Opinion
E032541.
7-2-2003
THE PEOPLE, Plaintiff and Respondent, v. OSCAR DAVID ROMERO, Defendant and Appellant.
Maureen J. Shanahan, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela A. Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Oscar David Romero appeals from a final judgment imposing sentence on his assault conviction, after his probation was revoked. He raises several concerns about the revocation proceedings. We affirm.
FACTS AND PROCEDURAL HISTORY
In May of 1998, defendant was emotionally upset over a recent breakup with his girlfriend. On the day of the incident in question, he was visiting his brother. Defendant had been drinking, and he had used illegal drugs the day before. His brother described him as "mad at the world" that day. Defendants brother knew "how [defendant] gets when he becomes angry," and warned some children who were in the street to leave. Defendant was irked when he thought that two men, who were in a parked car nearby, were looking and pointing at him. Defendant confronted one of the men and punched him in the mouth, before returning to his car, which was parked in front of his brothers house. The victim approached defendant, wanting to know why defendant had hit him; defendant pulled out a gun and fired several shots, wounding the victim in the leg, arm and chest.
Defendant was charged with attempted murder and assault with a deadly weapon, along with several enhancement allegations (e.g., infliction of great bodily injury, personal use of a firearm), arising out of the incident. Pursuant to an agreement, defendant pleaded guilty to the assault charge. Defendant was admitted to probation for a period of five years.
Among other conditions of his probation, defendant was required to report to his probation officer, and to abide by all reasonable directives of the probation officer. For approximately 21 months, defendant was supervised as a high-risk probationer. He apparently satisfactorily complied with the reporting condition, as required by the probation department, during that time. Defendant was then reassigned to a lower level of supervision which did not require him to report physically to the probation office.
In late 2001, the probation department assigned defendant once again to intensive supervision; he had apparently contacted his girlfriend in violation of a restraining order. On November 5, 2001, defendants new probation officer told him that he must report to her on the first Wednesday of each month. Defendant failed to report to the probation officer in each of the following five months. On April 24, 2002, the probation officer spoke to defendant on the telephone; she told him he would face a probation violation unless he reported to her by the end of that week. Defendant failed to appear.
In May 2002, therefore, defendants probation officer filed a report alleging that defendant had violated a condition of his probation by failing to report to the probation officer, when required, for five months.
Defendant served a subpoena duces tecum seeking access to his probation department file. He wanted to determine the number of times the probation department had recorded him as failing to appear. His counsel argued that access to the file was necessary to determine whether there had been any violations, exactly what defendant had done or failed to do, and what steps had been taken by the probation department before bringing defendant to court.
The trial court ruled that defendant was not entitled to access the entire probation department file, and quashed the subpoena.
At the revocation hearing, defendant sought to introduce evidence concerning defendants relationship with his former probation officers. Defendant argued that, after his file was reassigned in October 2001, reporting requirements had changed; the evidence of his relationship with his former probation officers was intended to show defendants knowledge and state of mind concerning the new reporting requirements. The trial court ruled that evidence of defendants relationships with his probation officers before October 2001 was irrelevant, and excluded the evidence.
Defendant presented evidence that, although he had failed to report to the probation office at the times directed, he had telephoned the probation office at other times, and once came in to the office to report a police contact (another requirement of his probation).
The court found defendant in violation of his probation. The court refused to reinstate probation, but instead sentenced defendant to the middle term of six years in state prison on the assault conviction.
Defendant now appeals.
ANALYSIS
Defendant contends the court erred in several respects regarding his probation violation. First, he contends the trial court improperly denied his subpoena duces tecum for his probation file. Second, he argues the court improperly precluded him from introducing evidence of his relationships and compliance with the directives of his former probation officers. Third, he argues the evidence was insufficient to establish a willful violation of the terms of his probation. Fourth, he argues the court abused its discretion in failing to reinstate his probation. We find none of the contentions meritorious.
I. The Trial Court Properly Quashed the
Subpoena Duces Tecum
In advance of the violation of probation hearing, defense counsel served a subpoena duces tecum on the probation department, requesting "All documents pertaining to Department of Probation[]s monitoring and/or supervisors of defendant Oscar Romero," and stating that "All records are material to the alleged violation of probation."
As noted in McGuire v. Superior Court, probation department files are court records, and specifically excluded by Government Code section 6252, subdivision (a), from disclosure under the Public Records Act. "That the probation file is a court record and not subject to disclosure under the Public Records Act does not mean it is not subject to disclosure. Court records are open to the public unless they are specifically exempted from disclosure by statute or are protected by the court itself due to the necessity of confidentiality." Nonetheless, Penal Code section 1203.10 indicates that probation records are open to inspection only by designated persons, such as judges, magistrates, police chiefs, and "any person appointed by the court for that purpose."
