1

Filed 4/27/16 P. v. Barrow CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. ASA BARROW, Defendant and Appellant. A146075
(Contra Costa County Super. Ct. No. 051405158)

Appellant Asa Barrow challenges his July 2015 probation revocation on the ground that the condition he was found to have violated, which prohibited him from “being in the public” with two speci fied persons, was unconstitutionally vague and therefore could not serve as a basis for finding him in violation of his probation. The appeal is authorized by Penal Code section 1237 1 and rule 8.304 of the California Rules
of Court.
We shall affirm the o rder revoking probation.

FACTS AND PROCEEDINGS BELOW The Underlying Conviction 2 On February 4, 2014, Richmond police officers observed appellant standing next to a green Ford Explorer in front of 2812 Rollingwood Drive, the home of his grandmother, Hazel Norris, at which he had previously resided

. The officer observed

1 All statutory references are to the Penal Code unless otherwise indicated.

2 The facts regarding this conviction are taken from the report of the probation department.2

appellant approach another vehicle and lean into the open passenger

- side window, conducting what t he y believed to be a narcotics transaction. When the officers approached appellant
, they observed green buds in his hands, and after they handcuffed and searched him they found a loaded .38 caliber revolver, approximately 35.2 grams of marijuana
, and approximately 20.9 grams of methamphetamine. The police also arrested the two minors, R oderick A

. and Michael B., who were seated in the Ford Explorer

. A search of the vehicle disclosed a digital scale with marijuana leaves around it, and a
loaded Mini

- 14 assault rifle with one round chambered. Appellant admitted ownership of the drugs bu t denied selling them, claiming they were for personal use. He also denied ownership of the revolver he possessed and denied any knowledge of the assault rifle found in the Explorer. A search of appellant’s phone disclosed a photo of the rifle and text m essages regarding the sale of marijuana . The police also obtained access to appellant’s Instagram account, which contained photos of an assault rifle and marijuana and references to marijuana sales. Appellant was convicted by a jury of five counts of p ossession of marijuana or methamphetamine while armed with a revolver or rifle (Health & Saf. Code, § 11370.1, subd. (a))

. After conviction, appellant submitted a sentencing memorandum requesting probation which proposed that he participate i n three sub stance abuse treatment and reentry programs : Narcotics Anonymous (NA), Rubicon, and a program sponsored by the Office of Neighborhood Safety (ONS) . The memorandum also proposed that if the court suspended a prison term and granted probation, appellant “w ould also be monitored closely with the understanding that if he violates probation he would be sent to prison.” The district attorney opposed probation and proposed a three

- year prison term, due to appellants “drug enterprise,” possession of firearms, and use of minors to sell
narcotics. Noting the seriousness of appellant’s criminal conduct, the court emphasized his use of Instagram “to market his drug supply and make it available for sale . . . [and] to bolster his reputation as a legitimate illegal drug salesman with the resources and the3

weapons available to him to be taken seriously in the underworld of narco tics
transactions

. ” The court also observed appellant’s criminal history, unwillingness to accept full responsibility, and his poor behavior in county jail. On the other hand, the
court also acknowledged appellant’s elaborate probation plans and the supp ort he had from family members, his girlfriend, the mother of his children
, and from others in the community. A lthough the court felt appellan t’s conduct was “worthy of four years in state prison,” it would sus pend the prison term “because o f the work you r attorney did, your family did, and possibly a few of the words you said in court today.” The court stated it was in agreement setting you up for a prison term “is not what I want to do nor
will do at this time. However, I will be suspending more time than the [district attorney] is asking for

. ”
The court set a three

- year prison term for count 1, a consecutive eight

- month term for count 3, a concurrent three

- year term for count 2, and concurrent terms of two ye ars each for counts 4 and 5. The court then suspended the sentence and placed appellant on formal probation for five years. The terms of probation included that appellant not use or possess narcotics, including marijuana, that he abstain from alcohol, attend a two

- week reentry workshop with Rubicon, participate in the ON S program , and attend NA meetings two day s per week for one year , as appellant had himself proposed

