Opinion
B295458
02-04-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT JOSHUA MITCHELL, Defendant and Appellant.
Jerome J. Haig, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Idan Ivri and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA108561) APPEAL from a judgment of the Superior Court of Los Angeles County, Thomas C. Falls, Judge. Affirmed. Jerome J. Haig, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Idan Ivri and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant and appellant Robert Mitchell was on probation when law enforcement discovered he posted nude videos of a minor on Instagram. At a combined preliminary hearing and probation violation hearing, a Los Angeles Police Department detective testified he viewed the videos and was able to determine the girl depicted therein was a minor. The detective also testified he viewed videos in which Mitchell appeared and identified himself as "Robert," stating the girl was his ex-wife's cousin. Additionally, a video of Mitchell smoking a cigarette and watching one of the nude videos was played in court.
On appeal, Mitchell argues the court based its decision to revoke probation on impermissible hearsay evidence. The People respond that, while hearsay evidence was admitted under Proposition 115 to establish probable cause for the preliminary hearing, the court relied on other evidence not inadmissible under the hearsay rule to find Mitchell violated his probation.
We agree with the People and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2015, Mitchell pleaded no contest to one count of assault with a deadly weapon and admitted the allegation he personally inflicted great bodily injury on the victim. Mitchell was sentenced to seven years in state prison, with the execution of sentence suspended. He was placed on three years of formal probation and ordered to serve one year in jail.
In April 2018, Mitchell's probation was preliminarily revoked based on a new felony charge alleging two counts of distribution of child pornography. In May 2018 Mitchell was arrested on the probation warrant, and in October 2018 the trial court held a combined preliminary hearing and probation violation hearing.
At the hearing, Officer Raudel Ceballos testified that in May 2017, he spoke with 17-year-old Sonya. She stated that a few years earlier, when she was 14 years old, she sent her then-boyfriend two videos of herself nude, touching her private parts. Sonya had recently discovered the videos were posted on Instagram by a user named "RRUSSIANLA," whom Sonya identified as Mitchell. Sonya did not testify at the hearing.
Officer Ceballos spoke with Sonya's father, Mr. Wando, who stated he spoke to Mitchell in May 2017. Mitchell allegedly told Wando that if Wando did not assist him in getting back together with Wando's niece, Mitchell would post videos of Sonya on social media. Wando did not testify at the hearing.
Officer Jeff Girgle testified he discovered in October 2017 that the same video of Sonya was again posted on Instagram by RRUSSIANLA. Girgle testified he searched for and found the RRUSSIANLA account and subsequently viewed the video on the cell phone of Wando's wife. Girgle confirmed the video he saw came from the RRUSSIANLA account.
Girgle testified the video depicts an underaged female lying on her back, completely nude, on a bed. Her legs are propped up, and she is masturbating. When asked how he determined the girl in the video was underage, Girgle responded he had viewed child pornography videos on a daily basis when he managed a law enforcement database system on internet crimes against children. Based on his training and experience, and the development of the girl's breasts and body, he opined she was a minor.
Girgle testified he also viewed additional video posts from the RRUSSIANLA account. In one video, which was played for the court, Mitchell is seen smoking a cigarette while watching the footage of the masturbating girl. In another, Mitchell identifies the girl as his ex-wife's cousin, Sonya. Girgle testified the video depicts Mitchell's face and voice and identified Mitchell in court as the man in the video. Girgle made copies of the videos and booked them into evidence.
Richard Sato, a paralegal with the Los Angeles County District Attorney's office, provided a certified copy of Sonya's DMV records, which confirmed her date of birth.
At the end of the hearing, the court found probable cause that Mitchell committed two counts of distribution of child pornography. The court also found Mitchell in violation of probation. In January 2019, the court imposed the previously suspended seven-year prison sentence and, on the People's motion, dismissed the distribution of child pornography charges without prejudice.
Mitchell timely appealed, alleging the trial court erred by admitting hearsay testimony to prove the probation violation. In response, the People argue the trial court found Mitchell violated his probation based on non-hearsay evidence admitted during the probation violation hearing.
We agree with the People and affirm.
DISCUSSION
A court may revoke probation in the interests of justice and if the court has reason to believe the probationer violated any of the conditions of supervision. (Pen. Code, § 1203.2, subd. (a).) The People have the burden to show a probation violation by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 446.)
