Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM024926.
SIMS, Acting P. J.
Defendant John Charles Larrison appeals from an order revoking probation, which we construe as an appeal from the ensuing judgment imposing a sentence after revocation of probation. Probation was originally granted following a conviction on one count of a sex offense against a child (Pen. Code, § 288, subd. (a) ) and two counts of child abuse (§ 273a, subd. (a)), pursuant to a plea of no contest. Defendant contends the trial court abused its discretion by revoking probation due to his poor economic status, which left him unable to pay for the court-ordered treatment programs for sex offenders and child abusers. We shall conclude the trial court did not revoke probation due to defendant’s economic status. Rather, the trial court used the evidence of defendant’s failure to search for a job (which was also a condition of probation) to reject defendant’s claim that his failure to participate in the treatment programs was attributable to lack of resources. We shall affirm.
Undesignated statutory references are to the Penal Code. Undesignated rule references are to California Rules of Court.
Defendant’s notice of appeal says he appeals from a postjudgment order. However, since the trial court suspended imposition of sentence when it initially placed defendant on probation, the subsequent revocation order did not constitute an appealable order made after judgment under section 1237, subdivision (b). Nonetheless, we shall liberally construe the notice of appeal to apply to the subsequently entered judgment. (People v. Delles (1968) 69 Cal.2d 906, 908-909.)
BACKGROUND
In May 2006, defendant pled no contest and was convicted of forcible lewd act upon a child (§ 288, subd. (a) ) and two counts of child abuse (§ 273a, subd. (a)).
The original pleading alleged a section 288, subdivision (b)(1), violation, but that would render defendant ineligible for probation. The court therefore ordered amendment of the complaint nunc pro tunc to add a section 288, subdivision (a), count, in order to comport with the parties’ clear intent that defendant be granted probation.
In November 2006, the trial court suspended imposition of sentence and, pursuant to stipulation, placed defendant on probation for eight years with various conditions, including serving one year in jail, and then searching for a job and participating in a child abuse prevention program and sex offender therapy. These probation conditions stated:
“10. Within seven (7) days of being granted probation or released from custody, provide proof of enrollment in, payment of and thereafter, successful completion of a CHILD ABUSER’S PREVENTION PROGRAM program/class, and not terminate participation in said program/class without the permission of the Court or probation officer.
“11. Enroll in, pay for and successfully participate in a program of SEX OFFENDER SPECIFIC THERAPY, including an AIDS education program, as directed by the probation officer, and not terminate participation in said program without the permission of the Court or probation officer.”
“[¶]... [¶]
“58. Unless participating in a job training program or working full-time earning income, you are to perform a job search and submit proof of at least 15 job searches each week to your probation officer.”
On May 25, 2007, the trial court modified the probation order, adding a probation condition that defendant “[e]nroll in (FILE PROOF OF ENROLLMENT BY 8/24/07), payment of and thereafter, successful completion of, within one year from the date you are granted probation, an approved BATTERER’s TREATMENT PROGRAM, and not terminate participation in said program without the permission of the Court or probation officer. While in the program, you are subject to drug/alcohol testing by program staff.”
The record indicates an evaluation found defendant was not a pedophile but needed to be in treatment programs for batterers and child abusers. However, the evidence showed he was terminated from a sex offender treatment program for failure to pay and attend. For purposes of this appeal, we need not inquire further into this matter.
On August 24, 2007, after defendant was released from jail, he filed a proof of enrollment. Defense counsel requested, and the trial court granted, a two-month leave of absence from the child abuse prevention program, due to the fact that defendant had just been released from prison and needed time to “get[] back on his feet” financially.
In October 2007, we issued an unpublished opinion on an appeal by defendant, in which we remanded for the trial court to conduct a hearing (People v. Marsden (1970) 2 Cal.3d 118) into defendant’s complaints about his counsel. (People v. Larrison, (Oct. 11, 2007, C054194) [nonpub. opn.].) On remand, the trial court denied the Marsden motion.
