Filed 1/22/14 P. v. Brown CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A139059
v.
MARCUS JEROME BROWN,                                                 (Solano County
                                                                     Super. Ct. No. FCR252740)
         Defendant and Appellant.


         Marcus Jerome Brown appeals from the revocation of probation and execution of
a previously suspended sentence. His court-appointed counsel has filed a brief raising no
legal issues and requesting this court to conduct an independent review of the record
pursuant to People v. Wende (1979) 25 Cal.3d 436. The appeal is authorized by Penal
Code section 1237.1
                                                 BACKGROUND
         On December 2, 2008, nearly five years ago, appellant pled no contest to two
counts of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)), and admitted a
prior prison enhancement (§ 667.5, subd. (b)). Pursuant to the plea agreement, a related
great bodily injury enhancement (§ 12022.7, subd. (a)) was dismissed, execution of a
five-year state prison term was suspended, and probation was granted. On February 2,
2009, the court imposed the agreed upon term, which consisted of the three-year midterm
on count one, a consecutive one-third the midterm of one-year on count two, and a


         1
             All statutory references are to the Penal Code.


                                                             1
consecutive one-year term on the prior prison term enhancement. Appellant was released
on a five-year grant of probation subject to standard conditions and also no contact orders
relating to the victim of his offenses.
       Appellant admitted previously violating the terms of his probation on three
occasions—by variously failing to attend domestic violence treatment programs, submit
to drug testing, and abstain from illegal drugs. On February 1, 2011, after one such
admission, appellant agreed to waive his past, present, and future credits in exchange for
reinstatement to probation.
       When appellant admitted violating probation on May 9, 2011, the trial court lifted
the stay and executed the previously suspended five-year prison term. The court then
recalled that sentence pursuant to section 1170, subdivision (d), and reinstated and
modified probation so that it included participation in a one-year residential drug
treatment program. Appellant again agreed to waive all accrued credits in the event he
violated probation again.
       On March 25, 2013, appellant was arraigned on the present probation violation
based on allegations that he had failed to complete a one-year domestic violence program
and submit to drug testing. Appellant contested the allegations and a hearing was held
on April 9, 2013.
                                  The Revocation Hearing
       Three witnesses testified at the revocation hearing: Solano County Probation
Officer Ruben Vang, appellant, and Terri Sullivan, a social worker who teaches domestic
violence prevention at the Archway Recovery program and has been “in an intimate
relationship” with appellant for four years, the entire period of his probation.
       Officer Vang stated that at a meeting with appellant on December 26, 2012, he
directed him to submit to a drug test but appellant left the building without doing so. At
the same meeting, after telling appellant only a short time remained on his probation,
Vang directed him to enroll in a domestic violence program and bring verification that he
had done so to his next appointment. Appellant never presented any such verification.



                                              2
       On cross-examination, Vang acknowledged that, until recently, appellant’s
probation had been supervised by Andrea Rogers who, unlike him, specialized in
supervising probationers who participated in the type of treatment programs petitioner
had been participating in, and was familiar with the demands they imposed. Vang was
aware that, since mid-2011 and for more than a year, appellant had been living in a
residential domestic violence program known as Archway; had during that period
become a member of Local 342 Pipe Fitters Union, and was also enrolled in an
educational program related to his work as a pipe fitter. Vang did not know that
appellant’s job, to which he carpooled because he did not have a car, required him to
leave Solano County at 5:00 a.m. and made him unable to return earlier than 8:00 p.m.
       On redirect, Vang stated that appellant had never provided him any documentation
regarding his school schedule, and that drug testing took place in his office on the days
appellant met with him there. On recross, Vang admitted that the previous day
appellant’s counsel had shown him appellant’s pay stubs indicating times at which he had
been employed.
       Appellant testified that in December 2009 he had been diagnosed with an aortic
heart valve problem for which he “had to be hospitalized numerous times . . . for weeks
on end,” and he ultimately had open heart surgery to replace his heart valve, and almost
died. The valve now needs to be replaced every five years. Appellant stated that at
present “I’m about 75 percent of what I was.”
       Appellant testified that he entered the Archway program on July 8, 2011, as Judge
Foor ordered him to do, and left after graduating in November of 2012, which was longer
than the one-year period ordered by Judge Foor. He stayed in the program longer than
ordered because he would otherwise have been homeless, and unable to comply with
many conditions of his probation. Appellant paid for his room and board at Archway by
using all of the disability checks he received from the state and help he received from
Terri Sullivan, his “significant other,” who taught a class in the program. While living at
and participating in the Archway program, appellant also attended an Archway job



