Opinion
H041297
02-06-2017
THE PEOPLE, Plaintiff and Respondent, v. EFRAIN PEREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS131009A)
Defendant Efrain Perez appeals the trial court's order finding him in violation of his probation. Defendant argues that there was insufficient evidence that he willfully violated his probation by failing to register as a gang member, and as a result, the court's finding that he violated probation was in error. In addition, defendant argues that the requirement that he provide complete information in his gang registration violated his Fifth Amendment privilege against self-incrimination.
STATEMENT OF THE CASE
The underlying facts of this case are omitted because they are not relevant to the issues on appeal.
In February 2014, defendant was charged with selling or offering to sell methamphetamine (Health & Saf. Code, § 11379, subd. (A); count 1), possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 2), and street terrorism (Pen. Code, § 186.22, subd. (a); count 3). A gang enhancement was alleged as to each count in the information (Pen. Code, § 186.22, subd. (b)(1)(A)).
In April 2014, defendant pleaded no contest to count 3, and the two remaining counts were dismissed. The court suspended imposition of sentence and placed defendant on probation for five years. As a condition of probation, defendant was required to register as a gang member pursuant to Penal Code section 186.30.
On June 26, 2014, the court found that defendant violated his probation by failing to register as a gang member, and ordered defendant to complete the registration process by July 1, 2014. On July 29, 2014, the court reinstated probation on the original terms and conditions. On September 19, 2014, defendant filed a timely notice of appeal.
DISCUSSION
Defendant argues that the trial court erred in finding him in violation of probation because there was not substantial evidence that his failure to register as a gang member was willful. Defendant also argues that the requirement that he provide full information for his gang registration violated his Fifth Amendment privilege against self-incrimination.
Probation Violation Hearing
On June 26, 2014, the court held a hearing on the probation violation. Salinas Police Officer Vicky Burnett testified that she conducts the gang registration for probationers with a registration requirement. Defendant made an appointment to register on May 29, 2014, and arrived as scheduled. Officer Burnett knew defendant because she had registered him as a gang member in the past. Officer Burnett asked defendant what gang he belonged to, and defendant said, "I'm not a gang member." Officer Burnett told defendant that she knew that he was a gang member based on his history and prior registration. Officer Burnett showed defendant his prior 2012 registration where he stated that he was not an "active gang member." When presented with the 2012 registration, defendant said, "That's a lie; I never said that." Officer Burnett told defendant that his current conviction for street terrorism was based on a gang allegation and that she knew that he was a gang member. Officer Burnett asked defendant if he was "refusing to answer the questions on the form," and he replied, "I'm refusing." Defendant left the meeting. Officer Burnett said that when a probationer refuses to complete his registration as defendant did in this case, her practice is to call the probation officer and ask that officer to speak to the probationer and encourage him to set up another appointment. Officer Burnett called defendant's probation officer, Officer Rodriguez, and told her what happened at defendant's appointment. Defendant did not return to complete his registration.
Defendant testified that he went to the Salinas Police Department on May 29, 2014 to register as a gang member. Defendant said that he had made five attempts to make the registration appointment with Officer Burnett. At the meeting, Officer Burnett went over defendant's 2012 gang registration report and asked defendant if he disagreed with any of his answers. Officer Burnett reminded defendant that he had been raised in Fremont and was a gang member, to which defendant responded that he was raised in Fremont but was not a gang member. Defendant said that after that, Officer Burnett asked him to leave. Defendant said that the entire meeting was only five minutes. Defendant said that he was a gang member at one time but that he was no longer a gang member and was "inactive." Defendant said that he thought that he should have been given "more options" at the interview. Defendant told his probation officer what had happened so as to "prevent an altercation." Defendant said that his probation officer told him that she wanted to schedule a court date so that defendant could explain himself to a judge. Defendant said that his probation officer considered having defendant return to Officer Burnett to complete his registration, but decided against it because defendant could be arrested.
The court found defendant was in violation of probation for failing to register and stated, "The requirement to register requires cooperation by you . . . . And it is something that requires you to be polite, requires you to provide full information. And if you disagree with that, then you know where you are going to end up. [¶] So the court does find that you are in violation of probation, based on the evidence that has been presented in this matter." The court ordered defendant to register by July 1, 2014. The court continued sentencing to July 29, 2014. At sentencing, the court reinstated defendant's probation with the original terms and conditions.
Willful Violation of Probation
Penal Code Section 1203.2, subdivision (a), provides that a court may revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of the conditions of his or her supervision." The standard of proof required for revocation of probation is a preponderance of evidence to support the violation. (People v. Rodriguez (1990) 51 Cal.3d 437, 441 (Rodriguez).)
The decision to revoke or violate a defendant's probation is in the sound discretion of the trial court. "Although that discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based upon the facts before it." (People v. Buford (1974) 42 Cal.App.3d 975, 985 (Buford).) " '[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.' " (Rodriguez, supra, 51 Cal.3d at p. 443.)
