Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD189026 David J. Danielsen, Judge.
McDONALD, J.
The trial court found Vasiliy Galashev violated his probation when he did not follow court orders, did not report his work activities to his probation officer, and did not obtain his probation officer's consent before leaving San Diego County. The court revoked Galashev's probation and sentenced him to prison for two concurrent three-year terms. On appeal, Galashev contends the trial court did not interpret the term "faith healing," an activity permitted by his plea agreement, most favorably to Galashev and therefore abused its discretion when it revoked probation for activities Galashev contends are within the ambit of faith healing. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2005, charges were filed against Galashev, a faith healer, stemming from complaints by his clients. A jury acquitted Galashev of one count of rape by fraud and four counts of oral copulation by fraud. The jury deadlocked concerning the remaining nine counts: rape of an unconscious person by fraud (Pen. Code, § 261, subd. (a)(4)), rape with a foreign object by fraud (§ 289, subd. (d)), and assault with intent to commit a felony (§ 220, subd. (a)). Later that year, Galashev entered into a plea agreement and pleaded guilty to two counts of sexual battery (§ 243.4, subd. (c)). In exchange, the People dismissed the other counts, and the court suspended imposition of sentence and granted formal probation. As part of the plea agreement, the People did not oppose Galashev's continued employment as a faith healer provided parents were present when Galashev treated minors. Galashev's probation conditions required he obtain the probation officer's approval of any employment and obtain the probation officer's consent before leaving San Diego County.
Statutory references are to the Penal Code.
While Galashev was on probation, a Los Angeles doctor offered him employment at a clinic as a massage therapist. Galashev's probation officer requested Galashev provide an itinerary listing the times and locations of his employment. A few weeks later, during a search of Galashev's backpack, the probation officer found a receipt for massage work done in Los Angeles. However, Galashev had not given the probation officer an itinerary for the date on the receipt and had not obtained permission to travel to Los Angeles. At a hearing on the issue of Galashev's employment, the court ruled he could work as a faith healer but not as a massage therapist. The probation officer told Galashev that he could continue faith healing, but instructed him not to touch his clients.
Galashev told his probation officer he was no longer employed in either San Diego or Los Angeles. The probation department placed a global positioning system device on Galashev. The device generated information that Galashev had traveled to the City of Poway and had remained there for three hours. When the probation officer asked about this trip to Poway, Galashev said he was visiting friends and denied that he was working in Poway. Officers later went to the Poway address to verify Galashev's statements and found Galashev and a married couple in a large bedroom. The room had a massage table and lighted candles, and the officers heard music playing. When the probation officer asked Galashev what he was doing, Galashev said he was working. The couple in the room stated that Galashev had treated them for several months. As part of the treatment, Galashev touched the husband's head, back and hands, and also massaged his back and abdomen. The home's owners were also Galashev's clients and Galashev had worked in their home for several months. Based on this evidence the court revoked Galashev's probation and he timely appealed.
DISCUSSION
Galashev contends his due process rights were violated when the trial court did not correctly interpret the term "faith healing," as used in his plea agreement. He argues that faith healing includes touching the client and revocation of probation for that conduct is contrary to his plea agreement. Galashev also claims he did not report his employment to the probation officer because the work he was doing violated the probation officer's instructions but conformed to Galashev's understanding of what the plea agreement permitted as faith healing.
A
The trial court may revoke 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." (§ 1203.2, subd. (a).) The trial court has broad discretion in making a probation revocation decision. (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) The court may not, however, act capriciously or arbitrarily (People v. Walker (1963) 215 Cal.App.2d 609, 612) and must consider the defendant's "total conduct." (People v. Matranga (1969) 275 Cal.App.2d 328, 332-333.) The purpose of a probation revocation hearing is to determine whether probation has failed as a rehabilitative device based on evidence that the defendant violated the conditions of probation. (People v. Herrera (2006) 136 Cal.App.4th 1191, 1203-1204.) The court does not abuse its discretion by revoking probation when the record shows the defendant has violated a probation condition. (People v. Nelson (1967) 257 Cal.App.2d 282, 285-286.)
B
We need not decide whether the court erred in its interpretation of the term "faith healing." Galashev violated the terms of his probation at least once before the probation officer's instructions not to touch clients. The probation search of Galashev's backpack revealed he had worked in Los Angeles without permission before the court's order and the probation officer's instructions. The backpack search alone shows Galashev violated two terms of his probation: he left the county without permission and did not report his work activity to the probation officer. The trial court did not abuse its discretion by revoking probation based on these violations. (See People v. Nelson, supra, 257 Cal.App.2d at pp. 285-286.)
C
In any event, the court did not decide what Galashev could do as a faith healer. Rather, it ordered that Galashev could not work as a massage therapist and found the probation officer reasonably interpreted the court order when he instructed Galashev not to touch his clients. The court was "not concerned" that Galashev was a faith healer and sentenced him to prison based on conduct that made him "non-amenable to probation supervision." Officers found Galashev working in Poway without the probation officer's consent. Whatever the term "faith healing" encompassed, Galashev's probation required he report that activity to the probation officer. The record shows Galashev's conduct consisted of repeated failures to inform his probation officer of his employment and the location of that employment. Therefore, the court did not abuse its discretion by finding probation failed as a rehabilitative device. (See People v. Herrera, supra, 136 Cal.App.4th at pp. 1203-1204.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., McINTYRE, J.