                                             3
training program, and worked at Kentucky Fried Chicken about 10 hours a week, as a
result of which his state assistance ceased.
       In November 2011, shortly after he began participating in and living at the
Archway program, appellant signed up to take a pipe fitter test given by Local 342, and
was one of only 40 of 1,200 applicants accepted in the union’s apprenticeship program.
After participating in a job training program at Diablo Valley Community College,
appellant was assigned a job at Russell City Energy Center in Hayward, and later at
Bechtel and perhaps other companies, as “an apprentice pipe fitter welder.”2
       Appellant described his workday during this period, which apparently lasted until
his probation was revoked, as follows. He would leave home in Solano County “at
5:00 a.m. every morning to be at work by 7:00. After work he took evening classes in
Concord for 6 to 12 hours a week, so he would usually not get home until 9:30 [p.m.].”
Because appellant was participating in an apprenticeship program he was unable to ask
for time off. If he had, he stated, “I would have been expelled from school. I would have
been fired from my job, and I would have been pretty much not been able to, you know,
survive or take care of myself or, you know, be on any sort of decency with the Court on
my conditions of probation.” Appellant stated that completing the apprenticeship
program presented “[t]he chance of a lifetime.”
       However, although appellant avoided being laid off for three months, he was
eventually laid off in March 2013, shortly before the revocation hearing, “actually, the
day after my last visit with agent Vang” on March 6.3 Appellant stated that he tried but
was unable to contact Vang earlier.


       2
          Appellant authenticated and offered in evidence (1) pay stubs he received from
Russell City Energy Center and Bechtel establishing the times of his employment with
those companies, (2) a letter to him from the Northern California Pipe Traders Trust Fund
identifying the amount of his contributions to that Fund, and (3) a document from the
Local 342 establishing the period of his enrollment in the union’s joint apprenticeship
and training program.
        3
          Appellant testified at the revocation hearing that, if not in custody, having been
laid off would not prevent him from remaining in the apprenticeship program.

                                               4
       Appellant said he was unable to submit to a drug test the day he met with Vang
due to his inability to previously sign up for medical insurance coverage for his children,
as he had been court ordered to do in a civil action commenced by the mother of his
child. The day he met with Vang, December 26, was the last day he could sign up for the
coverage so that it would commence on January 1st, as required. Getting this coverage
was of immense importance, not just because of the medical needs of his child, but also
because of his own serious heart problems. Appellant knew he could test for drugs the
week after he met with Vang, but that would require him to miss work. Appellant
explained, “I carpool[ed] to work, and with the looming layoffs, missing work was
something that was not smiled upon . . . . I would have got fired from my job, you know.
. . . Bechtel was very upset with people missing days and stuff like that. [¶] . . . [¶] . . .
I did not choose the job over testing, not at all, but to get back to this area [for the drug
testing] was really difficult for me without a vehicle.
       Asked why he missed a drug test at the time he met with Vang in March, appellant
stated that the meeting was scheduled at 4:00 p.m. and he tried to return from work to get
there on time, but by the time he arrived the office had closed. Appellant added that at
that time he was not using drugs because of the serious requirements of his job, as well as
those of probation. Also, at that time he was still residing at the Archway program where
he was tested for drugs on a regular basis. He never tested positive at Archway, and
would have been “expelled and kicked out,” which never happened.
       Appellant said he was unable to complete a 52-week domestic violence treatment
program while residing at the Archway program because Archway did not permit
residents to participate in other programs. After leaving Archway, his work and school
schedule made it hard to immediately enroll in the separate year-long domestic violence
counseling program the court had ordered. However, after he lost his job he contacted
the domestic violence program “numerous times” to verify that there was an opening for
him in the 52-week program, and made an appointment at which he planned to enroll. He
was unable to show up for appointment that day because he was incarcerated, apparently
on the basis of the probation violation.


