Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County. Mark S. Arnold, Judge. Los Angeles County Super. Ct. No. VA083405
Barbara A. Smith, 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, Lance E. Winters and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Darnell Thomas Martin appeals from the trial court’s order revoking his probation and remanding him to prison. We affirm.
FACTS AND PROCEEDINGS
In June 2004, appellant Darnell Thomas Martin pleaded guilty to possession of marijuana for sale. The court suspended appellant’s sentence and placed him on three years’ formal probation. As a condition of probation, he was to report to his probation officer twice a month. In late 2006, the court revoked and then reinstated appellant’s probation. Appellant reported to his probation officer once in January 2007. In February, appellant’s probation officer was absent when appellant tried to report, leading appellant to sign the department’s visitor log and then leave. Appellant did not report in March, blaming his work hours for making it difficult to get to the probation department’s offices, an excuse he attempted to phone in to his officer.
In March 2007, someone—presumably a Brian Curtis, whose fingerprints were found at the scene—broke into Joseph Pamula’s home. The burglar stole, among other things, thousands of coins. Some of the coins were distinctive, either because they were commemorative Eisenhower dollars from the American Bicentennial, foreign, or old, such as 1907 and 1908 half-dollars. Following the burglary, police put Brian Curtis, who lived with the sister of appellant’s girlfriend, under surveillance.
Appellant slept a few nights a month at the home his girlfriend (Miller) shared with her sister and Curtis. After surveilling Curtis over several days a few weeks after the burglary, police executed a search warrant at the house. Appellant had spent the night there and was getting ready for work when police arrived. During their search, police focused on the bedroom appellant and Curtis shared with their girlfriends. Police found a bag holding thousands of coins next to Curtis’s bed. Police also recovered from appellant’s pocket a 1908 silver half-dollar. Appellant claimed he received the silver half-dollar from an acquaintance of Curtis and had kept it to give to his daughter to put in her piggy bank. During the search, police also recovered from appellant’s bed a pill bottle containing rock cocaine. Appellant denied knowing about the cocaine, and a fingerprint on the bottle could not be matched to appellant, Curtis, or their girlfriends. The police arrested appellant and the court revoked his probation. At the probation revocation hearing, the court found appellant had violated probation and sentenced him to 16 months in state prison. This appeal followed.
A police detective testified appellant told him he slept at the house a couple nights a week.
The evidence booking log misdescribed the coin as a 1958 silver half-dollar. The trial court concluded the discrepancy was an inconsequential clerical error because, in the court’s experience, silver half-dollars of either vintage were sufficiently rare to alert appellant that the coin he received from Curtis’s acquaintance was not an ordinary coin.
DISCUSSION
A court may revoke a defendant’s probation if the court finds by a preponderance of the evidence that the defendant willfully violated a condition of probation. (People v. Galvan (2007) 155 Cal.App.4th 978, 982.) We review revocation of probation for abuse of discretion. (Id. at p. 982.) Here, the court found appellant had violated probation on two grounds. As to the failure to report to his probation officer, the court stated, “All right. He is clearly in violation for not reporting. Out of his own mouth he admitted that he was supposed to report but he didn’t.” The court also found appellant violated the “obey all laws” term of probation by his possession of cocaine. We discuss each ground separately.
The trial court initially also ruled that appellant’s possession of the coin constituted receipt of stolen property thus violating probation, but then appears to have reversed itself and concluded that appellant may not have known the coin was stolen. We do not base our affirmance of the court’s probation revocation on that ground.
A. Failure to Report
Appellant contends his failure to report was too trivial to violate probation. He cites two decisions, but each is distinguishable. In People v. Galvan, supra, 155 Cal.App.4th at pages 980 and 981, a sentencing court ordered a defendant, who was unlawfully in the United States, to report to the probation department within 24 hours of his release from county jail. Immediately upon his release from jail, however, immigration authorities promptly detained and deported him, making it impossible for him to report to the probation department. On review, the appellate court held his failure to report was not willful and therefore did not violate probation. (Id. at p. 983.) Appellant’s second authority, People v. Zaring (1992) 8 Cal.App.4th 362, 375, 379, likewise involved a violation of probation that was not willful and therefore did not support revoking probation. In Zaring, the probationer lived 35 miles from the courthouse and needed to arrange a ride from a friend to get to an 8:30 a.m. court hearing. Her ride fell through at the last minute, however, because of child care problems, forcing her to make other arrangements, delaying her arrival to the hearing by 22 minutes. (Id. at p. 366.) The appellate court in Zaring found probationer’s tardy arrival for reasons beyond her control did not violate probation. Here, appellant’s repeated failures to report over several months to his probation officer did not arise from circumstances similar to those in the two decisions he cites.
As a measure of the purported insignificance of his failure to report, appellant notes that the probation department did not report his nonappearances to the trial court. His probation officer testified, “We give them enough time to come in. We do not set up court dates immediately.” Appellant cites no authority, however, that the probation department’s indulgence of his failure to report overrides the trial court’s order to report. Probation is an agreement between the court and appellant, and appellant cites no authority that the department’s forgiving disposition can waive his obligation to the court. (See Pen. Code, §§ 1203.2, subd. (b) [court may revoke probation on its own motion], 1203.3, subd. (a) [“court shall have authority at any time during the term of probation to revoke” order granting probation].)
B. Possession of Cocaine
The testimony was that appellant and his girlfriend Miller shared the bed on which the pill box with the cocaine was found. There was no evidence that the cocaine belonged to Curtis or Curtis’s girlfriend, who both slept on another bed in the same room. Although the evidence was not overwhelming, and appellant denied that the cocaine was his, the trial court was free to disregard that testimony. Because it was unlikely that Curtis or his girlfriend would have left their cocaine on appellant’s bed, and in view of appellant’s testimony that the narcotics were not Miller’s, the trial court reasonably concluded the drugs belonged to appellant.
Appellant complains about the trial court’s refusal to allow evidence of Miller’s statement to the police. He acknowledges Miller was not called as a witness and likely would have invoked her privilege against self-incrimination in any event. Without any support in the record, he complains that “the court excluded statements she made [to the police officers] which in context it appeared would have indicated she claimed the drugs on the bed.” We reject the implication of this argument on several grounds. First, appellant acknowledges that the court’s evidentiary ruling was correct. Second, appellant was not precluded from calling Miller as a witness, in which case we would have a record to assess meaningfully his contentions. Miller was not subpoenaed and left without testifying in order to go to work. Finally, the charge that she would have claimed the narcotics as her own is speculative at best and is belied by appellant’s own testimony that Miller did not have narcotics and was not a user.
Because the trial court found properly that appellant had violated his probation, we find no abuse of discretion in the court’s revocation of probation and imposition of a state prison sentence.
DISPOSITION
The order revoking probation is affirmed.
WE CONCUR: COOPER, P. J., BIGELOW, J.