On November 9, 2007, the probation officer reported defendant’s progress was “marginal.” Defendant denied guilt, did not feel he belonged in the sex offender group, submitted a urine sample that was “dilute” (which the court viewed as “dirty”), was unemployed, and failed to provide job search documentation. The court ordered defendant to conduct 16 job searches in the following two weeks.
On January 4, 2008, the trial court remanded defendant to jail pending a hearing on a motion by the prosecutor to revoke probation due to defendant’s violation of probation conditions.
On January 30, 2008, defendant was released from jail upon withdrawal of the first petition to revoke probation.
On February 8, 2008, the court held a hearing on a second petition to revoke probation on the ground that defendant failed to conduct an active job search. Defendant admitted he failed to conduct an active job search as required by his probation conditions, but he asserted the reason was that he had a lot of doctor’s appointments due to illnesses. The trial court reinstated probation, on the condition that he conduct 15 job searches per week. The court gave the probation officer discretion to stay participation in one of the treatment programs, based on defense counsel’s assertion that defendant had limited income, and may be terminated from one of the programs due to inability to pay $70 to $80 per week for two classes.
On February 27, 2008, pursuant to a new petition for probation violation (for suspension from the sex offender treatment program), defense counsel represented that defendant had just started work, and the trial court dismissed the petition to give defendant “a little bit of breathing room.”
On April 30, 2008, the trial court denied defendant’s motion to withdraw his plea and commenced a hearing on a new petition to revoke probation, which alleged defendant violated probation by being terminated from the sex offender treatment program and by failing to attend/participate in the child abusers treatment program. Defendant’s landlord, Lamont Ponder, testified he rents a room to defendant for $250 per month, including kitchen and laundry privileges, plus $150 in the winter months for heat. The landlord said he allows defendant to work for him part-time to cover the rent and earn some cash because defendant is unable to find work in Oroville, which is not surprising. The work was as a general laborer, doing yard work, painting, digging, putting up fencing, etc. The amount varied, but the landlord estimated he gave defendant an average of about $50 per month in cash over each of the three months preceding the hearing. Defendant worked an average of 18 hours per week, at a rate of $8 per hour.
When the hearing was continued in June 2008, the therapist for the sex offender program, Rich North, testified defendant was supposed to pay $35 per session. He paid $545 but owed $260 for sessions in which he participated without paying. Defendant stopped coming to sessions and was terminated.
Defendant’s probation officer, Lori Teague, testified she obtained from the landlord the work logs for defendant (attached to the probation report and undisputed by defendant on appeal), showing that defendant worked a total of 112 hours over a four-month period, followed by a total of 94.5 hours for the next six months. Defendant worked 33 hours in August 2007, 46 hours in September, 18 hours in October, five hours in November, and 10 hours in December. He worked no hours in January 2008, 41 hours in February, at least eight hours in March, 32.5 hours in April, seven hours in May, and six hours in June, 2008. The probation officer said the landlord contacted her and said he himself was laid off and could no longer afford to employ defendant.
As of Teague’s last appointment with defendant, he had completed 145 hours of the 200 hours of community service ordered by the court.
Teague testified defendant did not comply with the probation condition to perform 15 job searches per week. He never performed 15 searches in a week. He did provide some documentation on some occasions, but on one occasion it was not authentic. It listed approximately 15 searches, supposedly performed during two days -- one of which was a holiday, and the other was the day before his meeting with the probation officer. Most of the searches were applications he assertedly submitted online, but when the probation officer contacted some of the employers, she learned some of the positions defendant allegedly applied for were not even being offered. The probation officer lowered the number of job searches to five per week, yet defendant still did not comply.
The probation officer testified defendant was also terminated from the child abusers’ treatment program for excessive absences and an outstanding balance.