                                                5
       Examined by the district attorney on re-cross, appellant admitted he tested “dirty”
for drugs in 2011 and that he failed to complete the domestic violence counseling
program he started in 2009. Acknowledging he did not submit a check stub showing he
worked Christmas week in 2012, appellant stated he nevertheless did work that week; and
during that period and in early January 2013 he typically worked “from 60 to 70 to 84
hours a week.” Appellant also allowed that his school was not in session during June,
July and early August 2012, and it also closed for Christmas—implicitly acknowledging
he could then have attended the domestic violence counseling class made a condition of
his probation.
       Terri Sullivan, who has been in “an intimate relationship” with appellant for four
years, almost the entire period of his probation, testified that there has never been “any
physical or verbal problems” between her and appellant, and their relationship has been
“peaceful” and “positive.” Sullivan helped appellant pay for the Archway program, had a
bachelor’s degree in social work and previously served as a “domestic violence program
manager” at other programs, and was now a teacher of domestic violence prevention at
the Archway program from which appellant graduated. She knows from her training
what a person on narcotics or drugs looks like and how he behaves, and never saw
appellant look or act in that way. She never saw him use marijuana, methamphetamine
or cocaine.
       At the close of testimony, the court heard from the district attorney and defense
counsel.
       According to Deputy District Attorney Kathleen Murray, appellant violated his
probation in three ways: First, he was on December 26, 2012 ordered by Officer Vang to
submit to drug testing and, according to Vang, there were two days that week available
for testing from 8:30 a.m. to 5:00 p.m., and “defendant failed to comply with that order
[and] [t]here’s no verification that he was working that week . . . or that he was in school
that week, and he could have complied with that term and he chose not to.”




                                              6
       Second, appellant “failed to test on the following week when he was ordered to do
so, and he did not complete the test on that day, and there was no information provided as
to why he did not test that particular day.”
       Finally, appellant “failed to complete his domestic violence counseling program.
He’s been on probation now since 2009, and he’s failed to complete that program. His
work schedule does vary. His school schedule does vary. He was taking courses at
Archway, but he failed to complete that class. He testified that that program was not
available to him, but that was in direct contradiction to what Ms. Sullivan testified to.”
       The foregoing reasons were the sole basis upon which the district attorney asked
the court to hold appellant in violation of his probation.
       After offering into evidence documents establishing the dates of appellant’s
employment during the period of his probation, and the dates of the educational courses
and treatment programs he participated in, Deputy Conflict Defender Marjaneh Maroufi
urged the court to “reject any finding of willful violation of probation in this case.”
       First, with respect to the 52-week domestic violence class, she pointed out that
appellant was between “a rock and a hard place. To comply with the order . . . he would
have had to violate other terms of probation. He was just not able to comply with all
terms of probation at the same time.” As she explained, “[w]hile at the Archway
Program, he had to comply with their rules and policies. He could not be in any other
programming but theirs. Furthermore, they required him to work, and an amazing job
opportunity and educational opportunity landed at his feet, and Mr. Brown jumped at the
chance at being in this Local Union 342. . . . [He] has testified credibly and honestly that
he worked a very long day leaving at approximately 5:00 a.m. in the morning, getting
back very late in the day. No domestic violence program is available at the hours that he
is essentially home, um, at about 8:00 or 9:00 [p.m.] During a period that he described
from January of 2012 to very recently until March where he lost his job, he was going to
school and work at the very same time, and he carried this on for several months until he
was laid off. Once he was laid off, he made the appointment with the 52-week [domestic
violence] program, but he was remanded and unable to continue in that regard.” Defense


