Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Ct.No. FVA022230, Michael A. Knish, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
R. Randall Riccardo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
In September 2004, defendant pled guilty to unlawfully manufacturing, distributing, or selling false government documents in violation of Penal Code section 113. In return, defendant was placed on three years of formal probation on various terms and conditions.
All future statutory references are to the Penal Code unless otherwise stated.
Subsequently, the probation department filed a petition to revoke defendant’s probation based on his failure to report to the probation department. Following a probation revocation hearing, the trial court found defendant violated the terms and conditions of his probation, revoked his probation, and sentenced him to five years in state prison.
On appeal, defendant contends (1) the trial court failed to exercise its discretion in determining whether defendant should be reinstated on probation; (2) the trial court failed to recognize and exercise its discretion under People v. Johnson (2002) 28 Cal.4th 1050 (Johnson waiver) to reinstate probation with a waiver of custody credits; and (3) in the alternative, the trial court abused its discretion when it declined to reinstate him on probation. We reject these contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
In June 2004, defendant and three others sold illegal and false government documents to an undercover officer. On September 14, 2004, prior to his preliminary hearing, defendant pled guilty to the charge pursuant to a negotiated plea agreement, in which the parties stipulated defendant would be placed on three years of felony probation on various terms and conditions, including serving 365 days in county jail.
On October 12, 2004, defendant was placed on supervised probation in accordance with the plea agreement. Among others, the terms of defendant’s probation included (1) not remain in or reenter the United States without proper government authorization and report forthwith to his probation officer with written proof of authorization upon reentering the United States (term No. 2); (2) report to his probation officer immediately upon release from custody and every 14 days thereafter or as directed (term No. 4); and (4) cooperate in a plan of rehabilitation and follow all reasonable directives of the probation officer (term No. 5).
On July 15, 2005, the probation department filed a petition to revoke defendant’s probation based on his willful violations of terms No. 4 and 5. Defendant’s probation was revoked, and a bench warrant was issued for his arrest.
The probation revocation hearing was held on October 3, 2007. At that hearing, Probation Officer Robert Moreno testified that on July 17, 2007, he had spoken with defendant by telephone. Defendant had stated that he had been back in the United States for two and a half years following his deportation to Mexico and admitted to failing to report to probation during that time. He also admitted to reentering the United States illegally. According to probation department database records, defendant had made no contact with probation department authorities after he was released to Immigration and Naturalization Services (INS) officers on October 13, 2004.
Defendant also indicated that he had been working and residing with his cousin. Although defendant said he did not know that he had to pay fines and fees, he did not deny knowledge of his duty to report. Defendant did not explain why he did not report.
Probation Officer Moreno opined that defendant would not be able to cooperate with or be supervised by probation because he might be pending deportation again due to his immigration status, and his whereabouts would be unknown. A record check revealed defendant had no new felony or misdemeanor violations.
Following argument of counsel, the trial court found defendant willfully violated probation by failing to report to the probation department during the two and a half years he was in the United States following his illegal reentry. The court specifically found defendant violated terms No. 2, 4, and 5.
Subsequently, the court found defendant was not amenable to continued supervised probation, noting defendant would probably face deportation again. In denying reinstatement of probation, the court stated to defendant, “. . . I want you to know that this doesn’t bring me any joy to sentence you to prison for five years. You didn’t have any criminal record before this . . . but the statute that you violated, Penal Code section 113, selling or possessing false documents regarding citizenship, the statute states that any person who is convicted of that shall be punished by imprisonment in the state prison for five years. That’s the only sentence that is provided by law. The only alternative is probation. You were given a chance at probation, but I found today that you violated that. So I have no other choice but to sentence you to that. And it is harsh, but that’s what the law states.”
Defendant thereafter stated, “I was never told that I was on probation, and I was never given a phone number to call or anything.” The court replied, “Unfortunately, . . . you weren’t called to testify in the hearing. But I note that although I didn’t do the sentencing . . . I am certain that when you were sentenced, that the judge read these terms. It shows you did have an interpreter. [¶] And there were findings that were made. You were placed on three years[’] probation. And the term ‘Do not remain in or reenter the U.S. without proper written authorization; upon reentering the U.S. report forthwith to the probation officer with written roof of authorization’ is here.”
Defendant then asked if there was any way the court could sentence him to one year of custody due to family concerns. The court replied, “I understand. I can’t. But I wish – well, . . . I am not saying I wish I could. The law is the law, and that’s what we are dealing with here.” Thereafter, the court revoked defendant’s probation and sentenced him to five years in state prison with credit for time served.
II
DISCUSSION
A. Exercise of Discretion
Relying on statements made by the trial court at the time of sentencing, defendant claims the trial court failed to exercise its discretion in determining whether he should be reinstated on probation. We disagree.
