NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT*
Patricia Veronica Pinckney (defendant) appeals from an order revoking probation following a judgment of conviction based upon her plea of nolo contendere and a suspension of the execution of the prison sentence. Defendant, who admitted that she violated the conditions of probation, contends that the trial court's decision amounted to an abuse of discretion. We reject this contention and affirm the order.
BACKGROUND
Defendant and Rebecca Lynn Reagan1 were jointly charged with first-degree burglary (Pen. Code,2 § 459 [count I]) and receipt of stolen property (§ 496, subd. (a) [count II]). The information further alleged that defendant served two prior prison terms (§ 667.5, subd. (b)). On September 9, 2014, before Judge Thomas D. Zeff, and pursuant to a plea bargain, defendant pled nolo contendere to count I. She agreed to be sentenced without a formal probation report. The trial court imposed, but suspended execution of, a six-year sentence. Defendant was placed on formal probation for five years. The court set forth the conditions of probation, including the following:
"You are to report in person to your probation officer . . . by the close of business today, and, thereafter, report in person between the 1st and 15th day of each month, unless otherwise directed by your probation officer.
"Do not leave Stanislaus County for more than 48 hours without the written consent of your probation officer. You must obtain advance permission from your probation officer before moving out of Stanislaus County, and you must notify probation within 24 hours of any change of address."
"[I]f you violate probation you will be sentenced to six years' state prison."
Defendant accepted these conditions. The court ordered defendant to surrender to the Public Safety Center on November 14, 2014. The defendant, however, failed to do so.
At a December 2, 2014, proceeding before Judge Zeff, defense counsel Bernard Fairfield detailed:
"[Defendant] was supposed to surrender to the jail on November 14th. She told me earlier in the week when I was out of state that she had an issue and I told her to get ahold [of] me when I got back. She called me on the 14th, before the time to surrender, and had indicated on November 7th CPS [(Child Protective Services)] had taken her two children from her. She went to court sometime during the week of November 10th. It was put over to December 15th for her next hearing on the CPS petition. I understand that she wanted to surrender herself to Behavioral Health because of depression and other issues. Her sponsor at AA called me, advised me she went into Behavioral Health that Friday but they asked she be checked out, be medically cleared, and they admitted her on Saturday the 15th, and I believe they kicked her loose either Tuesday the 18th or Wednesday the 19th. . . . When I saw her on the 21st she walked . . . with a cane and now she's in a wheelchair. They've got her diagnosed as a fall risk. She's got some allergy issues. And she spent some time in the hospital — and she's still got her hospital tag on her wrist."
Fairfield asked the court to release defendant on probation and extend her surrender date:
"I'm asking the Court to release her so she can deal with the CPS issues. She's got a very narrow window of six months to take care of the CPS reunification. I don't know who her attorney is. That paperwork is not with her at the jail. It's at home with a friend. Obviously I have no access to juvenile court records. . . . [¶] . . . [¶] . . . [S]he's already been ordered into some programs by CPS and it's critical that she gets to that program because of the very narrow window for reunification."
The court denied Fairfield's request and remanded defendant into the custody of the sheriff to serve the original sentence.
The appellate record does not show exactly what occurred in connection with this case between December 2, 2014, and February 18, 2015. Nonetheless, based on the record, it is reasonable to conclude that defendant's probation was ultimately reinstated. (See at pp. 4-6, post.)
On February 1, 2016, the Stanislaus County Probation Department filed an order to show cause, alleging that defendant had violated the conditions of probation. The order specified:
"On February 18, 2015, the defendant signed reporting directives to report on the first or second Wednesday of every month between 8:00 am to 11:00 am and 1:00 pm to 4:00 pm and to report to the Probation Officer, in person, within 24 hours of any change of address, new arrest or citation and within seven days of any release from jail.
"On June 1, 2015, a field visit was conducted at the defendant's previously reported address. . . . [She] was not contacted and a business card was left directing [her] to contact the Probation Officer.