                                               7
counsel observed that because appellant’s period of probation ended in June 2014, he
could still complete the domestic violence program if his probation was not revoked.
       Counsel summed up her first point by emphasizing the significance of the job
training and work experience appellant obtained from his participation in the union
apprenticeship program and employment at the Energy Center in Hayward and Bechtel to
his long-term rehabilitation and reintegration into society, and the difficulty of having to
choose between those extraordinary opportunities. The difficulty of that choice, and also
the fact that the Archway program—which included domestic violence prevention classes
and also subjected appellant to periodic drug testing—did not permit him to
simultaneously participate in another treatment program, established that his admitted,
but minor, violations of probation were not “willful,” as had to be the case in order to
revoke his probation.
       Defense counsel’s second argument, which related to the drug testing condition,
was that appellant was tested at least twice monthly at Archway “and never once did he
test dirty.” Terri Sullivan testified that she never saw any indication he used drugs and
the only evidence to the contrary is appellant’s own admissions that he had backslided in
2011, which past incidents were not relied upon by the district attorney as a basis for
revocation, which was sought only on the ground of his recent failure to submit to drug
testing by the probation department at times of day that would have cost him his job and
membership in the apprenticeship program. From appellant’s perspective, she said, “it
was essentially testing or lose the job.” “[C]onsidering that at the time of testing
appellant had completed more than a year-and-a-half of a residential treatment program,
tested repeatedly, never once testing dirty,” counsel asked the court “to consider that as a
mitigation, as substantial compliance with probation,” noting also that appellant had not
reoffended since 2007.
       Defense counsel argued that, unlike most probationers who violate probation, who
“do nothing at all” to rehabilitate themselves, “we have the opposite . . . he did too much.
He grabbed every opportunity he could get.” Lamenting the fact that the probation
department “didn’t seem like they were terribly interested” in appellant’s efforts to better


                                              8
himself, counsel maintained that it should not have obstructed them, and punished him by
initiating revocation proceedings.
                                  The Trial Court Ruling
       On April 9, 2013, the trial court rejected the probation department’s
recommendation. Focusing on appellant’s prior failures to comply with the conditions of
probation, the trial court observed that “when the defendant was first violated for this, his
explanation was that he couldn’t attend these meetings because he was busy working. . . .
He had more important things to do. He had to work, so he couldn’t go to his meetings.
Well, I put him back on probation. [¶] And after that, he had these medical issues he just
testified he almost died from. So it’s interesting that the next violation, which occurs
within just a few months after he has been getting this treatment for these medical issues
[i.e., open heart surgery], was for failure to drug test and failure to complete the DV
course. Now, this time his explanation was he was too busy with his medical
appointments, couldn’t go to DV, couldn’t do any of this and he never really had any
explanation, except . . . [h]e did acknowledge that he was missing his drug test because
he was going to test positive for marijuana because he wanted to get his weight back up.”
Three months after he was allowed to remain on probation, the court observed, he
committed the present violations.
       Concluding that appellant is “clearly in violation for not testing [and] for failing to
enroll into the domestic violence counseling program, as he was directed to do.” “[W]hat
I really get out of all of this,” the court stated, “is that Mr. Brown is extremely
manipulative. He’s going to do what he wants to do when he wants it, and I have no
doubt that a job that’s paying $20, $25 an hour is a good job. There’s no question about
that. But he . . . knows full well the obligations that he had to test because the thing is
without sobriety all of this other stuff is meaningless. And his sobriety is seriously in
question when he won’t test, and he always has an explanation. I assume he’s not testing
because he’s dirty, and when you’re dirty, all this other stuff doesn’t matter because . . .
he’s spent a lifetime being dirty and committing crimes. [¶] Now, it’s true that he made
some positive steps during the time that he was in Archway, but it looked to me like he