. Initially, the court also ordered appellant to stay away from Roderick A. and
Mich ael B., the minors he was with when arrested. Appellant objected to t his condition
because Michael was a cousin of appellant’s girlfriend and often served as a babysitter
for the ir children , and because Roderick was a close childhood friend. Defense coun sel objected to the stay

- away orders, s tating that Michael and Roderick “are very close in his daily life, ” and requir ing appellant to stay away from them “ would be setting him up for
failure. They’re like his family to him.” The district attorney pointe d out to the court “strong evidence that [ appellant] was using [Michael ] to sell drugs and to possess that weapon.” The district a ttorney allowed that Michael may be related to appellant’s4

girlfriend, but “the purpose of probation [was] to start a new lif e, to turn over a new leaf, [and] [l]etting him associate with his crime partner in this case seems very unwise.” The court resolved the problem this way: “I’m not going to have a no

- contact order. What I would have with both individuals, he cannot be out in public with them.
So if th e y’re at his house, right, you k now, they need to exchange baby sitting , what have

you. He doesn’t need to be out with them, he doesn’t need to be out at night, anyway.” The court’s minute order states that appellant “may not be out in public with Roderick
and Michael ” Near the end of the sentencing hearing th e trial court told appellant: “I’m going to write in big letters in this file, ‘Defendant violates probation, h e is sent to prison.’ .

. . [¶] Clear as a bell so that when it goes down to probation revocation department, you’re selling drugs, you’re using, you’re doing whatever and not doing the right thing, you’re

go ing to state prison.” The Revocation of Probat ion On March 24, 2015, around 9:00 p.m., Detective Michael Ricchiuto w as on patrol
in the area of 2812 Rollingwood Drive, the address at which appellant had originally been arrested and where he previously lived with a woma n he considered his grandmother. He saw appellant in a group of about 10 people standing i n a driveway adjacent to the garage door of the residence. Knowing appellant was on probation, Detective Ricchiuto approached appellant and told him he wanted to search him. Appellant indicated h e was no longer on probation , stating he “had been out seven
months ” and “ hadn’t seen a pro bation officer yet. ” Ricchiuto insisted appellant was on probation and subject to search, stepped closer to appellant and directed him to place his
hands behind his back, and searched him. The search produced no incriminating evidence. However, Detective Ricchiuto noticed that Mic h ael B. was among the 10 or so people standing with appellant i n the driveway. He also “ noticed [ the ] smell of alcohol ic beverage on [ appellant’s ] breath.”5

Six days later
, appellant submitted a urine sample to Deputy Probation Officer Morillo. The sample tested positive for marijuana, and appellant told Deputy Morillo he had “smoked two to three blunts approximately two weeks ago.” On April 3, 2015, the probation d epartment petitioned to revoke probation, alleging appellant was arrested on March 24, 2 015 , for violating his probation (§ 1203.2, subd. (a))
, 3 based on his testing positive for marijuana and admi ssion to using it. A

co ntested hearing was held on July 24, 2015, at which the court received testimony from Detective Ricchiuto and Deputy Morillo regarding the facts just described. After the People rested, the court asked defense counsel
, “Do you have any information or
conf irmation that the defendant attended ONS , attended the two

- week workshop with Rubicon, attended NA meetings? I would like to s ee proof of those.” Counsel was able to provide the court notes drafted by appellant’s girlfriend, Marissa Hammond, and a

person named Seth Wells, which documented appellant’s “whereabouts and reporting as
directe d during the [probation] period ” ; but counsel was unable to provide any proof appellant had been attending the programs run by ONS, Rubicon and NA, as ordered.
After dis cussing the matter off the record with appellant, counsel explained that appellant was unable to attend the ONS program because its location in Central Richmond was dangerous for him to enter because he lived in the Easter Hill neighborhood. Counsel state d that appellant “does have concern for his own safety being in Central Richmond, his family being from Easter Hill, his family members’ conduct, apart from his own, making him fear being a target there, and for that reason I know
Mr. Barrow’s represented that he’s also already been a victim of a firearms assault, that

3 This statute allows a peace officer to arrest an individual “[a ]t any time during the probationary period . . . if [the] probation officer, or peace officer has probable cause to believe the supervised person is violating any term or condition of his or her probation