McGuire v. Superior Court (1993) 12 Cal.App.4th 1685.
McGuire v. Superior Court, supra, 12 Cal.App.4th 1685, 1687.
McGuire v. Superior Court, supra, 12 Cal.App.4th 1685, 1687.
Defendant urges that, because "any person" might be appointed by the court for the purpose of inspecting the records, defense counsel should not necessarily be precluded from doing so. Even if we accept this proposition, however, McGuire also teaches that Penal Code section 1203.10 "does not require a court to allow inspection and even if a court were to allow a defendant to inspect his own probation file, it could and should limit the inspection to nonconfidential matters."
McGuire v. Superior Court, supra, 12 Cal.App.4th 1685, 1688.
The defense request here was not tailored in any respect to limit disclosure to nonconfidential matters; rather, defense counsel asked for "all documents" relating to defendants probation supervision, and claimed that "all records are material to the alleged violation of probation." The subpoena was therefore overbroad, and the trial court properly quashed the subpoena.
See, e.g., People v. Kaurish (1990) 52 Cal.3d 648, 687, 276 Cal. Rptr. 788, 802 P.2d 278 ["defendants request was broad and somewhat burdensome"; thus, "because defendant failed to provide greater specificity or a greater showing of relevance in his broad discovery request, . . . the court did not abuse its discretion in denying it"].
"Moreover, even if the court erred in denying the request, no prejudice resulted." At the hearing, the defense claimed to be interested only in file documentation of the contacts defendant had actually had with the probation officer, for the purpose of demonstrating that, although defendant may not have come into the office at the precise times requested, he had substantially complied by responding at other times.
People v. Kaurish, supra, 52 Cal.3d 648, 687.
The inspection was not required for that purpose. Defendant himself knew or should have known when he went to the probation office, and whether or not those occasions were in compliance with the probation officers directive. Defense counsel cross-examined the probation officer extensively about her contacts with defendant, specifically eliciting testimony about all contacts documented in the probation file. Defense counsel demonstrated that defendant had telephoned the probation office on December 13, 2001, December 21, 2001, and possibly sometime after January 30, 2002. He had come to the office once on January 22, 2002, to report a police contact, and he had come in once on February 11, 2002, after the probation officer had warned him about missing the February reporting date. To the extent defendant identified any purpose for the inspection — to document his contacts with the probation officer — he achieved the identical purpose at the hearing through cross-examination. "Defendant does not show a reasonable probability that the [hearings] outcome would have been different had the [inspection] request been granted."
People v. Kaurish, supra, 52 Cal.3d 548, 687.
The court properly quashed the subpoena duces tecum, and no prejudice appears. Reversal is not required.
II. The Trial Court Properly Excluded Evidence of Defendants Reporting Before October of 2001
At the hearing, defendant sought to introduce evidence of his relationships with his former probation officers. He argued that there had been a change in his reporting requirements; he had apparently had no difficulties with the reporting required of him by other probation officers, and sought to suggest that the alleged violation of probation arose out of a personality conflict with a particularly rigid probation officer, rather than from a willful failure to comply with reasonable directives.
The trial court ruled that defendants earlier performance on probation was not relevant. We agree. Defendant was not alleged to have violated any of the terms of his probation at any time before October 2001. It is necessarily the case that he presumably complied adequately with all the terms of his probation, including the term requiring him to report to the probation officer and to follow the probation officers reasonable directives.
In October of 2001, defendants new probation officer requested defendant to come into the office. Defendant failed to appear. He did not call the probation officer until the day after he was to have appeared. He arranged a new meeting time, for November 5, 2001. At the meeting on November 5, 2001, the probation officer explained to defendant orally, and provided him a copy of a written directive, that he was to come into the office to meet with her on the first Wednesday of each month. The probation officer explained that no exceptions would be made without prior approval. Defendant neither came to the office on the appointed days, nor made arrangements ahead of time to reschedule the meetings.
Defendants earlier, compliant, performance on probation did not, however, tend in reason to prove whether or not he had failed to report to the probation officer as directed for the five months after November 5, 2001. There is no necessary logical connection between an earlier period of compliance, and a different, later period of noncompliance. The trial court properly excluded the evidence of defendants earlier performance on probation.
Evidence Code section 210 provides that relevant evidence is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."
III. The Evidence Was Sufficient to Support a Finding
That Defendant Violated the Terms of His Probation
Defendant argues that the evidence was insufficient to support a finding he violated his probation, for two interrelated reasons. First, he contends, the evidence did not show that the probation officers requirement, that he report to her on the first Wednesday of each month, was a "reasonable directive" under the terms of his probation. Second, he maintains that the evidence was insufficient to show that he willfully violated the probation officers directive to him. In other words, he claims that he "substantially complied" with the reporting directive.
