1 Filed 11/21/13 P. v. Yanka CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento)

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THE PEOPLE, Plaintiff and Respondent,

v. RONALD YANKA, Defendant and Appellant. C070616 (Super. Ct. Nos. 08F09598, 08F03102)

In 2010, defendant Ronald Yanka was placed on proba tion with the condition he attend a 52-week batterer’s treatment program. In 2011, the batterer’s treatment program director terminated defendant from the progr am for excessive unexcused absences. The trial court found defendant had violated probation and ordered him to serve his previously suspended four-year prison sentence. Defendant appeals the trial court’s determination that he violated probation wh en he was terminated from the batterer’s2 treatment program, the revocati on of probation, and the impos ition of a prison term. He contends the court should have waived the treatment program fees and the trial court denied him equal protection when it found he had viol ated probation, revoked his probation, and sentenced him to prison based on his indigence. We affirm the judgment. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 1 In February 2009, defendant pleaded no contest to first degree burglary (Pen. Code, § 459) 2 and admitted he had violated the terms of an earlier grant of probation. He was sentenced to a term of four years in pr ison. Execution of se ntence was suspended and defendant was again placed on probation. In 2010, defendant violated his probation by committing spousal abuse on his cohabita nt, child endangerment, damaging property, vehicle theft, and receiving a stolen vehi cle. The court again granted defendant probation, with the added condition that he attend a 52-week batterer’s treatment program. At that time, defendant was em ployed by Sealcoating and Paving. Between April 2010 and November 2011, defendant appeared in court more than a dozen times on various matters, including viol ations of probation. Some discussion or mention of the batterer’s treatment program was made during at least nine of those appearances. Defendant first enrolled in the Man Alive batterer’s tr eatment program (program) on January 19, 2011. The pr ogram terminated defendant for unexcused absences on February 23, 2011. Defendant re-enrolled in the program on June 15, 2011, and the program again terminated him for unexcused ab sences on July 13, 20 11. In January and March 2012, the probation officer and pros ecutor, respectively, filed violation of probation petitions, alleging defendant violat ed probation when he was terminated from the program for excessive unexcused absences.

1 Much of the factual background and proc edural history of the underlying offenses and probation violations are irrelevant to the issues on appeal and are not recounted.

