Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. VCR160955
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
David Dave Davenport, III challenges the revocation of his grant of probation on two grounds: the trial court relied on inadmissible hearsay to find he violated the conditions of his probation, and the trial court relied on an inaccurate and unreliable presentencing report to deny reinstatement of probation. We affirm.
Background
On June 4, 2002, Davenport knocked on his estranged wife’s door and yelled several times for her to come out. When she said she did not want to work things out with him, Davenport took out a knife, waved it in her face, and threatened to kill her. After she calmed him down, he asked her to walk with him and she refused. He then pulled out another knife, grabbed her, pushed the knife against her lower back, and forced her toward the sidewalk. A neighbor walked up and the wife was able to disarm Davenport whereupon she called the police. Davenport was arrested.
On June 6, 2002, Davenport was charged in a felony complaint with making a criminal threat (Pen. Code, § 422; count I), and false imprisonment (§ 236; count II). As to both counts, it was alleged he personally used a dangerous weapon. (§ 12022, subd. (b)(1).) One week later, Davenport pled no contest to count I, and count II was dismissed with a Harvey waiver. The court suspended imposition of the sentence, placed Davenport on three years’ formal probation, and ordered him (among other conditions of probation) to serve 180 days in jail beginning no later than July 22; complete a 52-week domestic violence program; and report to his probation officer within three days.
All statutory references are to the Penal Code unless otherwise indicated.
Davenport failed to appear for his first scheduled probation appointment on July 10, 2002, and did not contact his probation officer thereafter. He also failed to serve his jail sentence. As a result, his probation was summarily revoked in August 2002, and by February 2003, he was back in custody.
On February 7, 2003, Davenport admitted two probation violations: failure to complete the 180-day jail term and failure to report to probation. At a sentencing hearing held on March 10, Davenport’s probation was reinstated. He was ordered to serve an additional 90 days jail term with a surrender date no later than May 5.
On August 13, 2003, Davenport’s Probation Officer Robert Allred filed, and the court granted, a request for a bench warrant and summary revocation of probation. Allred charged that Davenport had not appeared at two scheduled probation appointments in June and July and his whereabouts were unknown. Davenport was back in custody by November 19. On December 5, he admitted violating his probation by failing to maintain contact with his probation officer; he waived his custody credits. Probation was again reinstated, and Davenport was ordered to serve 90 days in jail forthwith and then report to probation within five business days of his release from custody.
On April 16, 2004, Allred filed a memorandum with the court stating the case was scheduled for a probation violation hearing based on Davenport’s failure to enroll in a 52-week domestic violence course. Allred reported that he had referred Davenport to a domestic violence program on February 17, but that Davenport had not enrolled. Davenport cancelled an appointment with Allred on March 26, saying he had an appointment on March 29 to enroll in Catholic Social Services’ domestic violence program. Allred called that program on March 31 and was advised Davenport had called once, but they were unable to reach him at his call-back number. Thereafter Davenport stopped reporting for probation appointments. In his memorandum to the court, Allred wrote that Davenport was informed of the April 16 hearing by written notice mailed to his address of record. Davenport failed to appear at the April 16 hearing at which the court reviewed Allred’s memorandum, issued a bench warrant for his arrest, and summarily revoked probation.
On January 28, 2005, the district attorney filed a notice that it would request revocation of Davenport’s probation based on a September 6, 2004 arrest in Vallejo for corporal injury to his spouse. As far as the record discloses, the district attorney never followed up with a request to revoke his probation.
Davenport next appeared in court on this matter on November 14, 2005. He was in custody. The court scheduled a probation violation hearing, which was ultimately continued to March 10, 2006. According to a February 9, 2006 minute order, the hearing would address violations enumerated in Allred’s April 16, 2004 memorandum. The minute order contained an entry showing that Davenport had denied the violation or violations.
At the March 10, 2006 hearing, the sole witness was Davenport’s current probation officer, Maria Thomas, who testified primarily from notes Allred had typed into a computer at or near the time of the alleged 2004 violations. Thomas testified the computer notes reported that as of April 2004 Davenport had not enrolled in a domestic violence program and he had stopped contacting his probation officer. The court found Davenport in violation of probation based upon his failure to complete a domestic violence program and failure to maintain contact with the probation department. Davenport was ordered to meet with Thomas so she could prepare a supplemental report for an April 13, 2006 sentencing hearing.
