People v. Angus

• Decision Date: 30 December 1980
• Docket Number: Cr. 20472
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Paul Ray ANGUS, Defendant and Appellant.

Page 5

171 Cal.Rptr. 5

114 Cal.App.3d 973

The PEOPLE, Plaintiff and Respondent, v. Paul Ray ANGUS, Defendant and Appellant.

Cr. 20472.

Court of Appeal, First District, Division 4, California.

Dec. 30, 1980.

Quin Denvir, State Public Defender, Deborah Long, Deputy State Public Defender, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Stan M. Helfman, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

COLVIN, Associate Justice.

Paul Ray Angus appeals from a judgment sentencing him to state prison following revocation of his preexisting probation. He contends (1) that the revocation and sentence constituted an abuse of the court's discretion and (2) that the sentence imposed improperly penalized him for demanding a revocation hearing.

Appellant was convicted, upon his guilty plea, of assault with a deadly weapon (Pen.Code, § 245, subd. (a)). On May 25, 1978, imposition of sentence was suspended and he was admitted to formal probation for five years upon several specified conditions. On May 22, 1979, upon the probation department's report and recommendation, the trial court by ex parte order revoked probation and ordered a bench warrant for appellant's arrest. Following a probation revocation hearing, on October 9, 1979, the trial court found that appellant had violated his probation and sentenced him to state prison. He filed a timely notice of appeal on November 7, 1979.

FACTS

The essence of appellant's first contention is that the evidence did not warrant probation revocation or the prison sentence. He does not contest the admissibility of any of the documents or testimony presented to the trial court; this evidence contained a substantial number of pertinent facts.

A. The underlying conviction.

Appellant had been charged in February 1978 with two counts of aggravated assault (Pen.Code, § 245, subd. (a)), by an information which also alleged that he had suffered two prior felony convictions (for robbery and for possession of marijuana).

A probation report prepared in April 1978 indicates that the charges arose out of an incident at a bar: Appellant arrived late in the evening, apparently already drunk, and demanded and consumed three drinks in quick succession. When the bartender refused to serve him more alcohol, appellant reportedly threw a glass at the bartender (count two), knifed a customer (count one), and then was dragged out of the place by his companions.

At a pretrial hearing, appellant pleaded guilty to the knifing and admitted both priors. The plea was entered pursuant to a plea bargain for dismissal of the second count, and upon the condition that appellant be admitted to probation. The second count was dismissed.

B. Appellant's background.

The probation report reflects that appellant was a 28-year-old with a noteworthy record of criminal (eight convictions including the two prior felonies), juvenile (22 arrests "for such offenses as assault with a deadly weapon, battery, disturbing the peace, malicious mischief, robbery, grand theft, incorrigibility, truancy, curfew, and failure to comply with a court order," and more than three years on juvenile probation), and traffic (25 offenses including three drunk driving convictions and two license suspensions) troubles. He had spent time in prison and in jail, as well as on probation and on parole. He was on parole at the time of the knifing.

Appellant's performance on a previous probation, in the early 1970s, had been poor. The probation report recites among other things that he had reported only sporadically, had moved several times without informing the probation department, had actively resisted supervision, and had refused to keep appointments.

The probation report reflects that appellant was at one time a heavy drinker and that he had abused other drugs as well. The report summarizes information received from appellant's parole officer and two special police investigators, who described appellant as an "enforcer" for drug dealers who pistol-whipped and knifed adversaries, had "no conscience or qualms about hurting people," and "is a constant criminal problem within the community and chronically violent."

C. The probation order.

Based on the information summarized above, the reporting probation officer recommended that appellant be committed to state prison. Nevertheless, on May 25, 1978, over the prosecutor's objection that appellant was ineligible for probation absent a showing that "the interests of justice would best be served if the person is granted probation" (cf. Pen.Code, § 1203, subd. (d) [now subd. (e); Stats.1979, chs. 1174, 1175], the trial court admitted appellant to probation for five years on a number of terms and conditions of which the following are relevant to this appeal:

"3. The defendant immediately following his release from custody involve himself in a rehabilitation program at Delancey Street or a similar residential program which requires the commitment of two years; ...