2 Undesignated statutory references are to the Penal Code.3 The trial court held a contested hearing on the probation violation petition. Daniel Thomas is the executive director of Man Aliv e, a nonprofit 52-week batterer’s program. Man Alive is one of 10 different treatmen t providers in Sacramento County. The program’s attendance policy requ ires if an enrollee will not be attending a meeting the enrollee is required to call the program and so advise. That call must be made before the end of the meeting. Attendance at the meeting must be made up within the next six days. A failure to call in or attend the makeup class is registered as an ab sence. If an enrollee misses a meeting because he is arrested a nd in custody, and advises Thomas of this reason, he will be allowed to rejoin the program. Inability to pay for clas ses does not result in rejection from the program, as payment plans are available. Payment plans are developed using a sliding scale based on household income. When an enrollee cannot pr ovide proof of income, he or she is given a standard reduced fee of $15. The fees can be further reduced with additional documentation. Thomas advises the enrolle es if they cannot pay or fall behind on payments, they should ta lk to him and a payment plan will be developed. If an enrollee is more than three class payments behind, Thom as will talk with him and attempt to work out a payment plan. There are participants in the program who have gone longer than three weeks without paying and are allo wed to continue in the program. Thomas advises the participants that if they have any special payment needs they should have a discussion with him. If an enrollee provides documentation they have applied for public assistance or are not qua lified for public assistance, the fees will be reduced. If a court makes a fi nding an enrollee is indigent, and the enrollee provides that paperwork to the progr am, the class fees will be waived for four to six weeks. The trial court ordered defendant to enro ll in the batterer’s treatment program in April 2010. Defendant attended his first meet ing in the program on January 12, 2011. Thomas advised him of the attendan ce policy and fee requirements.4 Defendant enrolled in the program on Janua ry 19, 2011. At th at enrollment, he paid a $35 initial enrollment fee and the $15 single class fee. He did not attend the next meeting on January 26, 2011, but called to advi se the program he would not be there. Defendant attended a meeting on February 2, 2011, and paid $10, but he missed the next three meetings and did not call in. Followi ng his fourth unexcused absence, Thomas terminated defendant from the program. Defendant testifie d he missed the January 26, 2011, meeting because his car had broken down. He missed the meetings in February because he did not have trans portation. He claimed he calle d the first two times, but not after that. Four months after his termination from the program, on June 15, 2011, defendant paid his past dues fees and re-enrolled in th e program. He did not attend the next four meetings and did not call in to the program. Thomas again terminated defendant from the program again for unexcused absences. Defenda nt testified he failed to attend meetings in June 2011 because he was in custody. He was released from custody in late June or early July. He did not advise the progra m he had missed classes because he was in custody. He did not resume the program because he had “other issues” and was “more concerned” with “relationship problems” th an financial problems or the batterer’s program. The classes were the “last thi ng” on his mind. He decided to “screw everything.” Between his release from cust ody and his rearrest on November 23, 2012, defendant did not attend any additional classes. Defendant had been unemployed since th e end of January 2011. In July 2011, defendant moved out of the ho me he shared with his girlfriend and became homeless. When he lived with hi s girlfriend, she received additiona l welfare benefits. Defendant’s girlfriend paid for “a few” of the program m eetings from that additional welfare income because defendant could not afford it. Defendant testified he advi sed Thomas about his financ ial situation and was given a reduced class fee of $15. Thomas did not recall this conversation. Defendant claimed5 he asked for additional fee reduc tions and Thomas denied the request. When he enrolled in the program, defendant did not provid e any proof of income or employment information. Contrary to Man Alive’s policy, defe ndant believed he had to pay for missed classes. Defendant’s girlfriend made some back payments so defendant could continue with the program, but defendant could not a fford the ongoing prog ram fees. Defendant admitted Thomas never told him he could not attend