Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FF405914
McAdams, J.
This is defendant Charles Shihli Wang’s third appeal arising out of the same conviction. Defendant was convicted in a court trial of one count of inflicting corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)). In September 2006, the court suspended imposition of sentence and placed defendant on probation for three years on various terms and conditions, including that he (1) serve 120 days in jail; (2) perform 100 hours of uncompensated community service; (3) complete a 16-week parenting course; (4) complete a 52-week domestic violence counseling program; and (5) submit his person, residence, vehicle and property to warrantless search at any time by a peace officer. The court also ordered defendant to pay a probation supervision fee of not more than $64 per month.
All further statutory references are to the Penal Code, unless otherwise stated.
In his first appeal, defendant challenged the imposition of the search condition and the probation supervision fee. We found no error in the imposition of the search condition, but held that the court may not require the payment of probation supervision fees as a condition of probation. We modified the probation order by striking the condition that required defendant to pay probation supervision fees, affirmed the order that he pay such fees, and affirmed the judgment as modified. (People v. Wang (July 31, 2007, H030829) [nonpub. opn.] (Wang I).)
In February 2007, defendant’s probation was summarily revoked on the grounds that he had failed to enroll in a domestic violence program, failed to enroll in a parenting class, and failed to do his community service. At a contested probation violation hearing in May 2007, defendant testified that he had not started his counseling programs because he could not afford the program fees, that his probation officer had told him he could postpone the parenting classes until he had completed the domestic violence training, and that he was having difficulty finding a job because of his felony conviction. The trial court concluded that defendant had violated his probation, reinstated probation on the condition that he waive credit for time served before February 15, 2007, modified the terms of his probation to include one year in county jail dating from February 15, 2007, extended probation for one year to September 2010, and reimposed the original terms and conditions, except the probation fees condition.
In his second appeal, defendant challenged the court’s ruling in the contested revocation proceedings. Appointed counsel filed an opening brief that raised no specific issues. We sent a letter notifying defendant of his right to submit written argument on his own behalf and defendant submitted a declaration in letter form to the court. Pursuant to People v. Wende (1979) 25 Cal.3d 436, we reviewed the entire record and defendant’s letter, concluded that there was no arguable issue on appeal, and affirmed the order. (People v. Wang (Nov. 29, 2007, H031800) [nonpub. opn.] (Wang II).)
In May 2008, the probation department filed a petition to modify defendant’s probation alleging that defendant had violated his probation when he was terminated from his domestic violence counseling program for failing to benefit from the program and when he failed to verify completion of his community service. At a contested hearing in August 2008, at which defendant represented himself, the court found that he had violated both probation conditions and revoked defendant’s probation. The court subsequently sentenced him to the middle term of three years in prison.
In this third appeal, defendant argues that there was insufficient evidence to support the court’s finding that he violated the community service condition of his probation and that since that ground for revoking his probation was invalid, the judgment must be reversed and the case remanded for further sentencing. We find no error and affirm the judgment.
Statement of Facts
Underlying Offense
We recite the facts from our original opinion:
“Defendant and his wife, Jane, were married on January 23, 1982, and divorced November 16, 2005. They have three children together. At the time of trial, Vivian was 23, Jacklyn was 21, and Derrick was 15. As a general rule, defendant made all the major decisions in the family and was not happy if family members disagreed with him.
“On March 31, 2004, just after 11:00 p.m., Vivian called her parents from Los Angeles to tell them she had bought a new car. Defendant was ‘furious’ that Vivian had not consulted him before buying the car. He blamed Jane and berated her. Then he began ‘pounding’ Jane hard on her face, forehead and arms with a closed fist, ‘four, five six, times. I don’t know. He just [sic] pounding on me.’ The pounding and berating lasted about five minutes. They went to bed. Jane told Vivian what had happened, and Vivian encouraged her to do something about it, since it had happened before. Jane told the police on April 2, 2004.
“According to Jane, defendant had beaten her before, and she recounted several incidents dating from 1997. Derrick recalled two of these incidents. He was home on March 31 and heard the fight between his parents.
“Defendant denied hitting his wife on March 31 or previously. He believed his wife’s accusations were financially motivated.” (Wang I, supra, H030829 at pp. 1-2.)
