Filed 7/16/14 P. v. Leftenant CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 8.111.5.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B250448
(Super. Ct. No. 2008015968)
Plaintiff and Respondent, (Ventura County)
v.
JUBAL LEFTENANT,
Defendant and Appellant.
Jubal Leftenant appeals from the trial court's order revoking probation and
ordering him to serve a two-year state prison sentence, execution of which was
suspended in 2010. We affirm. (Pen. Code, § 1203.2, subd. (a); People v. Rodriguez
(1990) 51 Cal.3d 437, 443.)
Facts and Procedural History
On March 1, 2010, appellant entered into a negotiated plea to felony
driving under the influence of alcohol (DUI) with a prior DUI conviction (Veh. Code, §
23152, subd. (a); 23550.5, subd. (a)) and driving with a suspended license with a prior
DUI conviction (Veh. Code, § 14601.2). The trial court sentenced appellant to two years
state prison, suspended execution of sentence, and granted five years formal probation
with 120 days county jail. As a condition of probation, appellant was ordered not to use
or possess marijuana unless pursuant to a doctor's recommendation. He was also to
enroll in and complete a Multiple Conviction Drinking Driver Program (MCDD
program).
On May 31, 2012, a violation of probation (VOP) notice was filed alleging
tht he was driving with a suspended driver's license, not paying a $200 fine to the State
Restitution Fund, and not paying probation fees totaling $2,688.34. A first amended
VOP notice was filed, alleging that he had failed to report to probation or submit to drug
alcohol testing, had tested positive for marijuana, and was disqualified from the MCDD
program on November 20, 2012. Appellant claimed the marijuana was medically
"prescribed" for back pain and that "he never missed" his MCDD classes. After
Appellant admitted the probation violation, the trial court revoked and reinstated
probation and re-referred appellant to the MCDD program.
On May 21, 2013, a new VOP notice was filed alleging that he failed to
report to probation and had not submitted to drug/alcohol testing on May 3, 2013. The
VOP notice alleged that appellant tested positive for marijuana on May 10, 2013 and was
disqualified from the MCDD program for excessive absences and acting inappropriately
with program staff. The trial court revoked probation, reinstated probation with
modifications, and re-referred appellant to the MCDD program.
On July 16, 2013, a first amended VOP notice was filed for not reporting to
probation or submitting to drug testing on May 3, 2013 and July 12, 2013. The amended
VOP notice alleged that appellant: (1) was disqualified from the MCDD program for
excessive absences and inappropriate conduct, (2) that appellant had not made restitution
payments and was $2,623.34 in arrears on his probation fees, and (3) that a glass
marijuana pipe, a baggie of one gram of marijuana, and marijuana containers were found
in appellant's house during a probation search. The VOP notice stated that appellant had
a 20-year criminal record that included five prior DUI convictions, one of which was a
felony, and that appellant "consistently demonstrates noncompliance and . . . fails to take
responsibility for his actions. He continues to challenge probation and he cannot be
properly supervised in the community." (Original in bold.)
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At the VOP hearing, Deputy Probation Officer Bernal testified that
appellant failed to report for probation and drug testing on two occasions. Appellant left
a voice mail that he had a "medical condition " but did not provide a call-back number or
documentation. Bernal stated that appellant was disqualified from the MCDD program
for excessive absences and acting inappropriately with program staff, that appellant tested
positive for marijuana on May 10, 2013, and that appellant was not paying his probation
fees and fines even though he was employed and lived in a gated townhouse. During a
July 5, 2013 probation search of appellant's townhouse, marijuana, marijuana containers
and a marijuana glass smoking pipe were found.
At the VOP hearing, appellant claimed that he paid $643.87 to be
readmitted into the MCDD program and was currently enrolled in the program.
Appellant said that he had a medical marijuana card, that he "submitted the marijuana
card to Probation," and that at a prior VOP hearing for smoking marijuana, "the judge
dismissed it when I took [in] the card."
The trial court found that appellant violated probation when he was
disqualified from the MCDD program and continued to use drugs. Appellant was
ordered to serve the two year prison sentence previously imposed.
