Opinion
A100556.
7-16-2003
THE PEOPLE, Plaintiff and Respondent, v. ALBERT MALICAY, Defendant and Appellant.
Albert Malicay (Malicay) appeals from an order revoking his probation and committing him to state prison. He contends the trial court abused its discretion in declining to reinstate his probation. We disagree and affirm the order.
I. FACTS AND PROCEDURAL HISTORY
A. PROBATION FOR POSSESSING A CONTROLLED SUBSTANCE
In an April 2001 search of Malicays cell at California State Prison, Solano, authorities found a plastic bottle containing a dark brown liquid, which was later determined to be .135 microliters of heroin. Malicay admitted the bottle was his, claiming that he found it in the prison courtyard.
Malicay was charged with possession of a controlled substance in state prison (Pen. Code, § 4573.6 ) and alleged to have suffered two prior prison terms within the meaning of section 667.5, subdivision (b). He pleaded nolo contendere to the substantive charge and admitted one of the prior prison terms.
All further section references are to the Penal Code.
The probation department recommended that Malicay be sentenced to state prison for three years. As a convicted felon, Malicay was ineligible for probation absent unusual circumstances under section 1203, subdivision (e)(4). The probation department concluded there were no unusual circumstances, noting that Malicay had denied knowing about the heroin or using illegal drugs. In addition, Malicays parole officer had advised it would be difficult to place Malicay in a residential treatment program, because he was an offender required to register pursuant to section 290. Nevertheless, arrangements had been made to place him at the Villa Lodge Sober Living and Outpatient Program (Villa Lodge)-the "only program available" for section 290 registrants.
At the sentencing hearing on January 17, 2002, the court found there were unusual circumstances within the meaning of section 1203, subdivision (e)(4), in that the quantity of controlled substance found in the bottle was particularly small. In the words of the trial judge: "Given that there was a minimum amount of controlled substance involved here and the fact he would be supervised by the parole department, the Court is prepared to give him an opportunity to try to complete his program and to get placed on probation. If he blows that and violates parole, I would be prepared to deem a violation of parole a violation of probation and proceed in that manner."
Imposition of sentence was suspended and Malicay was granted three years formal probation. As one of the terms and conditions of his probation, he was required to commit himself to Villa Lodge, refrain from using alcohol and illegal drugs, and not violate the terms of his parole. The court directed the minute order to "reflect that any violation of parole can and will be deemed a violation of [Malicays] probation." Malicay was released from the Solano facility and admitted into Villa Lodge on January 18, 2002.
B. VIOLATION
OF PROBATION/PAROLE BY USE OF HEROIN
On March 4, 2002, representatives of Villa Lodge advised that Malicay had diluted a urine sample on March 1 and was directed to leave the program. Malicay failed to inform his probation officer of this event, and he thereafter executed a "Statement of Admission" acknowledging he had injected heroin "every couple days" between February 22, 2002, and March 4, 2002. Malicay acknowledged his drug problem but maintained his willingness to complete an outpatient substance abuse program. As indicated in the supplemental probation report, however, he had previously attended a number of drug treatment programs, without successfully completing them.
In this regard the supplemental probation report read: "The defendant related that he has a drug problem regarding his usage of heroin and is willing to attend and complete an outpatient substance abuse program as directed. He stated that he has already paid for one month for a bed at Foundations for the Future, a clean and sober living house, and would like to be able to reside at the program. The defendant related that he would be willing to complete a residential program, but would rather go into the clean and sober living house so that he would be allowed to work. It should be noted that the defendant reported he previously attended Turning Point in Santa Rosa for a five month period and was discharged for a rule violation, attended the Four Winds Lodge in San Jose voluntarily for a two month period, and complete a six-month outpatient program at the Drug Alternative Center thru Sonoma County. The defendant stated that he is willing to waive all custody credits as a condition of his probation."
The probation departments report recommended that probation be reinstated on the condition Malicay complete an intensive outpatient substance abuse treatment program. At the same time, the report acknowledged Malicay was only a marginal candidate for probation. While he admitted having a drug problem, the probation officer believed he might be minimizing the extent of his drug use. The probation report also noted that because he was a registrant under section 290, Malicay might be precluded from most placements.
