Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. KA071566 Wade Olson, Judge.
Linda L. Gordon, 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, Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Felipe Vidales appeals the judgment entered following the revocation of his probation. Appellant contends that the summary revocation violated his due process rights and that the subsequent finding that he was in violation of his probation was not supported by sufficient evidence. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On January 13, 2006, appellant pled no contest to one count of assault with a firearm after being advised of and waiving his constitutional rights. (Pen. Code, § 245, subd. (a)(2).) Appellant admitted the special allegations that he personally inflicted great bodily injury and personally used a firearm. (Pen. Code, §§ 12022.7, subd. (a), 12022.5.) Appellant was sentenced to the upper term of four years, plus three years for the great bodily injury allegation and 10 years for the firearm allegation, for a total of 17 years. The court suspended execution of the sentence pursuant to the plea agreement and placed appellant on formal probation for a term of three years under numerous terms and conditions. Appellant was ordered to serve 139 days in jail, with credit for 139 days. The court imposed a $200 restitution fine, imposed and stayed a $200 probation revocation restitution fine, and ordered appellant to pay a $20 court security fee.
The probation report included a criminal history assessment that indicated that appellant “has a ‘no bail’ U.S. immigration hold, ” and that he “is a previously deported criminal illegal alien.” The terms of probation included the following: “Do not associate with/stay away from... Rigella Rojas.... [¶] If you leave the country, you shall not reenter the United States illegally. If you do return, report to the probation officer within three (3) days, and present documentation which provides you are in the U.S. legally.” Appellant further was required to report to the probation officer within 48 hours after his release from custody and to the financial evaluator within five days after release from custody. Appellant was ordered to return to court on April 13, 2006, for a progress report.
Appellant was not present at the April 13, 2006 hearing. The court reasoned that appellant was “in immigration so he’s been released from custody. He was released from here.” The court then summarily revoked probation, stating that “if he gets here from immigration, I’ll certainly take that into consideration then when I reinstate him.” The court ordered a bench warrant to be issued.
The minute order for the April 13, 2006 hearing stated that the court “has read and considered the supplemental probation report sequence no. 3.” The April 13, 2006 probation report stated that appellant “has remained in custody under USIM deportation proceedings since placed on probation. Per Los Angeles County jail, the defendant was released to the department of immigration on 1/18/2006, w[h]ere he remains under custody status.” The report further remarked that appellant “has remained under deportation proceedings since placed on probation. Currently, it can not be determined when the defendant will be deported.” The probation officer accordingly recommended “that probation be continued to 10/02/2006 at 8:30 [a.m.] for progress report.”
Appellant was arrested on the bench warrant and appeared before the court on July 27, 2009. The court ordered a supplemental probation report. Probation remained revoked and the matter was continued to August 25, 2009. On August 25, 2009, appellant requested a probation violation hearing. Probation remained revoked, and the matter was continued to October 2, 2009, for a probation violation hearing.
The probation report filed on October 2, 2009, found numerous probation violations and described appellant as having “no intention of complying with this countr[y’s] law, rules and regulation.” The report indicated that appellant had an immigration hold, was due to be deported again, and had been deported on October 16, 2002, May 21, 2004, May 28, 2004, and August 9, 2004. The report further indicated that appellant had not paid any of the fines or fees that were imposed in April 2006. The report included a statement by appellant when he was interviewed on August 17, 2009. Appellant stated that he did not report because “I did not have money to get transportation to the probation department. In regards to custody status, I was in Tijuana and I was trying to cross the border.... In regard to residence, ‘I live in Mexico City with my whole family, I don’t know the address or telephone number, ’ ‘I go back and forth to El Monte to see my girlfriend Rigella Rojas, we have a four[-]year[-]old son together.’ ‘I don’t know the address or telephone number.’”
The probation report’s evaluation section stated that appellant gave evasive and conflicting answers and that appellant apparently had been traveling between the United States and Mexico “with no intention of contacting the court or the probation department. In addition, the defendant has a condition of probation that states he is to stay away from Rigella Rojas. However, the defendant’s admitted having contact with her and they now have a child in common.” The report recommended finding appellant in violation of probation, revoking probation, and imposing sentence.
