Opinion
E041321
5-25-2007
THE PEOPLE, Plaintiff and Respondent, v. MARK JOSHUA CANDELARIA, Defendant and Appellant.
George P. Hobson, Jr., for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant and appellant Mark Joshua Candelaria contends that the trial court erred when it found him to be in violation of his probation and when it allegedly found that it had no discretion to reinstate his probation. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 11, 2004, defendant and five cohorts walked into a gas station store and stole five cases of beer. When an employee tried to stop them from stealing the beer, defendant pulled a knife. Defendant was later caught and admitted to committing the robbery. On November 12, 2004, defendant pled guilty to second degree robbery (Pen. Code, § 211) and admitted the allegation that he personally used a deadly weapon in the commission of the crime (§ 12022, subd. (b)(1)). The trial court placed defendant on probation for a period of three years under certain conditions. Defendant confirmed with the court that he had looked at all of the terms and conditions and agreed to abide by them. Defendant was given a copy of the terms and conditions.
All further statutory references to the Penal Code, unless otherwise noted.
On October 7, 2005, probation officers went to defendants residence to perform a probation compliance check. When the officers approached defendants house, he fled. The officers later learned that he was in possession of a .38-caliber handgun. Several people at defendants residence were arrested for various crimes such as possession of controlled substances and receiving stolen property. The officers found a stolen shotgun in defendants residence, along with a pistol grip pump shotgun, a rifle, and various types of ammunition. They also found a folder with "DOGZ" gang tagging, letters referencing the Dogz gang, and pictures, including one of defendant throwing a gang sign. Furthermore, defendant was the primary suspect in an attempted carjacking. Defendant was charged with violating several of his probation terms.
On March 24, 2006, defendant admitted violating the probation conditions that he violate no law, cooperate with probation officers, not possess deadly weapons, not associate with known felons or anyone actively engaged in criminal activity, not associate with known users or sellers of controlled substances, and not display or have in his possession any item associated with gang dress or any item prohibited by the probation officer. The court noted its acceptance of his representation that he was not connected with the carjacking. Based on defendants admissions, the court sentenced him to the upper term of five years for the attempted robbery, plus one year for the weapon use enhancement. However, the court suspended execution of the sentence and reinstated defendants probation on the original terms and conditions, with one modification that he be sentenced to county jail for 200 days, instead of 180 days. The court warned defendant that if he were found to be in violation of his probation again, any other court would have no discretion but to impose the six-year sentence. Defendant confirmed that he understood.
On April 25, 2006, a probation officer conducted another home check. The probation officer asked defendant to show proof of his attendance at Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings. Defendant reported that the court no longer required him to attend the meetings. The probation officer later confirmed that defendant was still required to attend NA/AA meetings. The officer also asked defendant to produce a copy of his terms and conditions. Defendant did not have a copy. The probation officer searched defendants room and found a jacket that had "DOGZ" on the back collar and "Doggies Angelz" on the back. The officer further found pictures of young men throwing gang signs. The officer told defendant to make sure he did not have any other similar pictures. On May 9, 2006, during another home check, the probation officer discovered two more pictures of men throwing gang signs.
On May 10, 2006, the probation officer filed a petition to revoke defendants probation, alleging that he violated the terms requiring him to attend NA/AA two times per week and show proof of attendance to the probation officer; carry a copy of his probation terms and conditions at all times, and offer the copy to any peace officer upon contact; not associate with known convicted felons or anyone actively engaged in criminal activity; and not wear, display, or have in his possession any item associated with gang dress or any item prohibited by the probation officer. Defendant requested a Vickers hearing, which was held on August 10, 2006. The court found that defendant had violated his probation and sentenced him to the originally imposed six-year term in state prison.
People v. Vickers (1972) 8 Cal. 3d 451.
ANALYSIS
I. The Court Properly Found That Defendant Violated His Probation
Defendant contends that there was insufficient evidence that he violated the terms of his probation. We disagree.
A. Standard of Review
A court is authorized to revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation . . . ." (§ 1203.2, subd. (a).) "It has been long recognized that the Legislature, through this language, intended to give trial courts very broad discretion in determining whether a probationer has violated probation." (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) "[P]roof of facts supporting the revocation of probation pursuant to section 1203.2(a) may be made by a preponderance of the evidence." (Id. at p. 447.)
