Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR258633
Siggins, J.
Timothy Douglas Morse appeals from a decision finding that he committed a first drug-related violation of his Proposition 36 probation. Morse contends that the trial court abused its discretion when it found that he willfully violated probation by failing to attend three required AA/NA meetings during the week in question. The trial court’s decision is supported by a preponderance of the evidence. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In early October 2008, Morse entered his no contest plea to a felony charge that he possessed a controlled substance in violation of Health and Safety Code section 11377, subdivision (a), and possessed a smoking device in violation of Health and Safety Code section 11364, a misdemeanor. He also admitted the truth of an allegation that he served four prior terms in state prison. In return for Morse’s plea, the district attorney dismissed two other counts and agreed the court could suspend imposition of sentence and place Morse on Proposition 36 probation. One condition of probation required that Morse attend a minimum of three AA/NA meetings per week, each on a separate day. Another term required Morse to show up for court progress reviews to help ensure that Morse was complying with all conditions.
Proposition 36 gives those convicted of nonviolent drug possession offenses three chances at probation before permitting a court to impose incarceration. The probationer is allowed to remain on probation despite up to two drug-related violations of his or her probation. Upon a third drug-related violation, the probationer may be incarcerated for the original offense. (In re Taylor (2003) 105 Cal.App.4th 1394, 1397-1398; Pen. Code, § 1210.1, subds. (a) & (f)(3)(A)-(C).)
On November 7, 2008, Morse attended his first progress review without incident. On November 21, he attended his second. At that review, Morse only presented three out of six required verifications that he attended his AA/NA meetings. The Deputy Probation Officer reported the missing verifications as a first drug-related violation of Morse’s probation.
On February 6, 2009, the court conducted a revocation hearing. Morse denied the charge and agreed that while he did not attend three AA/NA meetings by November 21, 2008, he did not miss them willfully. Morse said that he failed to attend because he misunderstood the three meeting per week requirement. He explained that he thought the “per week” requirement ran from Monday to Sunday, not Friday to Friday. So, when he came to court for his progress check on Friday, November 21, 2008, he was not aware that he was missing proof of three required meetings. At that time, he thought he could remain in compliance with probation if he attended them later that Friday, November 21, on Saturday, November 22, and on Sunday, November 23.
However, Morse was unable to produce other evidence to support his misunderstanding that he had until Sunday, November 23, 2008, to complete his three meetings. For example, he could not establish that he had gone to the three meetings on the dates he thought he could attend: November 21, 22, and 23. Nor did Morse claim that he was in custody on those days and therefore physically prevented from attending. Morse acknowledged that he initialed a form at his Proposition 36 probation orientation that signifies he read and understood the statement, “ ‘I must begin attending a minimum of three AA/NA meetings a week on separate days. These meetings must be completed by all court appearances.’ ”
At the conclusion of Morse’s testimony, the court recognized the possibility that Morse may have misunderstood that the weekly periods actually ran from Friday to Friday. The court also recognized the possibility that this misunderstanding was not detected at Morse’s first progress check because he happened to have completed three AA/NA meetings prior to that date.
However, there was also an absence of any proof that Morse had acted in accordance with his misunderstanding and actually attended three AA/NA meetings, one each on November 21, 22, and 23. The court found that absent proof Morse had in fact attended those meetings consistent with his misunderstanding, it was fair to conclude that he willfully violated his probation. This was Morse’s first drug-related violation of probation.
Morse also admitted a second drug-related violation at the February 2009 hearing. That violation is not relevant to this appeal.
Upon his showing of good cause, Morse was permitted to file a late notice of appeal. His notice of appeal was filed on June 2, 2009.
DISCUSSION
A. Standard of Review
Penal Code section 1210.1 (section 1210.1) was enacted by the voters in 2000 as part of Proposition 36, a measure designed to provide treatment as an alternative to incarceration for drug users. (People v. Tanner (2005) 129 Cal.App.4th 223, 231.) Specific rules apply when a defendant violates probation that has been granted under section 1210.1. (Id. at p. 232.) While those specific rules bear on the consequences of a violation, the prosecution is required to prove a violation by a preponderance of the evidence just like any other violation of probation or parole. (Id. at pp. 233-234.) Our review is limited to considering whether the trial court’s decision to revoke probation violates the terms of section 1210.1 or is an abuse of discretion. (People v. Beaty (2010) 181 Cal.App.4th 644, 652-653.)
“[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation.” (People v. Lippner (1933) 219 Cal. 395, 400.) However, “[w]hile the discretion of the trial court to revoke probation is said to be ‘very broad,’ the court may not act arbitrarily or capriciously.” (People v. Taylor (1968) 260 Cal.App.2d 393, 395.)Here, Morse makes no claim that the court’s decision to revoke his probation violates the terms of section 1210.1. He says the decision is unsupported by the evidence because there was no evidence from which the trial court could conclude his failure to attend the requisite NA/AA meetings was willful. We disagree.
