People v. Barrow CA1/2

Filed 4/27/16 P. v. Barrow CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A146075
v.
ASA BARROW, (Contra Costa County
Super. Ct. No. 051405158)
Defendant and Appellant.
Appellant Asa Barrow challenges his July 2015 probation revocation on the
ground that the condition he was found to have violated, which prohibited him from
“being in the public” with two specified persons, was unconstitutionally vague and
therefore could not serve as a basis for finding him in violation of his probation. The
appeal is authorized by Penal Code section 12371 and rule 8.304 of the California Rules
of Court.
We shall affirm the order revoking probation.
FACTS AND PROCEEDINGS BELOW
The Underlying Conviction2
On February 4, 2014, Richmond police officers observed appellant standing next
to a green Ford Explorer in front of 2812 Rollingwood Drive, the home of his
grandmother, Hazel Norris, at which he had previously resided. The officer observed
1
All statutory references are to the Penal Code unless otherwise indicated.
2
The facts regarding this conviction are taken from the report of the probation
department.
1
appellant approach another vehicle and lean into the open passenger-side window,
conducting what they believed to be a narcotics transaction. When the officers
approached appellant, they observed green buds in his hands, and after they handcuffed
and searched him they found a loaded .38 caliber revolver, approximately 35.2 grams of
marijuana, and approximately 20.9 grams of methamphetamine. The police also arrested
the two minors, Roderick A. and Michael B., who were seated in the Ford Explorer. A
search of the vehicle disclosed a digital scale with marijuana leaves around it, and a
loaded Mini-14 assault rifle with one round chambered.
Appellant admitted ownership of the drugs but denied selling them, claiming they
were for personal use. He also denied ownership of the revolver he possessed and denied
any knowledge of the assault rifle found in the Explorer. A search of appellant’s phone
disclosed a photo of the rifle and text messages regarding the sale of marijuana. The
police also obtained access to appellant’s Instagram account, which contained photos of
an assault rifle and marijuana and references to marijuana sales.
Appellant was convicted by a jury of five counts of possession of marijuana or
methamphetamine while armed with a revolver or rifle (Health & Saf. Code, § 11370.1,
subd. (a)).
After conviction, appellant submitted a sentencing memorandum requesting
probation which proposed that he participate in three substance abuse treatment and
reentry programs: Narcotics Anonymous (NA), Rubicon, and a program sponsored by
the Office of Neighborhood Safety (ONS). The memorandum also proposed that if the
court suspended a prison term and granted probation, appellant “would also be monitored
closely with the understanding that if he violates probation he would be sent to prison.”
The district attorney opposed probation and proposed a three-year prison term, due
to appellants “drug enterprise,” possession of firearms, and use of minors to sell
narcotics.
Noting the seriousness of appellant’s criminal conduct, the court emphasized his
use of Instagram “to market his drug supply and make it available for sale . . . [and] to
bolster his reputation as a legitimate illegal drug salesman with the resources and the
2
weapons available to him to be taken seriously in the underworld of narcotics
transactions.” The court also observed appellant’s criminal history, unwillingness to
accept full responsibility, and his poor behavior in county jail. On the other hand, the
court also acknowledged appellant’s elaborate probation plans and the support he had
from family members, his girlfriend, the mother of his children, and from others in the
community. Although the court felt appellant’s conduct was “worthy of four years in
state prison,” it would suspend the prison term “because of the work your attorney did,
your family did, and possibly a few of the words you said in court today.” The court
stated it was in agreement setting you up for a prison term “is not what I want to do nor
will do at this time. However, I will be suspending more time than the [district attorney]
is asking for.”
The court set a three-year prison term for count 1, a consecutive eight-month term
for count 3, a concurrent three-year term for count 2, and concurrent terms of two years
each for counts 4 and 5. The court then suspended the sentence and placed appellant on
formal probation for five years.
The terms of probation included that appellant not use or possess narcotics,
including marijuana, that he abstain from alcohol, attend a two-week reentry workshop
with Rubicon, participate in the ONS program, and attend NA meetings two days per
week for one year, as appellant had himself proposed.
