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People v. Cuen

California Court of Appeals, Second District, Fourth Division
Mar 24, 2008
No. B198982 (Cal. Ct. App. Mar. 24, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. PATRICIA A. CUEN, Defendant and Appellant. B198982 California Court of Appeal, Second District, Fourth Division March 24, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. KA074539 Charles Horan, Judge.

Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

SUZUKAWA, J.

Patricia A. Cuen appeals from the judgment entered following an order revoking probation. Sentenced to prison for three years, she contends the trial court abused its discretion when it refused to reinstate probation and instead imposed her previously suspended prison sentence. She had pled no contest to possession of a controlled substance, count 1 (Health & Saf. Code, § 11377, subd. (a)), and petty theft, count 2 (Pen. Code, § 484, subd. (a)), a misdemeanor. For reasons stated in the opinion, we affirm the judgment.

The transcript of the preliminary hearing indicates that on March 27, 2006, at the Rite Aid store in Azusa, appellant picked up a box of Prilosec, removed the items from the package, concealed the items inside her coat and walked out of the store without paying for the merchandise. While being detained in a stockroom by the loss prevention security guard and in the presence of an Azusa police officer, appellant dropped a tin Altoid box from her pocket. Inside the box, there were several baggies containing a white crystal substance resembling methamphetamine. Following waiver of her Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) appellant stated she took the Prilosec because she had an upset stomach. She also stated she found the tin with the methamphetamine at a donut shop next door to the Rite Aid. She thought the can was “cute” so she took it. When asked if she knew there was methamphetamine inside the tin, she turned away and did not answer. The items inside the tin tested positive for methamphetamine and were a usable quantity.

FACTUAL AND PROCEDURAL SUMMARY

As a condition of probation, appellant was ordered to serve 270 days in county jail. She was given credit for 38 days, and the remaining 232 days were to be served doing labor for the Los Angeles County Parks and Recreation Marshall Canyon Tree Farm. Appellant was ordered to show proof of enrollment to her probation officer within 30 days and to show proof of completion of at least 90 days of labor to the court on March 9, 2007. Additionally, she was ordered to cooperate with her probation officer in a plan for drug education and rehabilitation.

On March 9, 2007, probation was revoked and a bench warrant was issued.

On May 1, 2007, a hearing on the probation violation was conducted. Thomas Loria, the tree farm manager for Los Angeles County Parks and Recreation, testified that on July 28, 2006, appellant registered for the tree farm but since that date has performed no work. Mr. Loria recalled receiving a call from appellant wherein she indicated she was having financial and transportation difficulties but had not forgotten her obligation.

Jocelyn Kersh is appellant’s probation officer. A letter from the Los Angeles County Probation Department dated April 30, 2007 indicated appellant had attended a total of “15 groups” and had provided no proof of attending any “12 step meetings.” One of appellant’s conditions of probation was that she attend a drug counseling program. The letter indicated appellant was terminated from the program on January 31 for not attending the program and not meeting the program’s requirements. On cross-examination, Ms. Kersch acknowledged that she prepared another report indicating that as of February 13, 2007, appellant had been doing well in that program.

Ms. Kersh testified that appellant had been ordered to perform labor for the tree farm and that 90 days were to be completed by March 9. By that date, however, appellant had not completed any hours even though she said “she was doing the program.” Appellant also had a financial obligation, to pay a fine, a lab fee and penalty assessments and had made only one payment of $10. Ms. Kersh read a report indicating appellant had been evicted and was unemployed as of March 27, 2007.

Appellant testified that she had switched the days she attended her drug program. She had not been discharged and was still attending all of her group meetings until she was arrested on April 3. She had not attended any individual sessions. Appellant told her probation officer she had financial problems, but her probation officer threatened to “violate [her].” Appellant testified she could not afford to go to the tree farm and “do any days.” She could barely afford to get to her drug classes and when she tried to talk to her probation officer, her probation officer kept telling her, “we’ll violate you.” She called Mr. Loria a couple of times trying to explain her situation. “A couple times they were busy.” Appellant’s boyfriend paid the rent and all of her bills.

