Filed 11/23/15 P. v. Browning CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B261077

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA059956)
         v.

TOREANO JOSEPHUS BROWNING,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Daviann L. Mitchell, Judge. Reversed with directions.
         Brad Kaiserman, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney, Gerald A. Engler, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle, Supervising
Deputy Attorney General, and Rene Judkiewicz, Deputy Attorney General, for Plaintiff
and Respondent.
                                             ——————————
       Toreano Josephus Browning (Browning) appeals the revocation of his probation.
Browning contends that the court abused its discretion because the evidence does not
establish that he violated the terms of his probation by willfully failing to complete
various conditions, such as attend an anger management class and perform community
service, in a timely manner.1 We agree with Browning. No deadlines for the relevant
terms and conditions of his probation were provided by the court or Browning’s
probation officer. Accordingly, we reverse and remand with instructions for the court to
reinstate Browning’s probation and also amend the terms and conditions of that probation
by adding definite and reasonable deadlines for completion of the relevant terms and
conditions.
                                     BACKGROUND
I.     Plea and grant of probation
       Between May 13, 2013 and June 19, 2013, Browning, believing that his minor
daughter was being sexually abused by other family members, made a number of threats
against various members of his family, including his aunt, Shirley Browning, who he
believed were directly or indirectly responsible for the alleged abuse.2 Browning was
subsequently arrested for making criminal threats (Pen. Code, § 422, subd. (a)). In
September 2013, Browning’s trial resulted in a hung jury.
       In November 2013, Browning entered a no contest plea to making criminal threats
against his aunt and was convicted. In exchange for waiving his presentence credits, the
court ordered an eight-year suspended prison sentence and granted probation for a period
of three years. Probation was conditioned on a number of terms, including the following:
that Browning “serve 30 days [of] community labor or PAAWS [Probation Adult

       1 Browning   also claims that the trial court erred by purportedly denying his right to
effective counsel in connection with his sentencing following the revocation of probation.
This claim is rendered moot by our finding that the trial court abused its discretion in
revoking Browning’s probation and, accordingly, we will not address that issue.
       2The child was subsequently examined and “no evidence of sexual misconduct or
abuse” was found.

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Alternative Work Service program]” in California or out of state; “complete a 26-week
anger management class approved by probation”; “cooperate with the probation officer in
a plan for drug treatment and rehabilitation”; and pay various fines and fees.
       Although the trial court cautioned Browning that the probation conditions would
be “very strict,” and although the court set deadlines for certain terms and conditions of
Browning’s probation,3 it chose not to set deadlines for most of the conditions, including
all of the conditions identified above.
II.    Revocation of probation and imposition of sentence
       On November 20, 2014, a little over a year into the probation, the trial court held a
hearing in response to a report by Browning’s probation officer. The trial court noted
that the probation report stated that Browning had not completed the “work program” or
“provided proof of enrollment in the community labor program,” had not completed an
“anger management” course “or cooperated in a plan for drug treatment and
rehabilitation.” At the hearing, Browning explained that he thought he had “three years
to complete” these conditions and that his lack of compliance thus far with these
conditions was due, in part, to being “homeless”: “It’s hard to go to work or . . . pay for
programs when you’re on the street or sleeping on a person’s couch.” The trial court
remanded Browning into custody and set a probation violation hearing for the following
month and ordered a follow-up probation report.
       On December 10, 2014, the trial court held a hearing on Browning’s purported
probation violations. The prosecutor, who described Browning’s alleged noncompliance
as a “technical violation” of the terms of probation, submitted on the initial probation




       3For example, the court ordered Browning “to report to the probation officer
within 48 hours of his release.” Similarly, with regard to the protective order entered
with respect to the victim, Shirley Browning, the trial court directed Browning to
“surrender to local law enforcement or sell to a licensed gun dealer any firearm” in his
possession or control “within 24 hours” after service of the order.

