Opinion
F085558
02-28-2024
THE PEOPLE, Plaintiff and Respondent, v. NILE NEPIA RUIZ FERGUSON, Defendant and Appellant.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR071856 Ernest J. LiCalsi, Judge.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Defendant Nile Nepia Ruiz Ferguson contends on appeal that the judgment must be reversed because the trial court abused its discretion by revoking his probation and sentencing him to county jail. The People disagree. We affirm.
PROCEDURAL SUMMARY
On September 10, 2021, the Madera County District Attorney filed a complaint charging defendant with carrying a dirk or dagger (Pen. Code, § 21310; count 1); misdemeanor possession of methamphetamine (Health &Saf. Code, § 11377, subd. (a); count 2); and misdemeanor public intoxication (§ 647, subd. (f); count 3).
All statutory references are to the Penal Code unless otherwise noted.
On September 22, 2021, defendant pleaded guilty to count 1.
On October 28, 2021, the trial court sentenced defendant to formal probation for two years, with conditions, and imposed fines and fees.
On March 9, 2022, a petition for revocation of probation was filed, alleging that from November 2021 to January 2022, defendant failed to report to probation as ordered. The court issued a bench warrant.
On April 28, 2022, defendant admitted the violation. The trial court revoked and reinstated probation for two years and ordered defendant to serve 60 days in county jail.
On September 1, 2022, a new petition for revocation of probation was filed, alleging defendant failed to report to probation as ordered between May and August 2022. A bench warrant issued on September 28, 2022.
On October 24, 2022, defendant admitted the violation. On November 22, 2022, the trial court revoked defendant's probation and sentenced defendant to the midterm of two years in county jail and imposed fines and fees.
Defendant timely appealed.
DISCUSSION
We have omitted the underlying facts, as they are not relevant to the issues raised by defendant on appeal.
Defendant argues the trial court abused its discretion by revoking his probation for de minimis violations. The People disagree. We agree with the People.
A. Background
On September 1, 2022, the Madera County probation officer filed a petition for revocation of probation. The petition states that from May 2022 to August 2022, defendant failed to report to his probation officer at all since his release from jail, where he served a 60-day term for previously violating probation by failing to report. The probation officer reported in the petition:
"Madera County Jail records indicate [defendant] was released from custody on May 24, 2022. Probation Department records indicate [defendant] failed to report to the Probation Department within one court day of release from custody as directed by the Court, on May 25, 2022. On June 13, 2022, [the probation officer] mailed an appointment letter to [defendant's last reported residence ... directing him to report for a scheduled appointment on June 27, 2022. On June 27, 2022, [defendant] failed to report as directed. Since June 2022, [defendant] has failed to report to the Probation Department in person, via telephone, mail or by any other means and his current whereabouts [are] unknown."
The probation report noted that the only address defendant gave the probation department was his mother's address in Delano.
A bench warrant for defendant was issued on September 28, 2022.
On September 29, 2022, the probation officer filed a recommendation for violation of probation, stating, "Probation records indicate the defendant has never made any attempt to contact the Probation Department since being granted probation and continuously absconds supervision. It is evident he has no intentions of complying with his Court ordered terms and conditions of probation nor is he interested in rehabilitative services the Probation Department can provide. As such, I believe probation should be revoked and terminated and he be ordered to serve any remaining custody time...."
On October 24, 2022, defendant admitted violating probation. At the November 22, 2022, probation revocation hearing, defense counsel requested reinstatement of probation. The trial court considered the probation report, which stated:
" 'The defendant was granted probation in this case on October 28, 2021 and is currently before the Court regarding his second violation of probation. The defendant was last before the Court on April 28, 2022, where probation was reinstated and extended to December 16, 2023 due to absconding supervision. The defendant's current violation of probation alleges . absconding supervision. Probation records indicate the defendant has never made any attempt to contact the Probation Department since being granted probation and continuously absconds supervision. It is evident he has no intentions of complying with his Court ordered terms and conditions of probation nor is he interested in rehabilitative services the Probation Department can provide..' "
The probation report also included a statement from defendant explaining why he did not report to probation as required. It stated he elected not to submit a written statement, but "want[ed] the Court to know that he [wa]s willing to comply with the court conditions and probation directives." The report stated:
"After [defendant's] initial release from the Madera County [j]ail, he was transported to Orange County on a warrant. According to defendant, he had a pending case in Orange County which he did not address. He stated after his release in Orange County he was 'confused' and did not know 'what to do or who to call . [he] panicked.' When asked where he was living, the defendant reported he stayed with 'friends and different places.' At the time of the most recent arrest, the defendant stated he was staying at a residential program, but he could not remember the name of the program, where it was located nor who could be contacted.
"According to the defendant, after he was released from local custody, he stayed in the area of the Madera County jail until he decided to call a family member who gave him a ride to Fresno where the defendant embarked [on a train] to Los Angeles. He said by the time he decided to call family, the probation office was closed. He had no money, nowhere to stay, so he decided to leave Madera."
The report also stated that, at the time of defendant's most recent arrest, he was at a sober living program in Los Angeles and" 'forgot'" to contact the probation office. He could not recall the program's name, address or contact number, and accordingly, his living status was not verified. He reported to probation that he was transient, living at separate locations with friends and associates in Orange County," 'at times [he] did not have a place to stay and was homeless," was unemployed at the time of his arrest, and had not worked for over a year.
