People v. Rosser CA3

Filed 6/30/16 P. v. Rosser CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Shasta) ----

THE PEOPLE, C079958

Plaintiff and Respondent, (Super. Ct. No. 09F6434)

v.

JUSTIN LEE ROSSER,

Defendant and Appellant.

Defendant Justin Lee Rosser appeals from a probation revocation. He argues (1) insufficient evidence supported the finding he willfully violated his probation terms; (2) the trial court violated his right to equal protection and due process by conditioning his freedom on his ability to pay; and (3) imposition of an $80 court security fee was error. The People agree with the third contention but challenge the remainder. We agree with the People. We will correct the fee and affirm the remainder of the judgment. I. BACKGROUND In 2009, defendant pleaded guilty to unlawful sexual intercourse (Pen. Code, § 261.5, subd. (c))1 and furnishing marijuana to a minor 14 years old or older (Health &

1 Undesignated statutory references are to the Penal Code.

1

Saf. Code, § 11361, subd. (b)). He was ordered to serve 180 days in jail and placed on probation for three years. He was also ordered to complete a sex offender treatment program and pay a $60 court security fee (§ 1465.8, subd. (a)(1)). In August 2011, following a petition to revoke probation, defendant admitted to a probation violation for using marijuana and failing to report a police contact to his probation officer. Probation was revoked and reinstated, and he was ordered to serve 90 days in jail. In September 2012, another petition to revoke probation was filed (the one at issue here). It alleged defendant had failed to submit monthly reports; advise probation of his residence, address, and phone number; and complete a sex offender treatment program.2 The court revoked probation and issued a bench warrant. Defendant was on abscond status until mid-2015. In June 2015, a contested revocation hearing was held. A. Defendant’s Failure to Submit Reports and to Advise Probation of His Address and Phone Number At the hearing, defendant’s probation officer testified. He explained probationers must submit monthly reports, providing information including phone number and address changes. Defendant last submitted a report in March 2012. About that time, probation developed a telephone reporting system, allowing probationers to report by phone. Defendant was enrolled in the system and was told he no longer had to provide written reports; he only needed to report by phone. But defendant never called to set up his phone reporting account. The probation officer last saw defendant in early May 2012 for a urine test.