IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
July 11, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
RICHARD SOLIS MARTIN, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. CM028828)
The opinion of the court was delivered by: Butz , J.
P. v. Martin
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Richard Solis Martin, Jr., pleaded no contest to driving under the influence of alcohol (DUI) with an enhancement for causing injury, and admitted a prior DUI conviction. (Veh. Code, §§ 23566, subd. (a), 23153, subd. (a).)*fn1 He was initially placed on five years of formal probation, but probation was revoked and he was sentenced to three years in state prison.
Defendant appeals from the order finding him in violation of probation for failing to attend daily a 12-step or other self-help meeting during two extended time periods. He contends the trial court abused its discretion because his nonattendance at Alcoholics Anonymous (AA) classes during these periods was not willful, but the result of circumstances beyond his control. We shall affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2008, defendant, driving a PT Cruiser, was stopped in the center lane facing eastbound on Highway 32 when he abruptly turned left across the lane of oncoming traffic. He collided with a Pontiac Aztec driven by Jorge Gutierrez, causing injury to Gutierrez and his two-year-old daughter. At the time of the accident, defendant had a blood-alcohol level of 0.23 percent, a suspended license, and two previous DUI convictions.
The District Attorney filed a felony complaint charging defendant with DUI, with enhancements for causing injury and prior convictions (§§ 23566, subd. (a), 23153, subd. (a)), as well as two additional counts of alcohol-related driving with enhancements (§§ 23153, subd. (b), 23566, subd. (a), 14601.2, subd. (a)). Defendant pleaded no contest to count one and admitted the prior convictions. The remaining counts were dismissed with a Harvey waiver.*fn2 In April 2009, defendant was placed on five years of formal probation, with a 120-day suspended jail sentence. One condition of his probation was placement in the High Intensity DUI Enforcement (HIDE) Program.
On July 20, 2009,*fn3 a petition was filed to revoke defendant's probation, alleging that he tested positive for alcohol and failed to report to his probation officer. Defendant admitted to testing positive for alcohol, and the trial court reinstated probation with modified terms. Among these terms was Special Condition No. 32, which mandated that defendant "[a]attend a minimum of 1 meeting(s) per day of 12 Step or other approved self-help programs" and provide an attendance log to his probation officer.
On January 21, 2010, a second petition to revoke defendant's probation was filed, alleging that defendant had violated three conditions of his probation. One of the alleged violations was that defendant missed Alcoholics Anonymous (AA) meetings between October 15 and October 18, 2009, and again between November 6 and November 10, 2009, thereby violating Special Condition No. 32.
An evidentiary hearing was held on January 27, 2010. Defendant's probation officer, Roxanne Lara, testified that on October 30, 2009, defendant provided her with probation logs showing that he failed to attend AA meetings between October 15 and October 18, 2009.*fn4 She acknowledged that defendant had presented her with a statement from his doctor indicating he had a medical condition and recommending bed rest. However, the note was dated October 5, which did not correlate with the dates of the missed October meetings.
Defendant subsequently provided Officer Lara with logs showing that he failed to attend AA meetings between November 6 and November 10. Although defendant had received a pass to go to San Francisco during this period to attend a family funeral, the pass did not excuse him from compliance with any court orders. Furthermore, the pass was valid only for the period of November 5 through November 9. When Lara confronted defendant with the logs, he appeared "confused about the fact that he had missed some [meetings]."
Defendant testified that between October 15 and October 18, he suffered a "flare-up" of a painful chronic back condition and swollen legs, and was therefore unable to attend the AA meetings because he had difficulty walking. Defendant offered a note from his doctor dated October 5. The note directed him to limit kneeling, standing and sitting, while also recommending that he "[e]levate [his] legs [for] 2 days due to swelling," and get "[b]ed [r]est."
Defendant acknowledged that he did not attend meetings on November 6, 7, 8, and 10, but he explained that he was out of town for his stepmother's funeral, and unexpected family events prevented his attendance.*fn5
The trial judge, the Honorable Sandra L. McLean, found true the allegation that defendant violated his probation by failing to attend daily AA meetings. No finding was made as to the other two alleged violations. Judge McLean determined defendant was able to attend AA meetings while he was in San Francisco and that his medical excuse for missing meetings during October was not credible. The judge also found it significant that defendant failed to notify his probation officer during or immediately following either of his extended absences from AA class.
The court revoked probation and sentenced defendant to three years in state prison.
Defendant claims the trial court abused its discretion by revoking his probation, because the violations for failing to attend AA meetings were not willful.
