IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou)
July 6, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SEAN PATRICK DAY, DEFENDANT AND APPELLANT.
(Super. Ct. No. 06-2085)
The opinion of the court was delivered by: Nicholson , J.
P. v. Day
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Sean Patrick Day appeals from the trial court's judgment revoking his probation due to his possessing drug paraphernalia and imposing the prison sentence on the underlying felony sex convictions. Defendant asserts (1) no substantial evidence supports the court's determination that he violated the terms of his probation, and (2) the trial court abused its discretion under the circumstances of this case by sending him to prison instead of readmitting him to probation. We disagree with defendant's arguments and affirm the judgment.
Defendant's underlying conviction arose from him sexually assaulting his four-year-old daughter. In 2008, defendant entered into a plea bargain where he agreed to plead no contest to one count of felony sexual penetration by a foreign object of a child under the age of 14 (Pen. Code, § 289, subd. (j)),*fn1 and one count of felony lewd acts upon a child under the age of 14 (§ 288, subd. (a)). In exchange, five other felony counts and one misdemeanor count would be dismissed, he would be sentenced to state prison for 10 years with execution stayed, and he would be admitted to felony probation for five years and serve one year in the county jail.*fn2
Siskiyou County Deputy Probation Officer Jennifer Villani appeared to oppose the proposal and to express her disapproval in the probation report.*fn3 The trial court considered the report and determined to honor the negotiated disposition. It sentenced defendant to 10 years in state prison (upper term of eight years on the penetration count and consecutive two years on the lewd acts count) but stayed execution for five years. It placed defendant on probation subject to various terms and conditions, including that he be subject to unannounced search, he obey all laws, and he serve one year in county jail.
The probation violation occurred approximately four months after defendant was released from county jail. At that time, he was living in a small camp trailer behind a residence where his brother and a companion lived. On July 17, 2009, Probation Officer Villani, Sergeant Joshua Tharsing of the Siskiyou County Sheriff's Department, and Yreka Police Officer Jeremy Potter conducted a scheduled routine probation search of defendant's residence. Defendant was present during the search.
Besides conducting a routine search, Officer Villani was interested in searching defendant's home because she had received reports from Child Protective Services that there were children at the residence, which, if true, would violate a term of defendant's probation.
Officer Villani found a small locked gray box inside a cupboard. She also located a key to the box inside a small bowl on a counter near where she found the box. She gave the box to Sergeant Tharsing, who opened the box. Inside were five hypodermic syringes, a mirror with names and phone numbers written on it, a plastic bag with one corner cut off, a measuring cup of the type used for medicine, a spoon with cotton reside stuck to it, straws, a ripped matchbox cover, and some Q-tips with some of the cotton missing from the tips.
Defendant denied the box was his. He claimed he did not know why the box was in his trailer. Defendant did not appear to be under the influence of any controlled substances at the time of the search, and tests performed on him two days later for the presence of drugs were negative.
None of the items recovered in the box were tested for the presence of controlled substances. The phone numbers written on the mirror did not match any numbers on defendant's cell phone.
Officer Villani and Sergeant Tharsing testified that in their opinion, the items recovered in the box constituted narcotics paraphernalia. Officer Villani also noted that during her supervision of defendant, he had never informed her he had a prescription for, or a legitimate use of, hypodermic syringes, despite the fact his conditions of probation would require him to do so.
In his defense, defendant claimed unknown persons must have planted the box inside his trailer, as prior searches performed in response to anonymous false tips had not located the box and a neighbor was antagonistic towards him.
Weed Police Officer Michael Hallagan searched defendant's trailer in early July 2009, and found no contraband. His search was in response to a tip to Child Protective Services that there may have been children at defendant's home. Defendant was present during the search. Officer Hallagan searched inside cupboards and containers, and he did not find a locked box. He also did not find any children there. Defendant contacted Officer Villani after the search and informed her of the police contact, as required by his probation conditions.
Weed Police Officer Jared Klomparens searched defendant's trailer on July 16, 2009, the day before the search leading to defendant's arrest. His search was in response to a request from Child Protective Services to see if any children were present. Defendant was not present during this search, but his trailer was unlocked. Officer Klomparens was looking only for the presence of children, so he did not look in cupboards or small containers. When defendant arrived at the police station later that day to learn about the search, he did not appear to be under the influence of a controlled substance.
Defendant's brother, Darren Day, who lived on the property, testified he heard his dog barking the night before defendant's arrest towards an area where a neighbor had cut a hole in the fence for a gate into Day's backyard. This neighbor had complained about Day allowing defendant to live on the property. Day did not unleash the dog and he did not see anyone in the yard, but he heard a clanking sound as if someone had jumped over the fence.