After the trial court here found defendant had willfully violated probation, the court had the discretionary authority to either reinstate probation on the same or modified terms or terminate probation and execute the previously imposed and suspended sentence. (People v. Medina (2001) 89 Cal.App.4th 318, 321-323.) However, it is only when an issue entrusted to the trial court’s discretion is properly presented to the court for decision that the court must exercise its discretion. (People v. Angus (1980) 114 Cal.App.3d 973, 987.) An “abuse of discretion is not presumed from a silent record, but must be clearly shown . . . .” (People v. Preyer (1985) 164 Cal.App.3d 568, 574.)
In his reply brief, defendant claims there was no evidence in the record to show that he willfully violated probation. The record belies this contention. Defendant failed to report to his probation officer for two and a half years after illegally reentering the United States. Even if there was some evidence, via defendant’s self-serving statement, suggesting he was unaware of his obligation to report to his probation officer, there was more than sufficient evidence demonstrating defendant had reentered the United States illegally, thereby violating probationary term No. 2.
In this case, the trial court was well aware of its options to either reinstate defendant on probation or sentence defendant to state prison. Defense counsel asked the court to reinstate defendant on probation or sentence him to 365 days in county jail on a Johnson waiver. In addition, contrary to defendant’s suggestion, the court’s statements make it clear that the court knew it had an option to reinstate defendant on probation or sentence defendant to state prison, but chose not to reinstate defendant on probation for reasons discussed in part II.B, post. The trial court did not state either explicitly, or by necessary implication, that it had no discretion or authority other than to impose a prison sentence. Consequently, this case is factually distinguishable from People v. Medina, supra, 89 Cal.App.4th at p. 320; People v. Manriquez (1991) 235 Cal.App.3d 1614, 1620; People v. Read (1990) 221 Cal.App.3d 685, 689; and People v. Marquez (1983) 143 Cal.App.3d 797, 804, relied upon by defendant. In those cases, the trial courts explicitly and erroneously stated that they had no discretion or authority other than to impose the challenged sentence.
Defendant asks us to infer that the trial court concluded it had no discretion because it believed probation was not an option for a person illegally in the Unites States. However, the trial court’s statement was no more than an affirmative response to the testimony of the probation officer that defendant was not be amenable to continued probation supervision and that defendant had been given a chance on probation. The court’s statements do not support an inference that it was acting under the mistaken belief that it had no other choice. (People v. Angus, supra, 114 Cal.App.3d at p. 987.)
In a related claim, defendant also argues that the trial court failed to recognize its discretion under People v. Johnson, supra, 28 Cal.4th 1050 to reinstate probation with a waiver of custody credits, which would have allowed for an appropriate means for attaining an appropriate disposition in this case. Again, we disagree. As the record reveals, the court was aware it had an option to sentence defendant to 365 days in county jail with a Johnson waiver but chose not to do so. A thorough review of the record reveals that the court’s comment stating, “The law is the law” was referring to the fact that section 113 did not permit a prison term less than five years.
B. Failure to Reinstate Probation
In the alternative, defendant contends the trial court abused its discretion when it declined to reinstate him on probation.
Probation is “‘an act of clemency that may be withdrawn if the privilege is abused [citation] . . . .’” (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 or her probation. (§ 1203.2, subd. (a).)
The trial court’s sentencing choices, including whether to reinstate probation or sentence a defendant to prison, are reviewed for abuse of discretion. (People v. Downey (2000) 82 Cal.App.4th 899, 909.) “We will not interfere with the trial court’s exercise of discretion ‘when it has considered all facts bearing on the offense and the defendant to be sentenced.’” (Id. at p. 910.) A defendant’s previous failures to comply with the terms of probation constitute sufficient reason for refusing to place him on probation once again. (People v. Jones (1990) 224 Cal.App.3d 1309, 1316.) The court may properly consider events subsequent to an original grant of probation when deciding whether to revoke or reinstate probation. (People v. White (1982) 133 Cal.App.3d 677, 681.) To be entitled to relief on appeal from an alleged abuse of discretion, it must clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of justice. (People v. Preyer, supra, 164 Cal.App.3d at pp. 573-574; People v. Zaring (1992) 8 Cal.App.4th 362, 378.)
In support of his argument of abuse of discretion, defendant asserts that the court only considered his immigration status without considering the factors outlined in California Rules of Court, rule 4.414. Initially, we note that defendant waived the issue that the court failed to consider the factors outlined in that rule. (People v. Scott (1994) 9 Cal.4th 331, 351-354.)
In any event, we reject defendant’s claim. Defendant cites to People v. Sanchez (1987) 190 Cal.App.3d 224, 231-232 (Sanchez), and People v. Cisneros (2000) 84 Cal.App.4th 352, 357-359 (Cisneros) for the proposition that a trial court may not rely entirely on a criminal defendant’s immigration status to deny either probation or some sort of diversion program. In Sanchez, the Court of Appeal held that a defendant’s status as an illegal alien is highly relevant to the issue of whether to grant probation because it bears directly on whether the defendant can comply with the terms of probation. (Sanchez, at pp. 230-231.) The appellate court observed that “[w]hen dealing with an illegal . . . alien, the trial judge must assume, barring presentation of . . . credible evidence to the contrary, a defendant will be deported upon completion of any term of incarceration imposed.” (Id. at p. 230.)
