People v. Ogden CA6

Filed 7/7/23 P. v. Ogden CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H049941 (Monterey County Plaintiff and Respondent, Super. Ct. No. 21CR001599)

v.

GANNON OGDEN,

Defendant and Appellant.

MEMORANDUM OPINION1

Defendant Gannon Ogden pleaded no contest to felony vandalism. (Pen. Code, § 594, subd. (b)(1)).2 The trial court suspended imposition of sentence and granted a two-year term of probation. The court ordered Ogden to obey all laws, abstain from alcohol, and participate in counseling or substance abuse programming as deemed necessary by the probation officer, among other conditions. The police later arrested Ogden for public intoxication, and his probation officer filed a notice of violation of probation. After a contested hearing on the matter, the trial court found Ogden had willfully violated the terms of his probation by consuming alcohol and appearing in

1 We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.) The facts of the underlying offense are immaterial to this appeal. 2 Subsequent undesignated statutory references are to the Penal Code.

public while intoxicated. (§ 647, subd. (f).) The court revoked and terminated probation, and imposed a term of 16 months in jail. Ogden appeals from the revocation and termination of his term of probation. He contends the trial court abused its discretion because his probation violations were not willful but rather the result of alcoholism, which caused him to lose control over his ability to refrain from consuming alcohol or appearing in public while intoxicated. He points out that the probation officer stated Ogden could benefit from drug and alcohol services and recommended probation be reinstated. Ogden argues that the trial court’s order “transgressed the fundamental principles underlying probation, i.e., rehabilitation and reintegration.” “A court may revoke probation ‘if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation . . . .’ [Citation.]” (People v. Galvan (2007) 155 Cal.App.4th 978, 981 (Galvan).) “[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.” (People v. Rodriguez (1990) 51 Cal.3d 437, 439.) The evidence must support a conclusion the probationer’s conduct constituted a willful violation of the terms and conditions of probation. (Galvan, at p. 982.) “The terms ‘willful’ or ‘willfully,’ as used in penal statutes, imply ‘simply a purpose or willingness to commit the act . . .,’ without regard to motive, intent to injure, or knowledge of the act’s prohibited character. [Citation.] The terms imply that the person knows what he is doing, intends to do what he is doing, and is a free agent. [Citation.]” (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438.) “The decision whether to reinstate probation or terminate probation (and thus send the defendant to prison) rests within the broad discretion of the trial court. [Citation.]” (People v. Bolian (2014) 231 Cal.App.4th 1415, 1421 (Bolian).) “[W]here the trial court was required to resolve conflicting evidence, review on appeal is based on the substantial 2