Opinion
A133728
10-18-2012
THE PEOPLE, Plaintiff and Respondent, v. ALMA BERCYNTHIA JOHNSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Francisco City & County Super. Ct. No. 204407)
The trial court placed defendant on probation after she pleaded guilty to felony infliction of injury on an elder likely to cause great bodily injury. (Pen. Code, § 368, subd. (b)(1).) Subsequently, the court found that defendant had violated her probation and imposed the previously suspended sentence of two years in state prison. Defendant maintains that substantial evidence did not show that she willfully violated her probation and therefore the trial court abused its discretion by revoking her probation. She also argues that she should have been sentenced to county jail under section 1170, subdivision (h), and not to state prison. We conclude that the trial court did not abuse is discretion when revoking defendant's probation and section 1170, subdivision (h) does not apply. Accordingly, we affirm the judgment.
All further unspecified code sections refer to the Penal Code.
BACKGROUND
On February 6, 2008, defendant was charged by felony complaint in count 1 with assault with a deadly weapon on a 75-year-old victim (§ 245, subd. (a)(1)), in count 2 with battery with serious bodily injury (§ 243, subd. (d)), and in count 3 with infliction of injury on an elder likely to cause great bodily injury (§ 368, subd. (b)(1)). Count 1 included an allegation that defendant inflicted great bodily injury. (§ 12022.7, subd. (a).) Counts 2 and 3 included the allegation that defendant used a deadly weapon and inflicted great bodily injury on a vulnerable victim. (§ 1203.09, subd. (a).)
According to the probation report, on February 4, 2008, the police responded to an assault. The 75-year-old victim had a laceration to the left side of his head and reported that defendant had hit him with a glass while he was in bed. The victim and defendant had been drinking and then they argued. The victim went to bed and defendant followed him into the room and threw her drinking glass at him. The victim stated that the defendant, who was visiting his disabled son, had never attacked him before.
On February 21, 2008, defense counsel advised the trial court that there was a plea agreement. Defendant admitted she had been drinking, had thrown a glass at the victim during an argument, and had fled when the victim called the police. As part of the plea agreement, defendant agreed that "she will do counseling as recommended by the adult probation office." The court advised defendant that she could be sentenced to state prison without a trial if she violated any of her terms of probation and she responded that she understood that. Pursuant to a negotiated disposition, defendant entered a plea of guilty to count three, felony infliction of an injury on an elder likely to cause great bodily injury (§ 368, subd. (b)(1)), in exchange for the dismissal of the remaining counts.
On March 14, 2008, the trial court suspended imposition of the three-year sentence and placed defendant on three years probation, with various terms and conditions, including that she abstain from alcohol, serve 60 days in jail, stay away from the victim named in the complaint, and "undertake counseling as recommended by the adult probation department."
On May 11, 2009, a motion to revoke defendant's probation was filed. The motion was based on defendant's arrest for assaulting her boyfriend while she was intoxicated. The probation officer noted that defendant had "serious issues surrounding alcohol and anger management" that needed to be dealt with in a structured setting. The probation officer pointed out that defendant had not previously been ordered to participate in any type of treatment.
On June 22, 2009, counsel for defendant stated that defendant would like to accept the plea deal if the trial court would consider striking anger management as a condition. The court refused. Defendant admitted violating probation and agreed to the condition of anger management counseling. The court reinstated her probation, and ordered her to attend anger management and substance abuse counseling as monitored by the probation department. On July 20, 2010, probation reported that defendant had fulfilled those conditions.
On December 28, 2010, a motion to revoke defendant's probation was filed and a stay-away order was issued regarding defendant's boyfriend and his residence. It was alleged that defendant violated her probation by assaulting her boyfriend while she was intoxicated. The probation department did not recommended revocation of probation but requested a county jail term with defendant's participation in a domestic violence program and substance abuse treatment. The probation department recommended an extension of probation by one year.
At the revocation hearing on January 18, 2011, defendant admitted violating probation. The court reinstated her probation with the extension of her term by one year, and ordered defendant to stay away from her boyfriend. The court ordered defendant to attend a 52-week program providing domestic violence, drug, alcohol, and psychological counseling. Defendant was ordered to return to court on January 20, 2011, with proof that she had enrolled in the counseling program.
A third petition alleging that defendant had violated probation was filed on January 28, 2011. It was alleged that defendant had failed to meet with her probation officer since the last court hearing, and that she had been arrested on January 26, 2011, when police responded to a report of a stabbing. Defendant had been arguing with the person with whom she was staying and, while she was intoxicated, stabbed him in the back.