B. The Court Did Not Abuse Its Discretion
Defendants probation terms required him to attend NA/AA two times per week and show proof of attendance to the probation officer. At the time of the home check on April 25, 2006, defendant told the probation officer that he thought he did not have to attend AA meetings because the court struck that term. The probation officer confirmed that the court never modified this term and, thus, determined that defendant was in violation of this condition. On appeal, defendant asserts that "[n]o testimony was given that [he] needed AA or AN [sic] meetings." However, no testimony was needed since defendants probation written terms and conditions clearly showed that he was required to attend. Defendant then asserts that there was no proof that he was aware of this requirement. To the contrary, the record indicates that defendant reviewed the probation conditions and agreed to abide by them.
Defendants probation conditions also required him to carry a copy of his probation terms and conditions at all times and offer the copy to any peace officer upon contact. At the time of the home inspection, defendant did not have a copy and he told the probation officer that he did not think he had to have a copy. However, the probation officer confirmed that he did and, thus, determined that defendant was in violation of that term. Defendant now avers that he testified that he did not recall getting a copy of his probation terms at the time of his plea and that, even if he did, it was taken away from him when he transferred jails. The record indicates that defendant was given a copy of his probation conditions. Furthermore, the probation officer testified that defendant was given a copy.
Defendants probation conditions also prohibited him from wearing, displaying, or having in his possession any item associated with gang dress or any item prohibited by the probation officer and from associating with known convicted felons or anyone actively engaged in criminal activity. The probation officer testified that he found several pictures at defendants residence, which showed young men throwing gang signs. The officer further testified that when he found these photographs on April 25, 2006, he instructed defendant to remove the photographs and make sure he did not have other items displaying gang signs. However, when the probation officer returned to defendants residence on May 9, 2006, he found additional photographs of people displaying gang signs. He also found a jacket that said "Dogz" on it in the closet of defendants bedroom. The probation officer testified that, to his knowledge, "Dogz" was a criminal street gang. Thus, the evidence showed that defendant possessed items associated with gang dress and items prohibited by the probation officer (e.g., the photographs). The photographs also indicated that defendant had been associating with gang members.
Defendant asserts that his cousin testified at the Vickers hearing that the jacket belonged to her, that she had left it at defendants house, and that "Dogz" was just a party crew. The court apparently did not believe this testimony.
Viewing the evidence from a preponderance of the evidence standard, we cannot say that the trial court abused its discretion in determining that defendant had violated at least one, if not all, of the cited probation terms.
II. The Trial Court Properly Revoked Defendants Probation and Sentenced Him to State Prison
Defendant argues that the trial court was unaware that it had the authority to reinstate his probation if it found him in violation of his probation. Thus, he contends that the court erred in sentencing him to prison. We disagree.
"[A] sentencing court has broad discretion to grant or deny probation except when otherwise limited by statute, and a decision denying probation will be reversed only upon a clear showing that the court exercised its discretion in an arbitrary or capricious manner. [Citation.]" (People v. Groomes (1993) 14 Cal.App.4th 84, 87.) Furthermore, "[o]n revocation of probation, if the court previously had imposed sentence, the sentencing judge must order that exact sentence into effect [citations] . . . ." (People v. Howard (1997) 16 Cal.4th 1081, 1088.)
Here, the trial court properly exercised its discretion in sentencing defendant to prison, instead of reinstating his probation, since defendant had already violated his probation and had his probation reinstated once before. Moreover, when the previous court imposed, but suspended, execution of the six-year term and reinstated his probation, the court specifically warned defendant that any other court would have no discretion but to impose the six-year term if he was found to be in violation of his probation again. Within a few months, the court found that defendant had violated his probation again. The court revoked his probation and sentenced him to the six-year term.
Defendant claims that the court was not aware that it could have reinstated his probation again, quoting the court as saying: "I am ready to sentence [defendant] to prison based on the 6 years that was suspended by Judge Uhler. The execution of sentence was imposed and suspended. [¶] Its my understanding that that is the sentence. Having made the findings that he is in violation of his terms and conditions of felony probation, thats the term the Court must impose." (Emphases added by defendant.) Defendant misconstrues the courts statement. The court first determined that defendant was in violation of the terms and conditions of his probation. It then stated that, based on its finding that defendant had violated his probation, it was ready to sentence him to prison. The record, thus, indicates that the court decided to sentence him to prison, rather than reinstate his probation again. When the court said "thats the term that the Court must impose," it was simply stating that, in light of its decision to sentence defendant to prison, it was required to impose the six-year term that had been previously imposed and suspended. "In circumstances where sentence was imposed previously, the court has no discretion but to impose that term." (People v. Medina (2001) 89 Cal.App.4th 318, 322.)
In sum, the court properly exercised its discretion in sentencing defendant to prison and sentencing him to the term that was previously imposed.
DISPOSITION
The judgment is affirmed.
We concur:
GAUT, J.
MILLER, J.