Filed 6/25/14 P. v. Turner CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yuba)
                                                            ----




THE PEOPLE,                                                                                  C073954

                   Plaintiff and Respondent,                                      (Super. Ct. No. CRF1211)

         v.

SCOTT ALLEN TURNER,

                   Defendant and Appellant.




         Defendant Scott Allen Turner pled no contest to: 1) driving under the influence
of alcohol after having been convicted within 10 years of a prior felony of driving under
the influence; and 2) attempting to evade a pursuing police officer. He admitted a prior
conviction of driving under the influence of alcohol. The trial court granted defendant
probation on the condition he participate in a substance abuse program under the charge
of his probation officer. After defendant admittedly failed to complete two different
residential treatment programs, the trial court revoked probation and sentenced him to
three years and eight months in prison. On appeal, defendant argues the trial court

                                                             1
abused its discretion when it terminated probation because his probation violation was
“de minimis.” Defendant also claims the trial court abused its discretion when it refused
to consider his performance on probation. We disagree and affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       Marysville police received a dispatch regarding a pickup truck driven by
defendant, who was possibly under the influence of alcohol. When the officer located the
pickup truck, the officer turned on the police car’s emergency lights. Defendant then
attempted to evade the officer. During the pursuit, defendant reached speeds of 90 miles
per hour, temporarily lost control of his truck, swerved around lanes, and nearly hit
another vehicle before stopping his truck and surrendering to the officer. When the
officer approached defendant in his pickup, the officer smelled alcohol on his breath,
found open beer and liquor containers behind the driver’s seat, and noticed defendant’s
eyes were red and watery.
       When defendant pled no contest to the various charges, the trial court granted
defendant five years of probation under various terms and conditions, including
participation “in any substance abuse program, whether it is alcohol or drugs . . . as
directed by the Probation Department for any of those programs.” Defendant enrolled in
the Feather River Men’s Center (Feather River), which is a residential drug and alcohol
treatment program. The probation agreement signed by defendant provides, “[y]ou are to
participate fully, obey all program rules, pay all related costs, and successfully complete
the 12 month residential drug and alcohol program. Do not leave the program prior to
successful completion.” (Underline and bold text omitted.) Defendant remained enrolled
in Feather River for approximately five months before Feather River terminated
defendant prior to completion for “continuously breaking program rules and being
disrespectful toward [the] staff.” Defendant was allowed a second chance to attempt a




                                             2
different residential treatment program.1 Defendant then entered the Salvation Army
Residential Treatment Program (Salvation Army), but completed only approximately
three months before the Salvation Army terminated him from the program for “continual
disrespect and defiant behavior toward [the] staff.” Defendant admitted his failure to
complete a substance abuse program as required under the terms and conditions of his
probation. Both programs terminated defendant for speaking abrasively and being
confrontational with employees.
       At the judgment and sentencing hearing, defendant addressed the trial court. He
took “full responsibility for [his] actions” in regard to being terminated from both the
Feather River and the Salvation Army programs. Defendant also admitted to
participating in eight separate alcohol rehabilitation treatment programs in 10 years.
Defense counsel asserted that defendant’s violations in each of the rehabilitation
programs was “more of a subjective type of violation than . . . objective.” However,
defense counsel did admit to defendant’s being “demeaning and disrespectful,” which
constituted a violation of the programs’ rules.
       The trial court noted that it had “considered everything that ha[d] been said”
during the proceeding. In deciding to revoke probation, the trial court found “five factors
in aggravation, [and] one in mitigation.” The trial court pointed out that defendant’s
admission to violating probation was the mitigating factor. However, the trial court
asserted that it could not reinstate probation because defendant had twice failed
rehabilitation programs while on probation. The trial court also pointed to defendant’s
driving under the influence convictions, the number of past offenses, the increasing
seriousness of the offenses, and his prior unsatisfactory performance on probation as



1     Feather River reinterviewed defendant to determine his suitability to return to the
program but declined to reaccept him because he did not appear willing to “make a strong
enough commitment to the program.”