Initially, the court also ordered appellant to stay away from Roderick A. and
Michael B., the minors he was with when arrested. Appellant objected to this condition
because Michael was a cousin of appellant’s girlfriend and often served as a babysitter
for their children, and because Roderick was a close childhood friend. Defense counsel
objected to the stay-away orders, stating that Michael and Roderick “are very close in his
daily life,” and requiring appellant to stay away from them “would be setting him up for
failure. They’re like his family to him.” The district attorney pointed out to the court
“strong evidence that [appellant] was using [Michael] to sell drugs and to possess that
weapon.” The district attorney allowed that Michael may be related to appellant’s
3
girlfriend, but “the purpose of probation [was] to start a new life, to turn over a new leaf,
[and] [l]etting him associate with his crime partner in this case seems very unwise.”
The court resolved the problem this way: “I’m not going to have a no-contact
order. What I would have with both individuals, he cannot be out in public with them.
So if they’re at his house, right, you know, they need to exchange babysitting, what have
you. He doesn’t need to be out with them, he doesn’t need to be out at night, anyway.”
The court’s minute order states that appellant “may not be out in public with Roderick
and Michael”
Near the end of the sentencing hearing the trial court told appellant: “I’m going to
write in big letters in this file, ‘Defendant violates probation, he is sent to prison.’ . . . [¶]
Clear as a bell so that when it goes down to probation revocation department, you’re
selling drugs, you’re using, you’re doing whatever and not doing the right thing, you’re
going to state prison.”
The Revocation of Probation
On March 24, 2015, around 9:00 p.m., Detective Michael Ricchiuto was on patrol
in the area of 2812 Rollingwood Drive, the address at which appellant had originally
been arrested and where he previously lived with a woman he considered his
grandmother. He saw appellant in a group of about 10 people standing in a driveway
adjacent to the garage door of the residence. Knowing appellant was on probation,
Detective Ricchiuto approached appellant and told him he wanted to search him.
Appellant indicated he was no longer on probation, stating he “had been out seven
months” and “hadn’t seen a probation officer yet.” Ricchiuto insisted appellant was on
probation and subject to search, stepped closer to appellant and directed him to place his
hands behind his back, and searched him. The search produced no incriminating
evidence. However, Detective Ricchiuto noticed that Michael B. was among the 10 or so
people standing with appellant in the driveway. He also “noticed [the] smell of alcoholic
beverage on [appellant’s] breath.”
4
Six days later, appellant submitted a urine sample to Deputy Probation Officer
Morillo. The sample tested positive for marijuana, and appellant told Deputy Morillo he
had “smoked two to three blunts approximately two weeks ago.”
On April 3, 2015, the probation department petitioned to revoke probation,
alleging appellant was arrested on March 24, 2015, for violating his probation (§ 1203.2,
subd. (a)),3 based on his testing positive for marijuana and admission to using it. A
contested hearing was held on July 24, 2015, at which the court received testimony from
Detective Ricchiuto and Deputy Morillo regarding the facts just described. After the
People rested, the court asked defense counsel, “Do you have any information or
confirmation that the defendant attended ONS, attended the two-week workshop with
Rubicon, attended NA meetings? I would like to see proof of those.” Counsel was able
to provide the court notes drafted by appellant’s girlfriend, Marissa Hammond, and a
person named Seth Wells, which documented appellant’s “whereabouts and reporting as
directed during the [probation] period”; but counsel was unable to provide any proof
appellant had been attending the programs run by ONS, Rubicon and NA, as ordered.
After discussing the matter off the record with appellant, counsel explained that
appellant was unable to attend the ONS program because its location in Central
Richmond was dangerous for him to enter because he lived in the Easter Hill
neighborhood. Counsel stated that appellant “does have concern for his own safety being
in Central Richmond, his family being from Easter Hill, his family members’ conduct,
apart from his own, making him fear being a target there, and for that reason I know
Mr. Barrow’s represented that he’s also already been a victim of a firearms assault, that
3
This statute allows a peace officer to arrest an individual “[a]t any time during
the probationary period . . . if [the] probation officer, or peace officer has probable cause
to believe the supervised person is violating any term or condition of his or her probation
. . . . Upon such rearrest . . . the court may revoke and terminate [such probation] if the
interests of justice so require and the court, in its judgment, has reason to believe from the
report of the probation or parole officer or otherwise that the person has violated any of
the conditions of his or her probation, has become abandoned to improper associates or a
vicious life, or has subsequently committed other offenses, regardless of whether he or
she has been prosecuted for such offenses.” (§ 1203.2.)