Probation officer Phyllis Scurlock testified at the October 2009 probation hearing that appellant was in violation of the following probation terms: failure to complete a counseling program; failure to maintain and seek employment approved by the probation officer; failure to maintain a residence; failure to report to the probation department; failure to report to the court or the probation department if he reenters the United States; failure to cease contact with Rojas; and failure to pay any of the fines ordered by the court. Scurlock held a video conference with appellant on August 17, 2009. Scurlock testified that appellant never reported to probation, even though he told her that he visits Rojas: “That is his reason for entering the country on several occasions because he supports that family.” Appellant told Scurlock that he has been back to visit Rojas “[s]everal times.”
On cross-examination, Scurlock acknowledged that defendants are not able to report to the probation department when they have been deported; however, “when they return to the country, we would ask that they report to the probation department....” She further testified that appellant was arrested when he was apprehended by border patrol, reentering the country. She did not know the date of his apprehension, but she testified that he was transferred out of federal custody on July 24, 2009.
Scurlock had a printout from the FBI indicating that appellant had been deported three times. Scurlock testified that the document showed that appellant was deported on October 16, 2002, May 21, 2004, and August 9, 2004. As stated above, the probation report indicated that, in addition to those three dates, appellant had been deported on May 28, 2004. Scurlock did not have a record of any deportations after 2005.
The court found that appellant violated “every term and condition of probation.” Specifically, the court stated that appellant “comes and goes... as he pleases, ” he asserted that he was working but was unable to supply a name or location of employment, and he asserted that he was living in Mexico but was unable to supply any address. The court therefore revoked probation, imposed the previously suspended 17-year sentence, and imposed the requisite fines and fees. Appellant received a total of 212 days of custody credit. He filed a notice of appeal.
DISCUSSION
Appellant challenges the April 2006 summary revocation and the October 2009 revocation of probation. He contends the April 2006 summary revocation of probation was not supported by probable cause and that there was insufficient evidence to support the finding at the October 2009 probation revocation hearing that he violated probation.
Penal Code section 1203.2, subdivision (a) provides that, at any time during the probationary period, “the court may revoke and terminate such probation 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, ... The revocation, summary or otherwise, shall serve to toll the running of the probationary period.” “Because of this tolling, the hearing on the violation, the court’s ruling, and the imposition of sentence may all occur even after the probationary period would otherwise have expired.” (People v. Burton (2009) 177 Cal.App.4th 194, 199.)
“The standard of proof required for revocation of probation is a preponderance of evidence to support the violation. [Citation.] Trial courts are granted great discretion in deciding whether or not to revoke probation. [Citation.] ‘Absent abuse of that discretion, an appellate court will not disturb the trial court’s findings.’ [Citation.]” (People v. Kelly (2007) 154 Cal.App.4th 961, 965.) “‘Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]” [Citation.]’ [Citation.]” (People v. Singleton (2010) 182 Cal.App.4th 1, 18.)
I. April 2006 Summary Revocation
As to the April 2006 summary revocation, there is no question that appellant failed to appear for the three-month progress report and that he failed to report to the probation department following his release from custody. We conclude therefore that the trial court did not abuse its discretion in summarily revoking probation.
“A defendant who is deported while on probation may be found in violation of that probation for failure to report to the probation department although his deportation makes it impossible for the defendant to fulfill this condition of his probation.” (People v. Campos (1988) 198 Cal.App.3d 917, 923. But see People v. Galvan (2007) 155 Cal.App.4th 978, 984-985 [concluding that the trial court abused its discretion in revoking probation based on failure to report because the defendant had been deported, rendering his failure to report not willful].) Although appellant had not been deported at the time of the April 2006 hearing, the record indicates that he was in immigration custody and did not attend the hearing. Pursuant to Campos, the trial court did not abuse its discretion in summarily revoking appellant’s probation.
II. October 2009 Formal Revocation
As to the October 2009 formal revocation proceeding, appellant raises several challenges to the finding that he violated probation. First, he contends that the evidence is insufficient to establish that he willfully failed to comply with the requirements that he complete a counseling program, report to the probation department, seek employment, and keep the probation department advised of his residence because he had been deported. Second, appellant contends that the evidence is insufficient to establish that he willfully failed to pay his fines. Third, appellant contends that the evidence is insufficient to establish that he violated probation by having contact with Rojas or by entering the United States during the original probation period, January 2006 to January 2009.
