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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 43182

STATE OF IDAHO,

Plaintiff-Respondent,

v.

VICTOR RENE ARVIZU,

Defendant-Appellant.

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2016 Unpublished Opinion No. 551

Filed: May 26, 2016

Stephen W. Kenyon, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Jason D. Scott, District Judge. 

Order revoking probation, affirmed.

Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

GUTIERREZ, Judge

Victor Rene Arvizu appeals from the district court’s order revoking his probation. 

Specifically, Arvizu contends the district court abused its discretion in revoking his probation 

because his probation violation was not willful. He further contends that even if his probation 

violation was willful, it did not warrant revocation. Additionally, Arvizu argues the district court 

violated his due process and equal protection guarantees when it revoked his probation. For the 

reasons explained below, we affirm the district court’s order.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Arvizu pled guilty to two felony counts of battery on certain personnel. The district court 

placed Arvizu on probation for five years with an underlying unified sentence of five years, with 

one year determinate. According to the terms and conditions of probation, Arvizu was ordered 
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to “complete any training or counseling program established by the probation officer” and to 

“take all medications as prescribed.”1 The State alleged Arvizu violated these terms when he 

failed to complete a mental health evaluation as instructed by his supervising officer and failed to 

stay on prescribed medications.

The district court held an evidentiary hearing for the alleged probation violation. 

Arvizu’s supervising probation officer testified that he instructed Arvizu to obtain a mental 

health assessment from the U.S. Department of Veterans Affairs (“VA”). The officer further 

testified that when he asked Arvizu if he understood it was lawful for the officer to instruct 

Arvizu to obtain the mental health evaluation, Arvizu stated that he understood. The officer then 

testified that Arvizu did not obtain a mental health evaluation. According to the officer’s 

testimony, Arvizu visited the VA for the evaluation but when Arvizu told the VA that his 

probation officer made him go, the VA refused to administer the evaluation. Arvizu, in 

response, contested the legality of the officer’s instruction to obtain a mental health evaluation. 

Specifically, Arvizu argued that because his probation officer had a recent mental health 

evaluation from Arvizu, there was no need for an additional evaluation.

At the conclusion of the evidentiary hearing, the district court determined that the recent 

nature of the former evaluation did not make the probation officer’s instruction to obtain an 

additional evaluation inappropriate or unlawful. Thus, the district court found that based on 

substantial evidence, Arvizu violated his probation conditions by failing to complete a mental 

health evaluation as lawfully instructed by his probation officer.2 Arvizu denied having a mental 

health condition during the disposition hearing. The district court found that because Arvizu did 

not believe he had any mental health conditions, and because Arvizu “effectively blocked” a 

mental health evaluation “by going there and telling the VA that [he was] there against [his]

will,” it could not conclude that Arvizu did not “present a risk to the community present.” The 

district court therefore revoked Arvizu’s probation and imposed a sentence of five years, with 

one year determinate. In its order revoking probation, the district court indicated, “[t]he Court 

 

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This Court acknowledges that the probation order likely included other conditions, but 

the probation order was not included in the record.

2 However, the district court did not find sufficient evidence for the State’s allegation that

Arvizu violated probation by not taking prescribed medications. 
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finds that the defendant willfully and knowingly violated the terms of his probation.” Arvizu 

timely appeals from the district court’s order revoking his probation.

II.

ANALYSIS

Arvizu contends the district court abused its discretion by revoking his probation. He 

specifically argues his probation violation was not willful, and therefore the district court lacked 

authority to revoke his probation. Moreover, he maintains that even if his violation were willful, 

it did not warrant revocation.

Idaho Code § 20-222(2) provides that “the court may issue a warrant for violating any of 

the conditions of probation or suspension of sentence and cause the defendant to be arrested. 

Thereupon the court . . . may revoke the probation and suspension of sentence and cause the 

sentence imposed to be executed . . . .” Further, Idaho Criminal Rule 33(f) provides:

The court shall not revoke probation except after a hearing at which the defendant 

shall be present and apprised of the grounds on which such action is proposed. 

The defendant may be admitted to bail pending such hearing. The court shall not 

revoke probation unless there is an admission by the defendant or a finding by the 

court, following a hearing, that the defendant willfully violated a condition of 

probation.

It is within the trial court’s discretion to revoke probation if any of the terms and conditions of 

the probation have been violated. I.C. §§ 19-2603, 20-222(2); State v. Beckett, 122 Idaho 324, 

325, 834 P.2d 326, 327 (Ct. App. 1992); State v. Adams, 115 Idaho 1053, 1054, 772 P.2d 260, 

261 (Ct. App. 1989); State v. Hass, 114 Idaho 554, 558, 758 P.2d 713, 717 (Ct. App. 1988).

If a court has determined that the defendant violated his probation, it must then determine 

whether to revoke or continue probation. State v. Sanchez, 149 Idaho 102, 105, 233 P.3d 33, 36 

(2009). In determining whether to revoke probation, a court must examine whether the probation 

is achieving the goal of rehabilitation and is consistent with the protection of society. State v. 

