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People v. Parra

Court of Appeals of California, Second Appellate District, Division Six.
Nov 24, 2003
2d Crim. No. B164126 (Cal. Ct. App. Nov. 24, 2003)

Opinion

2d Crim. No. B164126.

11-24-2003

THE PEOPLE, Plaintiff and Respondent, v. ROBERTO HECTOR PARRA, Defendant and Appellant.

Richard Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, Catherine Okawa Kohm, Deputy Attorney General, for Plaintiff and Respondent.


Roberto Hector Parra was placed on felony probation after pleading no contest to a felony count of evading a peace officer. He appeals from a subsequent order revoking his probation and imposing a prison sentence. Parra argues that the evidence did not support two of the three violations that the court relied upon to revoke probation. We affirm.

BACKGROUND

On February 22, 2002, 19-year-old Parra led Santa Maria Police Department officers on a high speed chase through a residential neighborhood while driving a stolen car. He pled no contest to a single felony count of evading a peace officer with a willful and wanton disregard for the safety of persons or property. (Veh. Code, § 2800.2, subd. (a).) At the time of these offenses, Parra was on probation in two misdemeanor cases and his criminal history included a number of juvenile adjudications for misdemeanor offenses. The probation officer recommended a prison sentence based on this criminal history, but the court placed Parra on probation with conditions that, among other things, he serve a year in local custody, abstain from alcohol and drugs, possess no weapons and submit to searches and drug tests.

Parra served his time in local custody and was released on September 18, 2002. On October 2, he was contacted by police officers who recognized him as a probationer with search conditions. Parra smelled of alcohol and admitted drinking a 24-ounce can of beer that day. A search revealed an ice pick with a four-and-one-half-inch blade in one pants pocket and a folding knife with a two-and-one-half-inch blade in the other. The officers took Parra into custody and obtained a urine sample that tested positive for amphetamine and methamphetamine.

The probation department filed a petition to revoke Parras probation. Parra testified that he had an ice pick on the day of his arrest because he was going to use it to fix a bicycle. The pocketknife had been given to him as a gift by his brother when he was released from jail. Parra denied that he had taken methamphetamine on the day he was stopped by officers. He testified that a friend had given him two "energizing pills" because he was having a hard time staying awake at work.

The trial court found that Parra had violated the alcohol, drug and weapons conditions of his probation. It ordered his probation revoked and sentenced him to prison for the three-year upper term.

DISCUSSION

Parra contends the trial court should have reinstated his probation rather than sentencing him to prison. He claims the evidence did not support the courts findings that he had possessed weapons and used illegal drugs. He acknowledges the consumption of alcohol, but characterizes this as a "de minimis" violation that did not warrant a prison sentence.

Probation is a matter of clemency, not of right. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) Penal Code section 1203.2, subdivision (a) authorizes the court to revoke probation after proper notice and a hearing "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation . . . ." A probation violation must be proved by a preponderance of the evidence and is subject to review under the deferential abuse-of-discretion standard. (People v. Rodriguez (1990) 51 Cal.3d 437, 440-442.)

The evidence presented at the revocation hearing showed that Parra had violated three separate conditions of probation by consuming alcohol, taking amphetamine or methamphetamine, and possessing a knife and an ice pick, either of which could be used as weapons. Parra complains that the knife and ice pick were instruments with lawful purposes that did not necessarily qualify as weapons, but the court did not abuse its broad discretion in finding to the contrary. Nor was the court bound by Parras "uncontradicted" testimony that his positive drug test was the result of taking an energy pill rather than an illegal substance. The trial court was the trier of fact and could reasonably conclude Parras testimony on this point was not credible.

The trial court did not act arbitrarily when it determined that a prison sentence was appropriate because Parra was unwilling to comply with the terms of probation. Parras juvenile record is lengthy, albeit his crimes were all misdemeanors. Since becoming an adult, he has suffered two misdemeanor convictions in addition to the felony conviction in this case. His probation violations here occurred less than two weeks after his release from custody. Only in a "very extreme case" should an appellate court interfere with the discretion of the trial court in revoking probation. (People v. Rodriguez, supra, 51 Cal.3d at p. 443.) This is not such a case.

The judgment (order revoking probation and imposing prison sentence) is affirmed.

We concur: GILBERT, P.J. and PERREN, J.


Summaries of

People v. Parra

Court of Appeals of California, Second Appellate District, Division Six.
Nov 24, 2003
2d Crim. No. B164126 (Cal. Ct. App. Nov. 24, 2003)
Case details for

People v. Parra

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERTO HECTOR PARRA, Defendant…

Court:Court of Appeals of California, Second Appellate District, Division Six.

Date published: Nov 24, 2003

Citations

2d Crim. No. B164126 (Cal. Ct. App. Nov. 24, 2003)