5
he had been shot previously, and so this is a sincere concern and fear that he’s presenting.
It’s not just a speculative, abstract fear that’s out there.” The court noted that this
problem had not been mentioned by appellant a year earlier at the sentencing hearing
when he proposed participation in the ONS program.
In his closing argument, defense counsel focused on Detective Ricchiuto’s
testimony that at the time he saw and arrested appellant he was in the driveway in front of
the garage door, not near the sidewalk, and this “isn’t clearly a public area,” and that the
court’s order only barred contact with Michael B. when he and appellant were “in public
together.” Citing People v. Cruz (2008) 44 Cal. 4th 636, 674 (Cruz), counsel maintained
that a public area is “the area outside a home in which a stranger is able to walk without
challenge,” and the area in which appellant and Michael were located at the time
appellant was arrested and searched was not such an area.4
After revoking probation, the court imposed the previously suspended state prison
sentence of three years eight months; with appropriate total credits of 482 days. The
court did not reimpose the previously imposed fines and fees.
Timely notice of appeal was filed on August 25, 2015.
DISCUSSION
I.
“The fundamental role and responsibility of the hearing judge in a revocation
proceeding is not to determine whether the probationer is guilty or innocent of a crime,
but whether a violation of the terms of probation has occurred and, if so, whether it would
be appropriate to allow the probationer to continue to retain his conditional liberty.”
(Lucido v. Superior Court (1990) 51 Cal. 3d 335, 348.) Probation may be revoked on
proof by a preponderance of the evidence (People v. Rodriguez (1990) 51 Cal. 3d 437,
4
Counsel also advanced the argument that Detective Ricchiuto’s testimony
established only that appellant had a very brief “temporary contact” with Michael B., and
that was not enough “to show a willful violation” of the court’s no-contact order, as
required by section 1203.4. Appellant does not make this argument in our court. Nor
does appellant here challenge the technology employed by Deputy Morillo to ascertain
that he tested positive for marijuana, as he did below.
6
441), so that evidence insufficient to prove that the probationer committed a criminal
offense “beyond a reasonable doubt” may nevertheless be sufficient to support a finding
that the terms of probation were violated. (In re Coughlin (1976) 16 Cal. 3d 52, 57.)
However, the evidence must show that the offending conduct constitutes a willful
violation of one or more conditions (People v. Galvan (2007) 155 Cal. App. 4th 978. 982-
985), and when it revokes probation the court must make written findings of evidence
disclosing the evidence relied upon and the reasons for the revocation or insure that a
reporter’s transcript contains an oral statement of reasons in lieu of a written statement.
(People v. Vickers (1972) 8 Cal. 3d 451, 457.)
Appellant’s sole contention on appeal is that the associational condition he was
found to have violated is unconstitutionally vague in that it was not sufficiently precise
for him to know what is forbidden and for the court to determine whether he violated the
condition. Before addressing that issue, however, we must address the Attorney
General’s threshold claim that the constitutional challenge is untimely.
II.
The general rule is that “an appealable order that is not appealed becomes final
and binding and may not subsequently be attacked on an appeal from a later appealable
order or judgment.” (People v. Ramirez (2008) 159 Cal. App. 4th 1412, 1421, citing In re
Meranda P. (1997) 56 Cal. App. 4th 1143, 1150; § 1237, subd.(a).) As will be seen, the
parties’ disagreement about the timeliness of this appeal arises from their different views
of (1) the scope of the opinion in In re Sheena K. (2007) 40 Cal. 4th 875 (Sheena K.), and
(2) whether appellant’s constitutional challenge is based upon a facial defect.