. . . . Upon such rearrest . . . the court may rev oke and terminate [such probation] if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of the conditions of his or her probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless of whether he or she has been prosecuted for such offenses.” (§ 1203.2.)6

he had been shot previously, and so this is a sincere concern and fear that he’s presenting. It’s not just a speculative, abstract fear that’s out there.” The court noted that this problem had not been mentioned by appellant a year earlier at the s entencing hearing when he proposed participation in the ONS program. In his closing argument, defense counsel focused on Detective Ricchiuto’s testimony that at the time he saw and arrested appellant he was i n the driveway in front of the garage door, not near the sidewalk, and this “isn’t clearly a public area, ” and that the
court’s order only barred contact with Michael B. when he and appellant were “in public together.” Citi ng People v. Cruz (2008) 44 Cal.4th 636, 674 ( Cruz ) , counsel maintained that a public area is “the area outside a home in which a stranger is able to walk without challenge,” and the area in which appellant and Michael were located at the time appellant wa s arrested and searched was not such an area. 4
After revoking probation, the court imposed the previously suspended state prison sentence of three years eight months; with appropriate total credits of 482 days. The
court did not re impose the previously imposed fines and fees. Timely notice of appeal was filed on August 25, 2015.
DISCUSSION
I. “The fundamental role and responsibility of the hearing judge in a revocation

pr oceeding is not to determine whe ther the probationer i s guilty or innocent of a c rime
, but whether a violation of the terms of probation has occurred and, if so, whether it would be appropriate to allow the probationer to continue to retain his conditional liberty.” ( Lucido v. Superior Court (1990) 51 Cal.3d 335, 348.) P robation may be r ev oked on proof by a preponderance of the evidence ( People v. Rodriguez (1990) 51 Cal.3d 437,

4 Counsel also advanced the argument that Detecti ve Ricchiuto’s testimony established only that appellant had a very brief “temporary contact” with Michael B., and that was not enough “to show a willful violation” of the court’s no

- contact order, as required by section 1203.4. Appellant does not make t his argument in our court. Nor does appellant here challenge the technology employed by Deputy Morillo to ascertain that he tested positive for marijuana, as he did below.7

441) , so that evidence insufficient to prove that the probationer committed a criminal offense “beyond a reasonable doubt” may nevertheless be sufficient to s upport a finding that the terms of probation were violated. ( In re Coughli n (1976) 16 Cal.3d 52, 57.) However, the evidence must show that the offending conduct constitutes a willful violation of one or more conditions ( People v. Galvan (200 7) 155 Cal. App.4th 978. 982

- 985 ), and when it revokes probation the court must make written findings of evidence disclosing the evidence relied upon and t he reasons for the revocation o r insure that a reporter’s transcript contains an oral statement of reasons in lie u of a written statement. ( People v. Vickers (1972) 8 Cal.3d 451, 457.) Appellant’s sole contention on appeal is that the associational condition he was
found to have violated is unconstitutional ly vague in that it was not sufficiently precise
for him t o know what is forbidden and for the court to determine whether he violated the
condition. Before addressing th at issue, however, we must address the Attorney General’s threshold claim that the constitutional challenge is untimely.
I I. The general rule is that “ an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment.” ( People v. R amirez (2008 ) 1 59 Cal.App.4th 1412, 1421 , ci ting In re
Meranda P

. (1997) 56 Cal.App.4th 1143, 1150 ; § 1237, subd.(a)

. ) As will be seen, t he parties ’ disagreement about the timeliness of this appeal arises from their different views of (1) the scope of the opinion in In re Sheena K. (2007) 40 Cal.4th 875 ( Sheena K .), an d (2) whether appellant’s constitutional challenge is based upon a facial defect.
Sheena K . involved a juvenile convicted of misdemeanor battery placed on probation subject to a condition that she not associate with anyone disapproved by the probation dep artment. The Supreme Court found that the defendant’s failure to raise the issue at the time the challenged condition was imposed did not require her to forfeit her claim that the condition was unconstitutionally vague and overbroad. As the court explain ed, “[i] n common with a challenge to an unauthorized sentence that is not subject to the rule of forfeiture, a challenge to a term of probation on the ground of8