Penal Code section 1203.2, subdivision (a) provides that "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 . . . ." (Italics added.) "It has been long recognized that . . . trial courts [have] very broad discretion in determining whether a probationer has violated probation." (People v. Rodriguez (1990) 51 Cal.3d 437, 443.)
While the discretion of the trial court to revoke probation is very broad, "the court may not act arbitrarily or capriciously. Its determination must be based on the facts before it." (People v. Taylor (1968) 260 Cal.App.2d 393, 395 (Taylor).) "A court may not revoke probation unless the evidence supports 'a conclusion [that] the probationer's conduct constituted a willful violation of the terms and conditions of probation.'" (People v. Cervantes (2009) 175 Cal.App.4th 291, 295, italics added.) 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.)
Because an order revoking probation may properly be based on a single ground (Taylor, supra, 260 Cal.App.2d at p. 395; see Pen. Code, § 1203.2, subd. (a)), we need not discuss defendant's explanation for missing the AA meetings in November during a family funeral if substantial evidence supports the trial court's finding that his medical excuse for missing the October meetings lacked credibility.
Defendant contends the record does not contain any evidence to contradict his testimony regarding the missed meetings in October. He asserts, "the only evidence in the record reflects that [he] has a disabling physical condition for which his doctor recommended bed rest and limited physical activity only ten days before the missed AA meetings."
Judge McLean stated frankly that she did not believe defendant's medical excuse, and her finding is reasonably supported by the record. First, the doctor's statement does not excuse defendant from normal activities and makes no reference to attending AA meetings. It merely recommends leg elevation and bed rest for two days. This is consistent with defendant's testimony that he is usually disabled for two to four days after a "flare-up."
But, more significantly, the doctor's statement and the October absences do not correspond with each other. The doctor's note was dated October 5, while defendant's log showed he began missing AA meetings on October 16. According to the log, defendant was able to attend meetings for nine consecutive days just two days after the doctor's note was written. Thus, unless defendant had the clairvoyance to secure a doctor's note on October 5, knowing that his back would flare up more than a week later, his excuse was a sham.
Finally, as Judge McLean pointed out, defendant offered no reason for failing to notify his probation officer of his back condition or the missed AA meetings until she confronted him with the incomplete attendance logs.
It is the "exclusive province of the trial judge or jury to determine the credibility of a witness," and an appellate court may not substitute its evaluation of a witness's credibility for that of the fact finder. (People v. Jones (1990) 51 Cal.3d 294, 314.) The record here amply supports the trial judge's finding that defendant's medical excuse was not credible. (SRT 63-64)
Citing People v. Zaring (1992) 8 Cal.App.4th 362 (Zaring), defendant nevertheless insists that his violation of probation was not willful but rather "the result of unforeseen circumstances beyond his control." In Zaring, the defendant was 22 minutes late for a probation hearing after her childcare arrangements unraveled at the last minute. (Id. at pp. 365-367.) The trial court revoked probation, stating, "I told Miss Zaring in a long speech that she had to be here at 8:30, and the most important thing in her life was to be here at 8:30, and if she wasn't here at 8:30 she was going to go to prison." (Id. at p. 377.) The appellate court found the order to be an abuse of discretion. After observing that judicial discretion "requires the application of sound judgment that takes into consideration that life is not always predictable and that things do not always go according to plan," the court declared that "[n]othing in the record supports the conclusion that [Zaring's] conduct was the result of irresponsibility [or] contumacious behavior," and therefore the evidence did not support a finding that her conduct "constituted a willful violation" of her probation. (Zaring, at p. 379.) The case before us is readily distinguishable from Zaring.
In Zaring, the defendant offered a perfectly reasonable excuse for her tardiness to the court hearing. The trial judge did not question the truth of her testimony but still found a willful violation of probation, stating that she should have "camp[ed] out" at the courthouse to make sure she would not be late to the Monday morning hearing. The appellate court overturned the willful probation violation based on the last-minute, unforeseen circumstance. (Zaring, supra, 8 Cal.App.4th at pp. 377-379.) Here, defendant failed to attend AA meetings for four consecutive days and circumstantial evidence seriously undermined his testimony that these absences were due to reasons beyond his control.
It is fundamental that, "[e]ven where contradicted by direct testimony, the finder of fact is entitled to accept persuasive circumstantial evidence to the contrary." (Norris v. State Personnel Bd. (1985) 174 Cal.App.3d 393, 398-399.)
Given the suspicious nature of his medical excuse and the strong circumstantial evidence to the contrary, the trial court did not abuse its discretion in determining that defendant was untruthful about the reason for his October absences. We therefore uphold its finding that the violation was willful.
The order finding defendant in violation of his probation is affirmed.
We concur: ROBIE , Acting P. J. HOCH , J.