Opinion
F086093 F086095 F086096
12-19-2024
THE PEOPLE, Plaintiff and Respondent, v. HERNAN MAZA ALVARADO, Defendant and Appellant.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and Carly Orozco, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, Nos. SF020884A; SF018778A; BF148259A Brian M. McNamara, Judge.
J. Edward Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Ivan P. Marrs and Carly Orozco, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FAIN, J. [*]
Three cases are at issue, all involving defendant Hernan Maza Alvarado.Alvarado was on probation in Kern County Superior Court case No. BF148259A ("Case 1") and Kern County Superior Court case No. SF018778A ("Case 2"). In both cases, the Kern County Probation Department filed a petition to revoke probation based on an incident that occurred on May 18, 2020. Subsequently, an incident occurred giving rise to Kern County Superior Court case No. SF020884A ("Case 3").
Alvarado appealed in all three cases, and the appeals were consolidated.
The hearings on the alleged violations of probation were trailed until after resolution of Case 3. The jury found Alvarado not guilty on one count but could not reach a unanimous verdict on the remaining counts. Accordingly, the trial court declared a mistrial on the remaining counts. The trial court also dismissed the alleged violations of probation in Cases 1 and 2. However, it revoked Alvarado's probation in both cases based on conviction evidence presented in Case 3 and verbally notified him that the retrial would act as a hearing on the alleged probation violations in Cases 1 and 2. Case 3 was retried, and Alvarado was convicted of assault with a deadly weapon. Based on the jury's verdict in Case 3, the trial court found that Alvarado violated probation in Cases 1 and 2.
On appeal, Alvarado argues, among other things, that: 1) the trial court violated his rights under the confrontation clause when it denied his request to introduce evidence that both alleged victims were interested in applying for a U-Visa as victims of a crime in order to show bias; and 2) the court erred in finding that Alvarado violated probation in Cases 1 and 2 because the term of probation in both cases expired before the incident in Case 3 occurred. The People disagree.
Alvarado's conviction on count 5 in Case 3 is affirmed. However, we reverse the order revoking and terminating probation in Case 1 and Case 2.
PROCEDURAL HISTORY
In Case 1, on April 14, 2017, Alvarado pled no contest to one count of being an accessory after the fact (Pen. Code, § 32). On May 12, 2017, he was placed on probation for a period of three years. On December 30, 2019, Alvarado admitted he violated probation, and the probationary period was extended to January 16, 2021. On August 31, 2020, the Kern County Probation Department filed a Declaration Letter requesting that his probation be revoked based on conduct alleged to have occurred on May 18, 2020. The hearing on this violation was trailed pending resolution of Case 3.
All further undesignated statutory references are to the Penal Code.
In Case 2, on January 8, 2020, Alvarado pled no contest to one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)). On February 6, 2020, he was placed on probation for a period of three years. On August 31, 2020, the Kern County Probation Department filed a Declaration Letter requesting that his probation be revoked based on conduct alleged to have occurred on May 18, 2020. On June 28, 2022, Alvarado was arraigned on this violation, but it was trailed pending resolution of Case 3.
In Case 3, on December 14, 2022, the Kern County District Attorney filed an amended information charging Alvarado with attempted murder (§§ 664, 187, subd. (a); counts 1, 4)); assault with a deadly weapon (§ 245, subd. (a)(1); counts 2, 5); unlawful use of force resulting in serious bodily injury (§ 243, subd. (d); count 3); and making a criminal threat (§ 422; count 7).
Count 6 was previously dismissed by the trial court.
The case was tried before a jury, and on December 20, 2022, the jury found Alvarado not guilty on count 7. The jury could not reach a unanimous verdict on counts 1 through 5, and the trial court declared a mistrial as to those counts. The court also found that Alvarado had not violated probation in Cases 1 and 2 based on the May 18, 2020, incident. However, it revoked probation in Cases 1 and 2 based on the evidence in Case 3, set a retrial on counts 1 through 5, and informed Alvarado that the retrial would also act as a hearing on the alleged probation violations.