unconstitutional vagueness or overbreadth that is capable of correction without reference
to th e particular sentencing record developed in the trial court can be said to present a pure question of law. Correction on appeal of this type of facial constitutional defect in the relevant probation condition, similar to the correction of an unauthorized sentence on appeal, may ensue fro m a reviewing court’s unwillingness to ignore ‘correctable legal
error.’ ” ( Sheena K., supra , 40 Cal.4th at p. 887, quoting People v. Welch (1993) 5 Cal.4th 228, 236.) The Attorney General relies upon a caveat to the rule articulated in Sheena K. After concluding that the defendant’s claim that her probation condition was vague and overbroad was not forfeited by her failure to raise it in the juvenile court, the unanimous opinion in Sheena K

. cautioned that “our conc l usion does not apply in every case in which a probation condition is chal l enge d on a constitutional ground. As state d by the
court in [ In re Justin S. (2001) 93 Cal.App.4th 811], we do not conclude that ‘all constitutional defects in conditions of p robation may be raised for the first time on appeal, since there may be cir cumstances that do not present “ pure questions of law that can be resolved without reference to the particular sentencing record developed in the
trial court.” [Citation.] In thos e circumstances, “ [t]raditional objection and waiver principle s encourage development of the record and a proper exercise of discretion in the
trial court. ” [Citation.] ’ ” ( Sheena K.
, supra , 40 Cal.4th at p. 889. ) The Attorney General maintains that app ellant’s challenge falls within the exception to the rule carved out in Sheena K . because, unlike the defendant in that case, appellant’s challenge to the probation condition is not facial but “as it applies to him,”
and therefore cannot be ad judicated wit hout reference to the facts and circumst ances disclosed in the record. According to the Attorney General, appellant’s challenge is analogous to that in People v. Kendrick (2014) 226 Cal.App.4th 769. The defendant in that case , who was found guilty of two counts of committing a lewd act on a child, was placed on probation
with a condition that he not subscribe to or have access to any form of Internet service without the approval of his probation officer . Kendrick did not obje ct to the condition9

when it was imposed. Subsequently, his probation was revoked for violation of a
different condition but reinstated on the same conditions initially imposed , and again
, he did not object to any condition. Two years later
, the probation department found that
Kendrick had Internet access and was using it to contact an adult female with whom he intended to pursue a relationship. On appeal, Kendrick argued for the first time that the condition restricting his Internet usage must be vacated because it is “constitutionally
overbroad.” The Court of Appeal concluded that this claim could not be resolved

“ ‘ without reference to the particular sentencing record developed in the trial court [and thus does not] present a pure question of law. ’ ” ( Id . at p. 777, quoting Sheena K., supra
, 40 Cal.4th at p. 887.) As the court explained, Kendrick’s claim that the condition was constitutionally overbroad was based on the assertions that it was not narrowly tailored to his c onviction nor reasonably nece ssary to his rehabilitation or to protection of the public
, because there was no evidence he had ever used the Internet for any criminal purpose. As the court noted, “[t ] his claim , by its own terms, requires a review of the facts underlying his conviction s, facts set forth in the transcript of the preliminary hearing and the probation report. ” ( Kendrick , at p. 777 .) Kendrick’s challenge was also based on testimony that the probation department generally approves Internet usage only if an unemployed proba tioner is searching for a job. Kend r ick argued that because the probation department only approved Internet searches for employment he was prohibited
from “ ‘ lawful and benign uses of the Internet, ’ ” which was “ ‘ an excessive deprivation
of his liber t y a nd violated First Amendment rights. ’ ” ( Id . at p. 778.) As the court observed, this argument also showed that Kendrick was not advancing a facial challenge
to the condition. The Attorney General maintains that “[a]appellant’s as applied ” challenge is nearly identical to what was considered in Kendrick and is precisely the type of challenge that does not fall under the forfeiture exception established in Sheena K . The Attorney
General says that even though appellant did not advance a vagu eness argument d uring the

p robation process, his opening brief on this appeal states that “ ‘ [r]easonable people could differ if asked whether appellant’s position in the driveway of a residence should b e10

considered a “public space,” ’ ” and this constitut es an “as applied” argument because this statement, or “claim,” relates to “ th e specific facts of his case.” We disagree