                                               9
was back sliding from the moment he left the program. By the time he got to probation,
he wouldn’t test. He wouldn’t provide them any verification of any of this. He wouldn’t
sign up for his domestic violence and always with another explanation.”
       After finding appellant in violation of his probation, the court referred the matter
back to the probation department for a supplemental report and recommendation, and set
the case for judgment and sentence in four weeks, on May 7, 2013.4
                      The Probation Department Recommendation
       The supplemental report filed with the court on May 7 outlined the several
competing considerations. On the one hand, appellant seemed genuinely remorseful for
violating his probation for the fourth time and his failure to miss appointments with his
probation officer and for drug testing appeared to be due to the demands of his
“employment and education” (i.e., participation in an apprenticeship program). On the
other hand, appellant admitted that a recent failure to submit to drug testing was the result
of his knowledge that he would test positive if he complied. The supplemental report
also noted that appellant “had an opportunity to address his use of illegal drugs when he
entered Archway Recovery Services,” a state-licensed alcohol and drug treatment
program, but “information received from Archway appears to indicate that [appellant]
may have received limited benefit due to his own non-compliance.”
       The supplemental report considered it significant that the Archway program only
addressed drug abuse, whereas the probation department felt appellant needed a program
that also addressed “behavioral modification” such as “the Delancey Street and Genesis
House programs,” which “can provide both substance abuse treatment and behavioral
modification.” For that reason, the supplemental report recommended a four-week
continuance be granted to allow appellant the opportunity to seek admission into
Delancey Street or Genesis House, or a similar program.



       4
        The record contains no transcript of proceedings on that date, however it does
contain a Criminal Minute Order dated June 3, 2013, denying continuation of probation
and imposing the previously suspended sentence.

                                             10
       Genesis House accepted appellant as a participant on May 21, 2013. Less than
two weeks later, the probation department submitted an addendum to its Supplemental
Report stating that “[a]lthough [appellant’s] acceptance into Genesis House avoids a
recommendation for imposition of sentencing at this time, it should be noted that he is
assessed as a marginal candidate for successful completion. . . . Therefore, it is
respectfully recommended that [appellant] waive all custody credits as a consequence of
the violation to encourage his compliance with this final opportunity to complete
probation. It is recommended that [appellant] remain in custody until arrangements are
made for his transport to the Genesis House.”
                        The Trial Court’s Judgment and Sentence
       On June 3, 2013, the trial court denied continued probation and remanded
appellant to serve the previously suspended sentence. Credits of 71 actual days served
and 71 days of good conduct were determined, for a total of 142 days presentence
custody credits. The court imposed a $400 restitution fund fine, a probation revocation
fine in the same amount, and a parole restitution fine also in the amount of $400, that was
suspended unless parole was revoked.
       This timely appeal was filed on June 25, 2013.
                                       DISCUSSION
       “Revocation rests in the sound discretion of the court. 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.)
       “A 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 probation . . . .’ (§ 1203.2,
subd. (a).) ‘As the language of section 1203.2 would suggest, the determination whether
to . . . revoke probation is largely discretionary.’ (In re Coughlin (1976) 16 Cal.3d 52,
56.) ‘[T]he facts supporting revocation of probation may be proven by a preponderance
of the evidence.’ (People v. Rodriguez (1990) 51 Cal.3d 437, 439.) However, the
evidence must support a conclusion the probationer’s conduct constituted a willful


