People v. Fonseca CA2/3

Filed 4/13/23 P. v. Fonseca CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B320537

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA148896) v.

JOAQUIN FONSECA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Victor M. Acevedo, Judge. Reversed and remanded. Sunnie L. Daniels, under appointment for the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

Joaquin Fonseca appeals from an order revoking probation, contending there was insufficient evidence to support the order. The Attorney General concedes, and we agree, that the trial court improperly revoked probation. Fonseca pleaded no contest to assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). On January 7, 2020, the trial court imposed the upper term of four years in prison, suspended execution of sentence, and placed Fonseca on three years’ probation. As a condition of probation, Fonseca was ordered to perform 45 days of community labor with Caltrans and to provide proof of completion by October 7, 2020. The case was called for possible probation violation in July 2021, at which time the trial court ordered Fonseca to enroll in the Caltrans program and to provide proof of enrollment by August 5, 2021. His time to complete the 45 days of community labor with Caltrans was extended to July 14, 2022. Thereafter, Fonseca submitted proof he had enrolled in the Caltrans program on August 3, 2021. However, in September 2021, his probation was revoked, and the matter was set for a probation violation hearing. At a May 16, 2022 hearing, the trial court found that Fonseca was not in substantial compliance with the condition he complete 45 days of community labor, revoked probation, and executed the four-year sentence. Although a trial court need only find a violation of probation by a preponderance of the evidence (People v. Rodriguez (1990) 51 Cal.3d 437, 442), “the evidence must support a conclusion the probationer’s conduct constituted a willful violation of the terms and conditions of probation” (People v. Galvan (2007) 155 Cal.App.4th 978, 982). We review a trial court’s order revoking probation for an abuse of discretion but