Opinion
A129928
08-17-2011
THE PEOPLE, Plaintiff and Respondent, v. LOUIS OWEN MOLLES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. Nos. FCR250014 & FCR268355)
Louis Owen Molles (appellant) appeals the revocation of his probation, contending the court abused its discretion because the evidence does not establish that he violated its terms by willfully failing to participate in the Jericho Project drug rehabilitation program. Appellant also claims a resulting due process violation. We disagree and affirm.
BACKGROUND
Underlying Offenses
On October 5, 2009, pursuant to a negotiated disposition, appellant pled nolo contendere in case No. FCR250014 to possession of a controlled substance (methamphetamine) (Health & Saf. Code, § 11378) and admitted two prior drug-related conviction allegations (Health & Saf. Code, § 11370.2, subd. (c).). He also pled nolo contendere in case No. FCR268355 to possession of a controlled substance (methamphetamine) and admitted six prior prison term allegations (Pen. Code, § 667.5) and an on-bail enhancement and allegation (Pen. Code, § 12022.1). The remaining charges were dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754).
On February 8, 2010, the trial court suspended imposition of sentence and placed appellant on probation for four years, conditioned in part on his completion of the "Jericho Project Drug and Alcohol Recovery Program" (the program). At that time, appellant was informed that, given his numerous opportunities for drug treatment in the past, "there would be zero tolerance and . . . [he] would be sent to prison if there was any violation at all."
On February 24, 2010, appellant was admitted to the program. Appellant reviewed a list of the program's rules, including the following three requirements: (1) participants must do household chores each morning and evening, (2) they must work eight hours Monday through Friday (for example, clearing brush or doing construction), and (3) they must participate in group meetings for an hour every evening except Thursday and Saturday.
Appellant received three reprimands before being discharged from the program. At the August 6, 2010 probation revocation hearing, the program intake coordinator testified that on March 15, appellant was reprimanded for "manipulating" younger program participants into doing his chores. In response, appellant testified he allowed another participant to help him with his chores on this occasion because the individual volunteered, and appellant was in poor health and thus tired after a long day of work. On March 18, appellant was again reprimanded. The program's "file entry note" read as follows: "Client's inappropriate behavior was having a negative impact on his peers. Client was failing to meet the basic requirements of [the program], and his attitude and behavior were not conducive . . . for a drug and alcohol recovery environment." The program intake coordinator interpreted this notation as indicating that appellant was pushing his responsibilities onto other participants. Appellant testified that this reprimand was for leaving the light on, and for getting up late on a day that he was supposed to work. Appellant was reprimanded a third time for lack of participation in group meetings. Appellant testified he did not participate in every meeting because he "didn't have something to say every single time."
Appellant testified that upon entry to the program, he weighed 300 pounds and was out of shape. He discontinued his blood pressure medication two weeks into the program on the advice of a staff member, causing him to become tired and dizzy. Appellant lost 45 pounds during his four months in the program.
Newcomers are placed in meetings of about 20 people for the first one to three months, and then transferred to meetings of about 100 people. Appellant was in the newcomers' meeting for two to three months.
On June 27, 2010, appellant was discharged for lack of participation. After being discharged, appellant turned himself into custody. He called the program once and wrote twice trying to gain readmittance.
Appellant testified that he "never tried to stop or quit" the program and "thought [he] kept up as best [he] could." The court found appellant in violation of probation for failing to complete the program. The probation officer's subsequent sentencing report stated that "[d]ue to his negative attitude, [appellant] had become a negative influence on other clients and failed to respond favorably to treatment."
On August 27, 2010, at the judgment and sentencing hearing, appellant's probation was formally revoked, and he was sentenced on both cases to a total of 11 years eight months in state prison. On October 4, appellant timely appealed the revocation of his probation.
DISCUSSION
Appellant concedes that, contrary to program rules, he allowed another participant to help him with his chores and failed to participate in every group meeting. However, he contends the trial court abused its discretion in revoking his probation because it failed to find that he willfully violated its terms, and this violated his due process rights. We disagree.
We review the revocation of probation pursuant to an abuse of discretion standard. (People v. Rodriguez (1990) 51 Cal.3d 437, 443, 445 (Rodriguez).)An abuse of discretion will be found where the decision is arbitrary or irrational. (People v. Buford (1974) 42 Cal.App.3d 975, 985.) A revocation of probation will be reversed only in extreme circumstances. (Rodriguez, at p. 443.)
A trial court acts within its discretion where it finds that a probationer willfully violated the terms of probation. (People v. Galvan (2007) 155 Cal.App.4th 978, 981-982 (Galvan).)A violation is not willful when the probationer is incapable of fulfilling the terms of probation, or where unforeseen circumstances prevent the probationer from satisfying the terms of probation. (See, e.g., Bearden v. Georgia (1983) 461 U.S. 660, 672 [financial incapability]; In re Robert M. (1985) 163 Cal.App.3d 812, 816 (Robert M.)[mental incapability]; Galvan, at pp. 984-985 [physical incapability]; People v. Zaring, (1992) 8 Cal.App.4th 362, 379 (Zaring)[unforeseen circumstances].)
Appellant analogizes his situation to those in Robert M. and Zaring. In Robert M., the trial court abused its discretion in revoking a minor's probation for failing to achieve "satisfactory grades" where doing so was beyond his capacity. (Robert M., at p. 816.) The minor had an I.Q. of 70, and an expert testified that he was " 'functioning about five years below his current grade level in all academic areas.' " (Id. at p. 816-817.) In Zaring, the trial court abused its discretion in revoking probation after a last-minute change in childcare plans caused the defendant to arrive 22 minutes late to an 8:30 a.m. court proceeding. (Zaring, at pp. 376, 379 [noting that "things do not always go according to plan"].)
Appellant contends that his poor physical condition made him incapable of meeting the strenuous requirements of the program. This argument fails for two reasons. First, appellant was not discharged for physical inability to complete manual labor. He was discharged for allowing another participant to complete his chores and for choosing not to participate in every group meeting. Second, the trial court was entitled to disregard, as self-serving, appellant's testimony that he was physically or mentally incapable of meeting program requirements. Unlike Robert M., where an expert testified to the defendant's low I.Q. and academic deficiencies, appellant presented solely his own testimony.
Therefore, we hold that the trial court did not abuse its discretion in determining that appellant's failure to participate in the program constituted a willful violation of the terms of probation.
Appellant also raises a hearsay issue as to some of the evidence admitted at the probation revocation hearing. However, appellant's testimony, alone, supports a finding that there was no abuse of discretion. Furthermore, the hearsay issue is waived as appellant fails to provide any analysis or cite any authority in support of this argument. (See Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366; Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948.)
It follows that appellant's due process claim is also invalid. Due process does not require a heightened standard of proof in a probation revocation hearing. (Rodriguez, supra, 51 Cal.3d at p. 442.) Because the trial court did not abuse its discretion in revoking appellant's probation based on a preponderance of the evidence, appellant's due process rights were not violated.
DISPOSITION
The order revoking appellant's probation is affirmed.
SIMONS, J. We concur. JONES, P.J. BRUINIERS, J.