Opinion
H024736.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. ALVIN TOLENTINO GLORIA, Defendant and Appellant.
The trial court revoked appellants probation and sentenced him to two years in state prison. Appellant challenges this order, contending "most of the lower courts factual findings in support of revocation of probation are unsupported by the evidence, compelling remand." We affirm.
In May 1998, appellant was arrested after firing a handgun approximately five times from his car while driving in bumper-to-bumper traffic on Interstate 880 in Milpitas. He pleaded guilty to willful discharge of a firearm with gross negligence and to exhibiting a firearm to a motorist, and admitted certain enhancing allegations. (Pen. Code, §§ 246.3, 417.3.) In September 1999, the trial court suspended imposition of sentence, placed appellant on probation for three years with various terms and conditions, and ordered him to serve eight months in the county jail. In September 2001, a petition for modification of probation was filed alleging four violations of probation: failing to maintain contact with the probation department, failing to make regular restitution fine payments, failing to make himself available for probation searches, and failing to provide proof of enrollment in psychological counseling. Probation was revoked and a bench warrant was issued for appellants arrest.
In February 2002, appellant was arrested on the bench warrant. In May, new allegations were added to the original petition, alleging that appellant had failed to maintain contact with the probation department and had failed to provide a current address, that he had failed to provide proof of participation in psychological counseling, and that he had been placed on probation in Alameda County for possession of a controlled substance, possession of paraphernalia, and possession of a switchblade.
On May 13, 2002, the court held a probation revocation hearing and found appellant in violation of his probation. The court found that appellant "failed to provide proof of current address and notified the probation department when he moved"; "failed to make regular payments to the Department of Revenue, and it appears that he was able to do so"; failed to provide proof that he had participated in psychological counseling; and that "he was convicted of a new felony in Alameda County for which he was placed on probation." The court rejected the allegation that appellant did not make himself available for searches noting, "I wasnt provided with any need that the probation department had in this particular case to search him." The court ordered that appellants probation remain revoked. Although the probation officer recommended that appellant receive a mitigated term of 16 months, the trial court sentenced appellant to the midterm of two years in state prison.
Appellant contends that three of the four findings made by the court to support the revocation of probation were not supported by substantial evidence. Pursuant to Penal Code section 1203.2, subdivision (a), "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 . . . ." (People v. Rodriguez (1990) 51 Cal.3d 437, 440, fn. omitted.) Proof of facts supporting the revocation of probation may be made by a preponderance of the evidence. (Id. at p. 447.) On review, "[the] appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Reilly (1970) 3 Cal.3d 421, 425.)
Appellant implicitly concedes that the courts finding that he failed to provide proof of his participation in psychological counseling was supported by the evidence. That finding alone could support revocation of appellants probation. Defense counsel recognized that "psychological counseling is probably a core and critical need in this case." The court commented that appellant "thinks he didnt really do anything wrong by firing the gun out the window."
Appellant challenges the trial courts finding that he failed to provide proof of his current address and to notify the probation department when he moved. The trial court recognized appellants probation officer changed during his probationary period and thus "the probation department in this case as administered really did not have a forum to follow through on the supervision of Mr. Gloria . . . ." However, the court said that appellant "fell out of touch" with the probation department. When the probation officer sent a contact letter in June 2001 to appellants last known address in Union City, the letter was returned. The envelope was marked "return to sender" with a different first name, the last name of Gloria, and a San Jose address. When asked why he did not try to contact appellant at the forwarding address, the probation officer said, "I just went with the last reported address." Appellant argues that the probation department should have made more effort keep in contact with him, such as contacting him at this new address. He argues, "Based upon over a years silence from probation, appellant could reasonably have concluded that no more was required of him." Whatever further efforts the probation department could have made, sufficient evidence supports the trial courts finding that appellant failed to notify the probation department when he moved.
Appellant contends the trial courts finding that he willfully failed to make restitution fine payments despite an ability to pay is unsupported by the evidence. Probation may not be revoked for failure to make restitution as a condition of probation "unless the court determines that the defendant has willfully failed to pay and has the ability to pay." (§ 1203.2, subd. (a).) This provision "was intended to prevent imprisonment of probationers who have simply been unable to fully pay restitution." (People v. Medeiros (1994) 25 Cal.App.4th 1260, 1267.) Here, appellant had made two $20 payments towards his obligation, and had paid nothing since the beginning of March 2000. The court noted appellant "apparently has enough resources to pay for a car and a gun and ammunition and so forth. He does not appear to be disabled in any way. He seems bright enough." Appellant sent his probation officer a statement of earnings for the period ending March 2002 showing full time employment at $9.00 per hour with gross earnings to date of $1,282.05. However, after appellants arrest on the probation violation warrant, he said he had not had a job since 1998. Later, he admitted working side jobs installing cable and home alarm equipment. He said he occasionally applied for work. There was sufficient evidence to support the trial courts finding that appellant willfully failed to make his restitution fine payments.
Appellant contends there was insufficient evidence to support the courts finding that he had been convicted of a felony. The record reflects that, in his new case, appellant was convicted of three misdemeanors: possession of a butterfly knife, possession of methamphetamines, and possession of paraphernalia. Penal Code section 1203.2, subdivision (a) allows for revocation of probation when the probationer "has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses." Although the court incorrectly characterized appellants new offenses as felonies, conviction of these offenses does provide sufficient ground for revocation. (See People v. Avery (1986) 179 Cal.App.3d 1198, 2100-1202.)
The trial court did not abuse its discretion in revoking appellants probation and sentencing him to prison. Of the four allegations, appellant impliedly concedes one, one was incorrectly characterized by the court but would provide a basis for revocation anyway, and sufficient evidence supports the remaining two. "The fundamental role and responsibility of the hearing judge in a revocation proceeding is not to determine whether the probationer is guilty or innocent of a crime, but whether a violation of the terms of probation has occurred and, if so, whether it would be appropriate to allow the probationer to continue to retain his conditional liberty. [Citation.]" (Lucido v. Superior Court (1990) 51 Cal.3d 335, 348.) Here, even defense counsel acknowledged at the conclusion of the probation revocation hearing that appellants performance on probation was "hardly commendable" and "there were a lot of things that Mr. Gloria did not do . . . ." The courts comments at the conclusion of the hearing demonstrated that the court first determined that reinstatement would not be appropriate, next decided to sentence appellant to prison, and then set forth its reasons for deciding on the midterm sentence. There was no abuse of discretion.
The judgment is affirmed.
WE CONCUR, RUSHING, P. J. and PREMO, J.