"(T)he defendant shall abide by the standard terms of probation set forth in the printed Order of Probation." The "standard terms of probation" required in pertinent part that appellant "1) Conduct himself in all respects according to the requirements of the Probation Officer of Contra Costa County and, upon termination of any period of confinement in the County Jail, continue under the charge of said Probation officer. 2) Report in person to the Probation Officer once each month or at such other times and in such manner as directed by the Probation Officer. 3) Seek and maintain employment and immediately notify the Probation Officer of any change in employment status. 4) Not change his place of residence nor leave the State of California without written permission of the Probation Officer .... 8) Maintain an address with the Probation Officer where notice of any further proceedings may be mailed."

D. The ex parte revocation order.

On May 22, 1979, Probation Officer McDoniels filed with the trial court a "report & recommendation for revocation of probation" which recited that appellant had served his county jail condition from May 25, 1978, until April 14, 1979, and had accumulated 10 infractions (including intoxication and threats against other inmates) during that time, and continued as follows:

"The defendant held a variety of jobs at the Rehabilitation Center while incarcerated. Staff comments about the defendant were unfavorable often in the extreme. Some deputies wondered why an inmate such as the defendant who has done so much institutional time could not do the county jail time with greater facility and ease.

"Because of the loss of Good and Work Time, law changes in time computation, and confusion over his parole hold, the defendant's release date varied from February 23, 1979, to April 22, 1979. Because of this, the defendant left the jail without being screened for his mandatory involvement in a two (2) year residential program.

"This agent's efforts to find the defendant since his jail release have been futile. Letters have been returned marked 'Moved, Unable to Forward' and 'No Such Address.' Addresses given by the defendant to the investigation officer have either been nonexistent or the persons residing there now claim to know nothing about the defendant.

"EVALUATION :

"It appears the defendant has no intention of complying with his Order of Probation and, indeed, is now in violation of Conditions Two, Four, Eight, and the Special Condition related to the two (2) year residential program of his Order of Probation.

"As is clear from all the documents extant in this case, this defendant is without controls and conscience. He is manipulative and a clear and present danger to the society at risk to his predations."

McDoniels recommended revocation. On the same day, the trial court filed an ex parte revocation order and directed issuance of a bench warrant.

E. The revocation hearing.

At the revocation hearing, McDoniels and appellant testified, and the probation reports prepared in April 1978 ¹ and May 1979 and a supplemental report prepared in August 1979 were placed before the court.

The August 1979 report summarizes appellant's statement that he had moved to South Lake Tahoe where he had found employment and lived with his wife and stepson, that he did not seek a Delancey Street placement "because of the connubial responsibilities and because he claims to have lived a drug-free life for two ... years," and that he stayed in contact with his parole officer. The report recited the parole officer's statement that appellant had "disappeared" after testing positively for phenobarbital in June 1979, and the circumstances of appellant's arrest. Appellant's employment could not be verified. Appellant had applied for admission to Delancey Street at the time the report was prepared. The reporting officer, McDoniels, recommended a prison sentence.

McDoniels testified that appellant's case was assigned to him for probation supervision on June 1, 1978, and that he discussed the terms and conditions of the probation with appellant "on a number of occasions." McDoniels testified that "Mr. Angus, on a number of occasions, told me that he was not going to go to any rehabilitative program such as Delancey Street, in fact, refused to sign his order of probation until January 18, 1979, some six months after he had been in custody." McDoniels explained how he and a probation resource officer had lost track of appellant's release date and acknowledged that they had not arranged for a residential program when appellant was released. In other respects, McDoniels simply amplified or reiterated matters contained in his written reports. On cross-examination, McDoniels affirmed that appellant's refusal to sign the probation order as requested was itself a violation of...