"On June 2, 2015, the Probation Officer received a phone call from a resident of the defendant's reported address. The resident reported the defendant was asked to leave and no longer lives at the address. The defendant subsequently failed to report for the months of June, July, August, and September 2015.
"On October 20, 2015, the Probation Officer attempted to make contact with the defendant using her last reported phone number. The Probation Officer heard a voice recorded message indicating the telephone number had been disconnected.
"On October 29, 2015, a field visit was conducted at the defendant's previously reported address. . . . [She] . . . w[as] not contacted. The defendant subsequently failed to report for the months of October and November 2015.
"On December 22, 2015, a reporting letter was sent to the defendant with instructions . . . to report to the Probation Department on January 5, 2016. The letter was sent to . . . the address [she] reported when booked on November 21, 2014, at the Stanislaus County Jail. The letter was returned by the United States Postal Service with a label on the front of the envelope stating, `Return to Sender Not Deliverable As Addressed Unable to Forward.' The defendant's whereabouts are unknown. [She] subsequently failed to report for the months of December 2015 and January 2016."
The show cause hearing occurred before Judge Zeff on March 15, 2016. Defendant failed to appear at the hearing and the court summarily revoked her probation and issued a bench warrant.
On May 12, 2016, defendant was taken into custody. At an August 30, 2016, proceeding, before Judge Zeff, defendant waived her right to a formal revocation hearing and admitted that she "fail[ed] to report to probation as ordered" and "failed to report a change of address." The court revoked probation, finding "willful violation of probation."
At defendant's sentencing hearing on September 6, 2016, before Judge Zeff, Fairfield submitted defendant's medical documentation for the period of January 2015 to June 2016. The documentation showed defendant had been hospitalized for a total of 51 days. She had end-stage cirrhosis, had undergone multiple procedures to remove excess abdominal fluid and, despite a history of heroin addiction, had received opioid pain medication. She had suffered from "gallstones, urethral stones, [and] kidney stones."3 The court and Fairfield engaged in the following colloquy:
"THE COURT: Mr. Fairfield, she got to the hospital successfully . . . numerous times. What would have prevented her from going to the probation department? [¶] . . . [¶] . . . Or calling probation?
"MR. FAIRFIELD: Well, she informed me that she did not have access to a phone during parts of that time. And I agree, you know, she technically did not report. But on the positive side, she had no new law violations.
"THE COURT: Only because she wasn't caught. It's in the records that she's using heroin.
"MR. FAIRFIELD: She used a few times, no question about that. But then again, they were prescribing her opiates, which I don't understand why anybody with a history of opiate addiction would be prescribed opiates. That's just putting fuel on the fire, and I've seen that with other clients who were prescribed opiates as a pain medication. They go and re-offend quite quickly because of that.
"So while you have these numerous hospitalizations, she's got long periods of pain before and after those periods of hospitalization. And if somebody's suffering acute pain, they're not interested in doing much of anything other than trying to get comfortable and trying to alleviate that pain. [¶] . . . [¶]
"THE COURT: Mr. Fairfield, when she conceded or admitted her violation, wasn't she conceding that she was in willful violation of probation?
"MR. FAIRFIELD: We had discussed that, Judge. I think technically the Court would find her in violation. The point —
"THE COURT: She is in violation but she admitted it. When she admitted it, isn't that admitting that she was in willful violation of probation?
"MR. FAIRFIELD: Under that circumstance, yes, Judge. And . . . in discussing this with [defendant], I believe the issue that should be brought before the Court was some of the basis behind that. [¶] . . . [¶]
"THE COURT: That doesn't negate the fact that she's admitted to being in willful violation of probation."
Thereafter, the court terminated probation and executed the previously suspended six-year term on count I.