Sheena K. involved a juvenile convicted of misdemeanor battery placed on
probation subject to a condition that she not associate with anyone disapproved by the
probation department. The Supreme Court found that the defendant’s failure to raise the
issue at the time the challenged condition was imposed did not require her to forfeit her
claim that the condition was unconstitutionally vague and overbroad. As the court
explained, “[i]n common with a challenge to an unauthorized sentence that is not subject
to the rule of forfeiture, a challenge to a term of probation on the ground of
7
unconstitutional vagueness or overbreadth that is capable of correction without reference
to the particular sentencing record developed in the trial court can be said to present a
pure question of law. Correction on appeal of this type of facial constitutional defect in
the relevant probation condition, similar to the correction of an unauthorized sentence on
appeal, may ensue from a reviewing court’s unwillingness to ignore ‘correctable legal
error.’ ” (Sheena K., supra, 40 Cal.4th at p. 887, quoting People v. Welch (1993) 5
Cal. 4th 228, 236.)
The Attorney General relies upon a caveat to the rule articulated in Sheena K.
After concluding that the defendant’s claim that her probation condition was vague and
overbroad was not forfeited by her failure to raise it in the juvenile court, the unanimous
opinion in Sheena K. cautioned that “our conclusion does not apply in every case in
which a probation condition is challenged on a constitutional ground. As stated by the
court in [In re Justin S. (2001) 93 Cal. App. 4th 811], we do not conclude that ‘all
constitutional defects in conditions of probation may be raised for the first time on
appeal, since there may be circumstances that do not present “pure questions of law that
can be resolved without reference to the particular sentencing record developed in the
trial court.” [Citation.] In those circumstances, “[t]raditional objection and waiver
principles encourage development of the record and a proper exercise of discretion in the
trial court.” [Citation.]’ ” (Sheena K., supra, 40 Cal.4th at p. 889.)
The Attorney General maintains that appellant’s challenge falls within the
exception to the rule carved out in Sheena K. because, unlike the defendant in that case,
appellant’s challenge to the probation condition is not facial but “as it applies to him,”
and therefore cannot be adjudicated without reference to the facts and circumstances
disclosed in the record.
According to the Attorney General, appellant’s challenge is analogous to that in
People v. Kendrick (2014) 226 Cal. App. 4th 769. The defendant in that case, who was
found guilty of two counts of committing a lewd act on a child, was placed on probation
with a condition that he not subscribe to or have access to any form of Internet service
without the approval of his probation officer. Kendrick did not object to the condition
8
when it was imposed. Subsequently, his probation was revoked for violation of a
different condition but reinstated on the same conditions initially imposed, and again, he
did not object to any condition. Two years later, the probation department found that
Kendrick had Internet access and was using it to contact an adult female with whom he
intended to pursue a relationship. On appeal, Kendrick argued for the first time that the
condition restricting his Internet usage must be vacated because it is “constitutionally
overbroad.” The Court of Appeal concluded that this claim could not be resolved
“ ‘without reference to the particular sentencing record developed in the trial court [and
thus does not] present a pure question of law.’ ” (Id. at p. 777, quoting Sheena K., supra,
40 Cal.4th at p. 887.) As the court explained, Kendrick’s claim that the condition was
constitutionally overbroad was based on the assertions that it was not narrowly tailored to
his conviction nor reasonably necessary to his rehabilitation or to protection of the public,
because there was no evidence he had ever used the Internet for any criminal purpose.
As the court noted, “[t]his claim, by its own terms, requires a review of the facts
underlying his convictions, facts set forth in the transcript of the preliminary hearing and
the probation report.” (Kendrick, at p. 777.) Kendrick’s challenge was also based on
testimony that the probation department generally approves Internet usage only if an
unemployed probationer is searching for a job. Kendrick argued that because the
probation department only approved Internet searches for employment he was prohibited
from “ ‘lawful and benign uses of the Internet,’ ” which was “ ‘an excessive deprivation
of his liberty and violated First Amendment rights.’ ” (Id. at p. 778.) As the court
observed, this argument also showed that Kendrick was not advancing a facial challenge
to the condition.
The Attorney General maintains that “[a]appellant’s as applied” challenge is
nearly identical to what was considered in Kendrick and is precisely the type of challenge
that does not fall under the forfeiture exception established in Sheena K. The Attorney
General says that even though appellant did not advance a vagueness argument during the
probation process, his opening brief on this appeal states that “ ‘[r]easonable people could
differ if asked whether appellant’s position in the driveway of a residence should be
9
considered a “public space,” ’ ” and this constitutes an “as applied” argument because
this statement, or “claim,” relates to “the specific facts of his case.” We disagree.