Davenport did not make an April 3, 2006 appointment with Thomas. Nor did he appear for the April 13 sentencing hearing, and yet another bench warrant was issued for his arrest. Following his arrest on July 5, Davenport admitted failing to appear for the April 13 court hearing.
A sentencing hearing took place August 3, 2006. The supplemental probation report for this hearing (presentencing report) identified the relevant probation violation as Davenport’s failure to appear at the April 13 court hearing, but also mentioned the April 2004 violations. The report recommended termination of probation and the imposition of a two year state prison sentence. It contained the statement that Davenport was presumptively ineligible for probation pursuant to section 1203, subdivision (e)(4), “any felony with any two prior felonies,” and that there were no unusual circumstances warranting a further grant of probation.
The court terminated Davenport’s probation, commenting, “He’s a lousy probationer, and for whatever reason, he’s irresponsible. He’s not going to comply.” Davenport was then sentenced to state prison for the middle term of two years.
Discussion
Davenport argues the court erred at the March 10, 2006 probation violation hearing by finding a probation violation based on hearsay evidence, in violation of Davenport’s due process rights to confrontation and cross-examination. He further claims the court erred at the August 3, 2006 sentencing hearing by relying on a presentencing report that contained factual inaccuracies and was inherently unreliable, also in violation of his due process rights.
Davenport has urged that he was improperly denied custody credits. The People conceded the point. On May 10, 2007, this court granted partial relief in a related habeas corpus action, case number A117528, by ordering the superior court to amend the abstract of judgment to reflect the appropriate credits.
In Morrissey v. Brewer, the United States Supreme Court set forth minimum due process requirements for parole revocation hearings, which have been extended to probation revocation proceedings. (Morrissey v. Brewer (1972) 408 U.S. 471, 484-489; People v. Arreola (1994) 7 Cal.4th 1144, 1152 (Arreola).) Due process applies to both parts of the revocation decision: first, whether the probationer has violated a condition of his probation, and second, whether the probationer should be reinstated on probation or sentenced to state prison. (Morrissey at pp. 479-480.) The first part is a wholly retrospective factual determination; the second includes a factual assessment of which violations were committed and how many and how serious the violations were, but also predictive and discretionary determinations. (Id. at p. 480.) Factual accuracy is critical to both parts of the revocation decision. (Id. at pp. 487-488.)
I. Reliance on Hearsay to Find Probation Violation
Davenport first maintains the trial court violated his due process rights at the March 10, 2006 hearing by relying on hearsay evidence to find he failed to maintain contact with his probation officer or enroll in a domestic violence program.
In a footnote, Davenport also argues that the Sixth Amendment right to confrontation should apply to probation revocation hearings and that under Crawford v. Washington (2004) 541 U.S. 36, the computer notes (which he describes as “testimonial hearsay”) were inadmissible. He acknowledges that another court of appeal has held that Crawford does not apply to probation revocation hearings. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411; see also People v. Abrams (2007) 158 Cal.App.4th 396, 400, fn. 1, review pending, petn. filed 1/28/08 (Abrams).) We follow Johnson and Abrams.
We assume the particular probation allegations upon which the court acted at the March 10, 2006 hearing were those which were listed in Allred’s April 16, 2004 memorandum. (See People v. Mosley (1988) 198 Cal.App.3d 1167, 1173-1174 [probationers entitled to written notice of allege violations].) That memorandum charged that Davenport violated probation in failing to enroll in 52-week domestic violence treatment. Allred also wrote, “As this report is being prepared, the defendant has stopped reporting for appointments.” Davenport does not dispute that the memorandum provided him with notice of violations stemming from the failure to enroll in a domestic violence program and failure to maintain contact with probation as of April 2004.
At the March 10, 2006 hearing, the prosecutor cited Davenport’s failure to appear in court on April 16, 2004 as an alleged violation at issue at the hearing. Defense counsel stated, “This is the first I’m hearing about the failure to appear, but I’m ready.” During the hearing, the court took judicial notice of an April 16, 2004 minute order showing Davenport failed to appear for a hearing on that date, as well as a bench warrant for Davenport’s arrest issued on April 22, 2004. At the conclusion of the March 10, 2006 hearing, the court found Davenport had violated his probation by failing to complete a domestic violence program and failing to maintain contact with the probation department. Davenport’s failure to appear at the April 16, 2004 court hearing was never mentioned. We therefore need not discuss this alleged failure to appear when assessing whether his due process rights were violated at the hearing.
