People v. Muldoon

• Decision Date: 31 May 2011
• Docket Number: A127461, A129627
• Parties: THE PEOPLE, Plaintiff and Respondent, v. RAYMOND MULDOON, Defendant and Appellant.
• Court: California Court of Appeals

THE PEOPLE, Plaintiff and Respondent,

v.RAYMOND MULDOON, Defendant and Appellant.

A127461, A129627

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Filed: May 31, 2011

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b).This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(SolanoCounty Super. Ct.No. VCR201354)

We have consolidated two appeals from a judgment that revoked defendant's probation, imposed a previously suspended three-year state prison term, and awarded him presentence custody credits.In one appeal, we conclude that substantial evidence supports the trial court's finding of defendant's commission of a willful violation of his probation.In the other appeal, we conclude that Penal Code sections 4019and2933as amended in 2010 must be given retroactive effect to grant defendant additional sentence credits.We therefore affirm the revocation of defendant's probation and the imposition of a previously suspended state prison term, but modify the award of sentence credits to defendant.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On May 14, 2009, defendant entered a negotiated plea of no contest to one count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245,subd. (a)(1)).¹At a sentencing hearing on June 18, 2009, the trial court imposed the middle term of three years in state prison, but suspended execution of sentence and placed defendant on formal probation for three years.One of the conditions of defendant's probation was that he successfully complete counseling and therapy at the Eagle Recovery Program.

A request to revokedefendant's probation and issue a bench warrant was filed on August 27, 2009.The Probation Department alleged that defendant did not complete the Eagle Recovery Program and failed to report an address change.

A contested probation revocation hearing was held on December 11, 2009.According to the evidence presented, defendant entered the Eagle Recovery Program on July 14, 2009, and was discharged on August 18, 2009.Defendant's probation officer Jamie Nichols testified that the day after defendant was "involuntarily dismissed from the program,"she received a voice mail message from defendant during which he indicated he"was kicked out of the program" and was "staying at some shelter in Sacramento."Defendant also mentioned to Nichols that he was "struggling in the program."Nichols was advised of defendant's discharge from the Eagle Recovery Program in a letter from defendant's counselor dated August 20, 2009.²At the conclusion of the hearing the court found that defendant committed a "willful violation of his probation, so probation is revoked."

The previously suspended three-year state prison term was imposed at a subsequent sentencing hearing, and defendant was awarded a total of 402 days of presentence custody credits.Defendant thereafter moved for additional sentence credits pursuant to an amendment of Penal Code section 4019.The motion was denied.Twoappeals filed by defendant from the revocation of probation and the denial of his request for additional sentence credits have been consolidated.

DISCUSSION

I.The Finding of a Probation Violation (A127461).

Defendant's sole contention in his first appeal is that the trial court erred by finding a willful violation of probation.He points out that the trial court excluded from evidence as hearsay the letter from the Eagle Recovery Program in which the reasons for his discharge were stated.Therefore, he argues that the only remaining evidence, the testimony of Nichols, "failed to establish a willful probation violation."

"Penal Code section 1203.2, subdivision (a) authorizes a trial court to 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 . . . .' "(People v. Jackson(2005)134 Cal.App.4th 929, 935;see alsoIn re Eddie M.(2003)31 Cal.4th 480, 487, 503-504;In re Alex U.(2007)158 Cal.App.4th 259, 265.)" 'When the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period.[Citations.]'[Citation.]"(People v. Johnson(1993)20 Cal.App.4th 106, 110.)