. A ppellant’s argument entitled “Invalid as Applied,” is no more than a five

sentence follow up 5 to his primary contention , which is entitled “ Vague Term, ‘ Public’ or
‘Public Place
, ’ ” and is unquestionably a facial challenge. The reason appellant added his “Invalid as Applied” argument is that the case law typically emphasizes the significance
of the factual context in which a vaguen ess claim is b ased, because , i n the end,

“ ‘[W]hether a particular location is a “public space” depends upon the facts of the
individual case.’ ” ( Cruz , supra , 44 Cal.4th at p. 674, quoting People v. White (1991) 227 Cal.App.3d 886, 892.) The underlying concern of the concept of vagueness “is the core due process requirement of adequate notice

. ‘No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed

as to what the State commands or forbids.’ ” ( People ex rel. Gallo v. Acuna (1997) 14
Cal.4th 1090
, 1115, quoting Lanzetta v. New Jersey (1939) 306 U.S. 451, 453

. ) The doctrine applies to the command not just of statutes, but as well to those of probation conditions. ( Sheena K., supra , 40 Cal.4th at p. 890.) Where a condition of probation requires a waiver of constitutional rights, such as the associational r ights at issue in this case, “ ‘ the condition must be narrowly drawn. To the extent it is overbro ad it is not reasonably related to a compelling state interest in reformation and rehabilitation and is an unconstitutional restriction on the exercise of fundamental constitutional rights.

5 The entirety of appellant’s “as applied” argument is as follows: “Even if thi s associational condition was valid on its face, there was no proof that appellant willfully violated it because its reach or scope is undefined. A reasonable person might readily conclude that it does not prohibit standing on private property and some di stance from a public street in the presence of a named other party. Reasonable people could differ if asked whether appellant’s position in the driveway of a residence should be considered a ‘public place.’ Certainly it is sufficiently ‘private property’ that the public could be excluded from entering the parcel. Accordingly, there was a lack of substantial evidence supporting the conclusion that appellant willfully violated this condition.” (Fn. omitted.)11

( People v. Mason (1971) 5 Cal.3d 759, 768 [].) ’ ( People v. Burde n (1988) 205 Cal.App.3d 1277, 1279

. )” ( People v. Hackler (199 3) 13 Cal.App.4th 1049, 1058

. ) Like a vague statute, a vague probation condition does not just fail to provide adequate notice to those who must obey its strictures but also impermissibly delegates basic policy matters to law enforcement officers on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. ( Sheena K.
, supra , 40 Cal.4th at p. 890
, citing People ex rel. Gallo v. Acuna
, supra , 14 Cal.4th at p. 11 1 6.) The Attorney General maintains that “[t]he term ‘public’ is sufficiently pre cise that a person of common intelligence would know what conduct was prohibited by a probation condition barring appellant from associating with another individual ‘in public.’ ” The Attorney General concedes there is no “single, unifying definition for what is ‘public, ’ ” but believes that poses no problem here. As the Attorney General sees it, all that is required is that the condition be “ sufficiently precise ” and reasonably specific to give appellant notice of wh at conduct is prohibited and a probati on condition or statute prohibiting certain conduct in public does just that. Accordingly, the condition that appella nt not associate with Michael or Roderick in public i s not unconstitutionally

vague. We do not think the issue is nearly so simple.
As n oted in In re Danny H. (2002) 104 Cal.App.4th 92, the meaning of the phrase

“ ‘ public space ’ ” is “ambiguous . . . and the phrase, as a matter of common parlance, bears multiple meanings. The word ‘public,’ as an adject ive, includes such meanings as
‘of o r relating to government,’ ‘ of, relating to, or being in the serv ice of the community or nation,’ ‘ of or relating to people in general [ , ]’ ‘ genera l, popular,’ ‘ of or relating to business or community interests as opposed to private affairs [ , ]’ ‘ accessible to or shared
b y all members of the community,’ and ‘ exposed to general view: open. ’ ” ( Id . at p. 97.) Due to the ambiguity of the word “public” or phrase “in public,” courts have found it useful to instead refer to a particular type of “public place,” such as a restaurant ( People v. Nguyen (2015) 61 Cal.4th 1015), or a particular type of “public area,” such as a parking lot adjacent to a market ( People v. McDonald (2 015) 238 Cal.App.4th 16), or a park established “for the enjoyment of the community in general” ( Spires v. City of Los12