A. Evidence Presented at Probation Violation Hearing
The sole witness at the hearing was Thomas, Davenport’s probation officer since December 2004. Thomas never had any contact with Davenport, had never reviewed his probation file, and did not have his probation file with her at the hearing. She was familiar with Davenport’s performance on probation “[j]ust through the notes in our computer” that were entered by Allred, Davenport’s former probation officer. Thomas testified that such computer notes are made in the normal course of business by probation officers at or near the time of the events they describe. Probation officers are under an affirmative obligation to input true and correct information personally known to them because the notes are relied on by other probation officers. All contacts the probation department had with Davenport should be in the computer notes.
Davenport objected to Thomas’s testimony because it was hearsay and he did not have an opportunity to confront the declarant, Allred. There was no showing that Allred was unavailable to testify at the probation violation hearing. Davenport also argued the notes were not properly admitted as business records. These objections were overruled.
According to Thomas, Allred’s computer notes indicated that Davenport had never enrolled in a domestic violence program and he had stopped contacting probation in April 2004. Davenport’s last contact with Allred was on March 26, 2004, when he called to cancel an appointment on that date.
Thomas further testified that from December 2004 on, she would have been the person contacted if the probation department had received information that Davenport had enrolled in a domestic violence course and to her knowledge he had never done so. She had never received any proof of enrollment and had never been contacted by a program to report Davenport’s enrollment or his performance in a program. Again, we assume the only issues before the trial court at the March 10, 2006 hearing were Davenport’s failure to enroll in a domestic violence program as of April 2004 and failure to maintain contact with the probation department.
Thomas pointed out that if Davenport had called the probation department in or after December 2004, any such call would have been referred to her. She never received any messages, visits or phone calls from Davenport or had any other form of contact with him.
B. Analysis
In Morrissey v. Brewer, the United States Supreme Court held that one of the minimum due process requirements for revocation hearings is an opportunity to confront and cross-examine adverse witnesses, unless the hearing officer specifically finds good cause for not allowing confrontation. (Morrissey v. Brewer, supra, 408 U.S. at p. 489.) More generally, the Court explained, “What is needed is an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior.” (Id. at p. 484.)
Applying these principles to the admission of hearsay at revocation hearings, the California Supreme Court has drawn a distinction between the admission of hearsay “testimony” and “ ‘documentary’ evidence.” (Arreola, supra, 7 Cal.4th at pp. 1156-1157.) Testimony is admissible only on a showing of unavailability or other good cause, whereas documentary evidence is admissible (even if it would not be admissible under traditional rules of evidence) if it bears sufficient indicia of reliability. (Ibid.) The Supreme Court has not expressly defined the terms testimony and documentary evidence. (Ibid.) It has discussed testimony in the context of a preliminary hearing transcript and documentary evidence in the context of business records. (Ibid.) It has not addressed how other types of evidence might be categorized or by what standards it could be admitted at a revocation hearing if not admissible under traditional hearsay rules.
Arreola, however, provides considerable guidance insofar as this decision explains why testimony and documentary evidence merit different levels of scrutiny. Confrontation is required when it significantly assists in the factfinding process: “[T]he need for confrontation is particularly important where the evidence is testimonial, because of the opportunity for observation of the witness’s demeanor. [Citation.] Generally, the witness’s demeanor is not a significant factor in evaluating foundational testimony relating to the admission of evidence such as laboratory reports, invoices, or receipts, where often the purpose of this testimony simply is to authenticate the documentary material, and where the author, signator, or custodian of the document ordinarily would be unable to recall from actual memory information relating to the specific contents of the writing and would rely instead upon the record of his or her own action.” (Arreola, supra, 7 Cal.4th at p. 1157.)
From this passage, we conclude that due process mandates confrontation and an opportunity for cross-examination where, in light of the nature of the evidence, these due process protections will significantly assist in the factfinding process. That is, they are required where the opportunity for the court to observe the witness’s demeanor and for the defendant to cross-examine the witness will significantly assist the court in assessing the credibility of the witness and reliability and accuracy of the evidence.