                                              11
violation of the terms and conditions of probation. (See People v. Zaring (1992)
8 Cal.App.4th 362, 378-379 [(Zaring)].)” (People v. Galvan (2007) 155 Cal.App.4th
978, 981-982 (Galvan).)
       Because he did not in the trial court dispute the allegations that he failed to comply
with conditions of his probation requiring him to submit to drug testing and enroll in a
domestic violence treatment program, appellant essentially concedes that he violated the
terms of his probation. The only potential issue in this case is whether, as the trial court
impliedly found, his violation was willful.
       Galvan, supra, 155 Cal.App.4th 978 and Zaring, supra, 8 Cal.App.4th 362, which
reversed revocations of probation, are instructive as to whether appellant’s violations may
be deemed willful.
       In Galvan, the trial court revoked the defendant’s probation stemming from his
conviction for burglary and possession of a controlled substance. Defendant was
instructed to report to the probation office within 24 hours of reentry if he left the United
States. After he failed to appear for a probation revocation hearing, a bench warrant was
issued. Several months later the defendant was arrested in the United States. He
presented evidence that his deportation to Mexico prevented him from reporting after his
release from jail. The record contained no evidence of when the defendant re-entered the
United States. Finding the evidence insufficient to show he had been in the United States
more than 24 hours before he was arrested, the court reversed the judgment revoking
probation, stating that “deportation obviously prevented him from reporting in person.
We also believe a reasonable person in Galvan’s position would have assumed that, in
these circumstances, the 24-hour reporting requirement would be excused.” (Galvan,
supra, 155 Cal.App.4th at p. 985.)
       In Zaring, supra, 8 Cal.App.3d 362, a defendant who plead guilty to possessing
and being under the influence of heroin was placed on probation and ordered to appear at
8:30 a.m. for a hearing on her acceptance into a drug program. Due to a childcare
problem unexpectedly requiring the defendant to take her children to school herself, she
appeared at the hearing 22 minutes late. Due to her failure to appear “on time,” the trial


                                              12
court found she had willfully violated the terms of her probation, terminated probation,
and sentenced her to prison. In doing so, the trial court emphasized that it had given the
defendant a “substantial break” because “I thought that she . . . was finally going to get
her life together. I think the . . . lawyer for the People even thought she was going to get
her life together.” (Zaring, at p. 377) Because he believed the defendant had never
learned that her acts had consequences, the trial judge “told Miss Zaring in a long speech
that she had to be here at 8:30, and the most important thing in her life was to be here at
8:30 [a.m.], and if she wasn’t here at 8:30 she was going to prison. And I told her she
should camp out here if she thought she was going to be late. Then she said, “Yes, I will.
I understand. I’ll be here.” Then she came in and she said, well, she took her children to
school. [¶] ‘Understand, I let her out early, so had she not been there I don’t know how
the children would have gotten to school or if they would have gotten to school. She
chose to take her children to school and willfully violated that directive and agreement
that we had. And so I find her in violation of her probation.’ ” (Ibid.)
       The common feature of Galvan and Zaring is that nothing in the record in those
cases supported the conclusion the conduct relied upon to revoke probation “was the
result of irresponsibility, contumacious behavior or disrespect for the orders and
expectations of the court.” (Galvan, supra, 155 Cal.App.4th at p. 983.)
       That is hardly the case here. Were this appellant’s first or second probation
violation, it would be far easier to credit the explanations he offered for his failure to test
for drugs and enroll in a domestic violence treatment program; but these failures are his
fourth violations. The trial court’s findings that appellant’s “sobriety is seriously in
question when he won’t test, and he always has an explanation,” and that he was
“manipulative,” amount to a credibility determination. On this record, such a
determination cannot—even arguably—be set aside by an appellate court.
       On December 18, 2013, we issued an order granting appellant 15 days within
which to file a supplemental brief in propria persona. Though the brief was not filed with
the court until January 7, when it was 5 days late, it was accepted for filing. Appellant’s
supplemental brief contends that: (1) defense counsel provided him ineffective


                                              13
assistance; (2) the trial court was biased and the sentence it imposed constituted an abuse
of discretion; and (3) the court also improperly denied him 2,018 days of credits pursuant
to sections 2900.5 and 4019. We have examined these contentions and find each of them
meritless.
       Appellant was at all times represented by competent counsel who protected his
rights and interests.
       The trial court had discretion to revoke appellant’s probation and impose the
previously suspended sentence, and the term thereof is authorized by law and not an
abuse of discretion.
       Our independent review having revealed no arguable issues that require further
briefing, the judgment, including the sentence imposed, are affirmed




                                                 _________________________
                                                 Kline, P.J.


We concur:


_________________________
Haerle, J.


_________________________
Richman, J.




                                            14