A. Insufficient Evidence Due to Deportation
Appellant challenges the trial court’s finding that he willfully violated numerous probation terms because his deportation made it impossible for him to comply with the probation terms. The record indicates that appellant admitted to the probation officer that, although he was living and working in Mexico, he went “back and forth” to see his girlfriend and four-year-old son in the United States and supported his child and his girlfriend’s other children. Because there is no question that appellant was regularly coming to the United States, the record establishes that appellant willfully failed to comply with the requirement that he report to the probation department within three days of reentering the United States with documentation that he is in the country legally. This is sufficient to establish a willful violation of probation.
B. Insufficient Evidence Regarding Fines
Appellant contends that, in order to rely on his failure to pay his fines to revoke probation, “the court must in some manner indicate it has considered the defendant probationer’s willful failure to pay and ability to pay restitution and made a determination thereon.” (People v. Self (1991) 233 Cal.App.3d 414, 418.) The trial court here complied with this requirement when it stated, “Supposedly he’s working so he does have money to pay except he does not know who he’s working for, where it’s located or anything to verify it.” The court further reasoned that appellant was entering the country and leaving “as he pleases.” The court’s finding was made in reliance on the October 2009 probation report, which indicates that appellant told the probation officer that he works in construction, makes $70 per week, and has worked construction for four years. The court accordingly did indicate its consideration of appellant’s ability to pay and his willful failure to pay. The “undeniable fact” is that appellant has failed to make any of the payments he was ordered to make as a condition of probation. (People v. Jackson (2006) 134 Cal.App.4th 929, 935.) “Accordingly, ample evidence showed appellant was in violation of the conditions of h[is] probation, ” in that he has failed to make any of the requisite payments. (Ibid.)
C. Insufficient Evidence of Violation During Original Probation Period
Appellant’s third contention is that there is no evidence that he violated his probation conditions during the original probation period, from January 13, 2006 to January 13, 2009. Appellant relies on People v. Tapia (2001) 91 Cal.App.4th 738, 741, which held that “a summary revocation of probation suspends the running of the probation period and permits extension of the term of probation if, and only if, probation is reinstated based upon a violation that occurred during the unextended period of probation. [Citation.]” We believe Tapia is distinguishable and therefore reject appellant’s argument.
In Tapia, the only evidence submitted at the formal probation revocation hearing was the appellant’s admission that he failed to report to the probation department on one occasion, when he returned to the United States a year-and-a-half after his original probationary period ended. Here, by contrast, as discussed above, respondent presented substantial evidence at the formal revocation hearing of appellant’s violations of his probation terms.
In addition, appellant admitted that he had visited Rojas several times, and he never reported to the probation department during any of his visits to the United States. Appellant’s original probation period ran from January 2006 to January 2009, and he was transferred from federal immigration custody in July 2009. Thus, there was only a seven-month period between the expiration of the original probation period and the time that he unquestionably was in custody. It is reasonable to infer that at least some of appellant’s visits to the United States occurred in the preceding three-year period, and that all of the visits did not occur in that seven-month period. Appellant has presented no evidence to support the contention that all of the visits could have occurred in that seven-month period. The standard of proof required for revocation of probation is only a preponderance of the evidence, and the decision is placed within the trial court’s broad discretion. (People v. Kelly, supra, 154 Cal.App.4th at p. 965.)
There is no question that the summary revocation of probation tolls the running of the probationary period. (Pen. Code, § 1203.2, subd. (a); People v. Wagner (2009) 45 Cal.4th 1039, 1060; People v. DePaul (1982) 137 Cal.App.3d 409, 415.) The probationary period accordingly was tolled from the April 2006 summary revocation until the formal revocation proceeding was held in October 2009.
The record establishes that appellant reentered the United States from Mexico without reporting to the probation department and that he had contact with Rojas, both violations of his probation conditions. The trial court’s finding was not arbitrary, capricious, or patently absurd and did not result in a manifest miscarriage of justice. (People v. Singleton, supra, 182 Cal.App.4th at p. 18.) The trial court accordingly did not abuse its discretion in revoking appellant’s probation.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., MANELLA, J.