Filed 9/17/14 P. v. Weathers CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139741
v.
LUTHER GENE WEATHERS,                                                (Lake County
                                                                     Super. Ct. No. CR926292)
         Defendant and Appellant.


         Defendant Luther Gene Weathers appeals from the judgment revoking probation
and ordering execution of a five-year sentence. (Pen. Code,1 § 1203.2,subd. (a).) He
contends the trial court abused its discretion in revoking probation because his violation
was justified and, in any event, “de minimis.” We reject these contentions and affirm the
judgment.
                                                I. BACKGROUND
         At the time of his May 2011 arrest, defendant was in possession of a glass
smoking pipe, several baggies of methamphetamine, and over $600 in cash. In August
2011, defendant pleaded no contest to violating Health and Safety Code section 11378,
subdivision (a) and admitted a prior felony conviction (§§ 11370.2, subd. (c),11378).
Despite the fact that defendant had suffered two or more prior felony convictions, the
court found that unusual circumstances suggested the interests of justice would be best
served by granting probation. (See § 1203, subd. (e)(4).)


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

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       At the June 25, 2012 sentencing hearing,2 the court granted probation based on the
probation department’s supplemental report, which specified 22 different conditions.
Among the specified conditions, was the requirement that defendant “shall . . . report in
writing to the probation officer between the 1st and 10th of each month, on forms
provided by the probation officer” (Condition 1). Defendant was also ordered to “appear
at the Lake County Probation Department . . . on the first business day following his
release from custody” (Condition 22). Another condition of probation, was that
defendant enter a treatment program as directed by the probation officer (Condition 5).
When the court asked defendant if he accepted each of the conditions of his probation,
defendant replied, “Yes, sir.”
       As recommended by the probation department, the trial court ordered defendant to
be committed to the Salvation Army’s Lytton Springs Treatment Facility. At the
conclusion of the sentencing hearing, the court advised defendant as follows: “Within 24
hours of the time that you’re released you’re to call the probation officer and make an
appointment. And then within . . . five business days of that call or that release from
Lytton Springs, you’re to actually contact the [probation officer] face to face.” To which
defendant replied, “All right.”
       At the June 25, 2013 probation violation hearing, Lake County Probation Officer
Laverne Trueblood testified that Lytton Springs advised the probation department that
defendant had been released from rehabilitation on December 30, 2012. However,
following his release, defendant failed to report to the probation department.
Additionally, defendant failed to provide subsequent monthly reports to the probation
department. Trueblood explained that defendant was familiar with the probation
reporting requirement as he had been on probation for various periods of time since 1989
and he had been orally advised of the reporting requirement at the sentencing hearing for
the current offense.~(RT 13, 15)~ Trueblood further explained that without defendant’s

2
      Defendant’s waiver of time for sentencing, together with various motions by
defendant, plus numerous continuances, account for the approximate year-long gap
between plea and sentencing.

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initial contact with the probation department following his release, the department was
unable to supervise him. Thereafter, the probation department sought to revoke
defendant’s probation.
         Defendant testified that he went directly from jail to Lytton Springs and completed
the 180-day program. He knew that after being released from the program that he would
be on probation. Defendant explained that he left his paperwork with his wife and they
separated while he was at Lytton Springs. When he ultimately reviewed the paperwork
two or three weeks after release, he realized that he was already in violation of probation.
Defendant further explained that during this time period, he was assisting his disabled
sister find a habitable residence and find the right person to help her. Defendant admitted
he violated probation. He explained that his “sister was on the streets in a wheelchair”
and had been living in a house without water, power, or a working septic system. He
further explained that once he made sure his sister was in a safe environment, he turned
himself in, stating: “[A]s soon as I got done and got her to where I didn’t have to worry
about her anymore, I walked into the courtroom and turned myself in so I could deal with
this situation so I can get back out there and do what is doing the most good for both of
us . . . I ain’t got no other excuse. That’s what I did and that’s where I’m at.”
         The trial court stated it was “crystal clear that by a preponderance of the evidence”
that defendant willfully violated the conditions of his probation. The court stated that
although there may have been initial confusion, that once defendant realized he was in
violation of probation he “continued to choose to violate.” The court stated that this was
a “choice he made.” The court noted that the sentencing court advised defendant that he
was obligated to follow the court’s orders.
         At the August 12, 2013 sentencing hearing, defendant’s sister testified that she
was a “complete quadriplegic” and needed his help in moving to a new residence. She
also testified that she needed her brother’s help for her daily needs, such as getting out of
bed, making meals, doing household chores and yard work, and keeping her bills in
order.