According to the petition to modify probation, defendant’s son and one of his daughters told the police about three other incidents in which defendant (1) punched one of his daughters, (2) punched his wife and a daughter, and (3) “severely” battered his wife and a female relative, who was a minor, slamming their heads against the wall of a public bathroom. Defendant’s minor son told police that defendant had never been violent with him.
July 2008 Petition to Modify Probation
The probation officer sought revocation of defendant’s probation on two grounds. The petition alleged that defendant violated his probation (1) when he was terminated from his domestic violence program and (2) when he failed to provide proof that he had completed his “community service work, leaving a balance of 100 hours.”
The petition to modify probation contained a copy of the termination report from WAVES, the certified domestic violence program that defendant attended. WAVES is the only counseling program in the south county area where defendant lives that provides the 52-week domestic violence program and the 16-week parenting classes ordered by the court. Defendant started the WAVES program on November 20, 2007. Defendant attended classes one night a week; each class lasted two hours. Defendant was terminated from the program on April 22, 2008. According to the termination report, defendant completed 19 sessions.
Defendant’s group facilitator reported that defendant’s progress in all areas was “unsatisfactory,” that he was not benefitting from the program, and that he had not complied with the conditions of the program contract because he had shown “no accountability.” The facilitator reported that defendant “denies that he has done anything wrong. When asked about the victim, he stated that ‘[M]y son and I are the true victims.’ [He] continues to demonstrate controlling behavior, bringing articles to group to explain how he is helping others and he is the victim. He has not demonstrated changes in beliefs,.... He was advised on several occasions if he did not demonstrate accountability, he would not benefit from the program and would be terminated.” The facilitator noted that defendant was able to understand the topics discussed “intellectually,” but that he demonstrates an “arrogance, as if he is better than others in the group.” She described him as argumentative and stated he “gets defensive when the group members are giving him feedback.” The facilitator stated that defendant “has not demonstrated victim empathy” and opined that “he will not develop victim empathy because he does not see his behavior as negative.”
In the petition to modify probation, defendant’s Probation Officer, David Pulido, reported on his July 2, 2008 interview with defendant at the Elmwood Correctional Facility. Defendant told Pulido he should not have been terminated from his domestic violence program because he was benefitting from the program and was being held accountable. Defendant said he was helping himself and other members of the group. Defendant told Pulido that the allegation that he failed to provide proof that he had completed his community service should not have been included in the petition because Pulido had said that he could complete his community service hours at a future date. When Pulido asked defendant what the court should do, defendant said that he should be released from jail immediately and that the court should wait for his appeal to be completed before acting on the petition. (This court’s decision in defendant’s second appeal was final on December 29, 2007, more than six months before defendant made that statement.) Pulido reported that “defendant strongly feels that he is the true victim in this case,” that he “feels that he should not be on probation, because the sentencing judge treated him unfairly,” and that he “was given a wrongful conviction and did not receive a fair trial.”
Evidence at Second Probation Revocation Hearing
Prosecution Case: Testimony of Probation Officer Pulido
Pulido testified that he met with defendant on December 5, 2006, 10 days after defendant was released from jail, at which time they discussed the terms and conditions of defendant’s probation, including the requirements that defendant complete a 52-week domestic violence counseling program and 100 hours of community service. That day, defendant signed two forms acknowledging that his probation officer had discussed the terms and conditions of his probation with him and that he understood them. One of the forms advised defendant to “immediately enroll in a certified batterers program” and to “complete uncompensated community service work as directed by [his probation officer].”
Pulido met with defendant on October 23, 2007, after defendant’s first violation of probation, and reviewed the conditions of his probation with him again. At that time, Pulido reiterated the importance of enrolling in and completing the domestic violence program. Defendant said he did not have the money to enroll in the domestic violence program and that he had three years to complete the terms of his probation. Pulido told defendant he had to enroll in the domestic violence program within 30 days. He told defendant he could enroll in the other classes later, provided that he enrolled in the domestic violence program immediately. Pulido also told defendant that if defendant “failed to comply with the [domestic violence] class, [Pulido] would also violate his probation for failing to enroll in the other requirements.” Defendant signed another set of forms acknowledging the terms and conditions of his probation and stating that he understood them. The forms contained the same advisements as before.
