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The People v. Kathy Robinson-Gwartney

November 3, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
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

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 She was arrested for being in violation of probation, and her probation was revoked.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 ...


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