Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA357877, William N. Sterling, Judge.
Ron Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Guillermo Calderon appeals the judgment revoking his probation and sentencing him to a term of four years in prison. Calderon contends the trial court abused its discretion by finding he willfully violated the terms of probation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Plea and grant of probation.
Because the facts relating to the underlying conviction are not relevant to the issues presented on appeal, we do not recite them here.
An information filed in July 2009 charged Calderon with two counts of transportation of a controlled substance, cocaine (Health & Saf. Code, § 11352, subd. (a)) and possession of cocaine for sale (Health & Saf. Code, § 11351). On December 23, 2009, Calderon pleaded guilty to transportation of a controlled substance. In accordance with a negotiated disposition, the trial court suspended imposition of a four-year sentence, placed Calderon on probation for three years on condition he serve 283 days in jail, with credit for 283 days served, and dismissed the remaining counts. It imposed a restitution fine, a suspended parole restitution fine, a court security fee, a criminal conviction assessment, and a laboratory fee and related penalty assessment. The trial court further imposed a variety of probation conditions. Relevant here are the conditions that Calderon (1) keep his probation officer “advised of [his] current address and telephone number at all times” and (2) “report to the Ascot area office of probation within 48 hours of [his] release from custody.”
The trial court’s minute order stated that Calderon was to “keep probation officer advised of your residence and work and home telephone numbers at all times” and “report to the probation officer within 48 hours after release from custody.”
2. Revocation of probation and imposition of sentence.
On April 13, 2010, the trial court revoked Calderon’s probation and issued a bench warrant for his arrest, due to his failure to keep his probation officer apprised of his work and home addresses.
On August 9, 2010, a probation revocation hearing was held, at which the following evidence was adduced. Probation Officer Karen King testified that Calderon had never reported to the probation department, nor had he advised the probation department of his residence address. Various documents of which the trial court took judicial notice, and information provided to King by representatives of the United States Immigration and Customs Enforcement (ICE), revealed that Calderon had been subject to an immigration hold at the time he pleaded guilty on December 23, 2009. He was deported on December 29, 2009. King had no records indicating, and did not know, whether Calderon had been released from custody during the brief period between his plea and his deportation. Calderon subsequently reentered the United States on an unknown date, and was again deported on March 18, 2010. He reentered again at San Diego on April 28, 2010, and “was arrested for re-entering.” King did not know whether Calderon had actually entered the United States on the latter two occasions, or whether he was arrested at the border and deported.
The probation report additionally stated that Calderon had been deported on February 2, 2010 and March 2, 2010. The defense objected that the report was hearsay, and the trial court did not consider the information regarding the February 2 and March 2 deportations as evidence on the issue of whether Calderon had violated probation.
The trial court concluded there was insufficient proof Calderon had failed to report to probation within 48 hours of his release from custody. However, Calderon had violated the terms of his probation by failing to keep the probation officer advised of his home and work addresses and telephone numbers. The court observed: “I think a reasonable inference from all the evidence is that he was deported and released into Mexico. And then he came back numerous times and got busted trying to enter illegally.... I think the only reasonable evidence is that, before he tried to re-enter illegally, he was out of custody in Mexico.” In finding Calderon in violation of probation, the trial court expressly referenced and distinguished our decision in People v. Galvan (2007) 155 Cal.App.4th 978. In the trial court’s view, under Galvan, Calderon’s failure to report in person to the probation department did not evidence a willful probation violation, but his failure to keep the probation department apprised of his whereabouts did. Accordingly, the court found Calderon in violation of probation and imposed the previously suspended four-year sentence. Calderon appeals.
The trial court expressly declined to find that the fact Calderon was in deportation proceedings constituted a violation. We therefore do not consider whether Calderon’s possibly illegal attempts at entering the United States constituted a probation violation.
DISCUSSION
Substantial evidence supported the trial court’s conclusion that Calderon violated the terms of his probation.
A court may 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....” (§ 1203.2, subd. (a); People v. Galvan, supra, 155 Cal.App.4th at p. 981; People v. Stanphill (2009) 170 Cal.App.4th 61, 72.) We apply the substantial evidence standard when reviewing a trial court’s finding of a probation violation. (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849.) The facts supporting revocation of probation may be proved by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 439; People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066; People v. Galvan, supra, at p. 982; People v. Kelly (2007) 154 Cal.App.4th 961, 965.) The evidence must support a conclusion that the probationer’s conduct constituted a willful violation of the terms and conditions of probation. (People v. Cervantes (2009) 175 Cal.App.4th 291, 295; People v. Galvan, supra, at p. 982; People v. Zaring (1992) 8 Cal.App.4th 362, 375-379.) “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, supra, at p. 295.) Trial courts have great discretion in deciding whether or not to revoke probation. (People v. Kelly, supra, at p. 965; People v. Galvan, supra, at pp. 981-982.) Absent abuse of that discretion, we will not disturb the trial court’s decision. (People v. Kelly, supra, at p. 965.)