Pulido never received proof that defendant completed the domestic violence program or his community service.
Defense Case: Testimony of Zohreh Gharaati
Zohreh Gharaati, the co-owner of WAVES, testified that defendant was enrolled in the domestic violence program for 24 weeks. Although Gharaati did not facilitate defendant’s domestic violence classes, she was familiar with defendant’s case. She observed the domestic violence class twice, read all of defendant’s homework assignments, taught defendant’s parenting class, and spoke with the facilitators of the domestic violence classes.
Defendant did not initiate his enrollment in the domestic violence program. Defendant told Pulido that he had contacted the program, but that WAVES had not responded to him. Pulido called Gharaati. Gharaati told Pulido that she handles all of the telephone contacts and that defendant’s representation was not true. At Pulido’s request, she contacted defendant and made sure he enrolled in the program.
In the initial interview, Gharaati asked defendant who the victim was in his case and he stated that he and his son were the victims. Gharaati asked defendant why he was there and he said the judge and his probation officer and the system sent him. Each week, the facilitators ask three participants to identify their victims. They asked defendant this question five times during his period of enrollment and each time defendant stated that he and his son were the victims. Gharaati testified that if defendant says he is the victim, then he is ineligible for their program because they treat perpetrators, not victims.
Gharaati stated that the main focuses of the domestic violence program are for the batterer to become accountable for his or her actions and victim safety. If a batterer is not accountable for his or her actions, the facilitators become concerned that the batter will repeat the violence and the batterer is not permitted to stay in the program. Defendant made many attempts to control how they ran the program by bringing in materials and videos and stating that the materials the facilitators used were inappropriate. According to Gharaati, defendant was argumentative and disruptive in group. He made sure everyone in the class knew he was fighting and “suing the system.” Defendant was terminated from the domestic violence program because he had not shown any accountability. He was warned orally numerous times and received two prior written reports that stated that his benefit from the program was questionable.
Defendant did not testify. He argued that there was no reason to terminate him from the domestic violence program because he cooperated and participated in class and that he was not arrogant. He stated that he had done “a lot of good things for the community, for the high school students in soccer, volleyball.”
The court found that the two probation violations had been proven under the applicable standard.
Discussion
Defendant argues that the judgment must be reversed and the case must be remanded for resentencing because there was insufficient evidence that he willfully violated the probation condition that required him to complete 100 hours of community service. Defendant does not dispute that there was sufficient evidence that he failed to complete the domestic violence program. Instead, he argues that reversal and remand are required because “it cannot be said that the court would have sentenced [him] to state prison, or the middle term for the offense, based only [on] the failure to complete the [domestic violence] program.”
Legal Principles
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 officer or otherwise that the person has violated any of the conditions of his or her probation....” (§ 1203.2, subd. (a).) “As the language of section 1203.2 would suggest, the determination whether to... revoke probation is largely discretionary.” (In re Coughlin (1976) 16 Cal.3d 52, 56.) On appeal, we review the trial court’s order revoking probation for an abuse of discretion. (People v. Rodriguez (1990) 51 Cal.3d 437, 442 (Rodriguez).)
The standard of proof that the prosecution must meet in a probation revocation hearing is less than in a criminal trial. “[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.” (Rodriguez, supra, 51 Cal.3d at p. 439.) “However, the 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, citing People v. Zaring (1992) 8 Cal.App.4th 362, 378-379 [trial court abused its discretion by revoking probation for a tardy court appearance caused by circumstances beyond probationer’s control].)
Analysis
We begin by addressing the sufficiency of the evidence to support the court’s finding that defendant violated the community service condition of his probation.
Defendant was first ordered to do community service in September 2006. By the time of the August 2008 probation revocation hearing, it had been almost two years since the court had granted defendant probation on the condition that he complete 100 hours of community service. During that entire time, defendant did not provide his probation officer with any proof that he had completed any of his community service hours.