Appellant’s argument entitled “Invalid as Applied,” is no more than a five-
sentence follow up5 to his primary contention, which is entitled “Vague Term, ‘Public’ or
‘Public Place,’ ” and is unquestionably a facial challenge. The reason appellant added his
“Invalid as Applied” argument is that the case law typically emphasizes the significance
of the factual context in which a vagueness claim is based, because, in the end,
“ ‘[W]hether a particular location is a “public space” depends upon the facts of the
individual case.’ ” (Cruz, supra, 44 Cal.4th at p. 674, quoting People v. White (1991)
227 Cal. App. 3d 886, 892.)
The underlying concern of the concept of vagueness “is the core due process
requirement of adequate notice. ‘No one may be required at peril of life, liberty or
property to speculate as to the meaning of penal statutes. All are entitled to be informed
as to what the State commands or forbids.’ ” (People ex rel. Gallo v. Acuna (1997) 14
Cal. 4th 1090, 1115, quoting Lanzetta v. New Jersey (1939) 306 U.S. 451, 453.) The
doctrine applies to the command not just of statutes, but as well to those of probation
conditions. (Sheena K., supra, 40 Cal.4th at p. 890.) Where a condition of probation
requires a waiver of constitutional rights, such as the associational rights at issue in this
case, “ ‘the condition must be narrowly drawn. To the extent it is overbroad it is not
reasonably related to a compelling state interest in reformation and rehabilitation and is
an unconstitutional restriction on the exercise of fundamental constitutional rights.
5
The entirety of appellant’s “as applied” argument is as follows: “Even if this
associational condition was valid on its face, there was no proof that appellant willfully
violated it because its reach or scope is undefined. A reasonable person might readily
conclude that it does not prohibit standing on private property and some distance from a
public street in the presence of a named other party. Reasonable people could differ if
asked whether appellant’s position in the driveway of a residence should be considered a
‘public place.’ Certainly it is sufficiently ‘private property’ that the public could be
excluded from entering the parcel. Accordingly, there was a lack of substantial evidence
supporting the conclusion that appellant willfully violated this condition.” (Fn. omitted.)
10
(People v. Mason (1971) 5 Cal. 3d 759, 768 [].)’ (People v. Burden (1988) 205
Cal. App. 3d 1277, 1279.)” (People v. Hackler (1993) 13 Cal. App. 4th 1049, 1058.)
Like a vague statute, a vague probation condition does not just fail to provide
adequate notice to those who must obey its strictures but also impermissibly delegates
basic policy matters to law enforcement officers on an ad hoc and subjective basis, with
the attendant dangers of arbitrary and discriminatory application. (Sheena K., supra, 40
Cal.4th at p. 890, citing People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at p. 1116.)
The Attorney General maintains that “[t]he term ‘public’ is sufficiently precise
that a person of common intelligence would know what conduct was prohibited by a
probation condition barring appellant from associating with another individual ‘in
public.’ ” The Attorney General concedes there is no “single, unifying definition for
what is ‘public,’ ” but believes that poses no problem here. As the Attorney General sees
it, all that is required is that the condition be “sufficiently precise” and reasonably
specific to give appellant notice of what conduct is prohibited and a probation condition
or statute prohibiting certain conduct in public does just that. Accordingly, the condition
that appellant not associate with Michael or Roderick in public is not unconstitutionally
vague. We do not think the issue is nearly so simple.
As noted in In re Danny H. (2002) 104 Cal. App. 4th 92, the meaning of the phrase
“ ‘public space’ ” is “ambiguous . . . and the phrase, as a matter of common parlance,
bears multiple meanings. The word ‘public,’ as an adjective, includes such meanings as
‘of or relating to government,’ ‘of, relating to, or being in the service of the community
or nation,’ ‘of or relating to people in general[,]’ ‘general, popular,’ ‘of or relating to
business or community interests as opposed to private affairs[,]’ ‘accessible to or shared
by all members of the community,’ and ‘exposed to general view: open.’ ” (Id. at p. 97.)
