Opinion
A147262
12-22-2016
THE PEOPLE, Plaintiff and Respondent, v. JIMMY JAIMES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC081892)
Jimmy Jaimes appeals from an order revoking his probation and sentencing him to state prison for his felony conviction of willfully inflicting corporal injury on his wife. (Pen. Code, § 273.5, subd. (a).) He contends the court abused its discretion because there was insufficient evidence to support the court's reasons for the revocation. We will affirm the order.
Unless otherwise indicated, all further statutory references are to the Penal Code.
I. FACTS AND PROCEDURAL HISTORY
Jaimes was charged with committing numerous offenses against his wife on July 24-25, 2014: two counts of willful infliction of corporal injury resulting in a traumatic condition (§ 273.5, subd. (a)); theft and unlawful driving of a vehicle not his own (Veh. Code, § 10851, subd. (a)); false imprisonment (§ 236); and attempting to dissuade a victim of a crime from reporting (§ 136.1, subd. (b)(1)). The complaint further alleged that Jaimes had prior domestic violence convictions for assault likely to produce great bodily injury (§ 245, subd. (a)(4)) and battery against a spouse (§ 243, subd. (e)(1)). At least one of these priors had been perpetrated against his wife.
The probation department's report described the July 2014 incident as follows. Jaimes and his wife had been married for about a year and she was six months pregnant with his child. A restraining order prohibited Jaimes from contacting her. Jaimes's mother nonetheless lured the wife to an area in San Francisco, where Jaimes approached his wife's car, opened the door, and ordered her to move over. She complied in fear, and he drove her to his residence, where his mother was waiting. As they discussed the restraining order, Jaimes became angry. He squeezed a lemon over his wife's hair and face, causing the juice to enter her eye. He slapped her in the face. He threw an apple at her, striking her in the face. He took her car keys out of her purse against her will, and drove away in her vehicle. When he returned and learned that his wife had reported her car stolen, he spat in her face and pushed and grabbed her arm. When she pleaded for him to stop because she was pregnant, his mother slapped her in the face. Someone (she believed to be Jaimes) grabbed and pulled her hair, causing her to fall to the ground. While she was on the ground, Jaimes punched her in the eye and nose with a closed fist. When she tried to get up, she was kicked in the head. A foot on the back of her head prevented her from getting up. She screamed for help and for someone to call the police, and Jaimes's mother told him to hide. Jaimes fled the scene by the time police arrived, but he was later taken into custody.
On September 12, 2014, pursuant to a written plea agreement, Jaimes entered a plea of no contest to one felony count of willful infliction of corporal injury (count one, § 273.5, subd. (a)) with two prior domestic violence convictions, as well as the misdemeanor count of attempting to dissuade the victim of a crime from reporting it (count four, § 136.1, subd. (b)(1)). The remaining counts were dismissed.
At the sentencing hearing on October 24, 2014, Jaimes expressed remorse for the incident. His lawyer represented that Jaimes had been attending domestic violence classes for two months while in custody awaiting sentencing, and he was willing to complete drug and alcohol treatment at the Latino Commission after sentencing. Jaimes claimed he "want[ed] to turn [his] life around."
The court admonished Jaimes that he needed to learn to control his anger and to "do the right thing out in the community." Noting that the court was "putting a lot of confidence" in Jaimes, the court suspended imposition of sentence on the felony conviction and placed Jaimes on supervised probation for three years on specified terms and conditions, including the conditions that he complete the Drug and Alcohol Treatment Program at the Latino Commission and 104 hours of domestic violence counseling over the next two years. Jaimes was also ordered not to harass his wife. As to the misdemeanor conviction for dissuading the report of a crime, the court sentenced Jaimes to 177 days in county jail, with credit for that amount of time served.
In March 2015, Jaimes's probation officer filed an affidavit of probation violation, alleging that Jaimes had failed to complete the Latino Commission's treatment program and the required domestic violence counseling, had failed to report to his probation officer, and had failed to keep his probation officer advised of his whereabouts.
