Opinion
C082065
05-31-2017
THE PEOPLE, Plaintiff and Respondent, v. KATHERINE ELIZABETH COLSTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. NCR86965, NCR87111)
On March 8, 2016, the trial court revoked defendant Katherine Elizabeth Colston's grant of probation and executed a previously suspended sentence of eight years in state prison. On appeal, defendant contends the trial court abused its discretion in refusing to reinstate her probation. We conclude the trial court acted within its discretion and affirm the judgment.
I. BACKGROUND
In May 2014, defendant Katherine Elizabeth Colston pleaded guilty to numerous drug-related felonies charged in Tehama County Superior Court case Nos. NCR86965 and NCR87111. The court advised defendant she was presumptively ineligible for probation but found unusual circumstances based on the parties' stipulation and, pursuant to the terms of the plea agreement, placed defendant on five years of formal probation. The court also ordered defendant to complete the felony adult drug court program.
Additionally, the court imposed a sentence of eight years in state prison but suspended execution of that sentence. The court warned defendant: "[W]hat that means is you have a lot to loose [sic] in Adult Felon Drug Court and probation. If you don't get it done, you are looking at eight years; do you understand that?
"THE DEFENDANT: Yes."
On July 15, 2014, defendant used heroin and methamphetamine. She was ordered to serve 30 days of her drug court "discretionary time" as a sanction. The "Drug Court team" determined defendant would benefit from a residential drug treatment program. Accordingly, defendant was enrolled in a residential drug treatment program, which she completed in November 2014.
On December 15, 2014, defendant self-disclosed to the drug court team that she relapsed and was again drinking alcohol. She was ordered to serve 10 days of her "discretionary time" in drug court as a sanction.
On July 12, 2015, defendant was arrested for driving under the influence (DUI). On August 11, 2015, the People filed petitions to revoke defendant's probation in both cases, alleging defendant failed to obey all laws by driving "a vehicle while intoxicated." Defendant admitted the violation.
At the subsequent sentencing hearing in March 2016, defendant's drug counselor from drug court, Brian Emery, testified that defendant self-disclosed the charge for DUI. Until her arrest, defendant had been progressing in the program; she had finished "Phase II" and was in "Phase III" when she relapsed. As a result of her DUI, defendant had to repeat Phase II. At the time of sentencing, defendant had again completed Phase II and was a couple of weeks into Phase III. She had been drug and alcohol tested 34 times since July 21, 2015; all of the test results were negative.
Mr. Emery also testified that, since disclosing her DUI, defendant's participation in group therapy had been "above average." She attended 65 out of 78 classes available in the program, and those she missed were excused absences. Mr. Emery noted that defendant also completed a 120-day residential program one year before she was charged with DUI. He had no opinion about whether defendant would benefit from further participation in the drug court program.
Defendant's Alcoholics Anonymous (AA) sponsor, Dawn C., also testified. She and defendant met in May 2015 at an AA meeting and Dawn became defendant's sponsor in July 2015. Since becoming her sponsor, Dawn spoke to defendant daily. They also attended AA meetings together two or three times a week; Dawn was working the AA steps with defendant. Defendant also attended AA meetings on her own. By the time of the sentencing hearing, defendant was on step four of the 12-step program and to Dawn's knowledge, defendant had not relapsed on drugs or alcohol since her DUI in July 2015.
Defendant argued probation should be reinstated because she was doing well in the drug court program and AA since she received the DUI, and she self-reported the DUI to the drug court program. Defendant also argued that she had two prior felony convictions reduced to misdemeanors under Proposition 47, thus she only had one prior felony conviction at the time she was originally placed on probation, rather than three. As a result, she was no longer presumptively ineligible for probation. Defendant also recently obtained primary custody of her son, completed a residential drug program and "moral recognition therapy," and had eight months of good conduct since her DUI. She was also enrolled in community college for the spring semester.
Defendant's personal history also was a topic at sentencing. She started drinking alcohol and smoking marijuana when she was eight years old. Her father showed her how to inject methamphetamine when she was 11. She was 15 when her father was killed after walking into traffic while under the influence of drugs. After her father's death, defendant began using methamphetamine on a daily basis; she later began using heroin.
Defendant had been clean and sober since the DUI. She and her son were now living in a "safe and clean environment" at her aunt's house. Defendant admitted she made a "huge mistake" by violating probation. She asked that the court allow her to continue in drug treatment.
The People opposed defendant's request. They argued that defendant tested positive for heroin on July 15, 2014, less than a month after she was granted probation, and she admitted using alcohol on December 15, 2014. Moreover, the trial court warned defendant she would serve her eight-year sentence if she violated probation—yet she still violated probation. The People "commended [defendant] for what she'[d] done since July 2015," but reiterated "the fact of the matter is she violated probation in July of 2015 and times previous to that."
