Filed 3/25/21 P. v. Ponce 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B301199
(Super. Ct. No. TA144745)
Plaintiff and Respondent, (Los Angeles County)
v.
CESAR PONCE,
Defendant and Appellant.
Cesar Ponce appeals the trial court’s order revoking his
probation and sentencing him to three years in state prison for
injuring a spouse, cohabitant, or a child’s parent (Pen. Code,1
§ 273.5, subd. (a).) Appellant contends the court erred in
revoking probation. We affirm.
FACTS AND PROCEDURAL HISTORY
Because appellant pleaded no contest prior to a
preliminary hearing, the relevant facts are derived from the
All statutory references are to the Penal Code unless
1
otherwise stated.
probation report. On October 18, 2017, appellant got into an
argument with I.R., the mother of his son. Appellant slammed
I.R. against the wall, grabbed her left arm, and bit her on her left
wrist before fleeing the scene. I.R. was subsequently treated at
the hospital for her injuries.
In November 2017, appellant was charged with one count
of injuring a spouse, cohabitant, or a child’s parent (§ 273.5, subd.
(a); count 1), and one count of aggravated assault (§ 245, subd.
(a)(4); count 2). Appellant remained at large until his arrest in
May 2018.
In September 2018, appellant pleaded no contest to count 1.
The court suspended imposition of sentence and placed him on
five years of formal probation with various terms and conditions.
Among other things, appellant was required to (1) obey all laws
and court orders; (2) keep his probation officer advised of his
residence and work and telephone numbers; (3) relinquish all
firearms; (4) take an AIDS test; (5) pay victim restitution; and (6)
complete an approved 52-week domestic violence counseling
program. The court also issued a domestic violence protective
order (DVPO) prohibiting appellant from having any contact with
I.R.
Appellant was also ordered to return to court on November
29, 2018, with proof of his AIDS testing and his enrollment in
domestic violence classes. Appellant did not appear at the
hearing. Probation was revoked and a no-bail bench warrant was
issued for his arrest.
Appellant was arrested and appeared in court on December
6. The court reinstated probation and ordered appellant to
appear in court on February 6, 2019, with proof and results of an
AIDS test and proof of his enrollment in a domestic violence
counseling program.
2
When appellant appeared at the February 6 hearing, he
submitted the results of an AIDS test but offered no proof of his
enrollment in a domestic violence counseling program. The court
ordered appellant to appear on March 5, 2019, with proof of his
enrollment in a domestic violence counseling program. Appellant
did not appear at the March 5 hearing or otherwise offer proof of
his enrollment in a domestic violence counseling program. The
court issued and held another no-bail bench warrant for
appellant’s arrest and set a bench warrant hold hearing for
March 8. After appellant failed to appear at the March 8
hearing, probation was once again revoked and a no-bail bench
warrant was issued.
On April 20, 2019, appellant was arrested for violating the
DVPO. He was subsequently charged in case number 9CS04053
with one count of violating a DVPO (§ 273.6, subd. (a).) The trial
court ordered a supplemental probation report and set the matter
for a probation violation hearing, which was ultimately held on
August 9, 2019.
In its supplemental report, the probation officer stated that
prior to appellant’s arrest he had last reported to probation on
February 7, 2019. Appellant had been ordered to pay $25 a
month toward various fines and fees but had not made a single
payment. Appellant had also failed to enroll in a domestic
violence counseling program, keep his probation officer apprised
of his residence and phone numbers, maintain a residence as
approved by probation, report to his probation officer within 48
hours of his release from custody, and obey all laws, court orders,
and rules and regulations of the probation department. The
probation officer stated: “[Appellant] was granted five years
probation and has failed to maintain compliance with the terms
and conditions as ordered by the court. [Appellant] knows what
3
is required of him and has been given ample opportunity to
comply, but has failed to do so. It appears [appellant] has a
history of substance abuse and is either unwilling or unable to
cooperate with the probation officer in a plan of supervision. He
continues not to cooperate with the probation officer and is not
responding to the court’s efforts of intervention. Thus,
[appellant] has continued to pose a threat to the safety of the
victim.” Accordingly, it was recommended that appellant’s
probation remain revoked and that sentence be pronounced and
imposed.
Family Violence Deputy Probation Officer Lyric Dill
testified at the probation violation hearing. At the prosecution’s
request, the court took judicial notice of the record in case
number 9CS04053, in which appellant was charged with
violating the DVPO.