In addition, in Sanchez the appellate court affirmed not one but two denials of probation where, in both instances, the first of only two reasons cited by the trial court was immigration status. The court held, “Considering the record before us . . ., it is clear the illegal alien status of [the defendants] was but one of several factors weighed and considered by the trial court in denying probation.” (Sanchez, supra, 190 Cal.App.3d at p. 232, fn. omitted.) And in Cisneros, the appellate court reversed a trial court’s denial of a convicted defendant’s admission into a deferred entry of judgment program because it was unmistakable from the record that the only reason for the trial court’s ruling was the defendant’s illegal alien status. Citing Sanchez, the court specifically noted, “Illegal alien status is a legitimate factor for consideration but does not categorically preclude a grant of probation. [Citation.] An illegal alien may be a poor candidate for probation given typically limited ties to the community and the prospect of deportation. [Citation.]” (Cisneros, supra, 84 Cal.App.4th at p. 358.)
By comparison, this trial court did not predicate its decision solely on defendant’s immigration status. The court also cited the circumstances of defendant’s willful violation of probation, i.e., his failure to report to his probation officer for two and a half years, and the fact that defendant was tried on probation and hence his poor prior performance on probation. In addition, the court was aware that defendant was working and that he had not been arrested in the previous couple of years. As opposed to ineligibility, and contrary to defendant’s claim, the record reveals that defendant’s immigration status was only one legitimate factor considered by the trial court in determining defendant’s amenability to another grant of probation.
For the same reasons, nothing in the trial court’s denial of reinstatement of probation offends the constitutional guarantee of equal protection. In Sanchez, the appellate court rejected the argument that the equal protection clauses invalidated reliance on that appellants’ illegal alien status as a basis for denial of probation. In so doing, the court explained, “The equal protection clause directs that ‘all persons similarly circumstanced shall be treated alike.’ [Citation.] However, the ‘Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.’ [Citation.] Despite appellants’ contentions to the contrary, legal residents of the United States and illegal residents are not persons ‘similarly circumstanced’ which the federal and state Constitutions require to be treated alike. In fact, while the Supreme Court held that children of illegal entrants could not be deprived of a free, basic education based on their parents’ misconduct as to do so would not comport with fundamental conceptions of justice, the court further noted that ‘those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation.’ [Citation.]” (Sanchez, supra, 190 Cal.App.3d at p. 229.)
The court also noted the basic rules governing grants or denials of probation: “‘“Granting or denying probation rests in the sound discretion of the trial judge, and a heavy burden is imposed upon a defendant to show abuse of that discretion in denying a request for probation.”’ [Citations.] California Rules of Court (hereinafter Rule), rule 414(d)(3) provides that a defendant’s willingness and ability to comply with terms of probation [‘]shall be considered in a decision to grant or deny probation.’ Rule 414(d)(4) provides that a defendant’s family background and ties are factors affecting eligibility for probation. The advisory committee comment to Rule 414 reads in part as follows: ‘The decision whether to grant probation is normally based on an overall evaluation of the likelihood that the defendant will live successfully in the general community. Each criterion points to evidence that the likelihood of success is great or small. A single criterion will rarely be determinative; in most cases, the sentencing judge will have to balance favorable and unfavorable facts. [¶] []Under criterion (d)(3) (“willingness and ability”) it is appropriate to consider the defendant’s expressions of willingness to comply and their apparent sincerity, and whether the defendant’s home and work environment and primary associates will be supportive of his efforts to comply with the terms of probation, among other factors.’ [Citation.] [¶] In the instant case, in light of appellants’ lack of ties with the community, the sentencing judges were concerned with appellants’ ‘ability to comply with the terms of probation.’ [Citation.] In our view, such concern is a legitimate factor to be weighed and considered by a sentencing court in determining whether or not to grant probation to an illegal alien.” (Sanchez, supra, 190 Cal.App.3d at pp. 229-230.)
The same rules of court relied on in Sanchez are pertinent here: This trial court had before it information that defendant entered the United States illegally and that he would presumably be deported and therefore he would not be a good candidate for probation. One reason he would not be such a “good candidate” would be, quite obviously, because of his likely inability to comply with all the terms and conditions of probation if deported. Nothing in the equal protection clause prohibits a trial court considering probation for a defendant from relying in part upon a probation report suggesting that the defendant is very likely to be deported (and hence quite unavailable to the relevant probation department) because of the offense of which he has been found guilty. (Cf. Sanchez, supra, 190 Cal.App.3d at pp. 228-232.) The record before us confirms that nothing more than that happened here.
We reject defendant’s claims that the trial court abused its discretion in declining to reinstate defendant on probation.
III
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, Acting P.J., KING,J.