The trial court found: “Defendant has been convicted by plea of 288(a), 273(a)a [sic], 2 counts, and was placed on probation. The allegation is he was terminated from his court ordered sex offender treatment program by virtue of failure to pay. The Court will find that’s true. The Court will also find he failed to participate in his court ordered child abusers treatment program. The Court will find that’s true whether by failure to pay or otherwise. The Court also finds, which is not a mandatory finding, the defendant has failed and refused to cooperate or to fulfill his obligation to look for a job, and by virtue of that he doesn’t have the money to pay. Well, that’s like a problem, Mr. Larrison. If you’re not looking for a job you can’t get a job. If you can’t get a job you can’t pay for the treatment program, if you can’t pay for the treatment program then you’re not in compliance with your payment program, you’re in violation of probation.”
Defendant interjected that he had been busy doing his community service about 35 hours per week, and his landlord started to work again and would be employing defendant on a more full-time basis. The court said there was no evidence of any change regarding the landlord, and the most recent work logs in evidence showed defendant worked only seven hours for the entire week, which left a lot of time for a job search. Defendant said he was doing community service that week. The court said defendant has eight years (the entire length of the probation period) to finish the community service.
The trial court found defendant in violation of probation and revoked probation. The minute order contains a handwritten notation, presumably by the court clerk, that the court found defendant failed to fulfill his obligation to find a job. The reporter’s transcript provides a clearer explanation of the court’s finding.
At a hearing on July 23, 2008, for disposition following probation violation, the trial court expressed its intent to sentence defendant to prison. Defense counsel argued defendant’s noncompliance with the treatment programs was attributable to a lack of resources, not a “lack of wanting.”
The trial court said, “One of the conditions of probation was that he seek and obtain employment and was [sic] on a job search. One thing led to another. He didn’t seek or search out a job. He provided no evidence of a job search to probation. I think in the entire time he was on probation there was one job application to my memory that I -- in the entire probation report. I could be wrong on that, but the bottom line is he didn’t get a job. There were jobs available in the community that he just didn’t even apply for. Because of that, then he had an excuse not to go to batterer’s treatment class or sex offender treatment.... And then he blames one on the other.
“Well, the bottom line blame [sic] is that he didn’t get a job and didn’t try to get a job. If he tried to get a job, he would have of [sic] had a defense to this. You didn’t try. You didn’t turn in a job search. I asked him one time whether he had been to the Employment Development Department he said he’s going there, he hadn’t been there. [Italics added.]
“And so the Court does find that probation should be terminated, that he presents a danger to children and others in our community. The Court will deny reinstatement of probation.”
The court went on to find the midterm appropriate and sentenced defendant to a total sentence of seven years, four months (six years for the section 288, subd. (a), conviction; 16 months for one of the section 273a convictions; and a concurrent term of 16 months for the other section 273a conviction).
Defendant filed a notice of appeal from a sentence occurring after a plea, and a contested violation of probation. (§ 1237, subd. (b); rule 8.304.) Defendant also filed a notice of appeal from the denial of his motion to withdraw his plea, but no argument on that point appears in his appellate brief.
DISCUSSION
A trial court’s decision to revoke probation for violation of probation conditions is reviewed under an abuse of discretion standard. (§ 1203.2; People v. Kelly (2007) 154 Cal.App.4th 961, 965.)
Defendant argues that, insofar as the trial court “essentially” revoked his probation because of his poor economic status, the court violated his rights to due process and equal protection of the laws.
Assuming for the sake of argument the issue is preserved for appeal (a point disputed by the People), we shall conclude it lacks merit.
