Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. NA069032, Tomson T. Ong, Judge. Affirmed.
Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Lori Lynn Lehman appeals from the order revoking probation, which was granted upon her plea of no contest to second degree burglary (Pen. Code, § 459), procuring credit based on a false financial statement (§ 532a, subd. (2)), receiving stolen property (§ 496, subd. (a)), grand theft by means of acquiring access cards in the names of four or more persons within a 12-month period (§ 484e, subd. (b)), and three counts of the unauthorized use of personal identifying information to obtain credit, goods or services (§ 530.5, subd. (a)), all felonies, as well as her admission of three prior felony convictions for which she served separate prison terms (§ 667.5, subd. (b)). Upon revocation of probation, the previously suspended 10-year prison term was ordered into effect.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant contends that the trial court abused its discretion in revoking probation and executing the prison term, rather than reinstating probation.
We affirm.
FACTS AND PROCEDURAL BACKGROUND
Pursuant to her no contest plea, appellant waived her right to appeal following her 2006 conviction. Accordingly, and because the facts underlying her conviction are not necessary to the instant appeal, they are not recited here at length. It will suffice to observe that between May and December 2005, appellant engaged in several identity theft and other theft-related offenses.
On September 6, 2006, following appellant’s plea of no contest, the trial court imposed a 10-year prison term, suspended execution of sentence, and placed appellant on probation for five years. Among the terms of probation were that she obey all laws, orders of the court, and rules and regulations of the Probation Department, not use or possess any narcotics, dangerous or restricted drugs or associated paraphernalia, stay away from places where users, buyers or sellers congregate, not associate with persons known to be narcotic or drug users or sellers, and submit to periodic drug testing.
Appellant’s counsel informed the court that appellant was suffering from Hodgkins disease. The trial court advised appellant to bring her medications with her when she went for drug testing, so the probation officer could inform the laboratory. The court warned appellant that if a drug test came back positive and appellant had not informed the probation officer about her medications, “you are not cooperating with the probation officer and I will bust you for your ten years.”
Two months later, the Probation Department prepared a report stating that appellant had been arrested for violating probation by using narcotics, associating with known narcotics users and sellers, and congregating in a place where users, buyers and sellers were present. In addition, she failed to report for a scheduled drug test. A supplemental report filed on the date of the probation revocation hearing stated that appellant had tested positive for amphetamines and had failed to report to probation. The probation officer indicated that appellant was not a suitable candidate for continued probation supervision because she reported only once, at which time she tested positive for amphetamines, she subsequently failed to report although she repeatedly stated that she would do so, and she had continued to be involved with controlled substances and in criminal activities.
PROBATION VIOLATION HEARING
A contested probation violation hearing was held. The prosecution introduced evidence that on November 1, 2006, Long Beach Police Detective Donald Goodman went to apartment 1 at 836 Gardenia Avenue. Appellant was present in the apartment. Chester Lemon, who resided in the apartment, gave the detective permission to search. Detective Goodman found methamphetamine, a loaded handgun, and women’s clothing. Lemon stated that appellant had begun living with him in the apartment two weeks earlier and that he and appellant slept on the bed where the gun was found. Appellant confirmed that she had been living in the apartment for a week or two. She acknowledged ownership of the clothing, although she said she was giving it to someone else because it did not fit. She told the detective that she knew the gun was there and that its presence was a violation of her terms of probation, but she claimed that she was not in violation because she had never touched it.
A few days later, appellant was interviewed by Detective Anthony Anast. Appellant admitted she had been living in apartment 1 for a week prior to her arrest and that she had lived in a vacant apartment on the property, apartment 5, for a week before that. She told Detective Anast that Lemon was selling drugs from the apartment, that drugs were used in the apartment, and that she had purchased methamphetamine from Lemon in the past, indicating that this was during the week she lived with him. She gave a written statement discussing the methamphetamine she purchased from Lemon.
Appellant’s probation officer, Barbara Young-Knott, testified that appellant tested positive for amphetamine on October 17, 2006. Appellant never returned for additional testing, although a test was scheduled for October 20. When asked whether appellant complied with any of the terms of her probation, Young-Knott replied, “Not that I know of.” She did not know whether appellant had reported to the other members of the probation team.
