IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
April 18, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BRANDON RICHARD KROPP, DEFENDANT AND APPELLANT.
(Super. Ct. Nos. 08F5069, 08F5659, 09F1602)
The opinion of the court was delivered by: Robie, Acting P. J.
P. v. Kropp
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In this case defendant challenges the decision of the trial court finding he violated his probation and imposing a prison sentence. Finding no abuse of discretion, we affirm.
Defendant pled guilty to possession of methadone and possession of methamphetamine in two separate cases (drug cases). The trial court deferred entry of judgment. (Pen. Code,*fn1 §§ 1000-1000.5.)
Defendant later pled guilty to unauthorized possession of food stamps in a new case and conceded the People's motions for entry of judgment in the drug cases. The trial court imposed a four-year, four-month term, suspended execution of sentence, and placed defendant on five years' formal probation.
The People filed a petition for revocation of probation on February 19, 2010, alleging defendant violated his probation by failing to keep the probation department accurately advised of his address and failing to report any arrest.
The trial court sustained the allegations at a contested hearing, revoked probation, and ordered execution of the previously imposed prison term.
FACTUAL AND PROCEDURAL BACKGROUND
Shasta County Probation Officer Robin Gail met defendant on January 13, 2010, and read him the terms and conditions of probation. Among the conditions was that defendant "must report any change of residence to the probation officer, immediately before, immediately after." Defendant was told that if he were ever placed in custody he must report to the probation department immediately after his release. Defendant was given a written copy of the probation conditions. He signed and initialed the conditions and appeared to understand them.
Officer Gail had no further contact with defendant, although he may have received one phone message from defendant stating that he was homeless and would contact them again. He normally keys any phone message into the department's computerized system, but his message logs show no entry for a voice mail from defendant. Officer Gail admitted it was possible he received more messages from defendant, but did not remember them and did not enter the messages into the system.
Shasta County Probation Officer Andra Hardy became defendant's probation officer at some point between January 15 and January 20, 2010. Shortly after her assignment, she sent an appointment letter to defendant's address of record: 425 Buckeye, apartment B-1. The post office returned the letter as not deliverable as addressed, unable to forward.
On January 22, 2010, Officer Hardy went to the address but no one answered the door. Officer Hardy met a resident of one of the neighboring apartments, who said she had no recollection of defendant living there. The apartment complex consisted of four units; the address claimed by defendant was the top left-hand unit, while the resident contacted by Officer Hardy lived in the bottom right unit. Officer Hardy left a business card in the apartment's doorjamb, but defendant never called. She filed a warrant for defendant's arrest after returning to the office.
Officer Hardy later learned defendant had been in custody, and was released on February 3, 2010. If a probationer is arrested, he must inform the probation department within 24 hours of his arrest. As far as she knew, defendant never told the probation department he had been in custody.
Defendant admitted reviewing the terms and conditions of probation with Officer Gail. He told Officer Gail he lived at 425 Buckeye Terrace, B-1, but never left a message saying he was homeless. Defendant could not receive mail at the address because his name was not on the lease and the mailbox lock was broken. He called the probation department and left a message with Officer Gail about the problem with the mailbox, and defendant claimed he left quite a few messages with Officer Gail regarding his location.
Defendant said he was arrested on February 3, 2010, and released that evening. He then left a message with Officer Gail informing him of his release. Defendant also tried to talk to the officer of the day, but the call went to voice mail. He left several return numbers, but Officer Gail never called.
Defendant learned Officer Hardy was his probation officer after his release from jail, but he continued to call Officer Gail because he did not have Officer Hardy's phone number. Around February 12, 2010, defendant tried to make his monthly report with Officer Hardy. He asked if Officer Hardy could see him, but the receptionist said that she was unavailable. He never got the card Officer Hardy left in the doorjamb.
Testifying in rebuttal, Officer Hardy said she called the phone number provided by defendant, but got his mailbox, which was full, preventing her from leaving a message. She never received defendant's monthly report for February. It was possible that such a report could have been left at the front desk and not logged in, but that rarely happened. The jail listed defendant's address as 430 Buckeye, number B-1.
Defendant contends there is insufficient evidence to support the court's finding that he violated his terms of probation by failing to report his address or his brief stay in custody. He is mistaken.
Section 1203.2, subdivision (a), states 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 officer or otherwise that the person has violated any of the conditions of his or her probation . . . ." The language of section 1203.2 gives trial courts "very broad discretion" in determining whether a probationer has violated probation on proof by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 442-443, 447.) We will not interfere with the trial court's exercise of discretion unless the record establishes a "'very extreme'" case of abuse. (Id. at p. 443.)
Where the trial court resolves conflicting evidence to determine whether a probationer willfully violated probation, review on appeal is based on the substantial evidence test. (People v. Kurey (2001) 88 Cal.App.4th 840, 848.) "Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence . . . support[ing] the trial court's decision." (Ibid.)
The People presented evidence defendant did not live at the address he gave to the probation department -- mail to the address in defendant's name was returned as undeliverable, a neighbor told Officer Hardy that defendant did not live there, defendant never responded to the business card left there by Officer Hardy, and defendant told the jail he was at a different address than the one he gave the probation department. Other than a possible phone message left with Officer Gail that defendant was homeless, neither probation officer received a communication from defendant indicating he had changed addresses or had been in custody. Both defendant's failure to inform the probation department about his arrest and his inability to provide the department with an accurate address violated the terms of his probation.
Defendant met this evidence with admissions from Officers Gail and Hardy that phone messages can get lost and reports from probationers are not always filed appropriately. However, he presented no evidence that this was more than a rare occurrence; both officers testified the normal course of business for their department allowed officers to get communications from probationers.
Defendant's story -- he repeatedly left messages with Officer Gail and could not get mail at his address -- is at best minimally plausible. The court could reasonably conclude defendant did not communicate his address or arrest to the probation department. Substantial evidence supports its findings.
The judgment is affirmed.
We concur: BUTZ, J. DUARTE, J.