Brenda Lowary, who also lived on the property with Day, heard the dog barking in the backyard the night before defendant's arrest. When she went to investigate, she saw something or someone moving back and forth. When she walked to the fence to see who it was, she did not see anyone walking down the road. Neither Day nor Lowary reported the incident to police or to Officer Villani.
Defendant did not lock his trailer. The night before his arrest, he stayed in town and not at the trailer. He had not seen the locked box until the police showed it to him. He also had not seen the key to the box. He kept his keys on a hook on the wall, not in a bowl near the cupboard where police found the key.
Defendant was abiding by the terms of his probation. He was preparing to go to an Alcoholics Anonymous meeting when the officers arrived to conduct the search.
After hearing the evidence, the trial court revoked defendant's probation and imposed the previously suspended 10-year prison sentence. The court was not persuaded that the paraphernalia was planted by someone. It found it more likely than not that the paraphernalia belonged to defendant and that he had some control in putting the paraphernalia inside the cupboard.
Defendant contends on appeal that substantial evidence does not support the trial court's decision, and that sentencing him to state prison is a miscarriage of justice.
Defendant contends the evidence, when considered as a whole, can lead only to the conclusion that he had no knowledge of the locked box or its contents, and thus is insufficient to support the probation revocation. We disagree. The evidence was sufficient to support the trial court's discretionary decision to revoke probation.
"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.) '[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.' (People v. Rodriguez (1990) 51 Cal.3d 437, 439.)" (People v. Galvan (2007) 155 Cal.App.4th 978, 981-982.)
"Revocation of probation lies within the broad discretion of the trial court. (People v. Angus (1980) 114 Cal.App.3d 973, 987.) Absent abuse of that discretion, an appellate court will not disturb the trial court's findings. (Id. at pp. 987-988.)" (People v. Self (1991) 233 Cal.App.3d 414, 417.)
The trial court did not abuse its discretion when it determined defendant had violated the terms of his probation based upon the evidence presented here. A routine, scheduled search of defendant's trailer found drug paraphernalia, the possession of which violated law and thus violated defendant's probation. Where proof of a probation violation is shown upon a preponderance of the evidence, the trial court was well within its discretion to conclude defendant violated probation.
Defendant claims the evidence, when viewed as a whole, shows some type of set-up. Defendant was complying with the terms of his probation. He was subject to false reports of children being on his property. His neighbor did not want him living there. On the night prior to the search, a commotion near the neighbor's fence roused the dog, and a witness saw somebody or something for a moment. Defendant claims this evidence, plus the illogic of one in his position keeping drug paraphernalia in his home after undergoing two unscheduled searches and knowing more would come, can lead a reasonable person to conclude only that he had no knowledge of the box or its contents.
To the extent there is a conflict in the evidence, the trial court was aware of this conflict, and it exercised its discretion in favor of finding a probation violation. Under these facts, we cannot conclude the court's decision was arbitrary or capricious. Defendant was in fact found in possession of drug paraphernalia. This evidence supports the court's discretionary determination.
Sentencing to Prison
Defendant argues his violation of probation was so "de minimus" and technical that revoking probation and sentencing him to prison was an abuse of discretion and a miscarriage of justice. We disagree.
A trial court's discretionary decision "'will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.] In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set aside on review. [Citations.] "Further, to be entitled to relief on appeal from an alleged abuse of discretion, it must clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.]"' (People v. Preyer (1985) 164 Cal.App.3d 568, 573-574.)" (People v. Zaring (1992) 8 Cal.App.4th 362, 378.)
This is not such a case. Defendant's possessing drug paraphernalia is not just a technical or minor violation of a probation rule. It is itself a separate crime. (Health & Saf. Code, § 11364, subd. (a).) The terms of probation were imposed to keep defendant from committing illegal acts. Certainly a court acts within its discretion when it revokes probation upon finding the defendant, within four months of release from custody, has committed a significant illegal act and shown he is unable to abide by the law.
Defendant's grant of probation was precarious at the onset. Defendant's probation report indicated he had previously been convicted of serious crimes, including infliction of corporal injury on a spouse or cohabitant (§ 273.5), child abuse (§ 273a, subd. (b)), and felony transportation of a controlled substance. (Health & Saf. Code, § 11379.) As a result of the felony conviction, and because he was being convicted of violating section 288, defendant was statutorily ineligible for probation except where the interests of justice would best be served. (§ 1203, subd. (e)(5).)
Although the trial court initially, albeit impliedly, made the exceptional determination under these facts that the interests of justice would best be served by placing defendant on probation, his subsequent behavior has proven that finding to have been illusory. The court did not abuse its discretion or commit a miscarriage of justice by not readmitting defendant to probation and by requiring him to fulfill his underlying sentence upon a new violation of law.*fn4
The judgment is affirmed.
We concur: RAYE , P. J. MURRAY , J.