Due to the ambiguity of the word “public” or phrase “in public,” courts have
found it useful to instead refer to a particular type of “public place,” such as a restaurant
(People v. Nguyen (2015) 61 Cal. 4th 1015), or a particular type of “public area,” such as
a parking lot adjacent to a market (People v. McDonald (2015) 238 Cal. App. 4th 16), or a
park established “for the enjoyment of the community in general” (Spires v. City of Los
11
Angeles (1906) 150 Cal. 64, 65-66), or a public place known by a probationer to be a
place at which gang activity takes place. (In re H.C. (2009) 175 Cal. App. 4th 1067,
1072.) Unfortunately, the words of the probation condition at issue here do not similarly
limit or clarify the meaning of the word “public” the trial court had in mind.
California courts have, however, routinely held that “privately-owned property can
constitute a public place.” (People v. Tapia (2005) 129 Cal. App. 4th 1153, 1161, citing In
re Danny H., supra, 104 Cal.App.4th at pp. 104-105.) Where, as here, the inquiry relates
to an area adjacent to a residence, the judicial focus is whether the area is one “in which a
stranger is able to walk without challenge.” (Cruz, supra, 44 Cal.4th at p. 674; In re
Miguel H. (2010) 180 Cal. App. 4th 1429, 1443; People v. Krohn (2007) 149 Cal. App. 4th
1294, 1298; People v. Olson (1971) 18 Cal. App. 3d 592, 598.) As earlier noted, at the
sentencing hearing, and just before revoking appellant’s probation, the court indicated it
had read the opinion in Cruz and was aware of the statement therein just quoted.
The Attorney General’s assertion that “[t]he term ‘public’ is sufficiently precise
that a person of common intelligence would know what conduct was prohibited by a
probation condition barring appellant from associating with another individual ‘in
public,’ ” cannot be squared with the case law.
The Attorney General also fails to explain, and we do not see, how appellant’s
vagueness claim is “fact-driven,” in the sense that it cannot be resolved without reference
to the particular sentencing record developed in the trial court. Appellant’s claim, which
seems to us the same as that in Sheena K., is essentially that the challenged order—that
appellant “may not be out in public” with Roderick A. and Michael B.—was not
“ ‘sufficiently precise for [him] to know what is required of him, and for the court to
determine whether the condition has been violated.” (Sheena K., supra, 40 Cal.4th at
p. 890.) Appellant maintains, in other words, that the word “public” and the phrase “in
public” are abstract concepts capable of different meanings; not just in the circumstances
12
of this case but in numerous other contexts. The constitutional vagueness of this concept
is a matter we could decide as a pure issue of law, and this appeal is therefore timely.6
However, the fact that we could decide appellant’s constitutional claim, which
permits us to address all of the issues this appeal presents, does not mean we are required
to address the constitutional claim, which is far more knotty than the Attorney General
appears to appreciate. We decline to decide this appeal on the basis of the constitutional
claim because even if the challenged probation condition is unconstitutionally vague, as it
may well be, the defect is not prejudicial. The trial court revoked probation on several
other grounds that are not challenged and amply support the trial court’s decision to
revoke probation.
III.
The Attorney General maintains that even if the court erred in conditioning
probation on not being in public with Michael B., “any error would be harmless because
the trial court would have revoked probation based on appellant’s drinking alcohol and
smoking marijuana.” According to the Attorney General, “[g]iven the court’s clear
statements at appellant’s initial sentencing and probation violation hearing, it is beyond a
reasonable doubt that the court would have revoked probation even without considering
appellant’s violation for associating with Michael B. in public. Appellant was convicted
of a serious drug-related crime, and the court made clear that appellant was not to use any
alcohol or narcotics. The court also based its initial decision to grant probation on
appellant’s proposed reentry and reengagement plan, which included substance abuse
treatment programs and other reentry programs appellant promised to complete. At the
time of the probation violation hearing, appellant had participated in no treatment
programs and had been using alcohol and marijuana. The court’s decision to revoke
6
Respondent’s contention that this appeal is untimely is also based on the
holdings of Ramirez, supra, 159 Cal. App. 4th 1412 and In re Shaun R. (2010) 188
Cal. App. 4th 1129 and, to a lesser extent, the opinions in People v. Vest (1974) 43
Cal. App. 3d 728 and People v. Glaser (1965) 238 Cal. App. 2d 819. These cases all
involve unusual facts not present in this case and are therefore inapposite.