Defendant cites authority that defeats his appeal. (Bearden v. Georgia (1983) 461 U.S. 660, 662-663 [76 L.Ed.2d 221]; In re Antazo (1970) 3 Cal.3d 100, 105-106.) Bearden, supra, 461 U.S. 660, held the Fourteenth Amendment precluded a state court from automatically revoking probation when the probationer could not pay a fine, without finding the probationer failed to make a bona fide effort to pay or that alternative forms of punishment were inadequate. However, as defendant acknowledges, Bearden said, “[i]f the probationer has willfully refused to pay the fine or restitution when he has the means to pay, the State is perfectly justified in using imprisonment as a sanction to enforce collection. [Citation.] Similarly, a probationer’s failure to make sufficient bona fide efforts to seek employment or borrow money in order to pay the fine or restitution may reflect an insufficient concern for paying the debt he owes to society for his crime. In such a situation, the State is likewise justified in revoking probation and using imprisonment as an appropriate penalty for the offense.” (Id. at pp. 668-669.)
Antazo, supra, 3 Cal.3d 100, dealt with a Penal Code statute that authorized imposition of a fine and imprisonment pending payment. Antazo held that imprisonment of a defendant because of his inability, due solely to indigency, to pay a fine imposed on him as a condition of probation was not necessary to promote the state’s interests in collecting fines and rehabilitating criminals and constituted an invidious discrimination based on poverty, in violation of the Fourteenth Amendment’s equal protection clause. In Antazo, “the record show[ed] beyond any contradiction that although imposition of sentence was suspended and petitioner was granted probation, he was unable to pay the fine... solely because he was an indigent. Under the court’s order, he incurred imprisonment, not because he refused to comply with these conditions of his probation, but simply because he was unable to do so.” (Id. at p. 115.)
Of course, when a person is imprisoned pending payment, as called for by the statute at issue in Antazo, he cannot get a job to pay the fine. That situation is not present here, where defendant had multiple opportunities to search for a job before the court finally revoked probation. Here, in essence, probation was revoked, not because of an inability to pay, but rather because of a failure to search for the means to pay.
Thus, neither Bearden nor Antazo supports reversal in this case.
Defendant misreads his own case authority as requiring the court to offer an alternative punishment to an indigent who would pay his fine if he could. However, Bearden, supra, 461 U.S. 660, said it is only when the probationer has made “all reasonable efforts” to pay restitution that it becomes fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available. (Id. at p. 669.) Here, the evidence supports the trial court’s finding that defendant failed to make all reasonable efforts to pay. Accordingly, the trial court did not abuse its discretion.
Additionally, though not necessary to our opinion, we observe this case does not involve a mere fine as in Bearden and Antazo, but rather treatment programs. The trial court in revoking probation said defendant presents a danger to children and others in the community. Thus, the treatment programs were important, and other alternatives (e.g., additional community service) would be inadequate.
Defendant argues that no evidence supports the trial court’s statement that, “There were jobs available in the community that he [defendant] just didn’t even apply for.” Defendant asks us to take judicial notice of “the undeniable severe economic downturn experienced by this country in 2008 [fn. omitted], coupled with the increasing unemployment rate.” However, the bottom line is that the trial court revoked probation not merely because defendant failed to get a job, but because he failed to search for a job. Thus, it does not matter whether the record contains evidence of available jobs. Had defendant complied with his probation condition and shown he performed 15 job searches a week -- or even the bargain basement number of five searches per week pursuant to the probation officer’s discretionary reduction -- the trial court in all likelihood would not have revoked his probation. Although the trial court initially said its finding about defendant’s failure to look for a job was “not a mandatory finding,” the court later said, “If he tried to get a job, he would have of [sic] had a defense to this.”
That defendant paid for some treatment sessions does not justify a reversal of the trial court’s decision.
That defendant chose to spend most of his time on community service and disregard his other probation conditions does not afford a basis for reversal.
We conclude there was evidence that defendant failed to make bona fide efforts to acquire the resources to pay for the treatment programs. This evidence justified revocation of probation under defendant’s own cited authority. Thus, the trial court did not abuse its discretion in revoking probation.
DISPOSITION
The judgment and order revoking probation are affirmed.
We concur: NICHOLSON, J., BUTZ, J.