Here, the evidence showed Calderon failed to report his whereabouts to his probation officer or the probation department during a period of approximately four months after his plea. Given that he attempted to reenter the United States during that period, it was a reasonable inference that he was not incarcerated. Although he had been deported, there is no reason to assume he was unable to contact the probation department via telephone, mail, facsimile, electronic mail, or similar means. Under these circumstances, it was a reasonable inference that his failure to provide his contact information to the probation department was willful and contumacious. The evidence therefore supported the trial court’s finding Calderon was in violation of the conditions of his probation.
The People argue there was evidence Calderon was “in and out of the country for a period of almost four months” after his initial release in December 2009. This is not entirely accurate. The record shows Calderon attempted to enter the country, and was deported, several times; it is not clear whether he was ever successful in entering the United States, or how long he stayed before being deported. In any event, a finding that Calderon was in the United States is not necessary to our conclusion that he violated his probation by failing to keep the probation department apprised of his address.
Our decision in People v. Galvan does not require a contrary finding. There, after pleading guilty to possession of cocaine in one case and no contest to burglary in another, the defendant, Galvan, was placed on probation. One probation condition required that Galvan contact and report to his probation officer within 24 hours of his release from jail. Another condition required that if he returned to the United States after leaving, he was required to report to the probation officer within 24 hours and present documentation proving he was legally in the country. (People v. Galvan, supra, 155 Cal.App.4th at
pp. 980-981.) After his release from jail, Galvan was deported to Mexico, was subsequently arrested in the United States, and never contacted his probation officer. Galvan’s probation was revoked both because he failed to report to the probation department within 24 hours of his release from jail, and because he failed to report within 24 hours of reentering the United States. (Id. at p. 982.)
On appeal, we held that the trial court abused its discretion by revoking Galvan’s probation. (People v. Galvan, supra, 155 Cal.App.4th at pp. 980, 983-984.) The probation conditions at issue would have been understood by a reasonable person to require a personal appearance before the probation officer. (Id. at p. 985.) The record did not suggest, and the People did not contend, that Galvan could have satisfied the probation requirements “in any way other than by showing up in person.” (Id. at p. 985, fn. 5.) We reasoned that it was impossible for Galvan to personally report to the probation officer within 24 hours of his release from jail, because he had been deported; therefore his failure to report was not willful. (Id. at pp. 983, 984.) As for his failure to report to probation within 24 hours of reentry into the United States, the record contained no evidence showing how long he had been back in the United States before his arrest. Thus, there was no evidentiary basis for revoking probation on that ground. (Id. at pp. 982-983.)
In so holding, we relied in part on People v. Zaring, supra, 8 Cal.App.4th at pages 378 to 379. In Zaring, a defendant’s probation was revoked after she was 22 minutes late to a court appearance. She explained that she had arranged for a ride to court, but the ride fell through at the last minute due to a childcare problem. Zaring held the trial court abused its discretion by revoking probation because the defendant’s violation had not been willful. (Ibid.) Nothing in the record in Zaring suggested the defendant’s failure to appear was the result of irresponsibility, contumacious behavior, or disrespect for the orders and expectations of the court. (Id. at p. 379; see also People v. Cervantes, supra, 175 Cal.App.4th at p. 293 [defendant was not in violation of probation where he was unable to appear for a hearing because he was in the custody of immigration authorities].)
Galvan and Zaring do not assist Calderon. The instant case involves Calderon’s failure to provide his contact information to the probation department, not his failure to report in person. Unlike in Galvan, the trial court here did not fault Calderon for failing to report in person to the probation officer. To the contrary, the trial court concluded, “I don’t think there’s proof he failed to report within 48 hours from release from custody. There’s no proof that he’s out of custody for 48 straight hours....” Instead, the trial court found a violation based on Calderon’s failure to “keep the probation officer advised of his whereabouts.” While deportation prevents a probationer from physically reporting to his or her probation officer, it poses no such impediment to communication with the probation department by other means. The fact a probationer is deported does not necessarily make it impossible or difficult for him to communicate with probation authorities. Contrary to Calderon’s argument, Galvan’s logicdoes not, on the facts presented here, extend to the requirement that a probationer keep his probation officer apprised of his whereabouts.