B. Willfulness
Morse contends that his failure to complete the three required AA/NA meetings by his November 21, 2008 court progress hearing was not willful because he misunderstood the final day to comply with his weekly deadline. The problem for Morse is that he could not demonstrate to the trial court that he actually attended AA/NA meetings in reliance on his mistaken understanding. Thus, the evidence before the trial court showed that Morse did not attend the requisite meetings before his court progress check on November 21, nor could Morse demonstrate that he attended the required meetings by his mistaken deadline of November 24th. In the circumstances, we cannot conclude that the trial court's finding that Morse committed a first drug-related violation of probation was an abuse of discretion.
The cases Morse relies upon to show his violation was not willful do not help him. They address the concept of “willfulness” in circumstances where it was physically impossible for the probationer to comply with the conditions of his or her probation due to circumstances beyond their control.
The first case Morse relies upon is People v. Galvan (2007) 155 Cal.App.4th 978. In Galvan, the trial court abused its discretion when it found that a probationer willfully violated terms of his probation by failing to report to the probation department within 24 hours of his release from county jail. (Id. at pp. 980-983.) The reason for the probationer’s failure to report was that he was immediately arrested and deported by immigration officials upon his release. It was thus physically impossible for him to report as required. (Id. at p. 983.) Here, the record showed that at no time was Morse incarcerated or otherwise physically prevented from attending the three required meetings in order to comply with his asserted misunderstanding of the deadline.
The second case to which Morse cites is People v. Zaring (1992) 8 Cal.App.4th 362. In Zaring, the trial court abused its discretion when it found a probationer willfully violated her probation when she was 22 minutes late for a court appearance. (Id. at pp. 366, 376, 379.) Zaring lived 35 miles from the courthouse and in order to get to her 8:30 a.m. court appearance, she needed to arrange for a ride. Her ride fell through at the last minute, and she was forced to make other arrangements that included getting her kids to school before she could come to court. In the circumstances, it was physically impossible for her to get to the court by 8:30 a.m. (Id. at pp. 376, 379.) Zaring thus also presents a situation where the probationer was prevented from complying with a requirement of probation through no fault of her own. A key distinction between the cases to which Morse cites and his situation is that he provides no evidence to corroborate his claim that he simply misunderstood, whereas the probationers in Galvan and Zaring provided evidence that showed their non-compliance was due to factors beyond their control. (Id. at pp. 376-377; People v. Galvan, supra, 155 Cal.App.4th 978, 983.)
Morse also invokes the California Supreme Court by citing to People v. Davis (2005) 126 Cal.App.4th 1416, 1436, (citing People v. Garcia (2001) 25 Cal.4th 744, 752,) to argue that “willfulness” requires proof that the defendant knew of his or her duty to act. If, for the purpose of discussion, we were to agree with Morse’s assertion, the record supports a finding that Morse knew of his duty. During Morse’s cross-examination at the February 6, 2009 probation revocation hearing, he read aloud from a document he initialed during his probation orientation that provides, “ ‘I must begin attending a minimum of three AA/NA meetings a week on separate days. These meetings must be completed by all court appearances.’ ” Morse said he understood this condition of his probation, yet he not only failed to attend the required meetings by his November 21, 2008 court appearance, he did not show that he attended them by his misunderstood deadline.
Morse also makes a tangential argument based upon the trial judge’s comments that Morse’s interpretation of the deadline was plausible. Before finding that Morse willfully violated probation, the trial judge commented that she could understand the possibility that Morse misunderstood the date for compliance. From this, Morse asserts, “Once the court concluded that appellant could have reasonably construed the probation condition in question to allow him to complete his three meetings over the weekend, the inquiry should have ended with a finding that appellant did not willfully violate his probation.”
Morse cites to no case law to support his proposition that inquiry must end when a defendant demonstrates the theoretical possibility of an otherwise uncorroborated claim. An alternative reading of the trial judge’s comments leads to a conclusion that she was tactfully responding to Morse’s assertions of misunderstanding, while holding him to corroborate his claim with other evidence.
Morse also tries to justify his failure to show that he had in fact completed the three required AA/NA meetings following the November 21, 2008 progress appearance. He contends that at the February 6, 2009 probation revocation hearing, the court was only charged with deciding whether, as of November 21, 2008, Morse had violated the terms of probation. Morse asserts that the three dates he intended to go to the meetings were not before the court. However, as of the court progress hearing on November 21, 2008, Morse had not explained that he thought he had until that Sunday to complete his three meetings or that he had, in fact, planned to complete them on time. Instead, at his revocation hearing Morse explained, for the first time, that he thought he had three more days to attend the required meetings. Morse had the right to present evidence at the hearing that he complied with his probation in a manner consistent with his misunderstanding. (Black v. Romano (1985) 471 U.S. 606, 611-612.) But he chose not to do so.
The record thus demonstrates that Morse never mentioned to his probation officer when he attended his progress hearing that he thought he had until Sunday, November 23 to go to his three AA/NA meetings. In spite of his claim that he had three more days after his progress hearing to attend the meetings, he could not prove that he did so. Accordingly, there was sufficient evidence for the court to conclude Morse willfully violated his probation. As a result, we find no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J. Pollak, J.