At the hearing, the People stated, "[Defendant] had a number of opportunities to report to the probation department and failed to do so."
The trial court agreed and revoked defendant's probation. It stated:
"[G]iven his-his record, I don't think that I should give him another chance. He had a number of opportunities to report, and he just wouldn't do that.
"So probation is revoked and not reinstated as to Count 1, a felony violation of Section 21310. The Court imposes two years county jail the median term, pursuant to ... Section 1170[,] subdivision (h)(5)(A)."
B. Law
"Upon rearrest [of a person on probation] . the court may revoke and terminate the supervision of the person if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of the conditions of their supervision .." (§ 1203.2, subd. (a).)
"Revocation rests in the sound discretion of the court." (People v. Buford (1974) 42 Cal.App.3d 975, 985 (Buford).) "We 'give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision.'" (People v. Buell (2017) 16 Cal.App.5th 682, 687.)" '[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....'" (People v. Rodriguez (1990) 51 Cal.3d 437, 443, 444.) "Where probation fails as a rehabilitative device, as evidenced by the probationer's failure to abide by the probation conditions, the state has a great interest in being able to imprison the probationer without the burden of a new adversary criminal trial." (Id. at p. 445.)
"Although [the trial court's] discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based upon the facts before it." (Buford, supra, 42 Cal.App.3d at p. 985.)"' "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 the demand of equity and justice. [Citation.] The term implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason." [Citations.]'" (People v. Zaring (1992) 8 Cal.App.4th 362, 378.)
C. Analysis
Here, the record shows the trial court properly exercised its discretion by revoking defendant's probation. His violations were not so de minimis, as he argues, that the court was required to reinstate probation.
Defendant argues the trial court abused its discretion because it "reflexive[ly]" revoked defendant's probation for "de minimis" violations, citing Buford for the proposition that it is an abuse of discretion to revoke probation where the defendant has committed a de minimis violation. (Buford, supra, 42 Cal.App.3d at pp. 985-987.)
Buford, however, is distinguishable and his reliance on it is misplaced. In Buford, the trial court revoked defendant's probation and sentenced him to prison for failing to comply with his probation conditions, including the condition he report to his probation officer as directed. On the issue of failure to report, the trial court in Buford found the defendant's failure to keep several appointments with his probation officer was grounds for violation of the reporting condition. (Buford, supra, 42 Cal.App.3d at p. 984.) The appellate court reversed, stating that the record "revealed that, at worst, [the defendant] was tardy and undependable in reporting. However, on the few occasions when he failed to keep an appointment, he attempted to remedy the situation by making another appointment." (Id. at p. 985, emphasis added.)
Here, unlike Buford, defendant's failures to report were not few; nor did he ever attempt to remedy his failures by making other appointments. Defendant's conduct shows both irresponsibility and disregard of court orders. Further, unlike Buford, there is no evidence here that defendant was unaware of any of the terms of his probation. (See Buford, supra, 42 Cal.App.3d at pp. 986-987.) Here, defendant admitted violating probation in April 2022 by failing to report as directed, and the trial court reinstated probation for another two years with a 60-day term in county jail. Immediately upon his release from the 60-day term in county jail, he again failed to report and never reported at all from May 2022 until he was apprehended sometime in September or October 2022 on a bench warrant and admitted the violation. The probation report, which the trial court properly considered, included a statement from defendant explaining his failures to report, describing his unstable living situations and movements in and out of Madera County during that period. It did not, however, mention any attempts to report or any attempts to remedy missed appointments by contacting probation to set new appointments. As defendant's probation report states, he "has never made any attempt to contact the Probation Department since being granted probation and continuously absconds supervision[ and] he has no intentions of complying" with the probation conditions or availing himself of rehabilitative services.
Here, the record supports the conclusion that defendant's conduct was the result of irresponsibility and disrespect for the orders and expectations of the court. (See People v. Zaring, supra, 8 Cal.App.4th at p. 379 [Revocation of probation reversed because the defendant's violation of probation was not "the result of irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court," where the violation of probation at issue was the defendant arriving 22 minutes late to a court hearing due to an unforeseen circumstance involving "parental responsibility common to virtually every family."].)
Defendant also cites Buford for the proposition that a violation of a probation reporting condition will only support revocation if the violation is willful. However, Buford does not discuss "willfulness" or base its holding on such a finding. (Buford, supra, 42 Cal.App.3d at pp. 984-985.) Thus, defendant's reliance on Buford creating a "willfulness" requirement is misplaced.
Last, defendant argues the trial court's decision to revoke his probation was an abuse of discretion because it was a "reflexive reaction," citing Unites States v. Reed (8th Cir. 1978) 573 F.2d 1020, 1024. However, as Reed is a federal appellate decision from the Eighth Circuit that interprets federal law on probation revocation, it is not binding on our interpretation of state law. (See Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 568.)
Defendant failed to take advantage of the grant of leniency when he was granted reinstatement of probation. As defendant violated the law and the terms of his probation by failing to report upon his release from jail, for approximately four months from May 2022 to September 2022, until he was apprehended again, and gave no indication that he had any intention of remedying his failures, the trial court's revocation of his probation is within the bounds of reason and defendant has failed to "demonstrate affirmatively an abuse of discretion ._" (People v. Vanella (1968) 265 Cal.App.2d 463, 469.)
DISPOSITION
The judgment is affirmed.
[*] Before Poochigian, Acting P. J., Detjen, J. and Franson, J.