Filed 12/28/15 P. v. Aguerrebere CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A144065
v.
MIGUEL ANGEL AGUERREBERE,                                            (Marin County
                                                                     Super. Ct. No. SC180115B)
         Defendant and Appellant.


         Defendant Miguel Aguerrebere appeals from an order revoking his probation
based on the trial court’s determination that he failed to enter a residential treatment
program as required under his terms of probation. He concedes that he failed to enter
such a program, but he argues that the failure was not willful because his acceptance into
a program was delayed due to a medical condition he has. He also argues that the trial
court abused its discretion in not reinstating his probation because, by the date of
sentencing, he had been accepted into a program. We affirm.
                                                    I.
                                          FACTUAL AND PROCEDURAL
                                               BACKGROUND
         This appeal arises from an order that revoked Aguerrebere’s probation for a
second time, so we begin by briefly reviewing Aguerrebere’s somewhat convoluted
probation history. Aguerrebere was originally placed on probation after he attacked an
acquaintance in April 2012. He was charged with felony counts of residential burglary,




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assault by means likely to cause great bodily injury, and witness dissuasion.1 He pleaded
guilty to the assault and witness-dissuasion counts, and the trial court dismissed the
burglary count on the People’s motion. At a September 2012 sentencing hearing, the
court suspended imposition of the sentence, placed Aguerrebere on supervised probation
for a period of three years, and ordered him to serve some time in county jail.2 As a
result, Aguerrebere avoided a sentence to state prison.
       Among the probation conditions was one requiring Aguerrebere “to participate in
any treatment/therapy/counseling program, including residential, as directed by the
probation officer” to address his admitted substance abuse problem. Although
Aguerrebere was released from county jail by February 2013, there is no indication in the
record that his probation officer directed him to participate in a treatment program during
the first year of his probation.
       In November 2013, a petition to revoke probation was filed because Aguerrebere
tested positive for drugs, failed to report an address change, and failed to submit to a
search of his cell phone. A second petition was filed after he again tested positive for
drugs and failed to report for subsequent tests.
       In late January 2014, Aguerrebere admitted to the allegations in both petitions.
The trial court revoked his probation for the first time, but it then reinstated his probation
under its original terms and conditions. The reinstatement had the effect of allowing
Aguerrebere, once again, to avoid serving time in state prison. But, as it had done when
it first placed Aguerrebere on probation, the court again ordered him to serve some time
in county jail. When it did so, it indicated that he had the option to “apply for a
residential treatment program, and if one is located, [he] can parole into that program


1
  The charges were brought under Penal Code sections 459 (burglary), 245, subdivision
(a)(4) (assault), and 136.1, subdivision (b)(1) (witness dissuasion). All further statutory
references are to the Penal Code.
2
  The trial court later noted that Aguerrebere “was technically not eligible for probation”
under section 1203, subdivision (e)(4), which applies to defendants with two previous
felony convictions, but that “because of the negotiated disposition [it] did give [him] a
chance on probation.”

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[and] . . . [¶] get day for day credit against that six[-]month jail sanction . . . only if [he]
successfully completes that program.” In reinstating probation under these terms, the
court told Aguerrebere, “I am sort of done, and . . . if you do not comply with this
probation, or the residential treatment program, upon a return, I will be sending you to
state prison.”
       While in county jail, Aguerrebere applied to the county parole board to serve his
time in a residential treatment program, but his application was denied for reasons that
are not apparent from the record. Although he reapplied, he withdrew the renewed
application. In mid-February 2014, an entity called the Recovery Connections Center
evaluated him to “identify substance abuse problems and recommend the appropriate
level of care.” He “reported that he [did] not have any medical concerns at [that] time.”
       Aguerrebere was released from county jail for the second time in April 2014, and
he remained on probation. Later that month, his probation officer, Lucie Brown, told him
to enter a residential treatment program called Lytton Springs. In mid-May, Aguerrebere
asked her if he could enter Project 90, a 90-day treatment program, instead. She agreed,
based on her understanding that he was having trouble gaining admittance to a program
because he was “an arson registrant.”3
       Aguerrebere did not enter either program, however, and in early June, Brown
informed him that he had until July 15 to get into a residential treatment program or she
would seek to have his probation revoked for the second time. According to
Aguerrebere’s wife, Brown told Aguerrebere sometime between mid-June and mid-July
that he could have an extra 30 days to find a program because she (the wife) was dealing
with her own medical condition and needed help caring for their young children.
       A few days before July 15, Aguerrebere informed Brown that he had applied to
Lytton Springs and another program called Center Point but had not heard back from



3
  Section 457.1 imposes various registration requirements on people with convictions for
arson-related crimes. Aside from Brown’s testimony about what Aguerrebere told her,
the record does not contain any evidence that he was required to register as an arsonist.

