THE PEOPLE v. JOSE APOLINAR SALGADO (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

The trial court revoked Jose Salgado's probation, and committed him to state prison under a previously suspended sentence.   We affirm.

FACTS

In October 1998, Salgado stabbed Eulcido Gonzales with a knife.   In November 1998, the People filed an information charging Salgado with assault with a deadly weapon (ADW), with an allegation that he personally inflicted great bodily injury (GBI) in the commission of the offense.   On January 22, 1999, Salgado waived his constitutional trial rights, and pled no contest to ADW, and admitted the GBI allegation.

On January 22, 1999, the trial court granted Salgado an election between an immediate sentence of two years in state prison, or a five-year suspended sentence with formal probation for five years on condition he serve 365 days in county jail, and pay restitution to the victim.   The terms of probation required Salgado to report to the probation officer within 48 hours after being released from custody.   Salgado chose the suspended sentence with probation.   On July 16, 1999, while he was still in custody, Salgado was deported to Mexico.   Salgado never reported to his probation officer, never attempted to contact his probation officer by any means of communication, and never paid any restitution to the victim.   On August 2, 2002, the trial court issued a bench warrant.   In March 2010, police arrested Salgado in San Diego on the outstanding warrant.

On June 24, 2010, the trial court heard testimony from a deputy probation officer investigator.   The officer testified that department records showed Salgado never reported to his probation officer, never attempted to contact his probation officer by any means of communication, and never paid any restitution to the victim.   At the conclusion of the probation revocation hearing on May 17, 2010, the court found that Salgado violated the terms of his probation, and ordered the previously suspended sentence of five years placed in full force and effect.

DISCUSSION

I. Willfulness

Salgado contends the trial court abused its discretion in revoking his probation because “his actions were not willful.”   We are not persuaded by Salgado's argument.

We agree with Salgado that case law recognizes “life is not always predicable,” and that this means the evidence must prove a willful violation of probation.  (See, e.g., People v. Zaring (1992) 8 Cal.App.4th 362, 369.)   But we disagree with Salgado's claim that the record shows he “had every intention of carrying out the term of his probation,” but was “prevented from doing so by the actions of the government by being deported.”   Salgado's willfulness in not obeying the terms of his probation are supported by the evidence showing these facts:  (1) he was released from custody in July 1999;  (2) at no point after his release date did he ever report to his probation officer, or make any effort to contact his probation officer;  and (3) he never made any effort to pay any restitution to the victim.   Salgado's assertion, unsupported by a reference to the record, that he had “every intention” of complying with the term of his probation is, to say the least, belied by the evidence showing that he failed to do anything whatsoever for more than 10 years.

II. Ability to Comply

Salgado contends the evidence does not support the trial court's finding that he could have complied with the reporting requirements of his probation.   We reject this claim for the simple reason that there is no evidence in the record to support Salgado's bald assertion “that deportation from the United States ․ made it impossible for [him] to comply with any condition that he report to the probation officer within 48 hours after release from custody.”   Salgado was deported to another jurisdiction for an unknown period of time;  he could have paid restitution from Mexico, or contacted the probation officer from Mexico, or complied with the terms of his probation when he returned to the United States.   To the extent Salgado suggests it may not have been acceptable for him to report by telephone, mail, or e-mail, he fails to appreciate the greater point that he never made any attempt, by any means, acceptable or not, to report to his probation officer.   If some attempt had been made by Salgado, and if the People were arguing his attempted method was unacceptable, Salgado's argument might make sense.   As it is, it does not.   It is Salgado's burden on appeal to demonstrate error, and none of the authorities cited in his opening brief on appeal support his asserted proposition that a probationer is excused from compliance with the terms of probation because he or she has been deported.

III. Sufficiency of the Evidence

Salgado contends the evidence does not support a finding that he violated the term of his probation requiring him to report to the probation officer within 48 hours of being released from custody.   More specifically, Salgado argues the People “did not meet their burden of proof.”   We disagree.

Salgado appears to argue he was deported in July 1999, and therefore could not report.   Further, that the People did not present evidence showing that, at the time of his arrest in March 2010, he had been back inside the United States, where he could have reported, for a period of time longer than 48 hours.   All of this means, according to

Salgado, that the People failed to satisfy their burden to show he had willfully failed to report within 48 hours of being released from custody.   The suggestion that he was arrested almost immediately upon his return to the United States has no basis in the record.   More fundamentally, the problem with Salgado's reasoning is that the evidence established he made no attempt to report to the probation department for more than 10 years after being released from custody, regardless of his corporeal presence in or outside of California.   The remainder of his argument implicitly rehashes his “impossible to report” position.   For the reasons stated above, we reject that position.   Salgado's argument otherwise does not persuade us that the People were required to prove when he re-entered the United States.

DISPOSITION

The judgment is affirmed.

BIGELOW, P.J.

We concur:

RUBIN, J. FLIER, J.