Recently, the Second District addressed the issue of whether probation records (or testimony based solely on probation records) are admissible at a probation revocation hearing to establish a failure to report to probation. (Abrams, supra, 158 Cal.App.4th 396, review pending, ptn. filed 1/28/08.) In Abrams as in this case, a probation officer testified about the contents of a report written by another probation officer and the contents of the department’s computer records. (Id. at p. 404.) The Court of Appeal held the evidence admissible. “The presence of [the probation officer who authored the report] likely would not have added anything to the truth furthering process, because he would be testifying to a negative: that defendant did not make any appointments and that [the officer] had not spoken to defendant. [Citation.] Adding a computer custodian of records to recount the process of logging in calls likewise would have been of little assistance. The credibility of those two witnesses was not critical to the court’s determination whether defendant had violated his probation.” (Ibid.) The court further held that it was immaterial whether the report and computer notes were themselves admitted as documentary evidence. “We see no difference[] in this setting between receiving the reports in evidence and allowing [the witness] to testify to their contents. Defendant’s objection was to the hearsay of the report’s contents, not to the use of secondary evidence. (Evid. Code, §§ 1520-1523.)” (Id. at p. 404, fn. 4.)
Speaking more generally, the court ruled that hearsay evidence is admissible “where the evidence involves more routine matters such as the making and keeping of probation appointments, restitution and other payments, and similar records of events of which the probation officer is not likely to have personal recollection and as to which the officer ‘would rely instead upon the record of his or her own action.’ (Arreola, supra, 7 Cal.4th at p. 1157.)” (Abrams, supra, 158 Cal.App.4th at p. 405, fn. omitted.)
We find Abrams’s analysis persuasive. The computer notes were admissible, either directly or by way of the testimony of a witness reading from the notes, as hearsay evidence documenting when Davenport had contacts with the probation department.
In any event, any error in the court’s reliance on computer notes during the March 10, 2006 hearing was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) First, the court’s findings at that hearing were not the only findings of probation violations that were at issue at the August 2006 sentencing hearing. Davenport had admitted an additional violation, his failure to appear at an April 13, 2006 court hearing, which was cited in the presentencing report as the basis for the August 2006 sentencing hearing. Second, there was evidence at the March 10, 2006 hearing of probation violations other than those enumerated in Allred’s April 16, 2004 memorandum. The court took judicial notice of a minute order and bench warrant that documented Davenport’s failure to appear at the April 16, 2004 court hearing. According to the presentencing report, Davenport later admitted this violation to a probation officer. From Thomas’s own personal knowledge, the court also learned of Davenport’s failure to report to probation or participate in a domestic violence program throughout the time she was his probation officer. Thus, it was well established as of the August 2006 sentencing hearing date that Davenport had violated the terms and conditions of his probation.
II. Termination of Probation at Sentencing
Davenport next argues the trial court abused its discretion in terminating his probation on the basis of a factually inaccurate and unreliable presentencing report. He adds that the unreliability of the report amounted to a due process violation.
Revocation of probation rests entirely in the sound discretion of the trial court. (People v. Smith (1970) 12 Cal.App.3d 621, 626.) While this discretion is broad, the court may not act arbitrarily or capriciously and its determination must be based on the facts before it. (Ibid.) The reliability of information in a presentencing report is key to the fundamental fairness of a sentencing proceeding consistent with due process. (People v. Arbuckle (1978) 22 Cal.3d 749, 754-755.) Due process does not require absolute factual accuracy, but facial or inherent reliability. (Ibid.)
Davenport cites several errors in the presentencing report. We first consider his argument that the report falsely stated he had a 1975 felony conviction. We then consider the other alleged inaccuracies.
A. 1975 Felony Conviction
The presentencing report contained the statement that Davenport had sustained a 1975 felony conviction for possession of marijuana. He claims this is false and that the report is inherently unreliable. The error was prejudicial, Davenport argues, because the court found him presumptively ineligible for probation under section 1203, subdivision (e)(4) as he was determined to have suffered two prior felony convictions, one of which was the alleged 1975 marijuana conviction.
The record is muddled as to the ultimate disposition of Davenport’s April 1975 arrest for possession of marijuana and other charges. The presentencing report includes an “Edited Criminal History” table that apparently was prepared by a representative of the probation department. The table states that an April 1975 arrest resulted in the following disposition: “Conv 11359 HS. 90 days jail. (self reported in 1993) Probation records confirm a Felony 11357 H/S conv[i]ction 9/75 (case #10920); 24 mo probation; 3 mos jail; stnd terms; grant expired 10-14-77.” (Italics in original.) Construing this entry most favorably to Davenport, we conclude he was convicted of violating Health and Safety Code section 11357, a felony, in September 1975 and successfully completed probation for the conviction in October 1977.