Appellant provided no evidence at the hearing, but argued
that the court should “extend” probation because his father had
died and he was homeless and unemployed. The prosecutor
responded: “[T]he fact that [appellant] is homeless is separate
and apart from his obligations to this court and to the probation
officer. It was never conveyed that he would not be able to come
to court. He could have just come into court on his own and not
have bench warrant for his arrest. There was testimony that
there [have] been three separate incidents where he failed to
appear in court and a bench warrant issued for his arrest. There
have been three separate times where [Dill] has given him re-
enrollment papers so that he can re-enroll. But it appears as
though he is not taking this obligation seriously. On top of that,
counsel has not even addressed the fact that his client picked up
a new misdemeanor case, which is in violation of his probation.
So based upon that, the People believe that based upon the
4
preponderance of the evidence, that there is sufficient evidence to
prove that he is in violation of his probation at this moment.”
The court found “that the People have met their burden
that [appellant] did violate his probation, and his probation
remains revoked.” The court sentenced appellant to the midterm
of three years in state prison and awarded him 54 days of
presentence custody credit. On the prosecution’s motion, case
number 9CS04053 was dismissed in the interests of justice
pursuant to section 1385.
DISCUSSION
Appellant contends the court erred in revoking probation.
We disagree.
Section 1203.2, subdivision (a) authorizes the court to
revoke probation after proper notice and a hearing if “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 their supervision . . . or has
subsequently committed other offenses, regardless of whether the
person has been prosecuted for those offenses.” “‘As the language
of section 1203.2 would suggest, the determination whether to . . .
revoke probation is largely discretionary.’ [Citation.] ‘[T]he facts
supporting revocation of probation may be proven by a
preponderance of the evidence.’ [Citation.]” (People v. Galvan
(2007) 155 Cal.App.4th 978, 981-982.)
“We review a probation revocation decision pursuant to the
substantial evidence standard of review (citation), 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.]’ [Citation.]”
(People v. Urke (2011) 197 Cal.App.4th 766, 773.) “‘“[O]nly in a
5
very extreme case should an appellate court interfere with the
discretion of the trial court in the matter of denying or revoking
probation. . . .”’ [Citation.] And the burden of demonstrating an
abuse of the trial court’s discretion rests squarely on the
defendant. [Citation.]” (Ibid.)
Appellant contends the trial court erred in revoking
probation because the evidence is insufficient to prove by a
preponderance of the evidence that he “committed a new crime or
violated a court order,” i.e., that he violated the DVPO. He
claims that the record in case number 9CS04053, of which the
trial court took judicial notice, “did not reference a police report
or any other factual account of appellant’s conduct in support of
the new complaint.” Appellant, however, has not presented a
sufficient record for our review of this claim. He did not file a
request for judicial notice of the record in case number 9CS04053.
Instead, he merely purports to set forth the contents of the
documents included in that record.
In any event, appellant concedes that the evidence is
sufficient to support a finding that he had failed to enroll in a
domestic violence counseling program, which was an express
term and condition of his probation. Moreover, appellant’s
probation had been previously revoked and reinstated for the
very same violation. He also acknowledges that he had not made
a single payment toward his financial obligations. The probation
report further reflects that appellant had effectively absconded
from probation supervision in February 2019. In light of this
evidence, the court did not abuse its discretion in revoking
probation. (People v. Urke, supra, 197 Cal.App.4th at p. 773.)
Although appellant offers that his failure to enroll in a domestic
violence counseling program was not willful because “there is a
strong and reasonable inference” that he could not afford to pay
6
the costs of such a program, he acknowledges that he offered no
evidence on this issue at the probation violation hearing.
The court also acted within its discretion in terminating
probation and imposing a prison sentence rather than reinstating
appellant on probation. The trial court is vested with broad
discretion in determining whether to reinstate probation
following revocation or probation. (People v. Jones (1990) 224
Cal.App.3d 1309, 1315.) Appellant’s poor performance on
probation was an aggravating factor (Cal. Rules of Court, rule
4.414(b)(2)), and a single aggravating factor is sufficient to justify
the denial of probation (People v. Mehserle (2012) 206
Cal.App.4th 1125, 1158). Moreover, the court is presumed to
have considered all the relevant criteria relating to the grant or
denial of probation. (Cal. Rules of Court, rule 4.409.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P.J.
TANGEMAN, J.
7
Lynn D. Olson, Judge
Superior Court County of Los Angeles
______________________________
Stephanie L. Gunther, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Steven E. Mercer, Deputy Attorney
General, for Plaintiff and Respondent.