Angeles (1906) 150 Cal. 64, 65

- 66 ), or a public place known by a probationer to be a place at which gang activity takes place. ( In re H.C. (2009) 175 Cal.App.4th 1067,
1072. ) Unfortunately, the words of the probat ion condi tion at issue here do not similarly limit or clarify the meaning of the word “public” the trial court had in mind. California courts have, however, routinely held that “ p rivately

- owned property can constitute a public place.” ( People v. Tapia (2005) 129 Cal.App.4th 1153, 1161, citing In re Danny H. , supra , 104 Cal.App.4th at pp. 104

- 105.) Where, as here, the inquiry relates to an area adjacent to a residence, the judicial focus is whether the area is one “in which a stranger is able to walk without chall enge.” ( Cruz, supra , 44 Cal.4th at p. 674; In re Miguel H . (2010) 180 Cal.App.4th 1429, 1443; People v. Krohn (2007) 149 Cal.App.4th 1294, 1298; People v. Olson (19 71) 18 Cal.App.3d 592, 598.) As earlier noted, at the sentencing hearing, and just before revoking appellant’s probation, the court indicated it had read the opinion in Cruz and was aware of the statement therein just quoted. The Attorney General’s assertion that “[t]he term ‘public’ is sufficiently precise
that a pe r son of common intelligence would know what conduct was prohibited by a probation condition barring appellant from associating with another individual ‘in public,’ ” cannot be squared with the case law. The Attorney Gen eral also fails to explain , and we do not see, how appellant’s vagueness claim is “fact

- driven
, ” in the sense that it cannot be resolved without reference to the particular sentencing record developed in the trial court. Appellant’s claim , which

seems to us the same as that in Sheena K

. , is essentially that the challenged order

— th at appellant “may not be out in public” with Roderick A. and Michael B.

— was not

“ ‘ sufficiently precise for [ him] to know what is required of him, and for the court to
determine w hether the condition has been violated

. ” ( Sheena K., supra , 40 Cal.4th at

p. 890.) Appellant maintains, in other words, that the word “public” and the phrase “in public” are abstract concept s capable of different meanings ; not just in the circumstances13

o f this case but in numerous other contexts

. Th e constitutional vagueness of this concept
is a matter we c ould decide as a pure issue of law
, and t his appeal is therefore timely. 6 However, the fact that we could decide appellant’s constitutional claim, which permits us to address all of the issues this appeal presents, does not mean we are required to address the constitutional claim, which is far more knotty than the Attorney General appears to app reciate. We decline to decide this appeal on the basis of the constitutional
claim because even if the challenged probation condition is unconstitutionally vague, as it may well be, the defect is not prejudicial

. The trial court revoked probation on seve ral other grounds that are not challenged and amply support the trial court’s decision to revoke prob ation.
III

. T he Attorney General maintains that even if the court erred in conditioning probation on not being in public with Michael B. , “any error wo uld be harmless because the trial court would have revoked probation based on appellant’s drinking alcohol and smoking marijuana.” According to the Attorney General, “[g]iven the court’s clear statements at appellant’s initial sentencing and probation vio lation hearing, it is beyond a reasonable doubt that the court would have revoked probation even without considering appellant’s violation for associating with Michael B. in public. Appellant was convicted of a serious drug

- related crime, and the court ma de clear that appellant was not to use any alcohol or narcotics. The court also based its initial decision to grant probation on appellant’s proposed reentry and reengagement plan, which included substance abuse treatment programs and other r eentry progra ms appellant promi sed to complete. At the time of the probation violat ion hearing, appellant had part icipated i n no tre atment programs and had been using alcohol and marijuana. The court’s decision to revoke