The main text of the presentencing report states that Davenport’s current case (arising from his June 2002 arrest) “is the defendant’s third felony conviction (a five count felony case was dismissed pursuant to 1203.4 PC in 1978 according to Probation records, but is not reflected on CII).” Again construing this entry most favorably to Davenport, we infer the parenthetical is a reference to Davenport’s 1975 marijuana case, despite its reference to five counts. Davenport completed probation in that case in October 1977, which is consistent with a section 1203.4 dismissal in 1978. When a conviction is dismissed pursuant to section 1203.4, “in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed.” (§ 1203.4, subd. (a).) Such a conviction may still be considered for purposes of applying section 1203, subdivision (e)(4). (See People v. Acosta (1931) 115 Cal.App. 103, 106-108; People v. McCuiston (1966) 246 Cal.App.2d 799, 810-811.)
Davenport points out that the 1975 case could not have resulted in a felony conviction of Health and Safety Code section 11357 because at that time a violation of the statute was punishable only as a misdemeanor. He is incorrect. Although Section 11357 was amended in July 1975 to make simple possession of marijuana a misdemeanor, the amendment did not become effective until January 1, 1976. (Stats. 1975, ch. 248, § 2 [amending Health & Saf. Code, § 11357]; Stats. 1975, ch. 248, p. 641 [showing chapter 248 was signed into law by the governor on July 9, 1975]; Gov. Code, § 9600, subd. (a) [establishing effective date].) In 1975, a violation of section 11357 was punishable either as a felony or a misdemeanor. (Stats. 1973, ch. 1078, § 8, pp. 2171, 2176, 2188, eff. Oct. 1, 1973.)
Davenport further argues that his self-report of the 1975 conviction cannot be relied upon since it was not made until 1993, the probation records are unreliable because they are inconsistent with Davenport’s self-report, they were not identified with specificity, and they were not produced for the sentencing hearing. It is true that the presentencing report apparently contained inconsistencies and could have been more clear regarding Davenport’s criminal history. Nevertheless, it is commonplace for presentencing reports to include criminal histories such as Davenport’s without attaching the underlying criminal records. Given the record before us, and construing the information in the criminal history most favorably to Davenport, we nevertheless conclude that it supports the trial court’s finding of a felony conviction in 1975. And even assuming this conviction was dismissed pursuant to section 1203.4, the court could still consider it under section 1203, subdivision (e)(4).
In any event, any error regarding proof of the 1975 felony conviction was harmless beyond a reasonable doubt. Had Davenport not been presumptively ineligible for probation as the result of his two prior felony convictions, the trial court would still undoubtedly have terminated probation and sentenced Davenport to state prison. The trial court was presented with overwhelming evidence that Davenport, in the court’s own words, was “a lousy probationer.” While Davenport successfully completed probation on his first felony offense, he committed that crime 25 years before his current offense and 29 years before the sentencing hearing at issue in this appeal. Following a second felony conviction, Davenport failed on diversion, had his probation twice revoked and ultimately terminated unsuccessfully. As to the most recent offense, probation was summarily revoked on no less than three occasions (August 2002, August 2003, and April 2006), when Davenport failed to appear for court hearings and stopped reporting to his probation officer. On each occasion, Davenport was in custody when he reappeared in court. On four occasions (March 2003, December 2003, March 2006, July 2006), he was found in to be in violation of probation. The court also heard evidence of other uncharged violations of probation, namely Davenport’s failure to appear at the April 16, 2004 court hearing and his failure to maintain contact with Thomas while she was his probation officer. Davenport gave the court no reason to believe he would comply with the conditions of his probation in the future.
B. Other Alleged Errors in the Presentencing Report
Davenport claims the criminal history attached to the presentencing report was misleading because it included charged offenses that did not result in convictions. Two columns of the table are clearly labeled “Charges” and “Disposition.” Any knowledgeable jurist would understand that not all of the charges listed in the first column resulted in convictions.