At a probation revocation hearing on November 20, 2015, Jaimes admitted all of the alleged violations. He testified that, although he had consistently missed classes or shown up late, he had arrived late because he did not have money for gas. He told his probation officer he could not work very much because he could work only one to three days a week, and he did not have any money and wanted to move somewhere less expensive. Once he left the Latino Commission program and his transitional housing, he stopped returning his probation officer's calls. He claimed that he did not know "the consequences would be serious" if he violated his probation. While in custody awaiting his revocation hearing, he had again been taking classes. He further testified that he would comply with probation because it had hurt him to see how his daughter was suffering, and he claimed that he "fixed" his situation with his wife and was now prepared to be with her.
The court asked Jaimes what was different now from the past. Jaimes did not state that anything was different, but essentially said he was sorry and wanted to do what was right. Because much is made of the colloquy in this appeal, we set it out in full. "THE COURT: Mr. Jaimes, I - your attorney asked you a question that I'm still waiting for the answer for, and that is what's different now? Why should I believe what you're saying to me when apparently you said the same thing to a [j]udge last year? [¶] MR. JAIMES: I know. I'm sorry. I know that if I blow it again it's not what they're offering me. They're not going to offer that. It's going to be worse. I'm not perfect. I just want to do what's right. And now I understand that nobody is to blame for this, only me. [¶] THE COURT: You didn't understand when Judge Forcum sentenced you that you had certain responsibilities as conditions of your probation? [¶] MR. JAIMES: Yes, I understood. [¶] THE COURT: What is it that you understand now that you didn't understand then? [¶] MR. JAIMES: I was doing everything right, but it was that situation that I answered - that the answer that I gave to her. I feel guilty for not having done the right thing. [¶] THE COURT: No. I'm not asking you if you feel guilty or not for not having done the right thing. Why didn't you do the right thing? Why didn't you complete the treatment program at Latino Commission? [¶] MR. JAIMES: It's why - the answer that I gave to her because we ended up with nothing, and I wanted to work. [¶] THE COURT: Why didn't you call your probation officer? [¶] MR. JAIMES: Because I was always wanting her to understand the situation I was in. [¶] THE COURT: You wanted her to understand the situation you're in, so you don't call her? [¶] MR. JAIMES: Before that time that I didn't call her I was always calling her."
Jaimes's wife testified that she "would like it if [Jaimes] could keep making progress with us."
After hearing the testimony and the argument of counsel, including the fact that Jaimes had perpetrated the underlying felony on his wife within a month after being sentenced for a prior offense on his wife, the court stated the following. "Obviously, Mr. Jaimes, you haven't gotten it, and there is nothing that you said this afternoon that comes anywhere close to convincing me that you ever will get it. . . . You['re] a batterer. You beat women, and you're not going to change, and it's not acceptable. I mean, you can sit here and tears can flow and you can try to convince me all you want that you're going to change, but it's the same spiel that you gave Judge Forcum. It's not going to work anymore, sir. [¶] You couldn't tell me what's changed, and now I understand why because nothing has changed. Over the course of two years you've picked up several domestic violence offenses regarding the same individual and some of your actions occurred while she was carrying the very child that you now say you care so deeply about. [¶] You, sir, are a menace. You left Latino Commission in my opinion because you're going to do what you want to do; when you want to do it. You didn't call your probation officer because it didn't fit in your schedule or in your plans. The domestic violence counseling was not something you were interested in doing, nor was it something you ever intended to do. The fact that you're in Choices now for two months is another effort on your part to try to manipulate this Court into believing that somehow something has gotten through. It's not going to work." (Italics added.)
The court revoked Jaimes's probation and sentenced him to the middle term of four years in state prison, with credit for 397 days.
This appeal followed.