Medical Marijuana Use
Appellant argues that the trial court erred in revoking probation based on
his medical use of marijuana. The probation terms provided that he could use or possess
marijuana if "prescribed." It is uncontroverted that appellant possessed a medical
marijuana card before probation was granted. The Attorney General concedes that the
probation condition permitting "prescribed" use of marijuana is ambiguous and should
have been resolved in appellant's favor. (People v. Hoeninghaus (2004) 120 Cal.App.4th
1180, 1196.)
MCDD Program
Appellant's probation was revoked on the alternative ground that appellant
was disqualified from the MCDD program for unexcused absences. Penal Code section
1203.2, subdivision (a) authorizes a court to revoke probation if the interests of justice so
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require and the court, in its judgment, has reason to believe that the person has violated
any of the conditions of his or her probation. (See People v. Rodriguez, supra, 51 Cal.3d
437, 443.) The standard of proof in a probation revocation proceeding is proof by a
preponderance of the evidence. (Id. at p. 446.) We review for substantial evidence and
great deference is accorded the trial court's decision, bearing in mind that "[p]robation is
not a matter of right but an act of clemency, the granting and revocation of which are
entirely within the sound discretion of the trial court. [Citations.]" (People v. Pinon
(1973) 35 Cal.App.3d 120, 123.) Only in a very extreme case should an appellate court
interfere with the discretion of the trial court in the matter of denying or revoking
probation. (People v. Rodriguez, supra, 51 Cal.3d at p. 443.)
The evidence shows that appellant was disqualified from the MCDD
program for excessive absences and acting inappropriately with staff. Appellant argues
that he paid the necessary program fees and was readmitted into the program which
precludes any finding that he willfully violated probation. (See e.g., People v. Buford
(1974) 42 Cal.App.3d 975, 985 [probation violation must be willful].) The trial court
credited Deputy Probation Officer Bernal's testimony that appellant was disqualified
from the program due to excessive absences and acting inappropriately with staff, as
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reported by DPP Supervisor Jessica Davis. Appellant's decision to reenroll in the
program before the VOP hearing does not negate the fact that he was disqualified from
the program five months earlier. DPP Supervisor Jessica Davis confirmed that defendant
is currently disqualified for 'excessive absences.' She also reports the defendant
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Appellant claims that DPP Supervisor Davis' statement is hearsay but did not object and
is precluded from arguing, for the first time on appeal, that it is hearsay. (People v.
Alvarez (1996) 14 Cal.4th 155, 186.) A probation report is admissible at a probation
revocation hearing where it was prepared in the furtherance of the probation officer's
duties and bears a substantial degree of trustworthiness. (People v. Maki (1985) 39
Cal.3d 707, 714-717 [; People v. Cain (2000) 82 Cal.App.4th 81, 87-88.) Davis'
statement was consistent with other reports that appellant was disqualified from the
program for excessive absences and inappropriate conduct.
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repeatedly acts 'inappropriate' with program staff and continues to deny the
disqualification."
"In placing a criminal on probation, an act of clemency and grace [citation],
the state takes a risk that the probationer may commit additional antisocial acts. Where
probation fails as a rehabilitative device, as evidenced by the probationer's failure to
abide by the probation conditions, the state has a great interest in being able to imprison
the probationer without the burden of a new adversary criminal trial. (People v
Rodriguez, supra, 51 Cal.3d at p. 445.) Appellant may have reenrolled in the MCDD
program but it does not excuse the excessive absences and desultory performance dating
back to November 2012 which resulted in his disqualification from the program.
Appellant was given several chances but, in the words of Deputy Probation Officer
Bernal, "likes to challenge law enforcement," is uncooperative, and is difficult to
supervise. Substantial evidence supports the finding that appellant violated his probation
and should serve the bargained for sentence. Appellant makes no showing this is a "'very
extreme'" case, requiring an appellate court to reverse the trial court's discretionary
findings and reinstate appellant's probation. (People v. Rodriguez, supra, 51 Cal.3d at p.
443.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P.J.
PERREN, J.
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Ferdinand D. Inumerable, Judge
Superior Court County of Ventura
______________________________
Christian Alvarez Barnes, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Michael R.
Johnsen, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney
General, for Plaintiff and Respondent.
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