                                             3
aggravating factors. The trial court revoked probation and sentenced defendant to three
years, eight months in prison.
                                         DISCUSSION
       Defendant asserts the trial court abused its discretion when it terminated probation
for what he calls a “de minimis” violation. Defendant also argues the trial court abused
its discretion by refusing to consider his performance on probation. We disagree.
       Penal Code 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
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.) “[W]hen considering probation
revocation [a court’s analysis] is not directed solely to the probationer’s guilt or
innocence, but to the probationer’s performance on probation. Thus the focus is (1) did
the probationer violate the conditions of his probation and, if so, (2) what does such an
action portend for future conduct?” (People v. Beaudrie (1983) 147 Cal.App.3d 686,
691.) The People must prove by a preponderance of the evidence the fact supporting
probation revocation. (People v. Rodriguez (1990) 51 Cal.3d 437, 441-442.)
       On appeal, we consider “whether, upon review of the entire record, there is
substantial evidence of solid value, contradicted or uncontradicted, which will support the
trial court’s decision, . . . giv[ing] great deference to the trial court and resolv[ing] all
inferences and intendments in favor of the judgment. Similarly, all conflicting evidence



                                                4
will be resolved in favor of the decision.” (People v. Kurey (2001) 88 Cal.App.4th 840,
848-849, fns. omitted.)
                                              I
                  Defendant’s Probation Violation Was Not De Minimis
       Relying on Buford, defendant contends that his dismissal from both the Feather
River and the Salvation Army programs was a “de minimis” violation of his probation.
We not only disagree with defendant’s reading of Buford, but we find the facts of this
case are vastly distinguishable from Buford. In Buford, there was scant evidence that the
defendant’s probation officer made any meaningful effort to contact the defendant
regarding the defendant’s conditions of probation and his later noncompliance. (People
v. Buford, supra, 42 Cal.App.3d at pp. 978, 984-985, 987.) There, the appellate court
held that revoking probation based on so little evidence of a willful violation was an
abuse of discretion. (Id. at p. 985.) The court in Buford reasoned, “[t]o revoke [the
defendant’s] probation for his noncompliance with [the law], while excusing the
noncompliance of the sentencing court, the jail officials, and/or the probation officer
constituted an abuse of discretion.” (Id. at p. 987.)
       Here, defendant’s willful noncompliance with probation was a direct result of his
own actions. Unlike Buford, where the defendant did not commit a willful probation
violation because his probation officer failed to advise him regarding the terms of his
probation, defendant took full responsibility for failing both the Feather River and the
Salvation Army programs. The probation order in this case, which defendant signed,
clearly stated that defendant must “obey all program rules[,] . . . and successfully
complete the 12 month residential drug and alcohol program” and to not leave the
program before completion. (Underlining and bold text omitted.) These were material
terms of the probation order, defendant was aware of these terms, and he violated them.
Unlike defendant in Buford, who violated probation only because his probation officer
failed to take required steps in informing the defendant to register as a sex offender,

                                              5
defendant here continuously violated the rules of two rehabilitation programs, which
resulted in his failing to complete a 12-month program. A failure to obey rules of the
rehabilitation programs, resulting in a failure to complete the 12-month program, is not a
“de minimis” violation. Defendant’s violation is a willful failure to comply with
conditions of his probation and the trial court did not err in revoking probation.
                                              II
          The Trial Court Did Consider Defendant’s Performance On Probation
       Defendant asserts that the trial court abused its discretion because it did not
consider his performance on probation when it revoked his probation. Defendant is
wrong.
       At the judgment and sentencing hearing, the trial court allowed defendant to
testify and call witnesses on his behalf prior to revoking probation. During the hearing,
the trial court explicitly stated, “I have considered everything that has been said,”
referring to testimony of defendant and a letter from defendant’s father. More
importantly, after hearing defendant’s witnesses and argument in favor of reinstating
probation, the trial court stated that it considered, “five factors in aggravation, [and] one
in mitigation.” The trial court then clearly stated all of the factors and explained how it
balanced the factors in favor of revoking probation. Because the trial court expressly
stated on the record that it considered multiple factors, we presume the court did, in fact,
consider those factors. “[U]nless the record affirmatively shows otherwise, a trial court is
deemed to have considered all relevant criteria in deciding whether to grant or deny
probation.” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1318; Cal. Rules of Court,
rule 4.409.) The trial court properly considered defendant’s performance on probation
and did not abuse its discretion.




                                              6
                                 DISPOSITION
     The judgment is affirmed.



                                               ROBIE   , Acting P. J.



We concur:



     MAURO              , J.



     HOCH               , J.




                                      7