meetings if he did not pay the fees. Defendant did not ask his attorn ey about going to court rega rding his financial problems and the batterer’s program. He did not kno w he could ask for a modification to the probation condition. Defendant claimed that in September 2011 , he informed his probation officer he could not afford the battere r’s treatment program as he was now homeless and unemployed. He claimed he again told his probation officer he could not afford the classes in November 2011. Th e probation officer indicated he would request alternative sentencing. Although the prob ation officer wrote a positive report, he did not request alternative sentencing. Defense counsel argued defendant did no t have the ability to pay for the program and, because of this inability , the court should have imposed the program on a “no fee basis, and that the county programs are requi red to have exemptions for people with no fee basis, and that that eval uation should have been done by the Court based on an equal protection clause argument.” The trial court rejected defendant’s e qual protection argument. The trial court agreed people should not suffer because they do not ha ve the funds for a program and should not have to rely on ot hers to pay the fees. The trial court found, however, the record did not show that Man Alive did not have a fee exemption program, nor was there evidence that Man Alive would not accommodate someone with an in ability to pay. To the contrary, the evidence demons trated no one was turned away for an inability to pay, a6 sliding scale was used to determine fees or other accommodations would be made. The court noted defendant never prov ided any objective i ndication of his financial difficulties. The court found defendant did not fail to co mplete the batterer’s program due to an inability to pay the fees, but because of a numb er of unexcused absences. The court also noted defendant himself indicated when he was released from custody in July, he had relationship problems he deemed more importa nt than the program, and put the program on the “back burner” and his frame of mind was “screw everything.” Based on these factors, the court concluded defendant’s failu re to attend the program was a violation of probation. The court revoke d probation and ordered the pr eviously suspended four-year sentence executed. DISCUSSION “[W]here the trial court was required to resolve conflicting ev idence, review on appeal is based on the substantial evidence test. Under that standard, our review is limited to the determination of whether, upon review of the entir e record, there is substantial evidence of solid va lue, contradicted or uncontra dicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be reso lved in favor of the decision.” ( People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fn s. omitted.) “[I]t is the ex clusive province of the trial judge . . . to determine the cr edibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.]” ( People v. Jones (1990) 51 Cal.3d 294, 314.) I Defendant contends the tria l court erred by failing to wa ive the batterer’s treatment program fees and providing him with the opport unity to participate in a no-cost program. Defendant argues the statutory scheme requi res the batterer’s treatment program to determine an enrollee’s ability to pay th e program fees under section 1203.097,7 subdivision (c)(1)(O)(i) and the court should have found he was unable to pay for the program and waived the fees under section 1203.097, subdivision (c)(1)(P). He also claims the court erred in fi nding he violated probation by failing to attend the program, because the reason he did not a ttend the program was that he could not afford it. Thus, “the core reason for his failure to attend cl asses was an utter lack of money.” We disagree. Under section 1203.097, the court is required to order a person convicted of domestic violence who receives probation to complete a 52-week batterer’s treatment program as a condition of probation. (§ 12 03.097, subd. (a)(6).) Defendants are required to pay the program fees based on their ability to pay. (§ 1203.097 , subd. (a)(7)(A)(i).) The programs are required to develop and utilize a slidi ng fee schedule based on a defendant’s ability to pay. (§ 1203.097, subd. (c)(1)(P).) Th e programs are also required to submit proof to the court and probation depa rtment of a defendant’s enrollment in the program and the fee to be charged to a de fendant, based on his ab ility to pay. (§ 1203.097, subd. (c)(1)(O)(i).) An indigent defenda nt may negotiate a deferred payment schedule, if he has the ability to pay the nomi nal fee. After a hearing and a finding of inability to pay the nom inal fee, the court must waive the fee. (§ 1203.097, subd. (c)(1)(P).) The court may also reduce or waive the