Opinion
NOT TO BE PUBLISHED
APPEAL from an Order of the Superior Court of Los Angeles County No. PA044017. Ronald S. Coen, Judge.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, E. Carlos Dominguez, Deputy Attorney General, for Plaintiff and Respondent.
JOHNSON, J.
In 2003, Caroline Marie Salazar was sentenced to six years in prison for possession of cocaine in a violation of Health and Safety Code section 11350, subdivision (a). The trial court suspended sentence and imposed three years of probation. After three separate violations of the terms of her probation and a two-year period in which she failed to report to her probation officer, the trial court reinstated her prison term in September 2008. She contends the trial court abused its discretion because it based revocation solely on the fact she had violated her probation, and failed to consider the circumstances of her case. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1. Conviction and Sentencing.
On March 19, 2003, two Los Angeles police officers executed a search warrant at a residence on Oneida Avenue. They found Salazar in a bedroom sitting on the bed with another woman. Both women stood up when police entered, and one of the officers observed a white substance and a rock cocaine pipe on the floor. Salazar attempted to push them under a dresser with her foot. Analysis of the substance established it was cocaine base.
On May 7, 2003, Salazar was charged with one count of felony possession of a controlled substance, cocaine. (Health & Saf. Code, § 11350, subd. (a).) The information alleged she had two prior convictions (Pen. Code, § 1170.12, subds. (a)–(d)) and three prior prison terms (§ 667, subds. (b)–(i)).
All statutory references herein, unless otherwise noted, are to the Penal Code.
On September 8, 2003, Salazar pled no contest to the charge, admitted the prior convictions, but denied the three strikes allegations. The court imposed a sentence consisting of the upper term of three years, plus three years (one year for each of the prior prison terms). The court suspended sentence, and imposed three years of probation with the following terms: Salazar was to serve 365 days in the county jail, with custody credits for 260 days (174 days in actual custody and 86 days good time/work time); Salazar was ordered to pay a restitution fine of $200, a $50 lab analysis fine, and a parole revocation fine of $200; Salazar was prohibited from using or possessing controlled substances, and ordered to avoid places where users or sellers congregated and to submit to period drug testing.
2. First Probation Violation, March 2005.
On March 17, 2005, the probation officer reported that Salazar was in violation of her probation. After Salazar failed to appear for the probation violation hearing, the court issued a bench warrant.
On March 29, 2005, Salazar surrendered, the court recalled the warrant, and ordered a supplemental probation report. The supplemental report stated that Salazar had missed payments under her payment plan; had left four different drug treatment programs; had missed seven out of 17 drug tests, and tested positive twice for cocaine. Salazar admitted she had relapsed, the probation officer reported her conduct was “extremely problematic” and recommended probation be revoked. An additional report submitted in advance of the hearing stated that Salazar had reenrolled in a six-month outpatient program, and that she was employed. She requested another chance to comply with the terms of her probation. Her probation officer recommenced that her probation be reinstated on the same terms and conditions.
At the continued revocation hearing on May 18, 2005, Salazar admitted she was in violation of her probation. The court extended probation for two years, and ordered Salazar to complete an outpatient drug treatment program.
3. Second Probation Violation, March 2006.
On March 28, 2006, Salazar’s probation officer reported that she had failed to report for drug testing. In addition, Salazar was “not making an effort to cooperate,” had been discharged from a rehabilitation program, and had missed seven out of eight drug tests. The report recommended that the court find her in violation of her probation and that her sentence be reimposed. An updated report filed April 18, 2006 indicated that she was not in compliance with her restitution payment plan, but that she had enrolled in a treatment program and had been regularly attending alcoholics anonymous meetings, counseling and alcohol education group sessions. The court reinstated probation on the same terms and conditions. (CT 81)~
4. Third Probation Violation, August 2006.
On August 9, 2006, Salazar’s probation officer reported that on May 10, 2006 she had stopped attending her Alcoholics Anonymous meetings, and attempts to contact her had been unsuccessful. Her probation officer recommended she be remanded to custody pending release into a six-month residential treatment program. Salazar failed to appear at the hearing set for August 9, 2006, and the court revoked her probation and issued a bench warrant.
