Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC060769A
Jones, P.J.
Serge Daver Navarro appeals from an order revoking his probation. He contends (1) the court erred when it revoked his probation, and (2) the court sentenced him incorrectly. We reject these arguments and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 27, 2006, near 7:00 p.m., appellant was driving on Highway 1 in a rainstorm when he collided with another car. Two passengers in the other car were injured. A police officer who was dispatched to the scene determined that appellant was under the influence of alcohol. Subsequent testing revealed that appellant’s blood alcohol level was more than twice the legal limit.
Based on these facts, on March 28, 2006, an information was filed charging appellant with driving under the influence and causing injury (Veh. Code, § 23153, subd. (a)), and driving with a blood alcohol level of .08 or more and causing injury (Veh. Code, § 23153, subd. (b)). As to both counts, the information alleged appellant had harmed multiple victims. (Veh. Code, § 23558.) The information also alleged appellant had a prior conviction for driving under the influence. (Veh. Code, § 23540.)
Appellant pleaded guilty as charged on June 7, 2006. On July 21, 2006, the trial court sentenced appellant to the upper term of three years for driving under the influence, plus one year for the multiple victim finding, for a total of four years in prison. The court then suspended the execution of sentence and placed appellant on probation. One of the terms of appellant’s probation was that he was required to enter and complete the Daytop Residential Drug Program (hereafter Daytop).
On November 21, 2006, appellant’s probation officer filed a petition to revoke alleging appellant had violated his probation by failing to enter and complete Daytop.
After a contested hearing, the court found the petition to be true. The court then lifted the sentence suspension and ordered appellant to serve the four-year term that had been imposed previously.
II. DISCUSSION
A. Whether the Court Properly Revoked Appellant’s Probation
Appellant contends the trial court erred when it ruled he violated his probation. To put his arguments into context, we must provide some background.
The prosecutor called appellant’s probation officer, N. Laronda Johnson, to testify at the revocation hearing. She stated appellant was already participating in Daytop when she began monitoring him. In early November 2006, counselors from Daytop called Johnson and asked her to help “get [appellant] in line” with the program. Johnson and the counselors met with appellant on November 3, 2006. They discussed appellant’s “inappropriate conduct” with other residents, and the fact that it was “detrimental to his stay at the program . . . .” They also told appellant “he needed to work on his behavior in order to remain at the program and to remain on probation.” Appellant “seemed to understand that his behavior was detrimental and that he needed to change . . . .” At the meeting Johnson told appellant specifically that “if he did not complete Daytop . . . he would be arrested and most likely spend time in prison.”
Two weeks later, on November 17, 2006, staff from Daytop called Johnson and told her appellant was being discharged. Johnson went to Daytop and placed appellant under arrest.
The attorney who represented appellant at the probation revocation hearing successfully objected to several aspects of Johnson’s testimony. As a result of those objections, the prosecution’s evidence did not show clearly what acts appellant had committed that triggered his discharge from Daytop.
After the prosecution rested, defense counsel argued the prosecution had failed to show that appellant’s termination was “reasonable.” The court disagreed such a finding was required: “I don’t think I have to find a reasonable discharge. . . . I think there is sufficient evidence here to show that Defendant was told he had to enter and complete, was warned that he was in danger of not completing, and then did not complete it. I think there is sufficient evidence here to show a willful failure to comply with the terms of probation.”
In light of the court’s statements, defense counsel elected to call appellant as a witness. He acknowledged that Johnson had warned him that if he did not complete the program, he would be incarcerated. However, appellant said the purpose of the November 3, 2006, meeting was to discuss the fact that the Daytop staff was not administering his medications correctly. Appellant admitted he had an interaction with a resident for which he was disciplined. He also admitted another incident in which he called another resident a “whore.” He denied ever telling other residents that his blood might end up in a punch bowl.
After the defense rested, the court reiterated its belief that the basic issue before it was whether appellant had been terminated, not the reasonableness of that decision. However, the court acknowledged that the circumstances of the discharge might be relevant: “if there is some kind of defense of necessity . . . some kind of vindictive discharge because he was a troublemaker, that he voiced legitimate concerns, some kind of whistleblower defense . . . whatever the analogy is, and you would like a continuance to put on someone from Daytop, I’m going to give you that.” Defense counsel accepted the court’s offer and the hearing was continued for about one month.
When the hearing resumed, the defense did not present testimony from anyone from Daytop. Instead, appellant himself testified briefly. At the conclusion of that testimony, and after hearing argument from counsel, the court ruled as follows: “it seems to me that it was his responsibility to complete the Daytop program. He was ordered to enter and complete it. He did not. [¶] More than that, he had been warned not to be disruptive in any way, shape, or form, or he would be discharged from the program. He was warned that he was close to being discharged from the program. And he was disruptive once again. [¶] I did not hear evidence that he was acting unconsciously. I did not hear evidence that the conduct which gave rise to the disruption that he had been warned against was non-volitional conduct. [¶] As a result of his conduct after the warnings, he was discharged from the program unsuccessfully. He was terminated as an unsuccessful candidate for the program, thereby violating one of the conditions of his probation.”
Appellant now challenges the court’s ruling arguing the court erred when it found he had violated his probation.