The retrial was held, and after the prosecution's case, Alvarado made a motion for acquittal on all counts in Case 3 pursuant to section 1118.1. The trial court granted the motion as to count 4, but otherwise denied it. On March 10, 2023, the jury found Alvarado guilty on count 5 (assault with a deadly weapon). The jury found him not guilty on all other counts.
Subsequent references to dates are to dates in 2023 unless otherwise stated.
On March 23, the trial court found that Alvarado violated probation in Cases 1 and 2 based on the jury's verdict in Case 3, and it revoked probation in both cases.
On April 11, the trial court sentenced Alvarado to three years (the middle term) on count 5 in Case 3. The court also revoked probation in Cases 1 and 2. It sentenced Alvarado to 16 months in Case 1 and three years in Case 2, with both sentences running concurrently with the sentence in Case 3.
On April 11, Alvarado timely filed a notice of appeal in all three cases.
We include only the facts related to the charges in Case 3 because the facts related to the charges in Cases 1 and 2 are not relevant to this appeal. Facts relevant to the appeals in Cases 1 and 2 are included in the Procedural History section, ante.
A.G. was in a relationship with C.H. They lived together in a mobile home. A.G. was previously in a relationship with Alvarado, and they had two children together. The children lived with A.G. and C.H., but Alvarado lived in the same mobile home park.
On or about June 17, 2022, Alvarado came to A.G.'s residence and stepped inside. C.H. approached Alvarado and told him to leave. Alvarado punched C.H. in the face. C.H. and Alvarado then started fighting. C.H. punched him, causing him to fall. C.H. got on top of him and held his arms down. C.H. eventually let Alvarado's arms go, but he "made a movement to keep fighting," so C.H. started hitting him again. Alvarado blocked the hits and hit back. C.H. did not stop hitting Alvarado until another man pulled him off.
Approximately a week later, Alvarado again came to A.G.'s residence. Alvarado asked A.G. if he could still see his children. A.G. told him that he was not allowed to come near her residence or the children.
During the conversation, C.H. and E.P. (C.H.'s cousin) approached Alvarado. C.H. and E.P. told him to leave. As Alvarado was leaving, the three men were all yelling at each other. E.P. was cursing at, and saying rude things to, Alvarado. E.P. also walked over to Alvarado and repeatedly pushed him. C.H. intervened by going in between them. As E.P. pushed Alvarado, Alvarado stated that he "wasn't looking for problems."
E.P. testified that he did not push, curse at, yell at, or say rude things to, Alvarado. E.P. also testified that he did not remember C.H. yelling at or pushing Alvarado either. C.H. testified that neither he nor E.P. yelled at Alvarado. C.H. also testified that he "pushed [Alvarado] a bit" because Alvarado got too close to him, but E.P. did not push Alvarado.
Alvarado eventually left. As he left, he yelled that "he was the president, that he was going to have people come in there and that he was the president."
Around 10 to 15 minutes later, Alvarado came back to A.G.'s residence. E.P. was alone outside. Alvarado went towards E.P. and tried to stab him with a knife. E.P. yelled to C.H., and eventually A.G. and C.H. came outside. C.H. grabbed a broomstick as he was heading outside.
When A.G. got outside, E.P. was on the trampoline and Alvarado was facing it. E.P. looked scared.
Alvarado turned away from the trampoline and headed toward C.H. Alvarado was holding the knife, and C.H. hit him with the broomstick. The broomstick broke, and C.H. dropped it. Alvarado started chasing C.H., and C.H. ran. E.P. picked up a log and ran in Alvarado's direction. Alvarado repeatedly swung the knife at C.H. from a distance of approximately 10 feet. However, C.H. got away.
E.P. testified that he did not pick up a log and follow Alvarado. C.H. testified that E.P. did run towards Alvarado, but C.H. did not remember E.P. having anything in his hands.
E.P. slipped in a mud puddle and dropped the log. E.P. got up and went toward Alvarado. Alvarado also went toward E.P. E.P. tried to punch Alvarado, and Alvarado swung the knife at E.P. At first neither hit the other, but Alvarado eventually stabbed E.P. in the head.
Both E.P. and C.H. testified that E.P. did not try to punch Alvarado.
After that, E.P. went towards the residence, Alvarado started to leave, and C.H. approached Alvarado. C.H. took off his belt and swung it at Alvarado multiple times. He hit Alvarado in the face.