II. DISCUSSION
When a probationer has violated the terms of his or her probation, the trial court has discretion to revoke and terminate probation (and impose sentence) or reinstate probation. (People v. Bolian (2014) 231 Cal.App.4th 1415, 1420-1421; see § 1203.2, subd. (a) [probation may be revoked "if the interests of justice so require" and the court has reason to believe the probationer has violated a probation condition].) We review for an abuse of discretion. (People v. Downey (2000) 82 Cal.App.4th 899, 909.)
Respondent claims that Jaimes forfeited his challenge to the order revoking his probation because, after the court stated its reasons at the hearing, he did not specifically object that those reasons were arbitrary and capricious. We disagree. Jaimes argued in the trial court that his probation should be reinstated on the grounds of his remorse and other matters he raises in this appeal; he did not forfeit his right to contend on appeal that his probation should have been reinstated on those same grounds. --------
The court's stated reason for revoking Jaimes's probation was, in essence, that Jaimes had not shown that he or his circumstances had changed such that, if given another chance, Jaimes would likely abide by the terms of his probation and benefit from its opportunities. Ample evidence supported the court's conclusion. Jaimes had lasted less than six months of his 36-month probationary term before his probation officer filed a violation affidavit. Jaimes admittedly arrived late for his court-mandated drug and alcohol classes, had not attended his domestic violence cases, ultimately stopped participating in the Latino Commission program, left his transitional housing, moved away from the county, and stopped communicating with his probation officer. He did not fulfill the conditions that he accepted to avoid going to prison for his felony conviction, and although he said he was sorry and blamed a lack of funds and a need to work, he offered no persuasive reason to believe he would meet the probation conditions if given another chance.
Furthermore, while the trial court might not have selected the most precise or temperate language in stating that Jaimes was a "batterer" and "menace" who "beat[s] women" and "was not going to change," the fact is that Jaimes was a batterer who repeatedly beat a woman—as confirmed by the felony conviction in this case and his prior convictions for domestic violence—and he had not shown he was going to change, because he never explained how or why he would now be willing and able to pursue the rehabilitative programs that had been offered as an alternative to prison. It is not irrational to conclude that a person who had repeatedly committed domestic violence on his wife would pose a danger to her if he does not take the rehabilitative steps ordered by the court and to which he agreed, and that the interests of justice therefore supports the revocation of probation. Nor are the court's additional "opinion[s]" about Jaimes's motivation for not pursuing the services unreasonable: the court plainly did not believe the excuses and promises Jaimes was making, and the court was in the best position to evaluate his demeanor and credibility when making them.
Jaimes urges that his inability to tell the judge what had changed was because he lacked "verbal adroitness," he was only 21 years old, he was speaking through an interpreter, and he attended school only up to the seventh grade. But there was no assertion at the hearing—by Jaimes, his defense attorney, the interpreter, the court, or anyone else—that Jaimes could not understand the court's question or articulate a response for these reasons. Indeed, Jaimes had an entire direct examination in which to explain why he would do better on probation if it was reinstated, and even in response to direct questioning by his own attorney, he was unable to do so despite being able to answer other questions. It is reasonable to infer that his failure to explain what changed was not because he could not articulate an answer, but because he did not have one.
Jaimes also argues there was "no evidence" that he was a batterer who would not change, because he had not battered his wife in the months since his release from jail, he attended some classes to show his willingness to change, he left the treatment programs under economic stress, he was remorseful and felt badly for his daughter, and he had fixed his relationship with his wife, who testified that she would like to see him "keep making progress with us." Essentially, he maintains that he presented evidence which, if believed, would support a conclusion different than that reached by the trial court. However, the court was not required to believe his testimony. Moreover, the question on appeal is not whether there is evidence from which the court could have reasonably reinstated probation, but whether there was evidence from which the court could have reasonably revoked probation. Because as discussed ante the record does provide sufficient support for the trial court's revocation of probation, Jaimes has failed to demonstrate an abuse of discretion.
III. DISPOSITION
The order is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.