Wednesday, April 30, 2008

Discretion not abused for sending to prison for revocation of California DUI probation & failure to perform

California DUI criminal defense lawyer news

Filed 4/29/08 P. v.Skuljan CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOR THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, A118872

v. (Sonoma County

Super. Ct. No. SCR-476973)

DAVID ZVONKO SKULJAN,

Defendant and Appellant.

______________________________________/

David Zvonko Skuljan appeals from a judgment entered after the trial court revoked his probation. He contends the trial court abused its discretion when it revoked his probation and sentenced him to prison. We disagree and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 8, 2005, shortly after 1:30 p.m., Windsor police officers were dispatched to investigate a suspicious vehicle that was parked in front of a house. When the officers arrived, they found appellant slumped over in the driver’s seat of a car. The officers tried to roust appellant by talking loudly and poking him with a baton. After many attempts they were successful. Appellant smelled strongly of alcohol, his eyes were bloodshot, and his speech was slurred. As appellant exited the car, he staggered and had to support himself on the door. Determining that appellant was severely intoxicated, the officers arrested him. While searching appellant’s car, the officers found a nearly empty bottle of brandy on the floorboard.

Based on these facts, in February 2006, appellant pleaded no contest to felony driving under the influence. (Veh. Code, §§ 23152, subd. (a), 23550.) The trial court suspended the imposition of sentence and placed appellant on probation on the condition that he complete a residential treatment program.

In January 2007, a petition was filed alleging appellant had violated his probation by failing to complete his treatment program and by absconding from probation. Appellant admitted the violations at a hearing in May 2007.

On August 21, 2007, the court declined to reinstate probation and sentenced appellant to three years in prison for his underlying offense. This appeal followed.

II. DISCUSSION

Appellant contends the trial court abused its discretion when it ruled he had violated his probation.

The trial court is granted broad authority to determine whether a probationer has violated his probation, and its ruling will be reversed on appeal only where the court abused its discretion. (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) We find no abuse here. Appellant admitted that he violated probation by failing to complete his treatment program and by absconding from probation. Based on appellant’s admission, the court obviously could conclude appellant violated his probation.

Appellant also argues the court abused its discretion when it declined to reinstate probation and sentenced him to prison.

Again, the standard of review we apply is highly deferential. The trial court is granted the discretion to decide whether to reinstate probation or to sentence a defendant to prison, and its decision will only be reversed on appeal if the court abused its discretion. (People v. Downey (2000) 82 Cal.App.4th 899, 909.) We find no abuse here. The probation report prepared for the sentencing hearing noted that appellant had a long history of alcohol abuse. The report also noted appellant committed the underlying offense “while he was participating on two grants of conditional sentence for DUI convictions.” The report opined that appellant’s failure to complete his residential treatment program was “not indicative of somebody who is ready to address [his] substance abuse issue[s].” The report also forecast that if appellant were released back into the community “there is a strong likelihood that he would continue to drink and endanger the public.” The trial court could, based on this record, reasonably conclude appellant was not a good candidate for probation and that he should be sentenced to prison.

Appellant contends the court abused its discretion because the only reason he left his treatment program was that a person there had asked him to act dishonestly. While that was appellant’s explanation for his conduct, the treatment program described appellant’s departure differently. On appeal, we must assume the court accepted the program’s explanation. (People v. Kelly (1992) 1 Cal.4th 495, 528.)

Appellant also suggests the court erred because he tried to contact his probation officer shortly after he left his treatment program. While that is true, appellant then simply dropped the issue and he did not try to contact his probation officer again at any time in the following months. Indeed, appellant admitted that he “should have done more than just called . . . .” The court could reasonably conclude appellant’s minimal efforts were inadequate.

Finally, appellant contends the trial court was improperly influenced by the prosecutor’s argument that his probation violation was more serious because he was an attorney who had practiced criminal law in the past. Appellant notes that he practiced civil not criminal law. While that is true, appellant and his counsel pointed out the prosecutor’s error at the sentencing hearing. Again, on appeal we must assume the trial court properly evaluated this conflicting evidence. (People v. Kelly, supra, 1 Cal.4th at p. 528.)

We conclude the trial court did not abuse its discretion when it declined to reinstate probation and sentenced appellant to prison.




III. DISPOSITION

The judgment is affirmed.

_________________________

Jones, P.J.

We concur:

________________________

Needham, J.

________________________

Stevens, J.*

*Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.