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        The probation officer’s report prepared for the sentencing hearing noted that
“defendant has a substantial prior history of unsatisfactory performance on both
probation and parole.” The report further noted defendant’s statements during the
probation interview, to wit: “[D]efendant acknowledged he has never done well on
probation, mainly because of his substance abuse issues, and stated he would prefer not to
be restored to his grant of probation, but would rather serve his time. However, since his
incarceration, [] defendant’s sister has been evicted from her home, and he would ask the
court for a delayed entry into custody to finish his jail term to give him the opportunity to
obtain housing for his sister.”
        According to the probation officer’s report, the department had “no objection to
the defendant being released from custody and ordered to turn himself in at a later date,”
should the court be so inclined. Over the prosecution’s objection, the trial court released
defendant on his own recognizance for two and half weeks so that he could help his sister
move.
                                      II. DISCUSSION
        Defendant contends the trial court abused its discretion when it refused to reinstate
probation. He acknowledges the trial court’s broad sentencing discretion, but argues that
his “de minimis violation was excusable, justifiable[,] and necessitated by his moral duty
to save his sister.” (Original capitalization omitted.) He further contends the court
abused its discretion when it made “contradictory findings” by allowing him to be
released on his own recognizance to help his sister, while at the same time finding that
his probation violation—based on the same necessity to help his sister—was not justified.
        Section 1203.2, subdivision (a) provides that “the court may revoke and terminate
the supervision of the person if the interests of justice so require and the court, in its
judgment, has reason to believe from the report of the probation or parole officer or
otherwise that the person has violated any of the conditions of his or her supervision . . .
regardless whether he or she has been prosecuted for such offenses.”
        “[A] decision to revoke probation when the defendant fails to comply with its
terms rests within the broad discretion of the trial court.” (People v. Covington (2000) 82


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Cal.App.4th 1263, 1267.) “Although that discretion is very broad, the court may not act
arbitrarily or capriciously; its determination must be based upon the facts before it.”
(People v. Buford (1974) 42 Cal.App.3d 975, 985.) The facts supporting probation
revocation need only be proved by a preponderance of the evidence. (People v.
Rodriguez (1990) 51 Cal.3d 437, 441-442.)
       On appeal, we will not interfere with the trial court’s exercise of discretion
“ ‘when it has considered all facts bearing on the offense and the defendant to be
sentenced.’ [Citation.]” (People v. Downey (2000) 82 Cal.App.4th 899, 909-910.) This
is not to say that a reviewing court will never interfere with a trial court’s decision not to
reinstate probation. Where the record reveals that the defendant’s violation was not the
result of irresponsible, willful, unlawful or disrespectful behavior, imposition of a prison
sentence may be an arbitrary and capricious use of the court’s power. (People v. Zaring
(1992) 8 Cal.App.4th 362, 379.)
       In this case, the probation department originally recommended that defendant be
sentenced to prison due to his numerous convictions, his prior prison terms and his
unsatisfactory performance on both probation and parole. Despite this recommendation,
the court granted defendant probation. Defendant had both the reason and the
experience, having previously been on probation and parole, to understand that if he did
not comply with the terms of probation he would be sent to prison. Yet he failed to
comply with one of the most basic terms of his probation, which was to report to the
probation department. This fundamental noncompliance was not a de minimis violation.
(Cf. People v. Zaring, supra, 8 Cal.App.4th at pp. 378-379 [being 22 minutes late to
revocation hearing not a willful violation].)
       To be sure, defendant had explanations for this failure. According to defendant,
he was “moral[ly]” obligated to “save his sister.” While the record reflects that
defendant’s sister was living in deplorable living conditions, nothing suggests that she
was in any imminent danger. In this regard, defendant’s reliance on cases discussing the
defenses of duress and necessity is misplaced. (See People v. Heath (1989) 207
Cal.App.3d 892, 901 [duress effective defense only when responding to immediate and


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imminent danger]; People v. Lovercamp (1974) 43 Cal.App.3d 823, 825-827, 830-831
[nonviolent prison escape to avoid sexual assaults justified giving necessity defense
instruction].) Further, even if his failure to report in person was somehow excused,
defendant fails to suggest how the claimed duress and/or necessity would have prevented
him from making initial contact by phone or reporting to the probation officer by mail.
       Finally, the trial court did not render contradictory findings by allowing defendant
to be released on his own recognizance to help his sister, yet ruling that defendant
violated the terms of his probation by doing just that. Rather, the trial court acted well
within its broad discretion by allowing defendant to attend to his sister before returning to
custody. We cannot fault the trial court for considering all of the facts bearing on the
offense. (People v. Downey, supra, 82 Cal.App.4th at pp. 909-910.) Defendant’s
violation was a willful failure to comply with the conditions of his probation and the trial
court did not abuse its discretion in revoking probation.
                                    III. DISPOSITION
       Judgment is affirmed.




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                                _________________________
                                REARDON, J.


We concur:


_________________________
RUVOLO, P. J.


_________________________
RIVERA, J.




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