On April 4, 2011, the trial court ordered defendant to undergo a competency evaluation under section 1368. Based on this evaluation, the court found defendant competent to stand trial.
At a revocation hearing on June 8, 2011, defendant admitted violating probation. Probation was extended to September 14, 2012. Defendant was ordered to spend a year in jail, which was to be served in the Sisters Program, an in-custody domestic violence program. The court advised defendant that she seemed "to be in a good space right now." The court expressed hope that she would "follow through with the Sisters Program." The court told defendant: "If there's any question about not getting in or, rather, participating, please call [defense counsel] so he can get it back on calendar and we can get you into that program." The court set the matter on the calendar for two weeks later to have a report on defendant's enrollment in the program.
Subsequently, the trial court continued the case twice for status review of defendant's participation in the Sisters Program, and then on August 23, 2011, the case was taken off calendar. The court continued the matter to consider a motion to revoke probation, filed on August 23, 2011. This motion alleged that defendant had violated her probation by disobeying the stay-away order and by failing to enter the Sisters Program. The motion stated that defendant had been in continuous custody since January 26, 2011; she had not been placed in the Sisters Program "due to her violent behavior."
According to the sheriff's records, defendant had a number of behavioral incidents while in custody and was a risk to herself, staff, and others. On June 2, 2011, defendant was moved to administrative segregation because she did not get along with her roommate. A couple of weeks later, issues with defendant and her roommate remained. On June 18, 2011, defendant was moved to another cell due to her behavior, which included banging on doors. On August 15, 2011, defendant continued to disobey staff's direct orders to stop banging, yelling, and slamming things. Two days later, defendant was aggressive towards staff. She also pushed doors and used foul language towards staff. On August 18, 2011, defendant spent five days in lock up for having contraband, refusing staff orders, and receiving four write-ups in the last 60 days. On August 22, 2011, defendant was placed into administrative segregation.
At the hearing on September 7, 2011, defendant denied all allegations set forth in the motion to revoke her probation.
On October 28, 2011, the court held a contested hearing on the motion to revoke probation. Nakeisha Peacock, a deputy probation officer for the domestic violence unit and defendant's probation officer, testified. She reported that defendant had not contacted her to ask about defendant's program requirements. She explained that she was recommending revocation of defendant's probation because of defendant's violent behavior while in custody. Peacock admitted that she had no personal knowledge of defendant's actions while in custody because the sheriff had been monitoring defendant while she was incarcerated; Peacock had no interaction with defendant while she was incarcerated. Peacock's recommendation was also based on her knowledge that defendant had been remanded into custody on four separate occasions while on probation.
After hearing the evidence, the trial court stated that it could not revoke probation based on the stay-away order because the prosecution presented no evidence on this issue. The court advised that it was taking judicial notice of the entire history of this case; it was also considering the evidence of defendant's failure to participate in any of the county jail counseling that had been ordered by the court. The court found a willful violation of probation and determined that the People had "met their burden of proof by preponderance of the evidence that the defendant is not a suitable candidate for probation and has not done the programs and has not done what she is supposed to do both in custody and out of custody, so probation remains revoked. . . ." The court executed the previously suspended sentence and imposed the two-year mitigated term in state prison.
Defendant filed a timely notice of appeal.
DISCUSSION
I. Revocation of Probation
Defendant contends that substantial evidence does not support the lower court's finding that she willfully failed to enroll in the Sisters Program. She maintains that the trial court abused its discretion when it revoked her probation on the basis that she violated probation by failing to enroll in this program.
A 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 prosecution must prove a probation violation by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.) Before revoking probation, a trial court must find that a violation was willful. (People v. Cervantes (2009) 175 Cal.App.4th 291, 295.) A willful violation requires " 'simply a purpose or willingness to commit the act . . . ,' without regard to motive, intent to injure, or knowledge of the act's prohibited character. [Citation.] The terms imply that the person knows what he [or she] is doing, intends to do what he [or she] is doing, and is a free agent. [Citation.] Stated another way, the term 'willful' requires only that the prohibited act occur intentionally." (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438; see also People v. Valdez (2002) 27 Cal.4th 778, 787-788.) The requirement of a knowing or willful violation does not additionally require proof of defendant's awareness that his or her acts constituted a violation of the condition or was otherwise culpable in nature. (See Valdez, at pp. 787-788.)
In assessing a challenge to the sufficiency of the evidence following a probation revocation hearing, we review the record in the light most favorable to the judgment to determine whether there is substantial evidence from which the trial court could find a probation violation. (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849.) We review the trial court's finding that the defendant violated probation, and the court's resulting decision to revoke probation, for abuse of discretion. (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) The defendant bears the burden of demonstrating on appeal that the trial court abused its discretion in revoking probation. (People v. Self (1991) 233 Cal.App.3d 414, 417.) We will only reverse if the ruling in question falls outside the bounds of reason under the applicable law and the relevant facts. (People v. Williams (1998) 17 Cal.4th 148, 162.)