                                             3
report, prepared on October 28, 2014, and the probation officer’s supplemental report,
prepared on December 8, 2014.4
       In the October report, the probation officer stated it “appears” that Browning was
in violation of the following four probation terms: (1) enrolling and completing either a
30-day PAAWS program, or 30 days of community labor, because Browning did not
provide proof of enrollment or progress; (2) attending a 26-week anger management
program, because Browning did not provide proof of enrollment or progress in this
program; (3) cooperating with the probation officer in a plan for drug treatment and
rehabilitation, because Browning did not provide proof of enrollment or progress in this
program; and (4) making payments of court-ordered fees and fines, because Browning
made only one $20 payment on September 4, 2014. According to the October report,
Browning told his probation officer that he did not enroll in an “anger management
program, drug treatment program or PAAWS, because he . . . ha[d] [no] transportation or
money,” that he was forced to quit a job selling Kirby vacuums because his friend and
housemate quit working at Kirby and, as a result, Browning was no longer able to get to
work. It was the probation officer’s conclusion that although Browning had to be “held
accountable for only making one payment, not being enrolled in a 26 week anger
management class, drug counseling or 30 days of community labor,” he nonetheless
should be given the “benefit of the doubt.” Accordingly, the probation officer
recommended that while Browning be found in violation of probation, he should also be
given an opportunity to “show proof of progress in 26 week management class, drug and
alcohol counseling class and 30 days of community labor or PAAWS.”
       In the December report, the probation officer noted that she interviewed Browning
via video conference call on December 3, 2014. During the course of that call, Browning
told the officer that he “will be focusing on enrolling and completing all of his court
ordered programs . . . ‘with a vigor.’” According to the officer, Browning appeared to be

       4“[I]f the alleged violations are established by a report from the probation officer
no other evidence need be considered.” (People v. Natividad (1963) 222 Cal.App.2d 438,
442.)

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“focused and clear on being in compliance with all of his conditions of probation.” The
probation officer, once again, recommended that while the trial court should find
Browning in violation of his probation, it should also give him the benefit of the doubt;
specifically, the probation officer recommended that Browning serve a suitable amount of
time in custody, that a further progress report be ordered for January 29, 2015, and “that
probation be continued on all the same terms and conditions.”
       At the December 2014 hearing, Browning5 testified that since he was now
receiving public assistance he had the money to “take these classes and make these
payments.” In support, he offered into evidence recent steps that he had taken to comply
with the terms of his probation, including his “PAAWS registration” and his “narcotics
registration.” Browning further testified that he took his probation “very seriously”:
“I’ve reported, except for one month that I missed, . . . , I’ve walked to get there, so I’m
taking this very seriously. [¶] . . . [¶] I only ask the court for an opportunity to prove to
the court that I can [take] care of this stuff.” In addition, Browning argued that probation
should not be revoked for his failure to complete community service, complete courses
on anger management and drug counseling, and pay his fines and fees, because under the
terms of his probation he had a total of three years to meet these conditions.
       After considering all of the evidence, including Browning’s testimony, the trial
court found that Browning violated his probation: “He failed to report to probation, as
ordered; he failed to enroll and complete anger management, as ordered; he failed to
enroll and complete community labor, as ordered; and he failed to enroll and complete
drug counseling, as ordered . . . .” The court then terminated Browning’s probation.
       On December 15, 2014, the trial court, after re-reviewing the record, elected not to
reinstate probation and, instead, imposed the suspended sentence. Browning filed a
timely notice of appeal on December 16, 2014.



       5 Browning, as he did at the November 2014 hearing, appeared in pro per; he did
so despite the trial court’s “strong” recommendation that he utilize the services of the
“stand-by counsel” so as to minimize the risk of being sent to prison.

