a battery. The victim stated that she had been living with defendant at that address for five months.
On April 23, 2008, Probation Officer Zaragoza went to the Colorado Street address looking for defendant. He was told by Shante Brown that defendant had never lived there. Probation Officer Melinda Cook-Carpenter went to the Colorado Street address on April 29, 2008. She was told by Shante Brown that defendant had been gone for a month.
Probation Officer Zaragoza testified that defendant was aware of his terms and conditions of probation as another probation officer had gone over the terms and conditions with him on September 20, 2006. Defendant was aware of term Nos. 1 (violate no law), 3 (cooperate with probation officer in a plan of rehabilitation), and 6 (keep the probation officer informed of place of residence).
On cross-examination, Probation Officer Zaragoza admitted that he had never met defendant and that defendant had made contact or had attempted to make contact with his probation officer in June 2007, December 2007, and February 2008. Probation Officer Zaragoza also explained that Shante Brown’s statements could be interpreted “both ways,” meaning “[defendant] could have been living there. But more often than not... that he was there a month ago and now he is gone.”
Following argument from counsel, the trial court found defendant to be in violation of “term 6, keep the P.O. informed of place of residence, and term 3, failing to cooperate with the P.O.”
As to the allegation of “violate no law,” the trial court did not make a finding as to that allegation, noting that it was “a superfluous violation.”
II
DISCUSSION
Defendant contends there was insufficient evidence to support the trial court’s finding that he had violated probation. Initially, he claims because he was not provided with written notice of a violation of term No. 3 (failing to cooperate with the probation officer), his revocation may not be based on that purported violation.
A probationer facing revocation of probationary status is entitled to written notice of the claimed violations of the terms of his or her probation. (Black v. Romano (1985) 471 U.S. 606, 612 [105 S.Ct. 2254, 85 L.Ed.2d 636]; People v. Vickers (1972) 8 Cal.3d 451, 457-458.) If the prosecution presents unnoticed grounds at the revocation hearing, the probationer’s due process rights may be violated because the probationer will have had no opportunity to prepare a defense against the unnoticed charges. (See, e.g., People v. Mosley (1988) 198 Cal.App.3d 1167, 1174.) Although the United States Supreme Court has held that due process requires that a probationer facing revocation be accorded certain procedural protections, a probation revocation hearing is not a criminal trial, and it “does not require the full panoply of procedural safeguards” associated with such a trial. (Black, at p. 613.)
However, this contention is not cognizable on appeal. In order to preserve a claim of inadequate notice, defendant had an obligation to object to a lack of notice in the trial court. (People v. Welch (1993) 5 Cal.4th 228, 234.) Here, the record clearly indicates that defendant waived his claim of inadequate notice when he failed to object on that basis during the September 26, 2008, probation revocation hearing. Additionally, defendant forfeited any claim of lack of notice by actively participating in the hearing without objecting to lack of notice. (People v. Dale (1973) 36 Cal.App.3d 191, 194-195.)
Assuming defendant did not forfeit his claim, the record establishes he had adequate notice of the charges. Defendant received notice of his probation violations in the probation revocation petition filed on May 27, 2008, and the probation officer’s supplemental report dated August 18, 2008. Though neither of those reports specifically mention defendant violated term No. 3 by failing to cooperate with his probation officer, that term is subsumed in term No. 6. Accordingly, defendant had the opportunity to defend against that charge. Defendant’s full participation in the hearing ensured his due process rights were met.
Defendant contends the evidence presented at his probation revocation hearing was insufficient to support revocation of probation on the basis that he failed to keep his probation officer informed of his place of residence (term No. 6).
“Our trial courts are granted great discretion in determining whether to revoke probation. [Citation.] Such discretion ‘implies that in the absence of positive law or fixed rule the judge is to decide a question by his view of expediency or of the demand of equity of justice.’ [Citation.]” (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) The level of certainty required to support a probation revocation is less than that required to support a criminal conviction. Penal Code section 1203.2, subdivision (a) authorizes probation revocation “if the interests of justice so require and the court, in its judgment, has reason to believe... that the [probationer] has violated any of the conditions of his or her probation.... ” The Supreme Court has interpreted “reason to believe” under Penal Code section 1203.2, subdivision (a) to impose a “preponderance-of-the-evidence” standard. (Rodriguez, at p. 446.) A lower threshold is appropriate because “[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.” (People v. Coleman (1975) 13 Cal.3d 867, 876-877, fn. 8.) An appellate court will not disturb a probation revocation unless it finds the trial court abused its discretion that is, it acted arbitrarily or capriciously and failed to base its determination on the relevant facts. (People v. Self (1991) 233 Cal.App.3d 414, 417; People v. Bufford (1974) 42 Cal.App.3d 975, 985.)
Here, the evidence supports the trial court’s determination that defendant failed to keep probation informed of his current residence and thereby violated a term of his probation. Based on the evidence adduced at the probation revocation hearing, the trial court could reasonably infer defendant failed to provide probation with his current physical address. The police investigated a possible domestic disturbance call at defendant’s Colorado street address. Shortly thereafter, two probation officers were told on two separate occasions that defendant did not live at the Colorado Street address. Despite probation’s explicit instructions to keep probation informed of his place of residence, defendant failed to do so.
A review of the record below supports a rational inference that defendant had gotten into an argument with Shante Brown and had subsequently changed his residence but failed to keep probation apprised of this change. Indeed, defendant’s own statement supports this interpretation. Specifically, defendant told Probation Officer Zaragoza that he did not learn that probation was looking for him until a month after the officers had gone to the Colorado Street address. Other than cross-examining Probation Officer Zaragoza, defendant presented no evidence that he ever informed probation of his change in address. In fact, defendant told Probation Officer Zaragoza, when asked why he did not report to probation at that time (after learning probation was looking for him), defendant stated that he believed he “‘was going to be arrested regardless’ and opted not to report.”
While defendant argues the trial court gave Shante Brown’s statements no weight whatsoever, the trial court did not act arbitrarily or capriciously in accepting her statements that defendant did not live at the Colorado Street address while finding irrelevant her explanation as to how long he had not lived there. The trial court heard and saw the testimony of Probation Officer Zaragoza and simply disbelieved Shante Brown’s conflicting statements to Probation Officers Zaragoza and Cook-Carpenter as to how long defendant had resided at the Colorado Street address. (See People v. Fairbank (1997) 16 Cal.4th 1223, 1253-1255.) We will not second-guess the trial court’s credibility determination in accepting the version of events that defendant had not lived at the Colorado Street address when probation twice checked on his whereabouts.
The evidence also supports the trial court’s finding that defendant had violated term No. 3 by failing to cooperate with probation. It appears defendant had not been in contact with probation from mid-April to the time he was arrested in early June. In fact, defendant admitted that he did not report to probation after learning probation was looking for him. Ample evidence here existed for the trial court to conclude, by a preponderance of the evidence, that defendant purposely failed to cooperate with probation and keep probation informed of his current residence. Accordingly, the trial court did not abuse its discretion in finding defendant violated term Nos. 3 and 6 of his probation and sentencing him to state prison.
III
DISPOSITION
The judgment is affirmed.
We concur, KING J., MILLER J.