Upton, 127 Idaho 274, 275, 899 P.2d 984, 985 (Ct. App. 1995); Beckett, 122 Idaho at 325, 834 

P.2d at 327; Hass, 114 Idaho 558, 758 P.2d at 717. A decision to revoke probation will be 

disturbed on appeal only upon a showing that the trial court abused its discretion. Beckett, 122 

Idaho at 326, 834 P.2d at 328. When a trial court’s discretionary decision is reviewed on appeal, 

the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court 

correctly perceived the issue as one of discretion; (2) whether the lower court acted within the 
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boundaries of such discretion and consistently with any legal standards applicable to the specific 

choices before it; and (3) whether the lower court reached its decision by an exercise of reason. 

State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).

Before probation can be revoked, a probationer must be given a due process hearing. 

State v. Greenawald, 127 Idaho 555, 556, 903 P.2d 144, 145 (Ct. App. 1995). Throughout 

probation revocation proceedings, the probationer is entitled to due process. State v. Kelsey, 115 

Idaho 311, 314, 766 P.2d 781, 784 (1988). The probationer is entitled to be present at the 

hearing and may be entitled to counsel. Greenawald, 127 Idaho at 556, 903 P.2d at 145. The 

probationer must be afforded the opportunity to present and rebut evidence and to call and crossexamine witnesses. Id. Prior to the hearing, the probationer must be given adequate notice of 

the grounds for revocation. Id. During probation revocation proceedings, two threshold 

questions are presented--whether the probationer violated the terms of probation and, if so, 

whether probation should be revoked. State v. Done, 139 Idaho 635, 637, 84 P.3d 571, 573 (Ct. 

App. 2003). The State bears the burden of proving satisfactory proof of a violation or “any other 

cause,” though proof beyond a reasonable doubt is not required. Kelsey, 115 Idaho at 314, 766 

P.2d at 784 (quoting I.C. § 19-2602).

In reviewing the propriety of a probation revocation, the focus of the inquiry is the 

conduct underlying the trial court’s decision to revoke probation. State v. Morgan, 153 Idaho 

618, 621, 288 P.3d 835, 838 (Ct. App. 2012). Thus, this Court will consider the elements of the 

record before the trial court relevant to the revocation of probation issues which are properly 

made part of the record on appeal. Id.

Here, Arvizu argues his probation violation was not willful because he was not 

responsible or at fault for being denied a mental health evaluation. During the disposition 

hearing, however, the district court noted that Arvizu prevented the mental health evaluation 

from occurring by telling the VA he was there against his will and he was being instructed, by 

his probation officer, to participate in the evaluation. The probation officer testified that when he 

asked Arvizu if he understood it was lawful for the officer to instruct Arvizu to obtain the mental 

health evaluation, Arvizu stated that he understood, but he still failed to obtain a mental health 

evaluation by his willful decision to inform the VA that he was only there under his probation 

officer’s instruction. While the VA’s refusal to perform a mental health evaluation was beyond 

Arvizu’s control, it was Arvizu’s willful conduct and statements to the VA that prevented the 
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mental health evaluation in the first place. Arvizu’s statements and conduct toward the VA were 

certainly within his own control. Based on the testimony and evidence, the district court found 

that Arvizu “didn’t want to do [the mental health evaluation], and so it didn’t happen.” The 

credibility of witnesses, the weight to be given to testimony, and the inferences to be drawn from 

the evidence are matters solely within the province of the district court. Larkin v. State, 115 

Idaho 72, 73, 764 P.2d 439, 440 (Ct. App. 1988). Therefore, the district court did not abuse its 

discretion in finding that Arvizu’s probation violation was willful.

Arvizu next contends the district court abused its discretion in revoking his probation 

because his probation violation did not warrant revocation. In making its determination whether 

to revoke or continue probation, the district court noted that Arvizu’s refusal to accept his mental 

health problem “makes it very difficult to figure out how to manage the problem, and when the 

problem is profound enough to cause real questions about whether you can safely rejoin the 

community, it makes the situation very difficult.” The district court further expressed concern 

that if Arvizu were placed back on probation, he would not receive necessary treatment, risking 

the safety of both the community and Arvizu. Thus, in ultimately deciding to revoke Arvizu’s 

probation, the district court examined whether probation achieved the goal of rehabilitation and 

whether continuing probation would be consistent with protection of society. The district court 

therefore did not abuse its discretion in revoking Arvizu’s probation upon its finding that Arvizu 

willfully violated his probation.

Lastly, Arvizu maintains the district court violated his equal protection and due process 

rights under the Fourteenth Amendment to the United States Constitution. The Equal Protection 

Clause of the Fourteenth Amendment is designed to assure that those persons similarly situated

with respect to governmental action are treated alike. State v. Missamore, 119 Idaho 27, 33, 803 

P.2d 528, 534 (1990); State v. Hayes, 108 Idaho 556, 560, 700 P.2d 959, 963 (Ct. App. 1985). 

The Fourteenth Amendment also ensures that the State shall not deprive any person of life, 

liberty, or property without due process of the law.