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either one.4 He mentioned nothing to her about having trouble getting into a program
because of a medical condition.
       On August 1, Aguerrebere was assessed at Center Point, and he disclosed, for the
first time to Brown’s knowledge, “numerous medical issues.” Center Point told him to
get a medical clearance and report back, but he did not go to a doctor for such a clearance
until August 26. At that appointment, he reported that he “ha[d] varicocele of the
[testicles] that flares up 1-2 times monthly” but “denie[d] any symptoms or other chronic
conditions at [the] present time.” The doctor indicated that he “need[ed] furt[t]her
evaluation as to the condition of his testicular varicocele by a urologist.” Aguerrebere’s
wife testified that he had first been diagnosed with varicocele a few years earlier and that
the condition sometimes caused him to become nauseated or to have trouble walking.
       On August 26, Brown learned that Aguerrebere had been cleared to participate in a
residential treatment program called Father Alfred’s. But his acceptance into this
program was revoked on September 3 “because they wanted him to get clearance from
[a] urologist.” Later that week, Aguerrebere was seen by another doctor. The doctor
indicated that Aguerrebere’s reported varicocele was “[u]nlikely to cause serious
problems” but that she would “refer [him] for [a] urology consult.”
       A petition to revoke probation for the second time was filed on September 11,
2014, based on Aguerrebere’s failure to enter a residential treatment program.
Aguerrebere was remanded to custody, at which point he told Brown that he had only
recently become aware that he was required to participate in such a program. She
testified that, to the contrary, she had repeatedly told him that he needed to enroll in a
program to comply with the trial court’s January 2014 order. Five days after the petition
was filed, Brown learned that Aguerrebere had applied to Lytton Springs, and she was
notified on September 23 that he had been admitted to that program.



4
 The record contains an intake questionnaire for Lytton Springs that Aguerrebere filled
out and dated July 10, but there is no indication he actually submitted it. According to
Brown, he did not apply to Lytton Springs in July.

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       The trial court sustained the petition after a contested hearing in mid-November
2014 at which both Brown and Aguerrebere’s wife testified. It found that Aguerrebere
had willfully violated his probation:
       “I think so much time and effort has been spent running around after
       Mr. Aguerrebere trying to get him to follow through with the conditions of
       his probation. He’s been on probation for two years. I did indicate in
       January that he was to get into and complete a residential treatment
       program [or that] otherwise he would end up in state prison. As of
       September 11[,] he still wasn’t in a program. That’s when the petition was
       filed. That’s nine months later. And one of the frustrating things about this
       hearing for me is that it appears that everyone wants to blame everybody
       else, it’s probation’s fault, it’s the defendant’s wife’s fault, it’s the
       children’s fault, it’s the medical condition’s fault, it’s the medical
       clearance[’s] fault, we just couldn’t find the right program. I mean, it’s just
       stuff I’ve heard for years from Mr. Aguerrebere. It’s frustrating[, and] . . . I
       agree with [the prosecutor’s] statement that if Mr. Aguerrebere spent as
       much time trying to get in a program as he did trying to get out of one, he
       would have been done with probation by now.”
       The trial court then revoked probation for the second time and sentenced
Aguerrebere to state prison. It imposed a total term of three years and eight months,
made up of a term of three years for assault and eight months for witness dissuasion. It is
this order from which Aguerrebere appeals.
                                              II.
                                         DISCUSSION
       A.     General Legal Standards.
       A trial 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 supervision[.]”
(§ 1203.2, subd. (a).) The decision to revoke probation involves both “a retrospective
factual question whether the probationer has violated a condition of probation . . . and . . .
a discretionary determination by the [court] whether violation of a condition warrants
revocation of probation.” (Black v. Romano (1985) 471 U.S. 606, 611.)
       Violation of a probation condition must be proven by a preponderance of the
evidence (People v. Urke (2011) 197 Cal.App.4th 766, 772), but “the evidence must

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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, 982.) We
review the trial court’s factual determination for substantial evidence (Urke, at p. 773),
that is, “evidence that is ‘ “reasonable in nature, credible, and of solid value.” ’ ” (People
v. Medina (2009) 46 Cal.4th 913, 919.) “ ‘Conflicts and even testimony [that] is subject
to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive
province of the trial judge or jury to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial evidence.’ ”
(People v. Zamudio (2008) 43 Cal.4th 327, 357.)
       After a trial court finds that a defendant violated a probation condition, it must
then “ ‘decide whether under all the circumstances this violation of probation warrants
revocation.’ ” (In re T.P. (2009) 178 Cal.App.4th 1, 4.) We review this determination
for an abuse of discretion, keeping in mind that “ ‘ “[o]nly in a very extreme case should
an appellate court interfere with the discretion of the trial court in the matter of . . .
revoking probation[.]” ’ ” (People v. Urke, supra, 197 Cal.App.4th at p. 773.)
       B.      Substantial Evidence Supports the Determination that Aguerrebere
               Violated Probation.
       Aguerrebere first claims there was insufficient evidence to support the trial court’s
finding that he willfully violated probation. In making this argument, he does not dispute
that he was subject to a valid condition requiring him to enter a residential treatment
program or that he failed to enter such a program. Instead, he argues that his violation
was not willful because he “made purposeful and reasonable efforts to enter . . . programs
. . . but was denied entry to those programs for reasons beyond his control.” We are not
persuaded.
       Aguerrebere relies on a trio of cases that reversed orders revoking probation where
the defendants were unable to comply with probation conditions because of
“circumstances beyond [their] control.” (People v. Cervantes (2009) 175 Cal.App.4th
291, 295, 299; People v. Galvan, supra, 155 Cal.App.4th at pp. 980, 983; People v.


