IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sutter)
November 3, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KATHY ROBINSON-GWARTNEY, DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF07-3075)
The opinion of the court was delivered by: Blease , J.
P. v. Robinson-Gwartney
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Kathy Robinson-Gwartney appeals from the revocation of her probation, claiming the trial court abused its discretion when it revoked probation because of her failure to complete a 52-week child abuser program. She claims she was terminated from the program because of her inability to pay the program costs, that the trial court failed to understand that fact, and that any revocation of her probation because of her inability to pay violated her constitutional right to equal protection.
We shall conclude that the trial court's decision was not an abuse of discretion because the court considered all of the material facts, and the revocation of defendant's probation did not violate her constitutional rights because indigency was not the sole reason she was unable to meet the conditions of her probation.
FACTUAL AND PROCEDURAL BACKGROUND
In 2007, defendant was charged with involuntary manslaughter and willful child endangerment resulting in great bodily injury or death, stemming from the drowning death of her 23-month-old granddaughter while the child was in her care. Defendant pleaded no contest to the willful endangerment charge in exchange for a term of probation for up to six years. As one condition of her probation, she agreed to complete a program of child abuser's treatment counseling of no less than one year.
The trial court sentenced defendant to four years probation. She was ordered to participate in a program for child abusers for one year.
In March 2009, defendant submitted a urine specimen to her probation officer as a condition of her probation. Her urine tested positive for the presence of methamphetamine. She was arrested for being in violation of probation, and her probation was revoked. A hearing followed on October 19, 2009, at which the court reinstated probation and ordered that defendant serve a 90 day jail term.
On May 12, 2010, the probation department filed a declaration alleging that defendant failed to enroll, attend, and complete a child abuser's counseling program. A hearing was held on July 2, 2010. Defendant's probation officer testified that he received a letter on April 26, 2010, from Pacific Education Services (PES) notifying him that defendant failed to complete the program. She missed four classes (February 10, 17, and 24, and April 7), which resulted in her automatic termination from the program.
During a subsequent office visit with defendant, she indicated she could not afford the program. The probation officer testified he had spoken with Joanne Knepp at PES, who told him that defendant's fees for the program had been reduced to zero. The probation officer testified that the probation department's practice was to try to work out an arrangement with the counseling program if the probationer was having financial issues, but not if the probationer simply continued to miss classes. He stated that defendant had never produced any type of note or any other excuse for her absences. She never made an effort to get her absences excused.
Joanne Knepp, the PES program administrator, testified that the cost for the child abuser program was $45.00 per week. Defendant had filed the paperwork to obtain a fee assessment, which took effect on February 24, 2010. Pursuant to the fee assessment, defendant did not have to pay for the program for six weeks beginning February 24, 2010, the date of defendant's third unexcused absence. Defendant provided no excuse or documentation to the program for missing any of the classes, although she was in the process of getting a fee assessment during the first two absences. Knepp assumed this was one of defendant's issues with respect to the first two absences.
Defendant testified at the hearing. When asked why she missed three classes in February 2010, she replied that she had been overwhelmed because her father had died, and her daughter, who was "being a problem[,]" had come home from prison. Defendant did not state that she failed to attend the classes because she did not have the money to pay for them. When asked why she missed the class on April 7, 2010, she responded that it was because her husband was unavailable to drive her, and she was not used to walking to class. Her husband had been driving her to class, but he went to Arizona when his mother died. She did not want to drive their car because it was unregistered, and she did not want the car to get impounded. Again, she did not claim to have missed the class because she had no money to pay the class fee.
In finding defendant in violation of the terms of her probation, the trial court stated:
"Ms. Robinson was given the fee waiver which began on February 24 for six weeks. The court is satisfied that she was given every opportunity and advised what she needed to do if she wanted to apply for another fee waiver. The court, having considered all the evidence presented at the hearing this morning, finds that after being directed by the probation officer to enroll in, attend and complete a child abuser counseling program, that Kathy May Robinson Gwartney failed to comply in violation of the special condition of her probation that she complete any program of counseling deemed appropriate by the probation officer. And the court does find her to be in violation of the terms of her probation."