Specifically, Arvizu contends the district court only revoked his probation because he 

was diagnosed with a mental health condition. Arvizu argues the district court considered his 

mental health diagnosis when determining whether to revoke probation. He raises these

constitutional arguments for the first time on appeal. Generally, issues not raised below may not 

be considered for the first time on appeal. State v. Fodge, 121 Idaho 192, 195, 824 P.2d 123, 126 
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(1992). Idaho decisional law, however, has long allowed appellate courts to consider a claim of 

error to which no objection was made below if the issue presented rises to the level of 

fundamental error. See State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007); State v. 

Haggard, 94 Idaho 249, 251, 486 P.2d 260, 262 (1971). In State v. Perry, 150 Idaho 209, 245 

P.3d 961 (2010), the Idaho Supreme Court abandoned the definitions it had previously utilized to 

describe what may constitute fundamental error. The Perry Court held that an appellate court 

should reverse an unobjected-to error when the defendant persuades the court that the alleged 

error: (1) violates one or more of the defendant’s unwaived constitutional rights; (2) is clear or 

obvious without the need for reference to any additional information not contained in the 

appellate record; and (3) affected the outcome of the trial proceedings. Id. at 226, 245 P.3d at 

978. 

Turning to the first Perry prong, Arvizu contends the district court violated his due 

process and equal protection rights by revoking probation because of his mental illness. This 

Court has previously held that within the probation revocation context, we generally analyze the 

fairness of relations between the criminal defendant and the State under the Due Process Clause, 

while we approach the question whether the State denied one class of defendants a substantial 

benefit available to another class of defendants under the Equal Protection Clause. State v. 

Braaten, 144 Idaho 606, 608-09, 167 P.3d 357, 359-60 (Ct. App. 2007). If it appears the district 

court treated the defendant differently than it would have treated a person who was not mentally 

ill, we examine the nature of the defendant’s individual interest and how it was affected by the 

probation revocation, the rationality of the connection between the government’s purpose and the 

means used to achieve that purpose, and the existence of alternative means for effectuating that 

purpose. Id. at 609, 167 P.3d at 360.

We agree with Arvizu insofar as the district court would not have revoked Arvizu’s 

probation had Arvizu not been mentally ill. However, his mental illness was not the direct cause 

of his probation revocation. Rather, Arvizu’s failure to address and treat his mental illness, 

which violated his probation terms, directly caused the probation revocation. Had Arvizu not 

violated his probation terms, the district court would not have revoked probation. For instance,

in Braaten, the defendant alleged the district court violated his right to equal protection or due 

process when it considered his indigence in determining whether probation would be a viable 

option. Id. at 606, 167 P.3d at 357. In rejecting his arguments, we held that the defendant “was 
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denied probation not because of his lack of resources per se, but because of the effect of that lack 

of resources on the likelihood that he could be adequately supervised and the community 

protected if he were placed on probation.” Id. at 610, 167 P.3d at 361. Here too, Arvizu was not 

denied continued probation because of his mental illness per se, but because of his refusal to 

acknowledge and treat his mental illness, which the district court found to endanger both Arvizu 

and the community. Moreover, any individual who violates his probation terms is subject to 

probation revocation under I.C. § 19-2603, I.C. § 20-222(2), and I.C.R. 33(f). This applies both 

to mentally ill individuals who violate probation and individuals who are not mentally ill who 

violate probation.

Assuming the district court treated Arvizu differently because he was mentally ill, and 

not because he merely violated probation, we acknowledge that Arvizu has a significant interest 

in remaining on probation and not being imprisoned. However, the State has a strong legitimate 

interest and purpose in protecting society from criminals, especially criminals with mental health 

conditions who deny the existence of such conditions and refuse to seek medical help. Arvizu’s 

mental health conditions are exacerbated by his denial of his conditions and, as the district court 

noted, such a denial threatens the safety of Arvizu and his community. The means used to 

protect the State’s interest--probation revocation--is rational and directly related to that interest 

because Arvizu demonstrated his inability to comply with his probation terms, and the district 

court was concerned for the safety of both the community and Arvizu. Lastly, the alternative 

means for effectuating the State’s interest in protecting society from criminals--allowing Arvizu 

to remain on probation--has already failed. Arvizu did not comply with the terms of his 

probation and adamantly denied he had a mental health condition. Thus, after balancing these 

factors, we hold the district court did not violate Arvizu’s constitutional rights to due process and 

equal protection. Because Arvizu cannot establish the first Perry prong, his fundamental error 

analysis fails. We affirm the district court’s order revoking Arvizu’s probation.

III.

CONCLUSION

The district court did not abuse its discretion in revoking Arvizu’s probation because 

Arvizu willfully violated probation by not complying with his probation officer’s instruction to 

obtain a mental health evaluation. Moreover, the district court did not abuse its discretion in 

determining that Arvizu’s willful probation violation warranted revocation due to safety 
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concerns. Finally, Arvizu did not establish fundamental error in regard to his constitutional 

arguments. Therefore, we affirm the district court’s order revoking Arvizu’s probation.

Chief Judge MELANSON and Judge HUSKEY CONCUR.