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Zaring (1992) 8 Cal.App.4th 362, 378-379.) In Cervantes, the defendant did not appear
at a hearing as ordered because he was in the custody of federal immigration authorities.
(Cervantes, at p. 293.) Similarly, in Galvan, the defendant failed to report to his
probation officer within 24 hours of being released from jail because he was deported
upon leaving custody. (Galvan, at p. 983.) And in Zaring, a last-minute childcare
problem caused the defendant to appear 22 minutes late for a hearing the trial court had
ordered her to attend. (Zaring, at p. 376.) In each case, the appellate court concluded
that the defendant’s conduct was insufficient to support a finding of a willful violation.
(Cervantes, at p. 297; Galvan, at p. 983; Zaring, at p. 379.)
       Here, in contrast, there is substantial evidence supporting the trial court’s finding
that the failure by Aguerrebere to enter a residential treatment program was due to his
own procrastination and delays and not due to circumstances outside his control.
Although Aguerrebere told Brown in May that he was having trouble getting into a
residential treatment program because he was an arson registrant, there is no evidence,
other than Aguerrebere’s general statement, that any program actually denied him
admission for that reason.
       And although his varicocele may have hampered his quick entry into certain
programs, there is no evidence that Aguerrebere would have been unable to obtain the
required medical clearance in plenty of time had he been reasonably diligent in
submitting his applications and shepherding the process. He was released from jail in
April, but there is little evidence that he actually applied to any program before early
August, when he was assessed at Center Point. He was told then that he needed medical
clearance, yet he still had not done what was necessary to obtain clearance by the time
the petition to revoke was filed, almost six weeks later. Indeed, his admission to Lytton
Springs in late September establishes that neither his status as an arson registrant nor his
medical condition categorically barred him from admission to an appropriate program.
Thus, there is substantial evidence that Aguerrebere’s violation was due to his own
“irresponsibility” and was therefore willful. (People v. Zaring, supra, 8 Cal.App.4th at
p. 379.)


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       C.     The Trial Court Did Not Abuse Its Discretion by Refusing to Reinstate
              Aguerrebere’s Probation.
       Aguerrebere also argues that the trial court abused its discretion in two ways when
it declined to reinstate his probation after the second revocation. We disagree.
       Aguerrebere first argues that the purpose of the probation condition would have
been better served if, rather than revoking his probation, the trial court had permitted him
to enter Lytton Springs, which had accepted him by the time of sentencing. But even if
we were to agree with him that his entering Lytton Springs would have been a better
outcome, Aguerrebere provides no authority to suggest that the court’s decision to revoke
his probation and sentence him to state prison was an abuse of discretion. In spite of the
court’s clear admonition in January 2014 that the court meant business and would send
him to state prison if he failed to comply with his probation conditions, Aguerrebere
responded to Brown’s repeated demands for him to enroll in a program with avoidance
and lethargy. We cannot conclude under these circumstances that the court abused its
discretion in sentencing him to prison.
       Aguerrebere also argues that the trial court abused its discretion because,
according to him, the court had already made up its mind to sentence him to prison before
it heard the evidence and the sentence’s primary purpose was to teach him a lesson. To
be sure, the court expressed frustration with Aguerrebere’s failure to enter a residential
treatment program and indicated its belief that Aguerrebere was “playing games.” But in
our view, this frustration was reasonable, and nothing in the record suggests that the court
failed to consider the evidence presented or was biased. We believe that the court’s
“determination that a prison term was required . . . reflect[ed] the same frustration that
any other judicial officer might have felt[,] and the decision is one which any other
judicial officer might well have made under the same circumstances.” (People v.
Downey (2000) 82 Cal.App.4th 899, 910.) There was no abuse of discretion.
                                              III.
                                          DISPOSITION
       The judgment is affirmed.



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                                _________________________
                                Humes, P.J.


We concur:


_________________________
Margulies, J.


_________________________
Dondero, J.




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