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                                      DISCUSSION
I.     Standard of Review
       We review the revocation of probation pursuant to an abuse of discretion standard.
(People v. Rodriguez (1990) 51 Cal.3d 437, 443, 445.) “Although that discretion is very
broad, the court may not act arbitrarily or capriciously; its determination must be based
upon the facts before it.” An abuse of discretion will be found where the decision is
arbitrary or irrational. (People v. Buford (1974) 42 Cal.App.3d 975, 985.)
       We apply the substantial evidence standard when reviewing a trial court’s finding
of a probation violation.6 (People v. Kurey (2001) 88 Cal.App.4th 840, 848–849.)
“[T]he facts supporting revocation of probation may be proven by a preponderance of the
evidence.” (People v. Rodriguez, supra, 51 Cal.3d at p. 439.) However, the evidence
must support a conclusion the probationer’s conduct constituted a willful violation of the
terms and conditions of probation. (People v. Galvan (2007) 155 Cal.App.4th 978, 981–
982.) A violation is not willful when the probationer is incapable of fulfilling the terms
of probation, or where unforeseen circumstances prevent the probationer from satisfying
the terms of probation. (See, e.g., Bearden v. Georgia (1983) 461 U.S. 660, 672 [103
S.Ct. 2064, 76 L.Ed.2d 221]) [financial incapability]; In re Robert M. (1985) 163
Cal.App.3d 812, 816 [mental incapability]; Galvan, at pp. 984–985 [physical
incapability]; People v. Zaring, (1992) 8 Cal.App.4th 362, 379 (Zaring) [unforeseen
circumstances].)
       Zaring, supra, 8 Cal.App.4th 362 is illustrative. In that case, a defendant's
probation was revoked after she was 22 minutes late to a court appearance. She

       6  “Substantial evidence” is not synonymous with “any” evidence; instead, it “must
be of ponderable legal significance. . . . It must be reasonable . . . credible, and of solid
value; it must actually be ‘substantial’ proof of the essentials which the law requires in a
particular case.” (People v. Bassett (1968) 69 Cal.2d 122, 138–139.) The substantial
evidence rule “does not mean we must blindly seize any evidence in support of the
respondent in order to affirm the judgment. The Court of Appeal ‘was not
created . . . merely to echo the determinations of the trial court. A decision supported by
a mere scintilla of evidence need not be affirmed on review.’” (Kuhn v. Department of
General Services (1994) 22 Cal.App.4th 1627, 1633.)

                                              6
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. (Id. at p. 379.)
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.” (Ibid.) The court in Zaring also noted that judicial discretion requires
“application of sound judgment that takes into consideration that life is not always
predictable and that things do not always go according to plan.” (Ibid.)
II.    The Trial Court Abused its Discretion in Finding Browning Violated the
Terms of his Probation
       Trial courts have broad discretion to prescribe probation conditions to foster
rehabilitation and protect public safety. (People v. Anderson (2010) 50 Cal.4th 19, 26;
People v. Leon (2010) 181 Cal.App.4th 943, 948–949.) Probation conditions are
interpreted with “common sense.” (In re Ramon M. (2009) 178 Cal.App.4th 665, 677–
678.) “A probation condition should be given ‘the meaning that would appear to a
reasonable, objective reader.’” (People v. Olguin (2008) 45 Cal.4th 375, 382.) However,
“[a] probation condition ‘must be sufficiently precise for the probationer to know what is
required of him, and for the court to determine whether the condition has been
violated’ . . . .” (In re Sheena K. (2007) 40 Cal.4th 875, 890; Leon, at p. 949; In re R.P.
(2009) 176 Cal.App.4th 562, 566.) A condition is sufficiently precise “if the terms have
a plain commonsense meaning, which is well settled . . . .” (People v. Rodriquez (1975)
50 Cal.App.3d 389, 398.) “A probation condition which either forbids or requires the
doing of an act in terms so vague that persons of common intelligence must necessarily
guess at its meaning and differ as to its application, violates due process.” (People v.
Freitas (2009) 179 Cal.App.4th 747, 750.)
       Here, we find that the trial court abused its discretion because there was no
substantial evidence that Browning willfully violated the terms and conditions of
probation at issue.


