Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF112626A. Stephen P. Gildner, Judge.
Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Virna L. DePaul, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J. and Hill, J.
Defendant Brian Martin Rhodes appeals from the revocation of his probation. We reject his contention that the trial court abused its discretion and abridged his right to equal protection by finding a violation of probation, and affirm the judgment.
BACKGROUND
In January 2006, defendant was admitted to probation for three years following his no contest plea to one count of threatening a police officer (Pen. Code, § 71). As a condition of probation, defendant was required to enroll in and complete a psychiatric counseling program and to provide verification of his enrollment to the probation department by April 5, 2006.
Further statutory references are to the Penal Code unless otherwise specified.
In June 2006, the probation department sought to revoke defendant’s probation based on his failure to enroll in a psychiatric counseling program. In November 2006, the court held a hearing on the revocation of defendant’s probation.
At the hearing, defendant’s probation officer testified that on April 5, 2006, defendant called to request an extension of time to enroll in a psychiatric counseling program. The request was granted, and defendant was directed to provide proof of enrollment by April 12, 2006. When defendant failed to provide proof of enrollment, the probation officer tried to contact defendant at his home. She did not see defendant but left a probation directive slip with a man who identified himself as defendant’s father. The slip directed defendant to report to the probation department on April 21, 2006. Defendant failed to report to the probation department on that date.
At the hearing, defendant admitted he had failed to enroll in a psychiatric counseling program. Defendant acknowledged he had been provided a list of approximately nine different programs he might enroll in but offered numerous and varied explanations for why he did not enroll in any of them. First, defendant cited a number of health conditions he suffered from, including cluster headaches, chronic pancreatitis, glaucoma in his right eye, and multiple surgeries on his right knee. Defendant testified he was on a pain pump, which delivered medication through a catheter into his spine. According to defendant, when he called the different psychiatric counseling programs on the list, he was told he would not be able to sit through the classes because his health conditions would require him to leave and go to the doctor too often.
Defendant also testified that, while he did eventually find a psychiatric counseling program suitable for him to enroll in, he had a “money problem” in October, which prevented him from enrolling. Defendant claimed he did not receive his social security payment that month. When defendant was asked how much social security he usually received per month, defendant testified, “It was $822 but this month I got $767.”
Additionally, defendant testified he was not able to attend the psychiatric counseling program because he had no transportation. Defendant explained the class was from 5:30 p.m. until 7:00 p.m., but the last bus from his area left at 5:35 p.m. Defendant further testified he was unable to drive because he suffered from seizures and his doctor had taken away his driver’s license.
Later, defendant admitted that he had not actually found out whether he was eligible for the psychiatric counseling program because he did not want to pay the $40 fee to see if he was eligible. Defendant explained: “[B]ecause I had no way home … I didn’t really want to lose my $40 with no way home.”
Defendant further testified he never received the probation directive slip the probation officer left for him in April, and that he did not know how long an extension he had been given for enrolling in a counseling program. Defendant was no longer living with his father at the address where the probation officer tried to contact him but was staying with friends in April.
Defendant acknowledged that he met with another probation officer at her office in September and she gave him her card. However, according to defendant, she did not try to help him enroll in a counseling program. “I was basically on my own.”
At the conclusion of the hearing, the trial court found there was sufficient evidence defendant violated his probation by failing to enroll in and successfully complete a counseling program as directed.
At a subsequent hearing in November 2006, the trial court denied defendant’s request to reinstate his probation and sentenced him to the low term of 16 months in prison, with 194 days’ presentence custody credit.
DISCUSSION
Defendant contends the trial court abused its discretion and denied him equal protection of the law by finding a violation of probation based on his failure to enroll in a psychiatric counseling program. The trial court did not err.