In support of their argument that the revocation of probation was proper, the People cite People v. Campos (1988) 198 Cal.App.3d 917, 923, which held that a “defendant who is deported while on probation may be found in violation of that probation for failure to report to the probation department although his deportation makes it impossible for the defendant to fulfill this condition of his probation.” In Galvan, we declined to follow Campos, noting that the case predated Zaring, and in any event failed to explain “how a failure to report in the deportation situation could be willful.” (People v. Galvan, supra, 155 Cal.App.4th at p. 985, fn. 4.) Likewise, our decision here is not based on Campos.
Calderon argues that the People failed to present evidence that it was possible for him to report his whereabouts to his probation officer after he was deported. He urges that there was no evidence he “had the capacity, or means to contact or communicate with his Probation Officer or that [he] had residence, work, or telephone numbers to report.” There is no question that it may become impossible or impracticable for a probationer to fulfill certain probation conditions after deportation. Indeed, in Galvan we referenced People v. Sanchez (1987) 190 Cal.App.3d 224 and People v. Espinoza (2003) 107 Cal.App.4th 1069, both of which recognized as much. (People v. Galvan, supra, 155 Cal.App.4th at pp. 984-985.) But the probation condition at issue here was not of that ilk. Unlike a requirement that a defendant participate in a court-approved drug program, or similar condition, deportation does not necessarily prevent a probationer from complying with the simple requirement of keeping his probation officer apprised of his whereabouts. Here, it was a reasonable inference from the evidence that Calderon was not incapacitated or incarcerated the entire time he was in Mexico; his repeated attempts to reenter the United States belie such a conclusion. It is axiomatic that communication between persons in Mexico and the United States is routinely achieved via telephone, mail, or other electronic communications. It appears, from defense counsel’s comments at the probation revocation hearing, that Calderon has family members living in the United States; there was no showing why they could not have assisted him in communicating with the probation department. Absent evidence to the contrary, the trial court was not obliged to assume Calderon had no reasonable means to contact his probation officer. We are likewise unpersuaded by Calderon’s argument that there was no evidence he had a work or home telephone number or address to report. He could have reported at least the fact that he had been deported and his location in Mexico. Contrary to Calderon’s argument, Galvan did not hold that a court must take into account “the unique circumstances of a probationer’s life subsequent to deportation” when determining “whether or not compliance with probation conditions is possible.”
In People v. Sanchez, supra, 190 Cal.App.3d 224, the court held it was not a violation of the equal protection clause or due process for a trial court to deny probation based in part on the consideration that the defendant was an illegal alien. (Id. at pp. 229-232.) The court reasoned that in the typical case, such a defendant will have limited ties to the community. (Id. at p. 231.) The court found it obvious that “a convicted illegal alien felon, upon deportation, would be unable to comply with any terms and conditions of probation beyond the serving of any period of local incarceration imposed.” (Id. at p. 231.)
Finally, Calderon asserts that a probationer would reasonably conclude he or she was no longer required to report to a United States probation officer after being deported to Mexico. In Galvan, we concluded that a reasonable person would have assumed, after being deported, that he was no longer expected to report in person to his probation officer within 24 hours of release. (People v. Galvan, supra, 155 Cal.App.4th at p. 985.) The same is not true here. An individual who has been deported could logically assume he or she no longer had to report in person because such action would be impossible, or at the very least highly impracticable. The same cannot be said for the obligation to keep one’s probation officer apprised of one’s whereabouts.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.
Similarly, in People v. Espinoza, supra, 107 Cal.App.4th 1069, the court held that Proposition 36 probation could be denied based on the defendant’s status as an illegal alien subject to deportation. (Id. at p. 1071.) The defendant’s immigration status made it highly unlikely he could complete a court-ordered drug treatment program before being deported. (Id. at pp. 1073-1074.) The court reasoned that California authorities have no effective means to evaluate, certify, or impose reporting requirements on treatment programs in other jurisdictions. California courts cannot lawfully compel noncitizens to attend drug treatment programs in their countries of origin, and “lack jurisdiction to enforce their probation conditions or to remand the defendant into custody on foreign soil.” (Id. at pp. 1075-1076.)