At the sentencing hearing on September 5, 2002, the court indicated its intent not to reinstate probation: "Upon reviewing this report, the Court is not inclined to reinstate the defendants probation. I am aware that this is the first violation, and he turned himself in, but looking at his history involving substance abuse, how long, long standing it is, it is obvious that he needs to be in a residential treatment program. He will not make it on his own. And hes demonstrated that on this last occasion. [P] The Probation Department has indicated that he is not appropriate for residential programs.
They wont take him because hes a 290 registrant. So theres a Catch 22 here. [P] Its clear to this Court that on his own hes going to continue to use and nothing is going to stop that. Therefore, I believe that a continued grant of probation would be an exercise in futility and would be not a useful use of resources in the judicial system."
After hearing further argument from counsel, the court ruled: "The Court at this time is prepared to make a finding that this defendant is not going to succeed on probation based on the facts set forth in the probation report and his history. This Court did give him an opportunity on probation, over the objection of the district attorneys office, because of the very tiny quantity of a controlled substance found in his possession. Nonetheless, after being given that opportunity, the defendant did not do what he was supposed to do on probation. Its quite clear that he does need a residential treatment program to help him address the issues that have brought him before this Court. He will not be allowed into a residential program because of his 290 status. Therefore, the Court is prepared to terminate probation unsuccessfully."
Malicay was sentenced to three years in state prison, consisting of the low term of two years for the violation of section 4573.6, plus one year consecutive for his prior prison term. This appeal followed.
II. DISCUSSION
Malicay contends the court should have reinstated his probation.
Whether to grant or revoke probation is within the trial courts discretion. (People v. Warner (1978) 20 Cal.3d 678, 682-683, 143 Cal. Rptr. 885, 574 P.2d 1237; see generally § 1203.2, subd. (a) [probation may be revoked "if the interests of justice so require" where condition of probation violated].) To show an abuse of discretion, the defendant bears a heavy burden. Indeed, we will not disturb the trial courts discretionary determination unless the defendant shows the court acted in an "arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316, 228 Cal. Rptr. 197, 721 P.2d 79.)
Malicay has not shown that the courts refusal to reinstate his probation was arbitrary, capricious, or by any means absurd. Although the probation department recommended that probation be reinstated, it also acknowledged that Malicay was only a marginal candidate for probation. Indeed, the probation department had recommended the denial of probation in January 2002, and Malicays subsequent violation of his probation and continuing heroin use certainly did not make him a better probation candidate by the time of the September 2002 hearing. While the court in January 2002 had given Malicay an opportunity to avail himself of the only drug rehabilitation program available to him, less than two months into the program he was discharged for falsifying a drug test. Furthermore, Malicay had not successfully completed any of the treatment programs in which he had previously been enrolled, including a nine-month residential program. And although he admitted having a drug problem, purportedly stopped using heroin, and voluntarily turned himself in, the probation officer suspected he was less than candid about the extent of his illegal drug use. Under the totality of circumstances, it cannot be said the trial court abused its discretion.
Malicay argues the court should have required the probation department to search for a residential treatment program that would accept section 290 registrants. At sentencing, Malicay points out, the court recognized he needed a residential treatment program to overcome his drug problem, but believed he could not be placed in such a program due to his section 290 status. Because the supplemental probation report recited only that his status as a section 290 registrant "may preclude him from most placements," (italics added) Malicay now insists there really were some residential placements available, and the courts failure to order the probation department to explore the availability of such programs was an abuse of discretion.
We disagree. Notwithstanding the probation departments use of the words "may" and "most," its previous report had recorded Malicays parole agents advice that Villa Lodge was "the only program available to 290 registrants." (Italics added.) Malicay never disputed this assertion or suggested other potentially available programs. Nor did he dispute the courts preliminary remarks at the September 2002 sentencing hearing that no residential programs were available due to his section 290 status. Instead, his trial counsel represented: "but for the fact of his 290 registration requirement, he would actually be eligible for a residential treatment program, which all of us agree thats what he needs." (Italics added.) Having disqualified himself from the only suitable treatment program less than two months after he started, and then confirming there were no other programs available, he cannot now complain that the court did not order the probation department to find one.
Lastly, Malicay argues the court could have placed him in "Foundation for the Future" (a "clean and sober living house" for which he had already paid one months residency) and imposed additional restrictions on his movements and associations. Even if such a disposition were reasonable, the existence of a reasonable alternative disposition does not render the trial courts sentencing decision an abuse of discretion. Malicay has failed to establish that the court erred under the abuse of discretion standard.
III. DISPOSITION
The order is affirmed.
We concur.
SIMONS, J., and GEMELLO, J.