On October 25, 2007, after defendant was released from jail following his first probation violation, his probation officer referred him to “SAP for his community service work.” There was no evidence that defendant ever contacted that agency. Up until his arrest in May 2008 for the probation violations, he had not obtained “stable full-time” employment, but was tutoring on a part-time basis. Thus, he had ample time to complete his community service. Although defendant argued that he did community service work at the high school, working with the soccer and volleyball teams, nothing in the record indicates that his work at the high school qualified to meet his community service requirement. Moreover, there was no evidence certifying that he had actually worked at the high school or verifying the number of community service hours he completed.
On this record, we conclude there was sufficient evidence to support the trial court’s finding that defendant had willfully violated the probation condition that required him to complete 100 hours of community service.
Defendant argues that the court erred in finding that he violated the community service condition of his probation because “there was no requirement that [he] complete his community within a certain time period,” that his probation term “did not expire until September 20, 2010,” and that, at the time of the revocation hearing, he had two more years to complete his community service. Even if we were to agree that the court erred in finding a violation of the community service term of defendant’s probation for those reasons, defendant does not dispute the court’s finding that he violated his probation when he was terminated from the domestic violence program. In our view, the court’s finding that defendant violated the domestic violence counseling condition of his probation was sufficient alone to support the court’s decision to revoke probation.
Citing In re Babak S. (1993) 18 Cal.App.4th 1077 (Babak S.) and People v. Self (1993) 233 Cal.App.3d 414 (Self), defendant argues “Where a court’s revocation of probation is based on more than one ground, the revocation may not be sustained on appeal if one of the grounds of revocation is invalid.” In our view, defendant interprets both cases too broadly.
The defendant in Self was convicted of writing checks with insufficient funds. The court revoked her probation after finding that she failed to report regularly, failed to pay restitution, and violated a condition of her probation that prohibited her from for maintaining a checking account. (Self, supra, 233 Cal.App.3d at pp. 415-416.) The appellate court found that one of the grounds the court had relied on, the failure to pay restitution, was invalid because the court failed to determine whether the defendant had the ability to pay restitution and that a second ground, violation of the checking account prohibition, was invalid for lack of adequate notice. (Id. at pp. 417-419.) The court observed that the only remaining ground, the failure to report, was not challenged on appeal and held that “[a]lthough the court might, in the exercise of its broad discretion, revoke probation and impose a prison sentence based on that ground alone, on this record we cannot conclude the court would have sentenced defendant to state prison for the middle term based solely on her failure to report” and remanded for resentencing. (Id. at p. 419.)
In Babak S., this court reviewed a case in which the juvenile court committed a minor to the California Youth Authority after it found that the minor had violated his probation (1) by returning to the United States in spite of a probation condition that banished him to Iran for two years and (2) by failing to contact his probation officer upon his return to the United States. (Babak S., supra, 18 Cal.App.4th at p. 1083.) The prosecution also presented evidence that the minor had violated his probation by associating with a probationer. (Id. at pp. 1082-1083.) On appeal, we concluded that the banishment condition was invalid and that it was improper for the court to rely on the minor’s failure to contact his probation officer for lack of adequate notice. (Id. at pp. 1084-1086.) We held that while the record contained sufficient evidence to support the court’s finding that the minor had violated his probation by associating with a known probationer, we could not sustain the court’s finding because the court explicitly relied upon the violation of two conditions that we had determined to be invalid. We stated, “Though the court might have found the previous dispositional order ineffective based only upon the minor’s violation of the probationer/gang condition, we cannot conclude on this record that the court would have imposed a Youth Authority commitment based solely upon Babak’s association with [the probationer].” (Id. at p. 1089.) Contrary to defendant’s assertion, Self and Babak S. do not require reversal and remand whenever the appellate court invalidates one of several grounds that the trial court relied on in revoking probation.
In this case, the trial court would have unquestionably found that the violation of the domestic violence counseling condition alone was sufficient to revoke probation and sentence defendant to state prison. The domestic violence program was the most important aspect of defendant’s rehabilitation. One of the primary goals of the domestic violence program was to protect victims from further violence. Defendant’s prior probation violation and his repeated failure to acknowledge that he had done anything wrong and to accept responsibility for his actions demonstrated that he was not suitable for a grant of probation.
For these reasons, we conclude the court did not abuse its discretion when it revoked defendant’s probation and sentenced him to the middle term of three years in state prison.
Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Duffy, J.