Filed 1/10/14 P. v. Bever CA4/2



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057771

v.                                                                       (Super.Ct.Nos. SICRF11-52262 &
                                                                          SICRF11-52786)
DAKOTA WALLACE BEVER,
                                                                         OPINION
         Defendant and Appellant.



         APPEAL from the Superior Court of Inyo County. Brian J. Lamb, Judge.

Affirmed with directions.

         Jared M. Hartman, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy

Tyler, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
       Defendant Dakota Wallace Bever appeals from an order revoking his probation

and sentencing him to county jail. According to defendant, the order revoking his

probation must be reversed because the record does not contain substantial evidence that

he willfully failed to complete the Inyo County Drug Court program. He also contends

that, even if he violated his probation, his violation was so technical and de minimis that

the trial court abused its discretion by sentencing him to county jail instead of reinstating

probation. Finally, defendant contends the trial court erred in calculating his custody

credits.

       We conclude the record contains substantial evidence that defendant willfully

failed to complete the drug court program, that the trial court properly revoked his

probation, and that the trial court did not abuse its discretion by sentencing him to county

jail. However, we order that the minute order awarding presentence custody and conduct

credits and the abstract of judgment be amended. As so amended, we affirm the

judgment.

                    FACTUAL AND PROCEDURAL BACKGROUND

       Defendant’s Plea and Grant of Probation

       Defendant pleaded no contest in case No. SICRF11-52262 to unlawfully

possessing a shuriken (Pen. Code,1 former § 12020, subd. (a)(1), count 1) and to

unlawfully possessing drug paraphernalia (Health & Saf. Code, § 11364, count 3), and

admitted that he suffered a prior prison term (§ 667.5, subd. (b)). He pleaded no contest

       1   All further undesignated statutory references are to the Penal Code.



                                              2
in case No. SICRF11-52786 to being a felon in possession of ammunition (former

§ 12316, subd. (b)(1), count 1) and admitted the same prison prior (§ 667.5, subd. (b)).

       As part of his plea, defendant signed a drug court agreement and related waiver of

rights. Defendant acknowledged he understood he could receive a jail sanction or be

removed entirely from the program and have his probation revoked if he “violat[ed] any

rule or policy of the Drug Court Program . . . or fail[ed] to fully comply with any of the

Drug Court Participant Requirements.” Defendant also acknowledged he could have his

probation revoked if he “fail[ed] to completely and timely comply with any directive of

the Drug Court team (Judge, Probation Officer, or Treatment Provider), fail[ed] to make

satisfactory progress in the program, demomstrat[ed] a poor attitude, or engag[ed] in

unacceptable behaviors.”

       The trial court suspended imposition of sentence, placed defendant on formal

probation for five years, and ordered him to successfully complete the Inyo County Drug

Court program.

       Probation Violation Hearing

       The director of the Inyo County Drug Court program testified that the program

consists of four treatment levels, which on average last four months each. The longest a

client usually took before moving from the first to the second stage of treatment is four

months. Defendant was admitted into candidacy for the program at the end of November

2011 and was formally admitted in the middle of January 2012, but seven months later he

was still in the first treatment level.




                                             3
       The director testified it was important for defendant to maintain “a very structured

daily program seven days a week” by staying in school full time or by looking for work,

yet defendant was unable to maintain full-time employment during his treatment and for

much of that time he was not in school even part time. Also, he did not follow his

probation officer’s directions about appropriate dress and appearance when looking for

work. Defendant never took “full responsibility” for his actions and shifted blame onto

others. Defendant also failed to pay all drug court fees and, although defendant had no

unexcused absences, he was late to his meetings despite being told repeatedly to be on

time and despite the fact that he was not employed, not in school, and not out all day

looking for work, which might explain his tardiness. Being late to even one meeting was

sufficient grounds for receiving a jail sanction. More seriously, defendant was dishonest

during his treatment and spent time in county jail as a sanction for “fudging” or falsifying

attendance cards for his 12-step meetings.

       The director testified that although defendant stayed “clean” by never missing a

drug test and by proving he was not using alcohol or drugs, he did not “chang[e] [his]

thinking” so he was not living a fully “sober” life. Because of his behavior, defendant

became a “cancer” on the group. Defendant had a “negative attitude” during group

meetings, “was challenging” and “resistant.” For instance, defendant reacted negatively

when he was told “something he [did]n’t want to hear” and he “derail[ed] the group”

through his challenging questions and resistance. Defendant “acted on self-will and

because of the self-will he was unable to follow clear, specific, measurable directives by

his drug court team.” Despite having all the support he needed at his disposal, including

                                             4
individual counseling, after seven months defendant still had to be explained the basics of

the drug court program. The “primary reason” for defendant’s termination from the drug

court program was his lack of progress after seven months, not his failure to pay drug

court fees.