13
probation was not based solely, or even mainly, on appellant’s violation for associating
with Michael B. Like in [People v. Arreola (1994) 7 Cal. 4th 1144], substantial evidence
other than that challenged by appellant supports the [probation] violation and subsequent
revocation and it is beyond a reasonable doubt that the court would have done so even
without considering appellant’s associating with Michael B. in public.”
Appellant considers the Attorney General’s argument “rank speculation.”
According to appellant, “it is unlikely that a single dirty test involving marijuana smoked
two weeks prior to contact with law enforcement would, alone, have triggered a
revocation and state prison term. More likely than not, appellant might have been given
some additional local custody time, been scolded and then reinstated on probation. There
was no solid proof of alcohol consumption or of any significant amount. No intoxilyzer
was administered nor any blood sample taken. So the [Attorney General’s] statement,
‘The court’s decision to revoke probation was not based solely, or even mainly, on
appellant’s violation for associating with Michael B.’ cannot be supported by the required
level of proof beyond a reasonable doubt. Absent solid proof of some serious or related
criminal violation, it is more probable that the court would have exercised its enlightened
discretion in the direction of keeping this young black man out of prison and able to get
meaningful help in turning his life around.”
The Attorney General’s argument is far stronger than that of appellant, which we
think ignores the views of the trial court expressed at the sentencing and revocation
hearings.
At the initial sentencing hearing, after the court announced its willingness to grant
probation over the strong opposition of the district attorney, the trial court told appellant
how difficult it was to grant him probation in light of the seriousness of his crime, and
how certain appellant should be that any violation of any condition of probation would
result in his imprisonment for five years; which was one year more than the district
attorney sought, in order to provide appellant an even greater incentive to change his
behavior. As the court emphatically stated: “I’m going to write in big letters in this file,
‘Defendant violates probation, he is sent to prison.’. . . [¶] Clear as a bell so that when it
14
goes down to probation revocation department, you’re selling drugs, you’re using, you’re
doing whatever and not doing the right thing, you’re going to state prison.”
Nearly a year later, at the revocation hearing, the disappointed court made good on
its promise. After determining that the driveway in which appellant was found with
Michael B. and others was “in what I define as a public place,” the court made an
extended statement about the many other reasons it felt compelled to revoke appellant’s
probation. The court noted that appellant “chose to lie about his probation status” to
Detective Ricchiuto, and “was clearly consuming alcohol on that day.” The court also
reminded appellant that at the time of sentencing, “I was very much on the fence. It was
a very difficult case, to me, to sentence because the actions and the behavior certainly
justified state prison.” The court also emphasized a significant factor appellant now
completely ignores: that the court’s decision to grant probation was perhaps most heavily
based on the probation conditions that appellant himself proposed; that he would “attend
[NA], Rubicon, and ONS.” The decision to grant probation appears to have been
primarily based on the court’s hope and belief these programs would enable appellant “to
step aside from the friends and the behaviors that he was demonstrating, and change, as
he promised he would.” The court appeared deeply affected by appellant’s complete
failure to participate in any of the reentry and rehabilitation programs he had himself
proposed. As the court stated, “almost exactly 11 months after sentencing—he’s done
nothing. And the only parts that have come to the attention of the court is that he’s
smoked marijuana and drank alcohol. Hasn’t done a thing to better himself.”
Appellant’s theory that, but for the violation of the associational condition, the
court would have “exercised its enlightened discretion to keep him out of prison and able
to get meaningful help in turning his life around,” is not just speculative but fanciful.
Accordingly, the trial court’s decision to revoke probation did not constitute error even if
the associational condition imposed on appellant was impermissibly vague.
DISPOSITION
The order revoking probation is affirmed.
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Kline, P.J.
We concur:
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Richman, J.
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Stewart, J.
People v. Barrow (A146075)
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