Probation is an act of clemency that may be withdrawn if the privilege is abused. (People v. Smith (1970) 12 Cal.App.3d 621, 626.) A court may revoke and terminate probation “if the interests of justice so require” and the court, in its judgment, has reason to believe that the probationer has violated any of the conditions of his probation. (Pen. Code, § 1203.2, subd. (a).) The facts supporting revocation of probation must be proven by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 439.) The trial court is vested with the authority to determine whether a defendant has violated his probation and its ruling will be reversed on appeal only if the court abused its discretion. (People v. Smith, supra, 12 Cal.App.3d at p. 626.)
We find no abuse here. Appellant was required, by the terms of his probation, to enter and complete Daytop. The evidence at the revocation hearing showed appellant entered Daytop, but that he did not complete it. We do not hesitate to conclude that the court did not abuse its discretion when it ruled appellant had violated his probation.
Appellant contends the court could not validly find he violated his probation without finding that his termination from Daytop was reasonable. While the court’s comments indicate that it believed such a finding was not required, the court then found, as a matter of fact, that appellant’s termination from Daytop was reasonable. Specifically, the court stated that appellant “had been warned not to be disruptive in any way, shape, or form, or he would be discharged from the program. He was warned that he was close to being discharged from the program. And he was disruptive once again. [¶] . . . I did not hear evidence that the conduct which gave rise to the disruption that he had been warned against was non-volitional conduct. [¶] As a result of his conduct after the warnings, he was discharged from the program unsuccessfully.” Thus, contrary to appellant’s argument, the court made the finding he contends is required.
Next, appellant contends the trial court erred because it relied on evidence that had been excluded when finding that he had violated his probation. This is incorrect. The court said appellant had been terminated from Daytop because he had been “disruptive” toward other residents. That finding was supported by evidence that was before the court without objection. Indeed, appellant himself admitted that he had been disciplined because of the way he treated one resident, and that he had called another resident a “whore.” The court’s finding was supported.
Finally, appellant argues the court erred when it placed on him the burden to show that he had some possible defense to the decision to revoke. Appellant contends this was improper because the prosecution has the burden of proving the grounds for revocation. While the prosecutor did have the burden of proving by a preponderance of the evidence that appellant violated his probation, (People v. Rodriguez, supra, 51 Cal.3d at p. 447) the court could validly place on appellant the burden of proving any affirmative defense. Indeed, case law has long held that it is “constitutional to require a criminal defendant to bear the burden of proving an affirmative defense by a preponderance of the evidence.” (People v. Bolden (1990) 217 Cal.App.3d 1591, 1601; see also Simons, California Evidence Manual (2007) § 9:5, p. 546.)
We conclude the court properly found that appellant violated his probation.
B. Sentencing
At the original sentencing hearing, held on July 21, 2006, the trial court sentenced appellant to the upper term of three years for his driving under the influence conviction, plus one year for the multiple victim finding for a total of four years in prison. The court then suspended the execution of sentence and placed appellant on probation.
Subsequently, on March 2, 2007, the court found appellant had violated his probation. That same date, the court lifted the sentence suspension that was in place and ordered appellant to serve the four-year term that had been imposed the prior July.
Appellant now contends his upper-term three-year sentence must be reversed because it was based on facts that were not found by a jury to be true and thus violated Apprendi v. New Jersey (2000) 530 U.S. 466, and its progeny.
The issue is not properly before us. The upper term sentence appellant challenges was imposed on July 21, 2006. Appellant did not challenge that ruling and it is now final. (See Cal. Rules of Court, rule 8.308(a).) The validity of a final judgment that is imposed but suspended, is not cognizable on an appeal from a subsequent decision to revoke probation and execute the sentence that was previously imposed. (See People v. Preyer (1985) 164 Cal.App.3d 568, 576.)
This principle was applied in People v. Chagolla (1984) 151 Cal.App.3d 1045. There, the trial court sentenced the defendant to prison, but suspended the execution of the sentence and placed the defendant on probation. Subsequently, the defendant violated his probation and the court lifted the suspension and ordered appellant to serve the sentence that was originally imposed. On appeal, the defendant attempted to argue that the court erred when it imposed the sentence originally. The Chagolla court declined to address the argument, “When Chagolla was sentenced to state prison in 1979, failure to state reasons for the imposition of the state prison sentence would have been appealable at that time. That judgment is now final. [Citation.] Failure to state reasons for the state prison commitment should have been called to our attention for review when the sentence was imposed. Chagolla did not, we will not.” (Id. at p. 1048.)
Here as, in Chagolla, appellant could have appealed his sentence when it was imposed in July 2006. He did not, and that decision is now final. We will not, at this late stage, review the validity of a decision that is long since final.
Appellant argues that his failure to object to the sentence in the court below did not result in a forfeiture of his right to raise the issue on appeal because such an objection would have been futile. (See, e.g., People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5.) However, we do not base our decision on forfeiture. Rather, we base our decision on finality. We decline, on direct appeal, to review a prior decision that could have been, but was not appealed.
III. DISPOSITION
The order revoking probation is affirmed.
We concur: Simons, J. Needham, J.