" '[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.'[Citation.]However, the evidence must support a conclusion the probationer's conduct constituted a willful violation of the terms and conditions of probation."(People v. Galvan(2007)155 Cal.App.4th 978, 982;see alsoPeople v. O'Connell(2003)107 Cal.App.4th 1062, 1066;People v. Zaring(1992)8 Cal.App.4th 362, 379.)"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.'[Citation.]Where a probationer is unable to comply with a probation condition because of circumstances beyond his or her control and defendant's conduct was not contumacious, revoking probation and imposing a prison term are reversible error."(People v. Cervantes(2009)175 Cal.App.4th 291, 295.)A willfulviolation requires " 'simply a purpose or willingness to commit the act . . . ,' without regard to motive, intent to injure, or knowledge of the act's prohibited character.[Citation.]The terms imply that the person knows what he is doing, intends to do what he is doing, and is a free agent.[Citation.]Stated another way, the term 'willful' requires only that the prohibited act occur intentionally."(Inre Jerry R.(1994)29 Cal.App.4th 1432, 1438;see alsoPeople v. Valdez(2002)27 Cal.4th 778, 787-788;People v. Atkins(2001)25 Cal.4th 76, 85;People v. Lara(1996)44 Cal.App.4th 102, 107.)The requirement of a knowing or willful violation does not additionally require proof of defendant's awareness that his acts constituted a violation of the condition or was otherwise culpable in nature.(SeePeople v. Valdez, supra, at pp. 787-788;People v. Ramsey(2000)79 Cal.App.4th 621, 632.)

" 'As the language of section 1203.2 would suggest, the determination whether to . . . revoke probation is largely discretionary.'[Citation.]"(People v. Galvan, supra, 155 Cal.App.4th 978, 981-982;see alsoPeople v. O'Connell, supra, 107 Cal.App.4th 1062, 1066.)Where, as here, "the trial court was required to resolve conflicting evidence, review on appeal is based on the substantial evidence test.Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision.In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment.Similarly, all conflicting evidence will be resolved in favor of the decision."(People v. Kurey(2001)88 Cal.App.4th 840, 848-849, fns. omitted.)On appeal we must of course "view the facts in the light most favorable to the judgment, drawing all reasonable inferences in its support."(People v. Cochran(2002)103 Cal.App.4th 8, 13;see alsoPeople v. Bento(1998)65 Cal.App.4th 179, 193;People v. Hayes(1992)3 Cal.App.4th 1238, 1249-1250.)

Even without admission of the formal discharge letter from the Eagle Recovery Program, which is just the type of hearsay document invested with the requisite indicia of reliability that traditionally has been considered admissible at probation revocationproceedings, we find the evidence adequate to support the trial court's determination of a willful probation violation.(SeePeople v. Maki(1985)39 Cal.3d 707, 715-717;People v. Minor(2010)189 Cal.App.4th 1, 22;People v. O'Connell, supra, 107 Cal.App.4th 1062, 1067.)We know from the record before us that defendant did not successfully complete the program, and left for another location without furnishing prior knowledge to his probation officer.Defendant's admission to his probation officer that he"struggled" with the Eagle Recovery Program and "was kicked out" engenders the reasonable inference that his violation of the counseling condition was willful, rather than the result of some blameless inability to complete the program.Probation officer Nichols also testified that defendant's dismissal from the program was involuntary.Substantial evidence supports the finding of a willful probation violation, and the revocation of defendant's probation was not an abuse of discretion.(Pen. Code, § 1203.2;People v. Arreola(1994)7 Cal.4th 1144, 1161;People v. McGavock(1999)69 Cal.App.4th 332, 338-339.)

II.The Denial of Defendant's Motion for Additional Sentence Credits (A129627).

Defendant argues in his second appeal that the trial court erred by denying him an award of additional presentence custody credits under the amended versions of statutes that became effective after he was sentenced but before the judgment will be final.He was awarded a total of 402 days of presentence custody credits pursuant to section 4019 as the statute provided when sentence was imposed.Defendant contends that the subsequent statutory amendments must be applied retroactively to the entire period of his presentence custody, entitling him to additional credits for the time he served prior to January 25, 2010.Defendant requests that we order the trial court to amend the abstract of judgment to reflect "268 actual days, plus 268 conduct days, for a total of 536 days of presentence custody credit."

Under section 2900.5, a defendant sentenced to imprisonment is entitled to...