fees if it finds the defendant does not have the ability to pay the fees based on ch anged circumstances. (§ 1203.097, subd. (a)(7)(A)(ii).) In sum, the statutory scheme allows th e batterer’s treatment programs to charge fees, but also requires programs to make accommodations for defendants who cannot pay those fees. If the defendant is unable to pay some or all of those fees, it is incumbent upon that defendant to raise the issue either with the progr am or with the court. (§ 1203.097, subd. (c)(1)(P).) Contrary to defendant’s claims, th e Man Alive program complied with the statutory requirements. The program has developed a sliding scale fee schedule and8 utilizes it. The program ma kes accommodations and works with enrollees who have financial constraints to develo p payment plans so they can co ntinue to attend classes. If an enrollee provides the program with evidence of an inability to pay the fees, such as an application for public assistan ce, a disqualification from receiv ing public assistance, or a court finding of indigence, the program w ill reduce or waive fees . The program also advises participants to discuss any special payment needs with them. The program required defendant to pay a reduced class fee of $15, based on his inability to provide proo f of income. Had defendant prov ided additional documentation, the fees could have been further reduced. Without citation to an y authority, defendant contends it was incumbent on the batterer’s treatment program to notify the court of defendant’s indigency. The statute does not impose such a requirement upon the program. Rather, the statute imposes the bu rden upon defendant to advise either the batterer’s program or the court of his indi gency or request a fee reduction. Absent defendant providing this info rmation, neither the court no r the program could know an accommodation was required. Defendant did not discu ss with the program his l ack of income, lack of employment, or inability to pay the class fees . Nor did he request to have the fees lowered. He did not provide proof of income, or lack thereof. He did not provide documentation that he had applied for assistan ce or did not qualify fo r assistance, either of which would have resulted in a fee reducti on. He did not inform the program someone else was paying his class fees or that he had special payment needs, either of which would have led to a reduction in fees. He did not move the court for a finding that he was indigent and could not pay the fees, which could have resulted in a fee waiver. In short, defendant did nothing to advise or inform eith er the program or the court that he did not have the ability to pay the fees. When he was initially ordered to atte nd the program, defenda nt was employed and living with his girlfriend. He became une mployed at the end of January 2011 and9 homeless in July 2011, but did not advise the program, the court, his attorney, or probation officer of these changed circumstances. 3 He did not move to have his fees reduced or waived based on these changed circumstances. It was defendant’s burden to raise and establish change d circumstances. (See In re Casey D. (1999) 70 Cal.App.4th 38, 47 [moving party’s burden to establish ch anged circumstances on petition to change, modify or set aside a previous or der in dependency proceedings]; In re Marriage of Stephenson (1995) 39 Cal.App.4th 71 , 77 [moving party bears the burden of establishing a material change of circumstances since th e last order was made in order to obtain modification of the spousal support order]; Speelman v. Superior Court (1983) 152 Cal.App.3d 124, 129 [party moving for change of custody bears th e burden of showing change in circumstances].) Defendant’s reliance on People v. Trask (2010) 191 Cal.App.4th 387 ( Trask ) is misplaced. The defendant in Trask tried to enroll in the a ssigned drug diversion program, but could not afford the cost. ( Id. at p. 392.) She “sought assignment to a no-cost diversion program or a fee waiver for an approved program.” ( Ibid. ) Based on the specific statutory language of section 1000.3, the court held the “trial court erred in terminating defendant's diversion under deferred entry of judgment solely based on her inability to pay the fees of the [drug treatmen t] program to which she was referred.” ( Trask, supra, at p. 397, italics added, fn. omitted .) This case is more analogous to People v. Orozco (2012) 209 Cal.App.4th 726 ( Orozco ), where the defendant was terminated from the assigned drug treatment program for untimeliness and unsatisfactory performance. The defendant claimed he was absent from the program due to incarceration and then “he lost his job, becam e homeless, and had no money to pay for a program.” ( Orozco, supra, 209 Cal.App.4th at p. 730.) The court found no error in

