Opinion
D076596
04-27-2020
THE PEOPLE, Plaintiff and Respondent, v. CHRISTINA SANCHEZ, Defendant and Appellant.
Kenneth J. Vandevelde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Tami Hennick and Adrian Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD275335) APPEAL from judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed. Kenneth J. Vandevelde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Tami Hennick and Adrian Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
Christine Sanchez appeals from the trial court's revocation of her probation because she contacted or attempted to contact the victim of the underlying offense in violation of her probation. She contends the evidence does not support the findings she contacted or attempted to contact the victim. Sanchez further contends that even if she attempted to contact the victim, her attempts should not be deemed violations of probation. We will reject Sanchez's contentions and affirm.
FACTS AND PROCEDURAL BACKGROUND
In 2018, Sanchez pleaded guilty to disobeying a court order (Pen. Code, § 273.6, subd. (a)) and stalking (§ 646.9, subd. (b)). Sanchez was sentenced to a four-year term, with the execution of sentence suspended. She was granted formal probation on various terms and conditions, which included forbidding Sanchez to contact or attempt to contact the victim.
All further statutory references are to the Penal Code unless otherwise specified. --------
Probation was revoked and reinstated twice before the current proceedings.
The testimony at the revocation hearing is fairly summarized in the respondent's brief. We will incorporate the fact statement here for convenience.
Sanchez was charged with violating the following six conditions of her probation: submit person, vehicle, residence, property, personal effects, computers, and recordable media including electronic devices to search at any time with or without a warrant and with or without reasonable cause, when required by a probation officer or law enforcement officer (condition 6(n)); do not knowingly use or possess any controlled substance without a valid prescription and submit a valid sample for testing for the use of controlled substances/alcohol when required by the probation officer, law enforcement officer, or treatment provider (condition 9(c)); submit to service and comply with an order of the superior court, including restraining orders (condition 10(c)); comply with any protective order issued under section 136.2 and 1203.097 (condition 10(d)); do not knowingly contact or attempt to contact, annoy, molest, either directly or indirectly the victim (condition 10(j)); and comply with all zone and curfew restrictions, GPS charging requirements, and equipment care if participation was directed by the probation officer (condition 11(b)).
A. Prosecution's Case in Chief
One day in February 2019, the victim contacted a probation officer, notifying the officer that she received a text message from a telephone number ending in 1038. The message was a photograph of male genitalia. The victim did not recognize the phone number and did not respond to the text message.
In March 2019, Sanchez reported to the probation office for a scheduled appointment. A probation officer searched the contact list on Sanchez's cellular phone. As part of that search, the officer located a contact for "Tim, awesome friend, CEO." This contact was linked to the cell phone number ending in 1038, the same number that previously texted the photograph of the male genitalia to the victim. The victim later told the officer she did not recognize that phone number and did not know anyone named Tim.
One day in July 2019, a probation officer searched Sanchez's residence as part of a routine compliance check. Sanchez lived with a male roommate. Officers saw Sanchez's belongings in two bedrooms. One officer asked Sanchez which bedroom was hers; Sanchez initially said it was the bedroom in the middle of the hallway, then changed her statement and said both the middle bedroom and a corner bedroom belonged to her. The corner bedroom had multiple items labeled with Sanchez's name.
Another officer searched the closet in that corner bedroom and found a hanging shoe organizer containing rolled-up clothing in each pocket. An officer found a cellular phone concealed behind one rolled up item of clothing. The phone was charged and functioning. A search of the phone's call history reflected three phone calls were placed to the victim's telephone number. These three outgoing calls were placed on March 26, 2019, at 10:40 p.m. (12 second long call); March 27, 2019, at 8:07 p.m. (two second long call); and May 13, 2019 at 11:15 p.m. (four second long call). When an officer asked Sanchez why she had not reported this phone to the Probation Department, she claimed it was old. Sanchez was taken into custody.
During the transport, Sanchez claimed the unreported phone belonged to her roommate, and the victim's phone number appeared in that phone's call log because Sanchez tried to determine the victim's phone number.
A probation officer later spoke with the victim. The victim confirmed via her Verizon phone records that she received a call on March 27, 2019, at 8:26 p.m., from the unreported phone found in Sanchez's closet.
The officer also reviewed Sanchez's reported cell phone. The internet browser's history indicated Sanchez attempted to locate the victim multiple times.
B. Defense Case
Sanchez testified she knew a person named Tim and they previously worked for a company called CEO. She claimed he had access to her phone and put his contact information into her phone. She denied directing Tim to contact the victim for her. She denied placing the three calls to the victim. She claimed the unreported phone found in the closet belonged to her roommate. Sanchez could not explain why Tim would have known the victim's phone number.
DISCUSSION
Sanchez contends there is not sufficient evidence that she either attempted or succeeded in contacting the victim with the assistance of a third party. She further argues the court's protective order prohibits only contacting the victim but does not prohibit attempting to contact her.
We do not need to decide whether Sanchez's understanding of the protective order permits Sanchez to attempt to do what she is prohibited from accomplishing. The conditions of her probation plainly prohibit both attempts to contact the victim as well as contacting the victim. Accordingly, we will discuss the question of whether there is substantial evidence to support the court's finding that Sanchez not only attempted to contact the victim, but also arranged for Sanchez's friend "Tim," who does not know the victim, to send the victim a text message depicting male genitalia.
A. Legal Principles
Trial courts have broad discretion to determine whether a probationer has violated the terms of probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) The court's decision to revoke probation is reviewed under the abuse of discretion standard of review. (People v. Butcher (2016) 247 Cal.App.4th 310, 318.)
Where the court's exercise of discretion to revoke probation is based upon factual findings, we review the factual findings under the substantial evidence standard of review. Under that standard we review the record in the light most favorable to the trial court's findings. We do not make credibility decisions, nor do we reweigh the evidence. We draw all reasonable inferences in favor of the trial court's findings. We seek to determine whether there is sufficient substantial evidence to support the trial court's decision. (People v. Thomas (2017) 15 Cal.App.5th 1063, 1071.)
Circumstantial evidence may be used to find the facts supporting an allegation of violation of probation. (People v. Zaragoza (2016) 1 Cal.5th 21, 44-45.)
B. Analysis
Records from the cell phone found where Sanchez was staying showed three calls to the victim's number. They were brief, indicating the victim did not answer. Sanchez explained she was only looking for the victim's number. The trial court rejected that explanation, finding Sanchez's testimony was not credible. Rather, the court concluded the aborted calls were attempts to contact the victim. The court rejected the defense argument that such efforts to contact were not prohibited, only actual contact was prohibited. The court noted condition 10(j) of the probation order prohibited attempts to contact the victim.
The court also concluded the obscene text message sent by Sanchez's "good friend" Tim was sent on her behalf. Tim and the victim did not know each other, and the only common factor was Sanchez.
Drawing all reasonable inferences in favor of the trial court's decision, we conclude there is sufficient evidence to support the finding Sanchez violated a very important condition of her probation. This was the third time Sanchez had violated the terms of her probation. In a stalking case, as here, the court could easily conclude Sanchez has not learned anything by the grant of probation and that she still poses a risk to the victim. The court acted well within its discretionary power in revoking Sanchez's probation and in executing the suspended sentence.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: O'ROURKE, J. IRION, J.