At the sentencing hearing, the trial court stated that defendant's explanation regarding termination from the child abusers program was "simply not credible." The trial court concluded that defendant had not taken probation seriously and that this was her second violation of probation. The court sentenced defendant to six years in prison.
No Abuse of Discretion
Defendant recognizes that we review the trial court's revocation of probation for abuse of discretion, but argues that the trial court's decision was based on a mistake of fact, and therefore was an abuse of discretion. Defendant argues the trial court relied on the mistaken belief that her absences from the child abuser program were not caused by her inability to pay for the classes, when the undisputed facts showed that two of her four absences occurred during the pendency of her application for a fee waiver that was ultimately granted based upon her inability to pay for the classes. Defendant argues that the probation officer was under the mistaken belief that defendant's fee waiver meant that all of her classes were free, and implies that this must have been the version of facts accepted by the trial court.
We find no evidence that the trial court's ruling was based on a mistake of fact. Evidence was admitted that defendant was required to pay for the first two classes she missed. Knepp clearly testified that defendant's fee waiver did not take effect until her third absence, on February 24, 2010. Knepp also stated that she believed the fee waiver was one of the issues that prevented defendant from attending the first two classes. Furthermore, the trial court confirmed its understanding that defendant had been required to pay for the first two classes she missed, when it stated that defendant "was given the fee waiver which began on February 24 for six weeks."
There being no mistake of material fact, the trial court did not abuse its discretion in ordering defendant's probation revoked.
Defendant also argues that the interests of justice were not served by the revocation order.*fn1 We disagree. This was defendant's second probation violation. The trial court specifically found that it did not believe defendant's explanations regarding her termination from the child abuser's program, even though the court was clear that her fee waiver had not applied to the first two classes. In addition to defendant's failure to attend the child abuser's class, she complained to her probation officer that she did not understand why she needed to go to the class. The trial court was justified in concluding that defendant had not taken her probation seriously. The trial court was well within its discretion in concluding that the interests of justice would be served by revoking defendant's probation.
Probation Revocation did not Violate Constitution
Defendant argues the revocation of her probation resulted in her imprisonment based upon her inability to pay, violating due process and equal protection. She is wrong.
Defendant relies on In re Antazo (1970) 3 Cal.3d 100, 103 (Antazo); Williams v. Illinois (1970) 399 U.S. 235, 238 [26 L.Ed.2d 586, 591]; and People v. Bethea (1990) 223 Cal.App.3d 917, 920. These cases are distinguishable. They all involve defendants whose imprisonment flowed directly from their inability to pay a fine or court costs. Here, defendant failed to attend the classes that she agreed to attend as a condition of her probation. While it is true the classes cost money, it is also apparent from the record that a mechanism was in place to waive the cost if defendant was unable to pay.*fn2 Defendant availed herself of that mechanism, but did not specifically tell her probation officer that she would be unable to attend any classes until she obtained the cost waiver. Instead, she did not inform the probation officer that she could not afford the classes until after she had been terminated from the program for non-attendance.
Defendant's inability to pay was not the sole reason for her failure to adhere to the conditions of her probation. She was allowed three unexcused absences from the program. One of her three unexcused absences could not have been caused by her inability to pay because she had a fee waiver for that class. Having been through the process to obtain a fee waiver, she knew how to obtain a further waiver for her fourth unexcused absence. Moreover, in defendant's own testimony, she did not assert her inability to pay as one of the reasons she failed to attend class.
In Antazo, supra, the Supreme Court stressed that the defendant was unable to pay the fine that was a condition of his probation "solely because he was an indigent." (3 Cal.3d at p. 115.) The court concluded, "that petitioner's imprisonment because of his inability, due solely to his indigency, to pay the fine and penalty assessment imposed upon him as a condition of probation . . . constituted an invidious discrimination based on his poverty in violation of the equal protection clause of the Fourteenth Amendment." (Ibid., italics added.) Thus, it is only where indigency is a defendant's sole reason for failing to pay a fine as a condition of probation that the defendant's resulting incarceration is unconstitutional. That was clearly not the case here.
The judgment is affirmed.
We concur: RAYE , P. J. MURRAY , J.