                                               7
       First, with regard to Browning’s purported failure to complete the mandated anger
management and drug classes and perform the necessary community service in a timely
manner, the evidence shows that this failure was not willful. The failure was due instead
to the patent ambiguity of the terms of probation. The terms and conditions do not
provide that Browning was required to meet these conditions or even show progress
toward meeting these conditions by a certain date. Although the court warned Browning
that the terms and conditions of his probation would be “very strict,” it did not advise him
that he must complete these conditions within a certain time period or even tell him that
these conditions must be accomplished as soon as possible. In addition, neither of the
probation reports contains any completion and/or progress dates for these conditions or
otherwise indicates that the probation officer directed Browning to complete these
conditions within a certain time frame and that he had failed to comply with those
directions.
       In the absence of any specific or general guidance with regard to completion dates
from either the court or the probation officer, a reasonable person could easily conclude,
as Browning apparently did, that he had the entire three-year probation period to meet
these conditions. Because Browning was under no express obligation to meet these
conditions by a specific date or within a certain time frame after being granted probation,
his purported noncompliance with these conditions did not violate his probation.7


       7 Even  if a reasonable person would necessarily conclude from the totality of the
circumstances that, despite the lack of any guidance with respect to completion dates,
these conditions had to be completed during the first few months of probation, the trial
court still abused its discretion by revoking probation. The uncontradicted evidence
(testimony by Browning and the probation reports) indicates that during much of the first
year of his probation Browning lacked the financial resources necessary to complete
these conditions. As a result, a failure by Browning in this regard was not willful because
it was due to financial inability. (Bearden v. Georgia, supra, 461 U.S. at pp. 661–665.)
In Bearden, a Georgia court ordered the defendant to pay a fine and restitution as a
condition of probation. Although the defendant made one $200 payment, he was unable
to pay the $550 balance and the court revoked probation and sentenced him to prison.
The record showed the defendant was unable to find a job and had no assets or income,
and thus had no ability to pay the fine. (Id. at pp. 662–663.) The Supreme Court held
                                             8
       Second, with regard to Browning’s failure to make his April 2014 meeting with
his probation officer, the evidence indicates that this failure was not the result of
“irresponsibility, contumacious behavior or disrespect for the orders and expectations of
the court.” (Zaring, supra, 8 Cal.App.4th at p. 379.) Rather, the evidence suggests that
Browning was trying to respect the court’s probation order and that his failure to appear
for the April 2014 meeting was due to an inability to do so. The evidence indicates that
Browning reported to his probation officer every other month (although not always at the
appointed day and time) and he did so even if it meant that he had to walk to his
probation officer’s office. The probation officer herself found Browning’s efforts
noteworthy: “‘to [Browning’s] credit, he reports on a consistent basis and tests negative
for all narcotics.’”




that, under the due process clause of the Fourteenth Amendment, a trial court may not
revoke an indigent’s probation for failure to pay a fine or restitution “absent evidence and
findings that the defendant was somehow responsible for the failure or that alternative
forms of punishment were inadequate.” (Id. at pp. 665–666; see People v. Cookson
(1991) 54 Cal.3d 1091, 1096 [discussing Bearden with favor and noting that with regard
to Penal Code section 1203.2, “it appears the Legislature sought to codify the Bearden
holding”].)
       Here, Browning testified that he had trouble finding work after initially being
granted probation and that when he did eventually find work he lost it through no fault of
his own. As a result, he was initially unable to pay for the classes or perform the
community service. Browning further testified that at the time of the probation violation
hearing, he was receiving public assistance—that is, he had the ability to pay for these
classes—and that he had taken steps to complete these conditions by registering for those
classes.

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                                    DISPOSITION
      The judgment is reversed. The trial court is directed to reinstate Browning’s
probation, and amend the terms and conditions of that probation by adding definite and
reasonable deadlines for the completion of the 30 days of community labor, the 26-week
anger management course, and the drug treatment program.
      NOT TO BE PUBLISHED.


                                        JOHNSON, J.


We concur:


             ROTHSCHILD, P. J.


             CHANEY, J.




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