One of the conditions of defendants probation required him to "report to the Probation Officer immediately, or upon release from custody, for initial instructions and [to] abide by all reasonable directives of that officer." (Italics added.)
On November 5, 2001, defendants probation officer gave him a written directive requiring him to report to the office on the first Wednesday of each month. To report to the probation office one day per month is presumptively reasonable. Defendant complains that another condition of his probation was that he maintain employment; he reported to the probation officer that he was working in construction, and he indicated that he was working until 5:00 p.m. each day, but that the probation office closed at 5:00 p.m.
The written directive the probation officer gave to defendant indicated that exceptions to the reporting requirement would not be made without advance approval. Implicit in this statement is the possibility that advance approval would be given, if necessary, to alter the reporting date or time. Defendant never asked for advance approval to miss or change his reporting date. He simply failed to show up.
In addition, there is no inherent inconsistency between full-time employment and the reporting requirement. Defendant did not demonstrate that he could not have come into the probation office on a lunch break from work. Although he reportedly told the probation officer that he was working until after 5:00 p.m. each day, he did not indicate what time he started work. In addition, he might have been able to arrange to leave work early one day per month.
The probation officer conducted an unannounced home visit to defendants residence on January 30, 2002. Defendant was not at home. He apparently telephoned the probation officer some time after that visit, at which time he reported that he had been off work because of an injury. He did not come to the probation office as required on the first Wednesday of February 2002. Instead, the probation officer had to telephone defendant and instruct him to come in on February 11. Defendant did report to the probation office on February 11, at which time he told the probation officer he was scheduled to return to work the next day. The record evidence indicates, therefore, that defendant was not, as he had claimed, working until 5:00 p.m. on each and every required reporting day; nevertheless, defendant still failed to come in and failed to make other arrangements to meet his reporting requirement.
The reporting directive was reasonable. The evidence was further sufficient to demonstrate a willful violation of the reporting condition.
IV. The Court Did Not Abuse Its Discretion in Imposing a Prison Commitment Rather Than Reinstating Probation
Lastly, defendant urges that the trial court abused its discretion in failing to reinstate probation. He posits that he had performed well on high-level supervision for two years before his probation was revoked, and he points out that the alleged violation consisted solely of the missed reporting dates, not any new criminal activity. Although he had not reported to the probation officer in the manner or at the times the probation officer directed, he had made some contacts with his probation officer. Thus, he contends, the court abused its discretion in failing to reinstate his probation.
The admission to probation is a grant of clemency. When a probationer has violated the terms and conditions of probation, the court, in its discretion, may reinstate probation, with or without modified conditions, or it may revoke and terminate probation, imposing a state prison term. "Sentencing choices such as the one at issue here, whether to reinstate probation or sentence a defendant to prison, are reviewed for abuse of discretion. A denial or a grant of probation generally rests within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner. [Citation.] A court abuses its discretion whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]"
People v. Howard (1997) 16 Cal.4th 1081, 1092, 946 P.2d 828.
People v. Jones (1990) 224 Cal. App. 3d 1309, 1315, 274 Cal. Rptr. 527 [the courts authority to modify probation necessarily presumes the power to reinstate it].
People v. Downey (2000) 82 Cal.App.4th 899, 909.
We perceive no abuse of discretion here. The court was aware of the relevant circumstances, including defendants performance on probation for approximately two and one-half years. The underlying offense was very grave; defendant first attacked the victim without provocation, then he shot him, also without reasonable provocation, wounding the victim in the leg and arm — another bullet pierced the victims neck and lodged in his chest. Defendant at the time of the offenses was emotionally upset over the breakup with his girlfriend and was angry that his girlfriends family had taken out a restraining order against him.
The violence of the offense warranted high-risk supervision on probation. After 21 months, defendant was admitted to a lower level of probationary supervision, but he soon violated the girlfriends restraining order and apparently made contact with her. Rather than filing a violation of probation at that time, the probation department simply reassigned defendant to high-risk supervision. Afterwards, however, defendant showed not only his unwillingness to abide by the restraining order, but also his unwillingness to comply with the reporting directive of his probation officer. Because of that failure, the probation officer was required to "go looking" for defendant. Defendant still did not comply with the reporting requests of his probation officer. Substantial evidence supports the trial courts conclusion that defendants conduct and attitude were unsatisfactory for readmission to probation.
DISPOSITION
Defendant has failed to demonstrate that the court abused its discretion in any respect, in conducting the probation violation hearing, in finding defendant in violation of probation, in revoking and terminating probation, and in sentencing him to state prison. The judgment is affirmed.
We concur: Hollenhorst Acting P.J., and Richli J.