The court found appellant was “obviously and clearly in violation” for failing to do any of the work ordered by the court. It also believed appellant was “in violation for failing to complete her [drug] program not withstanding some ambiguity in that evidence.”

At sentencing, the court stated appellant was not a good candidate for probation. “She has demonstrated that adequately now.”

The court continued, “This is her ninth case since ’92, and it’s not the most serious case in the world. None of her stuff is terribly serious although she’s been in the state prison before and so forth. She should know how to avoid that but apparently does not. [¶] She was given some very simple terms and made, as far as I can see, virtually no effort to do the work. Perhaps because it’s difficult work. Perhaps because, you know, the lives of a drug addict are oftentimes quite chaotic and that’s a fact. They live in motels. They run around and don’t have a license. And they don’t have vehicles and they have to try to get a bike. It’s all, you know, par for the course unfortunately. [¶] . . . [¶] It’s her responsibility to get there. If she’s got a bike, she rides her bike to the tree farm. If she wants to, she takes a bus to the tree farm. She can get to one place, I assume she can get to the other. [¶] Her protestations to the contrary are not terribly convincing. In fact, they are not at all convincing that portion of her testimony. I know she’s having difficulty. Nonetheless she accepted the terms of probation. They’re not particularly onerous at all, and I don’t think she made one effort at all to do the work. A couple of phone calls explaining, you know, whatever she tried to explain is not even arguable partial compliance. It’s a total abject failure on this round of probation. I’m not about to put her back on.”

DISCUSSION

I

Appellant contends she was denied due process and equal protection and the trial court abused its discretion when it refused to reinstate probation and instead imposed her three-year suspended prison sentence. We disagree.

Pursuant to Penal Code section 1203.2, subdivision (a) a court may revoke and terminate probation “if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation . . . .” “[P]roof of facts supporting the revocation of probation pursuant to [Penal Code section 1203.2, subdivision (a)] may be made by a preponderance of the evidence.” (People v. Rodriguez (1990) 51 Cal.3d 437, 447, fn. omitted.)

“Revocation of probation lies within the broad discretion of the trial court. [Citation.] Absent abuse of that discretion, an appellate court will not disturb the trial court’s findings. [Citation.]” (People v. Self (1991) 233 Cal.App.3d 414, 417.)

Citing Bearden v. Georgia (1983) 461 U.S. 660, 661-662, 674 and In re Antazo (1970) 3 Cal.3d 100, 104, appellant contends the trial court violated her rights by revoking probation for failing to complete work at the tree farm because her failure was due to her “inability to pay.” While it is true that an offender’s probation may not be revoked for failing to pay monetary sanctions that are conditions of probation unless it is established that the probationer had the ability to pay and willfully failed to do so (see Pen. Code, § 1203.2, subd. (a); People v. Bethea (1990) 223 Cal.App.3d 917), appellant’s probation in this case was not revoked because she failed to pay a monetary sanction. Rather, her probation was revoked because she failed to perform labor at the tree farm. Appellant raised her inability to pay as a defense to her failure to perform work and, therefore, had the burden to prove that inability. (See People v. Neidinger (2006) 40 Cal.4th 67, 72-73.) Appellant did not identify any costs associated with completing the program and the record is silent as to any such costs. The trial court properly found appellant in violation of probation based on her failure to complete any work at the Marshall Canyon Tree Farm.

In view of our determination, we need not address whether substantial evidence supports the court’s additional finding that she was in violation of probation for failing to complete her drug program.

DISPOSITION

The judgment is affirmed.

We concur: WILLHITE, Acting P. J., MANELLA, J.


Summaries of

People v. Cuen

California Court of Appeals, Second District, Fourth Division
Mar 24, 2008
No. B198982 (Cal. Ct. App. Mar. 24, 2008)
Case details for

People v. Cuen

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. PATRICIA A. CUEN, Defendant and…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Mar 24, 2008

Citations

No. B198982 (Cal. Ct. App. Mar. 24, 2008)