DISCUSSION
"A court may modify, revoke, or terminate the defendant's probation upon finding the defendant has violated probation." (People v. Bolian (2014) 231 Cal.App.4th 1415, 1420, citing § 1203.2, subds. (a), (b)(1); see People v. Medina (2001) 89 Cal.App.4th 318, 321 ["[T]he court's authority to modify probation necessarily presumes the power to reinstate it."].) "The decision whether to reinstate probation or terminate probation (and thus send the defendant to prison) rests within the broad discretion of the trial court." (People v. Bolian, supra, at p. 1421.)
"We review the trial court's probation revocation order for an abuse of discretion." (People v. Butcher (2016) 247 Cal.App.4th 310, 318.) "[G]reat deference is accorded the trial court's decision, bearing in mind that `[p]robation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court. [Citations.]' [Citation.]" (People v. Urke (2011) 197 Cal.App.4th 766, 773.) "`[T]he court's discretion will not be disturbed in the absence of a showing of abusive or arbitrary action'" (ibid.) "[a]nd the burden of demonstrating an abuse of the trial court's discretion rests squarely on the defendant" (ibid.). (See People v. Lippner (1933) 219 Cal. 395, 400 ["[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation."].)
We find no abuse of discretion. The record establishes that defendant expressly agreed to (1) report to her probation officer in person once a month, and (2) apprise her probation officer of any change to her home address. Furthermore, she was warned that a violation of these conditions would result in a six-year prison sentence. Between June 1, 2015, and May 12, 2016, defendant failed to report to her probation officer. Field visits during this period also revealed that she changed her address at least once without notifying the probation department. At an August 30, 2016, proceeding, after waiving her right to a formal hearing, defendant admitted that she violated the conditions of probation. Although she offered evidence of poor health as a mitigating circumstance, the court questioned how she was able to go to the hospital for treatment on a consistent basis but unable to report to the probation department once a month. In addition, defendant continued to abuse heroin.
In her opening brief, defendant contends that "the trial court abused its discretion in failing to find her case an unusual case, under California [R]ules of Court, rule 4.413, and reinstate her on probation." (Fn. omitted.) This rule, however, concerns the determination of a defendant's initial eligibility for probation where he or she falls under a statutory provision prohibiting probation, not the revocation or reinstatement of probation following a concession of violations.
Defendant also contends the trial court "erred in failing to read the probation report" before it sentenced her.4 (Boldface & some capitalization omitted.) She asserts a report would have informed the court about mitigating circumstances such as her "serious, life-threatening illnesses," "history of depression and drug use," and "battl[e] [with] Child Protective Services to retain custody of her children." Assuming arguendo the court should have ordered and considered a supplemental probation report, the failure to do so did not amount to prejudicial error. Judge Zeff presided over the relevant hearings. At the September 9, 2014, proceeding, at which defendant pled nolo contendere, the court could not examine a formal probation report because defendant agreed to be sentenced without one under the plea bargain. Even so, the record demonstrates the court was sufficiently acquainted with defendant's purported mitigating circumstances. At the September 6, 2016, sentencing hearing, the court listened to Fairfield's remarks pertaining to defendant's physical ailments and illicit heroin use and examined the accompanying medical documentation. Earlier, at the December 2, 2014, proceeding, the court listened to Fairfield's statements pertaining to defendant's depression and interaction with CPS. Neither depression nor a CPS matter is substantiated by the record. Moreover, with respect to the asserted CPS matter: at the December 2, 2014, proceeding, Fairfield described a "narrow window of six months to take care of the CPS reunification"; over six months later, at the September 6, 2016, sentencing hearing, Fairfield did not raise issue. The record does not support the conclusion the asserted CPS matter was still an issue for defendant. Since nothing suggests there was beneficial information unknown to the court, it is not reasonably probable defendant would have received a more favorable result had a supplemental probation report been ordered. (See People v. Dobbins (2005) 127 Cal.App.4th 176, 182 [applying harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818].)
DISPOSITION
The order is affirmed.