       Defendant’s probation officer testified that she directed defendant to actively look

for work every day; she required him to submit documentation that he was looking for

work and to show that he had actually gone out to different locations doing so. She also

discussed creating a resume with defendant and directed him to attend local programs

that provided assistance to job seekers. Defendant did not follow her directions about

letting his hair grow out and about wearing appropriate clothing when looking for work

and did not follow her advice about maintaining contact with people who offered to help

him with interview techniques. Likewise, defendant did not maintain his status as a full-

time student while looking for work. Despite being told not to make any changes to his

course load without first discussing them with his probation officer, defendant dropped

all of his classes when she was away on vacation.

       During meetings, defendant acted aggressively and reacted to negative or positive

criticism in group meetings by “beefing up his chest or looking away and not maintaining

eye contact.” Defendant acted similarly during a court appearance. When asked by the

judge about his behavior, defendant spoke to the judge in the “same kind of aggressive,

bolstering, posturing, big man posturing.” Defendant’s performance during meetings

would be good for a week or so after receiving criticism or a sanction, during which he

would actively participate in group discussions and role playing. But then he would “go

                                             5
right back into having a very negative attitude, fail to make eye contact,” and act upset.

Defendant also lied about his 12-step meeting attendance cards. At first he denied

falsifying the signatures, but later he admitted to his group and to his probation officer

that he did forge them.

       Defendant testified that he believed he was removed from the program because of

his “anger issues,” his “grievance,” his failure to pay drug court fees, and his “personal

issues.” During meetings, he would apologize for his behavior and seek advice from the

group, but the counselors would “slam it back in [his] face.” They would tell him, “You

need to do this, you need to do that,” which defendant felt was “a shut down.” Defendant

believed the program director sometimes treated him fairly, but at other times treated him

unfairly. For instance, she would confront him on his inability to find a job. Defendant

succeeded in finding a job at a hardware store, and took a drug test for the job two or

three days before he was arrested for violating his probation.

       On cross-examination, defendant testified that he was only late to four meetings,

that he would go weeks without being late, and that he was fully cooperative during

meetings by sharing and being supportive of other participants. He believed the true

reasons for his removal were his failure to pay drug court fees and his inability to find

work. Finally, defendant denied falsifying his 12-step meeting attendance cards.

       Although the court acknowledged that defendant derived some benefit from the

program, he did not make sufficient progress. Defendant “had the right attitude,” “was

committed to his abstinence,” and “wanted to make constructive changes in his life, but

he was either unable or unwilling” to go the whole way and take the necessary steps to

                                              6
comply with the program. “[H]e could have taken steps to comply and make progress in

drug court, which he failed to do, and, therefore, he is responsible for his termination

from drug court because of the failure to make timely progress.” Therefore, the court

found that the People proved a willful violation and revoked defendant’s probation.

       Sentencing and Presentence Credits

       At sentencing, defendant’s attorney argued that the court should reinstate

probation so defendant could continue his sobriety in the community rather than in state

prison as recommended by the probation department. According to counsel, the weapon

and ammunition charges were not as serious as they appeared because the shuriken and

ammunition were found in plain sight in defendant’s residence. The prosecutor argued

defendant posed a risk to public safety and asked that the court not reinstate his

probation.

       The trial court acknowledged that defendant stayed clean by not using drugs or

alcohol and by not missing or failing any drug tests, but explained that drug court

requires more than just abstinence—it requires an almost “monastic conversion” of the

defendant’s way of thinking and requires total commitment to honesty and compliance

with the directives of the drug court team. The trial court noted that defendant is not “an

evil person” and is “not committed to a criminal lifestyle,” but nonetheless found that

defendant did pose a threat to public safety. “He’s not trying to hurt people or to take

undue advantage,” but, the court noted, “he’s unpredictable and mercurial, and he can be

dangerous when he’s confronted or he’s angry . . . .” Although the court recognized

defendant was “sincere in his attempts to make improvements in his life, . . . the public

                                             7
safety and specific deterrence requires that the seriousness of the offenses be addressed

appropriately.”