The probation department recommended the previously suspended sentence be executed: "[D]efendant was given every opportunity to address her substance abuse issues through therapy and residential drug treatment. Even though she made notable progress in the program, it appears she still struggled with alcohol abuse. Relapse is part of the recovery process, and can be addressed through treatment. However, a new arrest involving driving under the influence one year into the Adult Felony Drug Court program indicates a lack of commitment to treatment, plus a total disregard for the safety of others."
Furthermore, defendant's criminal record showed that she had multiple prior misdemeanor convictions and, following the reduction of two prior felonies to misdemeanors, one prior felony conviction. And this was not the first time defendant violated probation. In 2003, defendant was placed on three years of probation following her conviction for possession of a controlled substance. She twice violated that probation; the second time, the trial court revoked her probation and sentenced her to 16 months in state prison.
The trial court was not persuaded by defendant's plea for continued leniency and terminated defendant's probation, executing the previously stayed eight-year prison sentence. The trial court noted defendant's 10-year criminal history. The court also noted that despite her history, defendant was given the opportunity to complete drug court probation. Defendant was warned that if she failed to complete drug court or she violated the terms of her probation, she would serve eight years in prison. Despite that warning, defendant violated drug court twice and was "given breaks both of those times." The court was not inclined to give her a break the third time.
What the court was "most concerned about," however, was defendant's "continued poor judgment . . . ." The court noted that by drinking and driving she not only risked losing custody of her son, but she put herself and "innocent bystanders" in harm's way, including the two people she had in the car with her. The court concluded: "[T]he bottom line is, [defendant], you have run out of second chances. So I don't find that you're a suitable candidate for probation anymore. The previously suspended prison term is going to be imposed at this time." The trial court then sentenced defendant to the previously suspended term of eight years in state prison.
Defendant appealed; her request for a certificate of probable cause was granted.
II. DISCUSSION
On appeal, defendant contends the trial court abused its discretion by revoking her probation and executing the previously imposed but suspended sentence. We disagree.
"[Penal Code section] 1203.2, subdivision (a), authorizes a court 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. [Citation.] ' "When the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period." ' " (People v. Urke (2011) 197 Cal.App.4th 766, 772, fn. omitted (Urke).)
"We review a probation revocation decision pursuant to the substantial evidence standard of review [citation], and great deference is accorded the trial court's decision, bearing in mind that '[p]robation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court.' " (Urke, supra, 197 Cal.App.4th at p. 773.) " 'The discretion of the court to revoke probation . . . will not be disturbed in the absence of a showing of abusive or arbitrary action.' " (Ibid.) " ' "[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation . . . ." ' [Citation.] And the burden of demonstrating an abuse of the trial court's discretion rests squarely on the defendant." (Ibid.)
Here defendant admitted to violating a condition of her probation by driving a vehicle under the influence of alcohol. On appeal, she contends that despite that violation, she remained a good candidate for probation. She claims the trial court's failure to reinstate probation was an abuse of discretion.
We discern no error. Defendant was granted probation in two cases with a combined total of six felony convictions. The trial court suspended execution of a prison sentence and placed defendant on probation for a period of five years, ordering her to complete drug court. In granting her probation, the trial court advised defendant this was her only chance and the failure to successfully complete drug court probation would result in her serving eight years in prison.
The record reflects that defendant nevertheless twice violated the rules of drug court and both times was given the opportunity to continue in the program. Defendant was even placed in a residential drug treatment program, in an effort to help her get clean and stay clean; she completed that program but relapsed shortly thereafter. Then, despite being given these multiple opportunities to remain clean and sober, and to comply with the rules of drug court and the terms of her probation, defendant violated them both by driving under the influence of alcohol.
In connection with the March 8, 2016, sentencing hearing, the probation department recommended the previously suspended sentence be imposed because, despite multiple opportunities, defendant continued to "struggle with alcohol abuse." In particular, the department noted that defendant's "new arrest" for driving under the influence a full year into the program "indicates a lack of commitment to treatment" and a "total disregard for the safety of others."
Under the circumstances presented, we conclude the trial court did not abuse its discretion in revoking defendant's probation and imposing the previously imposed but suspended sentence of eight years in state prison. This is not a " ' "very extreme case" ' " where the trial court's decision to revoke probation is an abuse of discretion. (Urke, supra, 197 Cal.App.4th at p. 773.)
III. DISPOSITION
The judgment of the court is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
RAYE, P. J. /S/_________
MAURO, J.