"[T]he evidence must support a conclusion the probationer's conduct constituted a willful violation of the terms and conditions of probation." (People v. Galvan (2007) 155 Cal.App.4th 978, 982 (Galvan).) The term "willful" implies "that the person knows what he is doing, intends to do what he is doing, and is a free agent." (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438.) "Once a probation violation occurs, the trial court has broad discretion in deciding whether to continue or revoke probation." (People v. Jones (1990) 224 Cal.App.3d 1309, 1315.)
Here, defendant argues that there was insufficient evidence that his failure to register as a gang member was willful. Defendant relies on Buford, supra, 42 Cal.App.3d at page 985, Galvan, supra, 155 Cal.App.4th at page 982, and People v. Zaring (1992) 8 Cal.App.4th 362 to support the argument that his failure to register in this case was not willful, and does not support the court's finding that he was in violation of probation. However, while all of the cases cited involved probationers who were found to not have violated their probation willfully, the cases are distinguishable from the facts of the present case, and do not support defendant's position.
In Galvan, the defendant was ordered to report to his probation officer within 24 hours of his release from custody. (Galvan, supra, 155 Cal.App.4th at p. 981.) However, Galvan was deported when he was released from jail. (Id at p. 983.) The Galvan court found that Galvan's failure to report to his probation officer was not a violation of the terms of his probation because, "Galvan's immediate deportation to Mexico following his release from county jail demonstrates that his failure to report within 24 hours was not willful." (Id. at p. 984.)
Similarly, in Zaring, the court found that the defendant had not willfully violated her probation when she arrived for her court appearance 22 minutes late, because she was confronted with last minute, unforeseen circumstances that prevented her compliance with the court's order that she arrive on time for the hearing. The court found that Zaring's conduct did not show irresponsibility or disrespect for court orders. (Zaring, supra, 8 Cal.App.4th at p. 379.) In Zaring, the court further noted that there was nothing in the record to support a conclusion that defendant's conduct "was the result of irresponsibility, contumacious behavior or disrespect for the orders and expectations of the court." (Zaring, supra, 8 Cal.App.4th at p. 379.)
In both Galvan and Zaring, the defendants were prevented from complying with the terms of their probation by circumstances beyond their control. For the defendant in Galvan, his immediate deportation upon release from custody prevented him from contacting his probation officer within 24 hours of his release. Similarly, in Zaring, the defendant was prevented from arriving at court on time due to childcare responsibilities beyond her control. Neither Galvan nor Zaring willfully violated the terms of probation.
Here, on the contrary, defendant attended his meeting with Officer Burnett to register as a gang member, but when asked to complete the questions on the registration form, he refused to answer and the meeting was terminated. There is nothing in this record to show that defendant was prevented by circumstances beyond his control from complying with his registration requirement. Defendant had control over his conduct and the circumstances of the meeting, and willfully refused to complete his registration as a gang member.
In Buford, the defendant's circumstances were different from those in Zaring and Galvan. Instead of being prevented from complying with the terms of probation because of circumstances beyond his control, Buford was not given enough information from his probation officer about his probation conditions and what was required of him. As a result, when Buford violated his probation, it was not willful. The court in Buford found that the trial court abused its discretion in revoking probation because the finding was not supported by substantial evidence. (Buford, supra, 42 Cal.App.3d at pp. 984-985.)
Here, unlike the defendant in Buford, defendant was fully aware and informed of his gang registration requirement. This is supported by the fact that defendant scheduled and attended the registration meeting.
The court's finding that defendant willfully violated probation by refusing to provide full information for his gang registration was supported by substantial evidence. The court did not abuse its discretion in finding defendant was in violation of his probation.
Fifth Amendment Privilege
Defendant argues that the trial court requirement that he provide full information on the gang registration form violated his Fifth Amendment privilege against self-incrimination.
Defendant's counsel did on object to the trial court's imposition of the registration probation condition when it was imposed. Defendant filed a supplemental brief in this court arguing that if an objection was required to preserve this issue on appeal, he was denied effective assistance of counsel. We do not address this argument, because we find that there were no valid constitutional grounds on which to object to the condition. --------
Specifically, defendant asserts that if he were to comply with the registration condition and provide full information about his gang membership, he would in effect be admitting to violating the additional term of his probation that he "not associate with any individuals you know, have reason to know, or are told by the probation officer" are gang members. Such admission would violate his Fifth Amendment privilege.
Defendant's argument is without merit. Registration as a gang member does not equate to an admission that a probationer associates with gang members. Defendant's prior registration in 2012 stated that he was not an active gang member. Moreover, even if defendant registered an active gang member in this case, he would not be admitting to associating with gang members in violation of probation. The probation condition that he not associate with gang members for the period of probation is prospective following his guilty plea. Defendant could register as an active or inactive gang member and still satisfy his probation condition that he not associate with known gang members during the period of probation. Requiring full information for gang registration does not violate defendant's Fifth Amendment privilege against self-incrimination.
DISPOSITION
The order is affirmed.
/s/_________
RUSHING, P.J. WE CONCUR: /s/_________
PREMO, J. /s/_________
ELIA, J.