Filed 4/10/14 P. v. Robison CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT



THE PEOPLE,                                                                                F067525

         Plaintiff and Respondent,                                           (Super. Ct. No. BF142506A)

                   v.                                                                    OPINION
RAYMOND RAY ROBISON,

         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
         Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Robert C. Nash and John G.
McLean, Deputy Attorneys General, for Plaintiff and Respondent.

                                                        -ooOoo-



*        Before Gomes, Acting P.J., Kane, J., and Poochigian, J.
                                     PROCEEDINGS
       On July 23, 2012, appellant, Raymond Ray Robison waived his constitutional
rights pursuant to Boykin/Tahl1 after executing a plea waiver form and entered into a plea
agreement. Under the original terms of the agreement, appellant faced a sentence of 12
years 4 months. Appellant admitted allegations that he committed felony grand theft
(Pen. Code, § 487, subd. (a), count 1),2 felony receipt of stolen property (§ 496, subd. (a),
count 2), two counts of petty theft with a qualifying prior conviction (§ 666, counts 3 &
4), felony possession of methamphetamine (Health & Saf. Code, § 11377, count 5), and
misdemeanor resistance of an officer (§ 148, subd. (a), count 6).3 Appellant also
admitted three prior serious felony convictions within the meaning of the three strikes
law and seven prior prison term enhancements.
       On August 21, 2012, the trial court granted appellant’s request to strike the prior
serious felony convictions. The court noted that its proposed sentence of 12 years
4 months was legally inappropriate. The court sentenced appellant to the upper term of
three years and to seven consecutive one-year terms for each of the prior prison term
enhancements for a total term of 10 years.4 Terms on the remaining counts were stayed.
The court stayed execution of its sentence and placed appellant on probation upon


1     Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122
(Boykin/Tahl).
2      All statutory references are to the Penal Code unless otherwise indicated.
3      In an unrelated case, case No. BF142713A, appellant admitted two felony
allegations that he received stolen property (count 1) and committed second degree
burglary (§ 460, subd. (b), count 2). The trial court later reduced these charges to
misdemeanors pursuant to section 17 and sentenced appellant to concurrent terms for
both counts.
4     The court imposed terms on the remaining felony counts but stayed them all
pursuant to section 654.


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various terms and conditions. Among these were that appellant serve a year in jail, not
violate any other law, submit to a search of himself or his property without a warrant, not
use or possess any controlled substances, not be any place where he knows illegal
controlled substances are present, not associate with anyone he knows illegally possesses
controlled substances, submit to drug testing, and to enroll in and complete a substance
abuse counseling program approved by his probation officer.
       On September 24, 2012, appellant executed a document setting forth the terms and
conditions of his probation, including those set forth above. On March 13, 2013,
appellant was arraigned on allegations that he violated the terms and conditions of his
probation. At the conclusion of a contested hearing, the trial court found true the
allegations that appellant violated the terms of his probation and revoked probation. The
court lifted the stay on appellant’s sentence and ordered appellant’s commitment to
prison for 10 years. Appellant contends the trial court abused its discretion in revoking
his probation.
                      PROBATION REVOCATION HEARING
       Probation Officer Shaun Romans testified that appellant was one of the
probationers assigned to him. Romans talked to appellant about enrolling in outpatient
substance abuse counseling on September 24, 2012. Although appellant enrolled in the
program provided by Community Service Organization, he dropped out of that program
on November 30, 2012. Romans received a faxed letter from the program itself
indicating that appellant had been dropped for excessive absences. Appellant explained
that he dropped out of the treatment program because he was in pain. In February 2013,
appellant admitted to Romans that several times over the previous two or three weeks he
had been smoking methamphetamine.
       Appellant testified that he enrolled in the substance abuse program and attended
three or four of the classes but stopped his attendance when he got sick. Appellant

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described his illness as abdominal and bowel pain caused by cancer. Appellant explained
that the pain he suffers shoots through his body and makes it difficult for him to walk.
Appellant said he uses a walker to assist him with walking, but did not bring it to court.
When asked if he used methamphetamine in February, appellant replied that he may have
but he could not remember.
       Appellant had surgery in February 2013 to place pins in his shoulder. He was still
suffering postsurgery pain. Appellant explained that in 1975, his colon was removed.
Appellant had been taking Norco since 1995 to manage pain. Appellant asserted that he
was excused from the drug treatment program for health reasons, but he denied that the
program asked him for proof of his medical condition.
       The court found appellant failed to complete the outpatient program and admitted
to his probation officer that he used methamphetamine. The court found appellant in
violation of his probation. The court noted that there was no medical evidence before it
concerning appellant’s health condition. The court revoked appellant’s probation and
lifted the stay on his 10-year sentence.
                           REVOCATION OF PROBATION
       Appellant contends the trial court erred in revoking his probation. We disagree.
       The standard of proof required for a revocation of probation is a preponderance of
the evidence to support a violation. Trial courts are granted great discretion in
determining whether to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437,
445; People v. Kelly (2007) 154 Cal.App.4th 961, 965 (Kelly).) Appellate courts will not
disturb the trial court’s findings absent an abuse of discretion. (Kelly, supra, 154
Cal.App.4th at p. 965.) The evidence must support a conclusion that the defendant’s
conduct constituted a willful violation of the conditions of probation. (People v. Galvan
(2007) 155 Cal.App.4th 978, 982; People v. Zaring (1992) 8 Cal.App.4th 362, 378-379.)



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       The evidence adduced in the instant action showed that although appellant
enrolled in an outpatient drug treatment program, he only attended classes three or four
times. The program sent appellant’s probation officer notice that appellant had been
dropped from the program for his failure to attend. Appellant asserted he could not
attend the program due to health problems, but presented no medical evidence at the
probation revocation hearing to support his assertion. As the trial court noted, appellant
said he could not attend the treatment program, but found the time to acquire and use
methamphetamine.
       There was more than a preponderance of the evidence to establish that appellant
willfully violated the terms and conditions of his probation by failing to attend the drug
treatment program and by using methamphetamine. The trial court did not abuse its
discretion in revoking appellant’s probation and lifting the stay on his sentence.
                                     DISPOSITION
       The judgment is affirmed.




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