6 Respondent’s contention that this appeal is untimely is also based on the holdings of Ramirez, supra , 159 Cal.App.4th 1412 and In re Shaun R . (2010) 188 Cal.App.4th 1129 and, to a lesser extent, the opinions in Pe ople v. Vest (1974) 43 Cal.App.3d 728 and People v. Glaser (1965) 238 Cal.App.2d 819. These cases all involve unusual facts not present in this case and are therefore inapposite.14

probation was not based solely, or even mainly , on appellant’s violation for associating
with Mic ha el B. Like in [ People v. Arreola (1994) 7 Cal.4th 1144], substantial evidence other than that challenged b y appellant supports the [ probation ] violation and subsequent revocation and it is beyond a reasonable doubt that the court would have done so even without considering appellant’s associating with Michael B. in public.” Appellant considers t he Attorney General’s argument “rank speculation. ” According to appellant, “it is unlikely that a single dirty test involving marijuana smoked two weeks prior to contact with law enforcement would, alone, have triggered a revocation and state prison term. More likely than not, appellant might have been given some additional local custody time, been scolded and then reinstated on probation. There was no solid proof of alcohol con s umption or of any significant amount

. No intoxilyzer was administered nor any blood sample taken. So the [Attorney General’ s] statement,

‘ T he c ourt’s decision to revoke probation was not based solely, or even mainly, on appellant’s violation for associating with Michael B.’ cannot be supported by the required level of proof beyond a reasonable doubt. Absent solid proof of som e serious or related criminal violation, it is more probable that t he court would have exercised it s enlightened discretion in the direction of keeping this young black man out of prison and able to get meaningful help in turning his life around.”
The A ttorney General ’s argument is far stronger than that of appellant, which we
think ignores the views of the trial court expressed at the sentencing and revocation hearings. At the initial sentencing hearing, after the court announced its willingness to gr ant probation over the strong opposition of the district attorney , the trial court told appellant
how difficult it was to grant him probation in light of the seriousness of his crime, and how certain appellant should be that any violation of any condition of probation would result in his imprisonment for five years ; which was one year more than the district

a ttorney sought, in order to provide appellant an even greater incentive to change his behavior. As the court emphatically stated: “I’m going to write in big letters in this file, ‘Defendant violates pr obation, he is sent to prison.’

. . . [¶] Clear as a bell so that when it15

goes down to probation revocation department, you’re selling drugs, you’re using, you’re doing whatever and not doing the right t hing, you’re going to state prison.” Nearly a year later, at the revocation hearing, the disappointed court made good on its promise. After determining that the driveway in which appellant was found with Michael B. and others was “in what I define as a public place,” the court made an
extended statement about the many other reasons it felt compelled to revoke appellant ’s probation. The court noted that appellant “chose to lie about his probation status” to Detective Ricchiuto, and “was clearly consuming alcohol on that day.” The court also reminded appellant that at the time of sentencing, “I was very much on the fence. It was a very difficult case, to me, to se ntence because the actions and the behavior certainly justi fied state prison.” The court also emphasized a significant factor appellant now completely ignores: that the court’s decisio n to grant probation was perhaps most heavily based on the probation c onditions that appellant himself proposed; that he would “attend [NA] , Rubicon, and ONS. ” The decision to grant probation appears to have been primarily based on the court’s hope and belief these programs would enable appellant “to step aside from the fri ends and the behaviors that he w as demonstrating, and change, as he promised he would.” The cou rt appeared deeply affected by appellant’s complete failure to participate in any of the reentry and rehabilitation programs he had himself proposed. As the co urt stated, “almost exactly 11 months after sentencing

— he’ s done nothing. And the only pa rts that hav e come to the attention of the c ourt is that he’s smoked marijuana and drank alcohol. Hasn’t done a thing to better himself. ” Appellant’s theory that, but for the violation of the associational condition , the court would have “exercised its enli ghtened discretion to keep him out of prison and able to get meaningful help in turning his life around,” is not just speculative but fanciful. Accordingly, the trial court’s decision to revoke probation did not constitute error even if the associational condition imposed on appellant was impermissibly vague.
DISPOSITION The order revoking probation is affirmed.16 _________________________ Kline, P.J.

We concur:

_________________________ Richman, J.

_________________________ Stewart, J.

People v. Barrow (A146075)17