The revocation of probation is not part of a criminal prosecution; therefore, "the full panoply of Sixth Amendment rights available in criminal trials does not apply" to probation revocation hearings." (People v. Buell (2017) 16 Cal.App.5th 682, 689.) "Hearsay that bears a substantial guarantee of trustworthiness is admissible in probation revocation proceedings." (Ibid.) The court may not rely on "unsubstantiated or unreliable evidence" but, generally, a court will find hearsay evidence trustworthy if there are " 'sufficient "indicia of reliability." ' " (Ibid.)
Mitchell argues the prosecution built its case that he violated probation on Proposition 115 hearsay testimony. We disagree. The evidence relied on by the court to revoke Mitchell's probation was either not hearsay, or was admissible under the exception for party admissions.
Although Officer Ceballos's testimony was Proposition 115 hearsay testimony, and the People do not dispute this, the record reflects the court did not rely on Officer Ceballos's testimony to find Mitchell in violation of probation. Instead, the court relied on Officer Girgle's testimony about the videos, and on the video it saw of Mitchell watching Sonya masturbate in the nude. When defense counsel argued the prosecutor should have brought the victim to court to personally identify herself as the girl in the video, the court replied, "I don't care who the victim is for the purposes of the probation violation. Here I have a defendant who is on felony probation posting this type of material to his Instagram account. No one disputes that this wasn't his Instagram account." The court also stated, "[Mitchell] acknowledged it's his Instagram account, and he says . . . it's my wife's cousin Sonya. And we know Sonya is . . . under 18." Defense counsel then argued, "[h]ow would [Mitchell] know that's her? You can't see the face. How would he even know that?" The court replied, "It's clear to the court that Mr. Mitchell knew what was being posted. He's saying, this isn't my wife. This is my wife's cousin Sonya. He wants to make sure to anybody looking at the video that it's not his wife, and it's the cousin."
Officer Ceballos's testimony was admitted under Proposition 115, which allows for the admissibility of certain hearsay evidence in a preliminary hearing. As is pertinent here, a finding of probable cause may be based "in whole or in part upon the sworn testimony of a law enforcement officer . . . relating the statements of declarants made out of court offered for the truth of the matter asserted" if the law enforcement meets certain criteria. (Pen. Code, § 872, subd. (b).) The People established in court that Officer Ceballos was certified to offer testimony under Proposition 115.
Evidence Code section 1200 defines hearsay as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." A statement, in turn, is defined as an "oral or written verbal expression or . . . nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression." (Evid. Code, § 225.) Officer Girgle's testimony about what he saw on the videos is not hearsay, nor does Mitchell argue it is. Officer Girgle merely testified to what he personally viewed. Nor is the video played in court hearsay, as it was not in and of itself an out-of-court statement. Again, Mitchell does not dispute this.
Mitchell's statement in the videos that the girl is Sonya may very well be hearsay. As the People point out, however, Mitchell's statement would be admissible under the exception for party admissions. Mitchell has not directly addressed the admissibility of his statements in the Instagram videos; he did not address it in his opening brief, nor did he submit a reply brief. In any event, we agree with the People. "Evidence of a statement made by a defendant in a criminal action is not made inadmissible by the hearsay rule when offered against that defendant, and may therefore be admitted for the truth of the matter asserted in the statement." (People v. Kovacich (2011) 201 Cal.App.4th 863, 892; Evid. Code, § 1220.) Mitchell's statement that the girl in the videos was Sonya was therefore properly admitted against him to establish he was aware of her identity.
Ultimately, there was ample evidence not made inadmissible by the hearsay rule to support the court's determination that Mitchell violated probation by distributing child pornography. Detective Girgle testified he personally viewed video recordings depicting an underaged nude girl masturbating in bed. He testified he had 25 years of law enforcement experience, had investigated sex crimes over the course of his career, and managed a database that required him to view videos of child pornography on a daily basis. Based on his experience and training, Girgle opined the appearance of the girl's body indicated she was a minor.
The Instagram page on which the videos were posted belonged to a user named RRUSSIANLA, and the user identified himself as Robert, which is Mitchell's first name. In the video, which was played in court, Mitchell is seen smoking a cigarette while watching the footage of the masturbating girl; in another video, Mitchell can be heard identifying the girl as his ex-wife's cousin, Sonya. Detective Girgle identified Mitchell in court as the man seen smoking in the video recording, and certified DMV records established that Sonya was a minor.
None of the above evidence was inadmissible under the hearsay rule. Accordingly, we find no error in the court's determination that Mitchell violated his probation by knowingly distributing child pornography.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
STRATTON, J. We concur:
GRIMES, Acting P. J.
WILEY, J.