Pursuant to section 1203.2, subdivision (a), “the 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 person has violated any of the conditions of his or her probation” at any time during the probationary period. The determination whether to revoke probation is largely discretionary (In re Coughlin (1976) 16 Cal.3d 52, 56); a court does not abuse its discretion by revoking probation if the record establishes, by a preponderance of the evidence, that the accused has violated the terms and conditions of probation (People v. Rodriguez (1990) 51 Cal.3d 437, 441; People v. Hawkins (1975) 44 Cal.App.3d 958, 968). “Under the preponderance of evidence standard, the prosecution is entitled to prevail … even if the evidence is conflicting (and thus does not establish the point as a matter of law) if the fact finder believes the prosecution’s evidence and that finding is supported by substantial evidence.” (People v. Lopez (1997) 52 Cal.App.4th 233, 250.) An appellate court’s review “is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court’s decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision.” (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.)
Here, the trial court’s determination is supported by substantial evidence. Defendant admittedly knew he was required to enroll in and complete a psychiatric counseling program and intentionally failed to do so. Defendant’s assertion on appeal that he was unable to enroll in a counseling program due to circumstances beyond his control improperly views the evidence in the light most favorable to him. At the hearing, defendant offered shifting and, at times, conflicting explanations for his failure to enroll in a counseling program. Other than assert he disclosed his physical ailments to the programs he contacted and eventually found a suitable program, there was no showing of a good faith effort on defendant’s part to find accommodation for the other difficulties he cited to the court. There is no evidence, for example, that defendant sought referrals to low-cost or no-cost programs, or inquired into alternative means of transportation, despite being given ample time to comply with the probation condition. Nor is there any record indication that defendant brought to the court’s attention his purported inability to comply with the condition at the time it was imposed, or, subsequently, to his probation officer. It was defendant’s responsibility to comply with the terms and conditions of his probation, and we find unpersuasive his attempt to shift responsibility to the probation department for not actively helping him enroll in a psychiatric counseling program, when there is no evidence he specifically requested help in that regard.
In light of the forgoing circumstances, the court could reasonably discredit defendant’s litany of excuses for failing to enroll in a psychiatric counseling program and draw the inference that defendant did not intend to comply with the condition of probation, whether or not he had the physical or financial ability to comply. Thus, this case is distinguishable from the cases on which defendant relies. (See People v. Zaring (1992) 8 Cal.App.4th 362, 377, 379 [no willful violation where defendant arrived 22 minutes late to a court hearing due to unforeseen illness of a babysitter]; People v. Buford (1974) 42 Cal.App.3d 975, 984-987 [no willful violation where it was not shown defendant was made aware of certain conditions (the duty to report monthly, notify of address changes and register), or that defendant’s failure to comply was his fault (failure to secure regular employment)].)
We also find distinguishable the authorities defendant cites to support his equal protection claim. (See Bearden v. Georgia (1983) 461 U.S. 660, 672 [probationer could not be imprisoned for failure to pay a fine imposed as a condition of probation if he lacked the ability to pay]; In re Antazo (1970) 3 Cal.3d 100, 116 [absent a compelling interest, imprisoning an indigent defendant for failing to pay a fine violates the equal protection clause of the Fourteenth Amendment].) Assuming, without deciding, these authorities, which arise in the context of probationary fines and restitution, also apply to the probation condition at issue here, they are not helpful to defendant because he failed to demonstrate he lacked the ability to pay for a psychiatric counseling program.
See also section 1203.2, subdivision (a), which provides, in part, that “probation shall not be revoked for failure of a person to make restitution pursuant to Section 1203.04 as a condition of probation unless the court determines that the defendant has willfully failed to pay and has the ability to pay.”
The record is devoid of evidence of how much any of the programs cost (except for a claimed $40 fee to determine eligibility, which defendant testified he did not want to pay, not that he was unable to pay) or what were defendant’s specific expenses and sources of income during the period after he was placed on probation. Other than assert that his social security payment was stopped during a single month (five months after he was supposed to have been enrolled in a program), defendant, who was represented by counsel at the hearing, offered no financial records or other evidence to support a finding that he lacked the ability to pay for psychiatric counseling. On this record, the court could reasonably view defendant’s assertions of financial hardship as self-serving excuses to avoid having to comply with the probation requirement. Accordingly, we find no merit in his equal protection argument and reject his contention that the trial court abused its discretion in revoking his probation based on his failure to enroll in a psychiatric counseling program.
DISPOSITION
The judgment (order revoking probation) is affirmed.