Defendant argues that the record is devoid of evidence showing that her failure to attend the Sisters Program was willful. She cites the trial court's own statement that it did not know whether defendant had made any effort to get into the program. Furthermore, defendant asserts that the record established that she had no ability to get into the Sisters Program because the sheriff's department had determined that she could not be involved in the program because of her conduct during custody. She maintains that she could not comply with the condition of probation and therefore her violation of probation was not willful.
Defendant's argument is not persuasive. The record supported the trial court's finding that defendant did not enroll in Sisters Program because of her own conduct; thus, her failure to enroll was not beyond her control. The record shows that the court ordered defendant to enroll in the Sisters Program on June 8, 2011. Rather than making any effort to get into the program—between June 8 and August 18, when defendant was finally placed "in lock up"—defendant engaged in constant disruptive behavior while in custody. According to the sheriff's records, defendant did not get along with her roommate, banged on doors, was aggressive towards staff, used foul language towards staff, had contraband, and disobeyed staff's direct orders to stop banging, yelling, and slamming things. The court at the hearing on June 8, 2011, advised defendant to contact her counsel if she had "any question" about entering or participating in the Sisters Program; the record is devoid of any evidence that she contacted her attorney about obtaining counseling or attending the program. Thus, defendant's disruptive conduct while in custody and her failure to contact her attorney to inquire about participating in the Sisters Program, established that her conduct resulting in her failure to participate in the Sisters Program was not blameless.
Accordingly, we conclude that substantial evidence supported the finding of defendant's willful probation violation, and the trial court did not abuse its discretion when it revoked defendant's probation.
II. Defendant's Sentence
Defendant contends that the trial court erred when it sentenced her to state prison rather than to county jail. She maintains that a conviction for violating section 368, subdivision (b)(1), is not a conviction for a serious or violent felony and therefore under section 1170, subdivision (h), she should have been sentenced to county jail, not state prison.
Defendant pleaded guilty to violating section 368, subdivision (b)(1). This statute provides that elder abuse likely to produce great bodily harm or death "is punishable by imprisonment in a county jail not exceeding one year, or by a fine not to exceed six thousand dollars ($6,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or four years."
Section 18, subdivision (a) states: "Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a felony is punishable by imprisonment for 16 months, or two or three years in the state prison unless the offense is punishable pursuant to subdivision (h) of Section 1170."
Section 1170, subdivision (h) reads: "(1) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years. [¶] (2) Except as provided in paragraph (3), a felony punishable pursuant to this subdivision shall be punishable by imprisonment in a county jail for the term described in the underlying offense." (§ 1170, subd. (h).) Paragraph 3 provides: "Notwithstanding paragraphs (1) and (2), where the defendant (A) has a prior or current felony conviction for a serious felony described in subdivision (c) of Section 1192.7 or a prior or current conviction for a violent felony described in subdivision (c) of Section 667.5, (B) has a prior felony conviction in another jurisdiction for an offense that has all the elements of a serious felony described in subdivision (c) of Section 1192.7 or a violent felony described in subdivision (c) of Section 667.5, (C) is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime and as part of the sentence an enhancement pursuant to Section 186.11 is imposed, an executed sentence for a felony punishable pursuant to this subdivision shall be served in state prison." (§ 1170, subd. (h)(3).)
Section 1170, subdivision (h)(6) states: "The sentencing changes made by the act that added this subdivision shall be applied prospectively to any person sentenced on or after October 1, 2011."
It is true, as defendant argues, that she was sentenced after October 1, 2011. It is also true that none of the provisions in paragraph 3 of section 1170, subdivision (h) applies to defendant. However, section 1170, subdivision (h) does not apply in the present case. Section 18, subdivision (a) makes it clear that every felony is punishable by imprisonment unless the offense is punishable pursuant to section 1170, subdivision (h). Section 368, subdivision (b) does not state that the crime is punishable by subdivision (h) of section 1170. Thus, section 368, subdivision (b), is a crime that falls within subdivision (a) of section 18, and the trial court properly sentenced defendant to state prison.
In contrast, section 368, subdivisions (d), (e), and (f) specify that violations of these provisions are punishable by imprisonment pursuant to subdivision (h) of section 1170.
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DISPOSITION
The judgment is affirmed.
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Lambden, J.
We concur: __________________
Kline, P.J.
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Richman, J.