       Therefore, the court declined to reinstate probation. The trial court designated

count 1 as the principle term in case No. SICRF11-52262 and sentenced defendant to the

middle term of two years in county jail and imposed a one-year consecutive term for a

prison prior enhancement. In case No. SICRF11-52786, the court struck the

enhancement for the prison prior and sentenced defendant to one-third of the middle term

of two years, to be served consecutively with case No. SICRF11-52262, for a total

sentence of three years eight months in county jail.2

       In the amended time-served credit sheets, the probation department calculated

defendant was entitled to a total of 29 days of credit for presentence custody in case

No. SICRF11-52786, and to a total of 459 days in case No. SICRF11-52262, for a total of

488 days. In the court’s February 19, 2013 order and in the abstract of judgment,

defendant is credited for 242 actual days in custody and for 242 days of conduct credit,

for a total of 484 days.




       2   In case No. SICRF12-54339, which arose after sentencing in the cases before
us, the trial court sentenced defendant to state prison for one year and one day to run
concurrent with his jail sentence in case Nos. SICRF11-52262 and SICRF11-52786, with
credit for 354 days time served. An abstract of judgment for all three cases was filed on
February 21, 2013.



                                             8
                                       DISCUSSION

    THE TRIAL COURT PROPERLY REVOKED DEFENDANT’S PROBATION

                      AND SENTENCED HIM TO COUNTY JAIL

       Applicable Standards

       “Section 1203.2, subdivision (a), authorizes a court to revoke probation if the

interests of justice so require and the court, in its judgment, has reason to believe that the

person has violated any of the conditions of his or her probation. [Citation.] ‘“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.]’ [Citation.]” (People v. Urke (2011) 197 Cal.App.4th 766, 772 (Urke), fn.

omitted.) “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.]” (People v. Cervantes (2009) 175 Cal.App.4th 291, 295.)

       The trial court’s finding of a willful violation is reviewed for substantial evidence.

(See Urke, supra, 197 Cal.App.4th at p. 773.) Under substantial evidence review, we

must review the record in its entirety and in the light most favorable to the trial court’s

ruling to determine whether it contains evidence of reasonable, credible, and solid value

from which the court could have concluded that the defendant willfully violated the terms

of his probation. (See People v. Livingston (2012) 53 Cal.4th 1145, 1170 (Livingston).)

We must presume every fact in support of the order that the trial court could reasonably

have deduced from the evidence, and we may not reweigh evidence or reevaluate the

credibility of witnesses. (Ibid.) “If the circumstances reasonably justify the trier of fact’s

                                              9
findings, reversal of the judgment is not warranted simply because the circumstances

might also reasonably be reconciled with a contrary finding. [Citation.]” (People v.

Albillar (2010) 51 Cal.4th 47, 60.)

       “Reinstatement of probation . . . requires a determination by the trial court that the

interests of justice so require. [Citation.]” (People v. Stuckey (2009) 175 Cal.App.4th

898, 916.) The trial court’s decision to revoke probation instead of reinstating it is

reviewed for abuse of discretion. (People v. Kelly (2007) 154 Cal.App.4th 961, 965;

People v. Downey (2000) 82 Cal.App.4th 899, 909.) “[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.]” (Urke, supra, 197 Cal.App.4th at

p. 773.) “‘Many times circumstances not warranting a conviction may fully justify a

court in revoking probation granted on a prior offense. [Citation.]’ [Citation.] ‘“[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. . . .”’ [Citation.] And the burden of

demonstrating an abuse of the trial court’s discretion rests squarely on the defendant.

[Citation.]” (Ibid.)

       The Record Contains Substantial Evidence That Defendant Willfully Failed to

Successfully Complete the Drug Court Program

       Defendant argues he “substantially complied with [the] terms of [his] probation

and made significant progress toward rehabilitation,” and contends the record as a whole

does not support a finding that he willfully failed to successfully complete the drug court

                                              10
program. Instead, defendant contends the evidence only supports a finding that he failed

to pay drug court fees, but that there is no evidence he had the ability to pay the fees so

that failure cannot be the basis of the revocation. We disagree.

       The evidence must be viewed in light of what defendant agreed to do when he

pleaded no contest and consented to enrollment in the program. Defendant

acknowledged he could be terminated from the drug court program, and have his

probation revoked, if he “fail[ed] to make satisfactory progress in the program,

demomstrat[ed] a poor attitude, or engag[ed] in unacceptable behaviors.” The extent of

the commitment necessary to succeed in the program was more fully explained to

defendant a mere week after his provisional admission to the program when the court

admonished him for lack of effort. The trial court told defendant that “in drug court . . .

there’s no half measures” or “cutting corners,” and that he had “to give it 100 percent.”