In defense, appellant testified that she had been living with her parents since her release from custody on October 9, 2006. She spent some nights at apartment 5 on Gardenia Avenue, where her friend lived. Appellant had known Lemon, who resided in apartment 1, for five or six years, but she never slept in his apartment. Her mother had dropped off the items of clothing found at Lemon’s apartment so they could be used by a homeless woman because they no longer fit appellant. Appellant claimed that she had just walked into apartment 1 when Detective Goodman approached her, and that when he asked if she lived in Lemon’s apartment, her response meant that she had on occasion stayed with her friend in apartment 5. She further claimed that she had not told Detective Anast she had recently purchased drugs from Lemon but had told him she knew Lemon was a drug dealer and that she had purchased drugs from him years before.
Appellant acknowledged that she knew people had smoked methamphetamine in apartment 1 in the past, but claimed that although people were smoking there minutes before she arrived, she was not there at the time. She testified that she was on parole at the same time she was on probation, she had met with her parole officer at least three times since October 10, 2006, and she had taken three drug tests in connection with her parole. The parole officer never told her that she had tested positive.
Appellant asserted that she did not report for her scheduled drug test with her probation officer on October 20, 2006 because she learned that she had an arrest warrant in San Bernardino, and she was afraid she would be arrested on the warrant by her probation officer before she went to San Bernardino. She claimed that she reported to a probation officer of the day, a male officer, sometime after October 20.
At the conclusion of the hearing, the trial court found that appellant had violated the terms of her probation by associating with a known narcotics user, dealer or seller, by congregating at a location where narcotics were used, and by testing positive for narcotics.
Appellant’s counsel requested that the trial court consider giving appellant a second chance on probation, because she had not been on probation for a substantial length of time and she had reported to parole and tested negative for drugs. The trial court revoked and terminated probation and imposed the suspended prison term.
DISCUSSION
Appellant does not challenge the trial court’s determination that she was in violation of probation. Rather, she contends that the trial court abused its discretion in revoking her probation and ordering the prison term into effect rather than reinstating probation. She asserts that the acts constituting her violation were nonviolent and were, at least in part, motivated by her continued addiction to methamphetamine. Therefore, she argues, “more fitting options were available” that “more appropriately suited the violation” in her case, including reinstatement of probation after it was revoked and additional terms of probation such as a comprehensive drug treatment program. This contention lacks merit.
Under section 1203.2, subdivision (a), the trial court was authorized to revoke and terminate probation “if the interests of justice so require and the court, in its judgment, ha[d] reason to believe from the report of the probation officer or otherwise that [appellant] ha[d] violated any of the conditions of . . . her probation . . . .”
“Although section 1203.2 does not expressly state that a defendant may be ‘reinstated’ on probation, numerous cases have recognized that the court’s authority to modify probation necessarily presumes the power to reinstate it. [Citations.]” (People v. Medina (2001) 89 Cal.App.4th 318, 321.) We review the trial court’s decision whether to reinstate probation or sentence a defendant to prison for abuse of discretion. This decision “‘generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.’ [Citation.]” (People v. Downey (2000) 82 Cal.App.4th 899, 909.)
No abuse of discretion appears here. The trial court heard the testimony at the revocation hearing and considered the arguments of appellant’s counsel. In finding that appellant had violated the terms of her probation, the trial court indicated that “[i]t is ironic that her parents’ address [is] [address deleted] and yet she chooses to move her stuff and her physical presence to 836 Gardenia instead of staying away from drug users, buyers, or sellers. She chooses to congregate, which is another condition of probation.” Appellant’s probation officer believed that she was not a suitable candidate for continued probation supervision because she had reported to her probation officer only once, at which time she tested positive for amphetamines, and she had continued to be involved in criminal activities.
After her arrest, appellant told her probation officer that she had not used illegal drugs but only used those prescribed by her doctor, and she stated, “I am not addicted to any drugs, and I do not need a live-in drug treatment program.” Based on the record before the trial court, which strongly indicated that appellant could not “conform [her] behavior to the parameters of the law” (People v. Beaudrie (1983) 147 Cal.App.3d 686, 691), there was nothing arbitrary or capricious in the trial court’s determination that a prison term, rather than reinstatement of probation, was warranted.
DISPOSITION
The order under review is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.