5. Probation Revocation, September 2008.
On June 9, 2008, Salazar turned herself in. Her probation officer’s report stated that she had no new convictions or arrests, and that she had been living with her 80-year-old mother in Pacoima. Salazar admitted she had left her rehabilitation program in 2006, and admitted drinking beer and using crack cocaine on the weekends occasionally, but claimed she last used six months ago. Salazar wanted her probation reinstated so that she could take care of her mother. Her probation officer indicated that “[s]ubstance abuse is clearly indicated and one cannot ignore that the probationer repeatedly failed while on formal probation.... She is no longer viewed as a suitable candidate for a grant of formal probation.”
At the September 15, 2008 revocation hearing, her probation officer testified that Salazar admitted that she had abandoned her substance abuse program. The court found her in violation of the terms of her probation and revoked her probation. On the issue of reinstatement of probation, Geraldine Lang, Salazar’s case manager at People in Progress, a treatment center, testified on Salazar’s behalf. Lang reported that Salazar wished to turn her life around and wanted to get back into treatment and complete a year-long program, with a six-month sober living follow-up. Lang knew Salazar and believed she would benefit from the program.
The court stated that it found that because it was Salazar’s third probation violation, she was not suitable for reinstitution of probation. The court instituted her prison sentence of six years.
DISCUSSION
Salazar contends that the court abused its discretion in basing its decision solely on the fact she had violated probation three times, and improperly ignored the specific facts of her case. She contends she has demonstrated that she could be safely returned to society, and that the continuation of probation supported the interests of justice.
Following a criminal conviction, the court may place a defendant on probation, if it determines that there are circumstances in mitigation of the punishment prescribed by law or that the ends of justice would be served. (§ 1203, subd. (b)(3).) During the period of probation, “the probationer remains in the constructive custody of the court and is bound by the terms and conditions of the court’s probation order. Customarily, such order is tailored to the rehabilitative needs of that defendant. If the defendant accepts probation and later violates any of the conditions thereof, the court may then revoke its order of probation and impose sentence upon the offending probationer.” (People v. Borja (1980) 110 Cal.App.3d 378, 382.)
A trial court is authorized to revoke probation if the interests of justice require revocation, 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 inquiry centers on the probationer’s performance of the terms of his or her probation, and if the probationer violated the terms of probation, what this signifies for future conduct. (People v. Johnson (1993) 20 Cal.App.4th 106, 110–111.) “The focus is whether a probationer has shown he can conform his behavior within the parameters of the law.” (Id. at p. 111.)
Pursuant to section 1203.2, subdivision (a), the court may revoke probation and terminate it “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 trial court has very broad discretion to determine whether a probationer has violated probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) “Such discretion ‘implies that in the absence of positive law or fixed rule the judge is to decide a question by his view of expediency or of the demand of equity and justice.’” (Id. at p. 445.) We may only interfere with a trial court’s revocation in a very extreme case. (See People v. Michael W. (1995) 32 Cal.App.4th 1111, 1119.) If the record shows the probationer violated the terms and conditions of his or her probation, there is no abuse of discretion In revoking probation. (People v. Nelson (1967) 257 Cal.App.2d 282, 285–286.) Proof of facts supporting the revocation of probation may be made by a preponderance of the evidence. (People v. Rodriguez, supra, 51 Cal.3d at p. 447.)
Here, although the court stated it was basing its ruling on the fact Salazar had violated her probation three times previously and did not reference the circumstances of her case, the facts demonstrate that not only had she violated the terms of her probation in several particulars (failure to give contact information, failure to make restitution payments, failure to report for drug testing, and use of drugs), she had deserted her probation for two years before turning herself in. While Salazar’s desire to enter a treatment program and maintain a sober lifestyle comes at the end of several years of efforts to meet the conditions of her probation, her three previous probation violations and continuing pattern of violating probation even when faced with the prospect of a six-year prison sentence demonstrate the correctness of the trial court’s conclusion that the three previous violations indicated that she was no longer suitable for probation. “Where probation fails as a rehabilitative device, as evidenced by the probationer’s failure to abide by the probation conditions, the state has a great interest in being able to imprison the probationer.... ” (People v. Rodriguez, supra,51 Cal.3d at p. 445.) We find no abuse of discretion.
DISPOSITION
The order of the superior court is affirmed.
We concur: ROTHSCHILD, Acting P. J. CHANEY, J.