       The testimony introduced at the probation revocation hearing was that successful

drug court enrollees take no more than four months to move from the first to the second

of four treatment levels, yet after seven months defendant did not progress enough to

move up from the first level and he still had not mastered basic principles of the program.

For example, the program director testified that maintaining a structured daily life is

crucial to success and that enrollees must either stay in school full time or look for full-

time work. Her testimony and the testimony of defendant’s probation officer constitutes

substantial evidence that defendant did not exert enough effort in looking for work and

failed to follow directives about appropriate appearance and dress when looking for jobs.




                                              11
         Further evidence of defendant’s lack of effort in looking for work is found in the

program director’s progress reports to the court. On February 8, 2012, the director

reported defendant was progressing well “[w]ith the exception of seeking employment”

and “thoroughly following-up on searches,” and stated that defendant was given “job

search feedback” as a result. Three weeks later, she again reported that defendant was

doing well overall “[w]ith the exception of seeking employment . . . .” The director

reported on March 28, 2012, that defendant needed to “step it up” in “seeking gainful,

predictable employment,” and the following month she reported that defendant only spent

“a few weekend . . . hours” looking for work, which left him with “a lot of unstructured

time on his hands.”

         Defendant argues that his inability to find a job until a few days before his

termination from the program is explained by forces beyond his control, most notably his

criminal record and the economic downturn. But the point is not that defendant couldn’t

actually find a job for seven months, but that the record contains substantial evidence he

did not fully commit himself to actively looking for work and following the directions of

the program director and his probation officer in doing so. Likewise, there is substantial

evidence that defendant did not stay in school full time. Although he signed up for six

computer classes, defendant dropped his entire course load when his probation officer

was on vacation despite being told not to make any changes without speaking with her

first.




                                               12
       With respect to defendant’s tardiness to group meetings, defendant contends the

program director “talked herself in circles” and contradicted herself on the stand, so her

testimony was not reasonable or credible. We do not reweigh evidence or judge

credibility of witnesses. (Livingston, supra, 53 Cal.4th at p. 1170.) And even if we

accept defendant’s assertion that he was only late to four meetings out of 300, the director

testified that the drug court program has a zero-tolerance policy and that being late once

is enough for a jail sanction. Moreover, defendant’s tardiness was not explained by his

being fully employed or enrolled in school the whole time he was in the program.

       Finally, the record contains evidence to support the court’s finding that defendant

did not fully dedicate himself to the program. Defendant did not take full responsibility

for his actions and tried to shift blame for his behavior onto other people; he had a

“negative attitude” during meetings; and he was “challenging” and “resistant” to his team

leaders and reacted negatively to criticism. When defendant heard something he didn’t

like, he “derail[ed] the group” and failed to actively participate. The program director

testified defendant became a “cancer” to the group.

       In other words, putting aside the question of defendant’s failure to pay drug court

fees, the record contains substantial evidence from which the trial court could reasonably

have concluded that defendant willfully failed to comply with the strict requirements of

drug court that he agreed to and, therefore, that he willfully violated the terms of his

probation.




                                             13
       The Trial Court Did Not Abuse Its Discretion in Sentencing Defendant to

County Jail

       At sentencing, the trial court recognized that defendant was not an evil person or

necessarily committed to a criminal lifestyle. Nonetheless, it noted that defendant’s poor

performance on probation showed he was unable to control his impulses and was

unpredictable and, under the right circumstances, he might pose a danger to others.

A defendant’s poor performance on probation, inability to comply with the reasonable

terms of probation, and the likelihood of the defendant posing a danger to others if not

incarcerated, are appropriate factors for the court to consider when deciding whether to

grant or reinstate probation. (Cal. Rules of Court, rule 4.414(b)(2), (3)-(4), (8).) In light

of the substantial evidence of defendant’s willful failure to complete the drug court

program, and of his behavior while in the program, the trial court did not abuse its

discretion in declining to reinstate probation and in sentencing defendant to county jail.

               DEFENDANT’S AWARD OF PRESENTENCE CREDITS

                         MUST BE CORRECTED ON REMAND

       Defendant contends the trial court erred by not awarding him the correct amount

of presentence credits.3 The People also contend the trial court erred, but argue

defendant is entitled to less presentence credit than awarded because defendant’s time in



       3 In his reply brief, defendant concedes the court was not required to credit him in
his felony cases for time he spent in county jail on his misdemeanor case before he was
arrested on either felony case.



                                             14
custody after sentencing and commitment is not calculated by the trial court. We agree

with the People.