He further argues that the report erroneously reports he had suffered three prior revocations of probation on his current offense. The presentencing report accurately reads, “Probation has been revoked three times” and “The defendant is now facing his third revocation since 2002 . . . .” Probation was summarily revoked in August 2002 after Davenport failed to report to probation following his original sentencing, in August 2003 after Allred reported that Davenport missed appointments, and in April 2006 when Davenport failed to appear at a court hearing. Furthermore, when the court stated at the sentencing hearing that Davenport’s probation had been revoked three times, defense counsel did not dispute the statement. There is no evidence the court was misled into believing it was presiding over a fourth revocation proceeding.
According to Davenport, the presentencing report also misrepresented his performance on prior grants of probation. He faults the report for overemphasizing his failure on a prior grant of felony probation and not mentioning his successful completions of misdemeanor probation. Davenport’s record on misdemeanor probation was clearly set forth in the criminal history attached to the report, which was reviewed by the trial court. Davenport does not cite any statement in the main body of the report that is inaccurate. He states his felony probation ended with a stipulated unsuccessful termination upon his completion of a county jail term, but he does not explain why this resolution, which followed a failure on diversion and two revocations of that grant of probation, was inaccurately cited as evidence of his poor performance on probation.
Davenport points out that the presentencing report incorrectly states he never served the 180-day sentence that was an original condition of his probation. The People do not dispute on appeal that Davenport served this jail term, but correctly observe that the fact is irrelevant since the trial court expressly declined to rely on it in denying probation. In response to Davenport’s claim that he had served the sentence, the court acknowledged the report was unclear on this point. In deciding whether to reinstate Davenport on probation, the court stated it would not consider the issue of whether Davenport ever served his 180-day sentence.
Challenging the presentencing report’s citation of applicable aggravating and mitigating factors, Davenport contends they did not accurately reflect the circumstances of his case. First, he argues the presentencing report erroneously cited his poor performance on probation as an aggravating factor and failed to cite his successful performance on misdemeanor probation as a mitigating factor. We disagree for the reasons stated above.
The presentencing report discusses circumstances relevant to the imposition of a lower, middle, or upper term. (Cal. Rules of Court, rules 4.421, 4.423.) Although the report cites four aggravating and one mitigating factor(s), it recommends the middle term, which the court imposed. Davenport does not claim the court abused its discretion in not choosing the low term. Rather, his focus is on the trial court’s decision whether to reinstate probation or sentence him to prison. The criteria guiding a trial court’s decision whether to grant or deny probation are similar to the factors relevant to the court’s choice of term of imprisonment. (Compare Cal. Rules of Court, rule 4.414 with Cal. Rules of Court, rules 4.421, 4.423.) We understand Davenport’s argument to be that the presentencing report inaccurately assessed the aggravating and mitigating criteria relevant to the court’s grant or denial of probation. (Cal. Rules of Court, rule 4.14.)
Second, Davenport faults the report for not citing the effect of his incarceration on six minor dependents as a mitigating factor. The presentencing report recounts conflicting reports about the amount of time Davenport spent with the minors. There was no evidence he financially supported the children. Although Davenport disputes how the evidence set forth in the presentencing report should be weighed, it was the trial court’s role, not this court’s role, to weigh this evidence. The court could reasonably conclude from the information in the report that the effect of Davenport’s imprisonment on his dependents was not a substantial mitigating factor.
Third, Davenport argues his criminal history was minor and remote and should have been cited as a mitigating factor. According to Davenport, the current offense was his first violent crime and the prior felony convictions were 27 and 12 years old at the time of his current offense. On the other hand, Davenport committed crimes in 1975, 1985, 1990, 1993, and 2002, a fairly regular pattern. Whether this factor weighed in his favor is debatable. Davenport’s attorney raised this argument at the sentencing hearing and the court certainly had the opportunity to consider and weigh it when exercising its discretion.
Finally, Davenport urges that the presentencing report erroneously failed to cite his early admission of wrongdoing as a mitigating factor. Nothing prevented him from bringing this to the attention of the court during the sentencing hearing. He chose not to do so. Without doubt the trial court would have terminated probation even if it had considered the questionable mitigating factors Davenport claims on appeal.
Ultimately, the court was faced with Davenport’s lengthy history of repeated failures on probation, which demonstrated that “[h]e’s not going to comply.”
Disposition
The judgment is affirmed.
We concur: SIMONS, ACTING P. J., NEEDHAM, J.