3 Defendant first notified his probation officer of his inab ility to pay the fees in September 2011, two months after he was terminated from the program.10 terminating the defendant from the progra m, as the defendant was not performing satisfactorily before his incar ceration, and never sought fina ncial aid or an administrative review of his financial ability to pay. ( Id. at p. 735.) Here, as in Orozco , defendant was not terminated fro m the program for failure to pay the fees, but for unsatisfactory performan ce in the program. The court expressly found defendant was terminated from the pr ogram because of a series of unexcused absences. Defendant was initially orde red to attend the program in April 2010. He did not enroll until nine months later, in January 20 11. Between April 2 010 and January 2012, defendant appeared in court mo re than a dozen times. Some discussion or mention of the batterer’s treatment program was made in at least nine of those hearings. Defendant made no mention of any fina ncial challenges during these hearings, did not claim an inability to pay the pr ogram fees, did not indicate he was unemployed or homeless, and did not request a fee waiver or reduction. According to defendant’s own testimony, the reason he did not attend the program in February was not due to financial pr oblems, but because he had transportation problems. He did not attend the classes in Ju ly because he was in custody. He did not advise the program he had missed classes beca use he was in custody, which would have enabled him to rejoin the cl asses. Instead, once he was released from custody, “he had other issues” to deal with th at took priority over his financial concerns and the program and he decided “screw everyt hing” and put the program on the “back burner.” The court simply did not believe that defendant’s failu re to attend the batterer’s treatment program was due to financial constraints. Substantial evidence suppor ts these findings. The trial court did not err in terminating defendant from the program. II Defendant next contends th e trial court abused its disc retion and deprived him of equal protection when it foun d he had violated probati on, revoked his probation and11 sentenced him to state prison. This argument rests on defendant ’s claim that he failed to attend the classes based on his “utter lack of financial support and inability to afford the program.” The trial court may revoke probation “if th e interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or parole or otherwise that the person has vi olated any of the conditions of his or her supervision . . . .” (§ 1203.2, subd. (a).) “T he standard of proof in a probation revocation proceeding is proof by a preponder ance of the evidence.” ( People v. Urke (2011) 197 Cal.App.4th 766, 772.) The trial court has broad discretion in determining whether a probationer has violated probation. ( People v. Rodriguez (1990) 51 Cal. 3d 437, 443.) Only in a very extrem e case should an appellate court in terfere with the discretion of the trial court in determini ng whether to deny or revoke probation. ( Ibid. , citing People v. Lippner (1933) 219 Cal. 395, 400.) Due process precludes a court from revoking a defendant's probation and imprisoning him based solely on his failure to pay a fine or restitution, absent an inquiry into the reasons for th e failure to pay. ( Bearden v. Georgia (1983) 461 U.S. 660, 672- 673 [76 L.Ed.2d 221, 233] ( Bearden ).) In arguing that the court below violated his constitutional rights by revoking his probation and sentencing him to prison, defendant relies heavily on Bearden . This reliance is misplaced. Unlike defendant here, the defendant in Bearden was imprisoned upon his inability to pay a fine, and the sentencing court failed to inquire into the r easons for the failure to pay. ( Id . at pp. 672–673.) The United States Supreme Court held that to revoke probation on th e grounds that the probationer had failed to pay a fine, withou t inquiring into whet her that failure was willful, violated the Four teenth Amendment. ( Ibid .) The Supreme Court explained: “[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide effo rts legally to acquire the resources to pay,12 the court may revoke probation and sentence the defendant to impr isonment within the authorized range of its sentencing authorit y. If the probationer could not pay despite sufficient bona fide efforts to acquire the re sources to do so, the court must consider alternative measures of punishment other than imprisonment.” ( Id . at p. 672.) Defendant also relies on In re Antazo (1970) 3 Cal.3d 100. In Antazo , the court held that the incarceration of a defendant beca use of his inability, due solely to indigency, to pay a fine imposed on him as a condition of probation constituted a violation of equal protection. ( Id . at p. 115.) Here, defendant’s probation was not revo ked because of his i ndigency or because he did not pay the program f ees. His probation was revoked because he did not attend the program. Defendant was not precluded from enrolling in the program or attending classes based on a lack of financial resour ces. Defendant was ordered to attend the program in April 2010, when he was employed. He did not make initial contact with the program until January 2011. He never provided any information to the program about his financial situation, and he ne ver indicated someone else was paying the fees or that he could not pay the fees. Instead, he enrolled tw ice, paid the fees and then failed to attend the meetings. Despite making numerous co urt appearances, at which the program was discussed, he never informed the court or his attorney that he did not have the means to pay for the program and needed a fee waiver. He made no effort to seek a fee waiver until the hearing on the probation violation. His dilatoriness in making initial contact with the program and his failure to ever raise the issue of his inability to pay the fees is evidence that he was not doing everything possible to comply w ith the terms of his probation. Defendant’s testimony that he did not attend the program because he had transportation problems and had decided to “screw everything ” is further evidence that defendant was not making sufficient bona fide efforts to comply w ith the terms of his probation and attend the program.13 As noted in Bearden, “a probationer's failure to make sufficient bona fide efforts” to comply with a condition of probation “may reflect an in sufficient concern for paying the debt he owes to society for his crime. In such a situation, the State is likewise justified in revoking probation and usin g imprisonment as an appropriate penalty for the offense.” ( Bearden, supra, 461 U.S. at p. 668.) Here, the c ourt was entitled to consider his overall efforts to comply with the terms of his probation. Accordingly, we find no abuse of discretion in the trial court’s decision to terminate probation and order defendant’s sentence executed. DISPOSITION The judgment is affirmed.

NICHOLSON , Acting P. J.

We concur:

ROBIE , J.

BUTZ , J.