       “A criminal defendant is entitled to accrue both actual presentence custody credits

under Penal Code section 2900.5 and conduct credits under Penal Code section 4019 for

the period of incarceration prior to sentencing. . . . [C]onduct credits may be earned

under Penal Code section 4019 by performing additional labor (Pen. Code, § 4019,

subd. (b)) and by an inmate’s good behavior (Pen. Code, § 4019, subd. (c)). In both

instances, the Penal Code section 4019 credits are collectively referred to as ‘conduct

credits.’ [Citation.] The court is charged with awarding such credits at sentencing. (Pen.

Code, § 2900.5, subd. (a).)” (People v. Kennedy (2012) 209 Cal.App.4th 385, 395.)

       For every two days spent in presentence custody, the defendant is entitled to four

days of credit. (§ 4019, subd. (f).)4 “Credit shall be given only once for a single period

of custody attributable to multiple offenses for which a consecutive sentence is imposed.”

(§ 2900.5, subd. (b).) Put another way, the second sentence of section 2900.5,

subdivision (b), provides “that when consecutive terms are imposed for multiple offenses

in a single proceeding, only one of the terms shall receive credit for presentence

custody . . . .” (People v. Bruner (1995) 9 Cal.4th 1178, 1192, fn. 9; see also People v.

Cooksey (2002) 95 Cal.App.4th 1407, 1414-1415.)




       4   The parties do not dispute which version of section 4019 applies to defendant.



                                             15
       Defendant seeks presentence credit for days he served in county jail after he was

sentenced and committed to serve his sentence. Any time defendant spent in county jail

after November 9, 2012, when the court revoked defendant’s probation and sentenced

him to county jail, is calculated by the sheriff, not by the trial court. (§ 2900.5, subd. (e);

see People v. Johnson (2010) 183 Cal.App.4th 253, 300.) The trial court was only

required to calculate presentence credits, so this appeal from the judgment is limited to

that issue. (§ 2900.5, subd. (d).) Any issues regarding calculation of postsentence credit

should be addressed to the sheriff or trial court in the first instance, but those credits

should not be awarded as part of defendant’s presentence credits.

       In the court’s minute order and in the abstract of judgment, defendant was credited

for a total of 484 days in case No. SICRF11-52262. The court awarded no credit in case

No. SICRF11-52786. It is not entirely clear how the court came up with its figures.

Based on our review of the record, defendant’s periods of presentence incarceration and

the credit due to him are as follows:

       Defendant was arrested in case No. SICRF11-52262 on June 17, 2011 and jailed

until June 21, 2011. For this period, he is entitled to five days of actual credit and four

days of conduct credit, for a total of 9 days.

       Defendant was arrested in case No. SICRF11-52786 on October 11, 2011 and held

in county jail until November 28, 2011. He is entitled to 49 days of credit for actual time

in custody and 48 days of conduct credit, for a total of 97 days.




                                                 16
       Defendant spent three days in county jail from January 18-20, 2012, as a drug

court sanction, and is entitled to three days of credit for time served and two days of

conduct credit, for a total of five days.5

       The record indicates that defendant spent 15 days in county jail from May 2-16,

2012, for some unspecified reason. (See fn. 5, ante.) For this period, defendant is

entitled to 15 days of credit for time served and 14 days of conduct credit, for a total of

29 days.

       Defendant spent another 46 days in county jail from August 15 through September

29, 2012, for which he is entitled to 46 days of credit for time served and 46 days of

conduct credit, for a total of 92 days.

       Finally, defendant was arrested on October 1, 2012 for violating his probation and

held in county jail until his sentencing on November 9, 2012. For those 40 days in

county jail, defendant is entitled to 40 days of credit for time served and 40 days of

conduct credit, for a total of 80 days.

       In summary, defendant is entitled to a total of 312 days of presentence credit to be

applied to his consecutive sentence.

       We therefore direct the trial court to amend the minute order to reflect the correct

award of 312 days of presentence credits in case No. SICRF11-52262, and direct the

clerk of the superior court to amend the abstract of judgment accordingly.


       5 The trial court did not credit defendant for this period of presentence
incarceration, but the People agree with defendant that he is entitled to such credit.



                                             17
                                     DISPOSITION

      The superior court is directed to correct its award of presentence credits to give

defendant a total of 312 days of presentence credits, to amend its minute order and

abstract of judgment, and to forward copies of the amended documents to the appropriate

agencies. In all other respects, the judgment of conviction and the sentence are affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               McKINSTER
                                                                                           J.
We concur:


RAMIREZ
                       P. J.


HOLLENHORST
                          J.




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