After that, Alvarado left. E.P. was bleeding "a lot." A.G. called 911, and E.P. was eventually transported to a hospital where his wound was treated.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion or Violate the Confrontation Clause by Excluding Evidence Regarding Alleged Victims' Plans to Apply for Citizenship, and Any Error Was Harmless
A. Applicable Law
"A U visa is 'a temporary nonimmigrant visa' that provides 'legal status for noncitizens who assist in the investigation of serious crimes in which they have been victimized.'" (People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1267, fn. 1 (Castaneda-Prado).)
Pursuant to Evidence Code section 351.4, subdivision (a), "[i]n a criminal action, evidence of a person's immigration status shall not be disclosed in open court by a party or their attorney unless the judge presiding over the matter first determines that the evidence is admissible in an in camera hearing requested by the party seeking disclosure of the person's immigration status."
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.)" 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
However, relevant evidence, including impeachment evidence, can be excluded pursuant to Evidence Code section 352. (People v. Whisenhunt (2008) 44 Cal.4th 174, 207-208; People v. Brown (2003) 31 Cal.4th 518, 542-545.) Pursuant to this section, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
"' "Unless the dangers of undue prejudice, confusion, or time consumption' "substantially outweigh"' the probative value of relevant evidence, a[n Evidence Code] section 352 objection should fail."' [Citation.] Thus, Evidence Code section 352 balancing is undertaken on a sliding scale. 'The more substantial the probative value of the evidence, the greater the danger of the presence of one of the excluding factors that must be present to support an exercise of trial court discretion excluding the evidence ... Where the evidence relates to a critical issue, directly supports an inference relevant to that issue, and other evidence does not as directly support the same inference, the testimony must be received over a[n Evidence Code] section 352 objection absent highly unusual circumstances.'" (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1285.)
Under the Sixth Amendment Confrontation Clause, we first consider "whether the trial court exercised sound discretion under state law evidentiary standards in limiting the scope of cross-examination." (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1282.) "If the trial court excluded 'evidence of marginal impeachment value' [citation] or otherwise merely carried out the routine evidentiary function of controlling the scope of permissible cross-examination, the answer to this initial evidence question will generally be yes-the trial court was within its discretion-and the inquiry comes to an end. There was no error, under either state law or under the Sixth Amendment." (Ibid.)
However, "[w]here a trial court effectively renders cross-examination an exercise in futility, we must proceed to a second stage of analysis. Here, we ask a further, purely constitutional question whether '[a] reasonable jury might have received a significantly different impression' of the challenged witness's credibility if the proposed line of cross-examination had been permitted. [Citation.] At this stage of the analysis, courts conduct what is akin to a mini-prejudice inquiry focused on the witness's cross-examination rather than the outcome of the trial as a whole, examining whether the defense had other means of impeachment, and always bearing in mind that' "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." '" (Castaneda-Prado, supra, 94 Cal.App.5th at pp. 1282-1283, fn. omitted.)
B. Standard of Review
We review a trial court's "rulings regarding relevancy and admissibility under Evidence Code section 352 for abuse of discretion. [Citation.] We will not reverse a court's ruling on such matters unless it is shown' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." '" (People v. Merriman (2014) 60 Cal.4th 1, 74 (Merriman).)
We review errors in the application of state evidentiary rules under the standard set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. McNeal (2009) 46 Cal.4th 1183, 1203; People v. Partida (2005) 37 Cal.4th 428, 439.) Pursuant to Watson, we will reverse only if it is "reasonably probable" that the defendant would have achieved a more favorable result had the error not occurred. (Watson, supra, 46 Cal.2d at 836.) However, "the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman [v. California (1967) 386 U.S. 18] harmless-error analysis. The ... inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." (Delaware v. Van Arsdall (1986) 475 U.S. 673, 684.)
"[W]e . undertake de novo review of whether a reasonable jury might have received a significantly different impression of [the witness's] credibility had the proposed line of cross-examination been permitted." (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1283, fn. omitted.)
C. Additional Background
During the first trial in Case 3, the trial court held an Evidence Code section 402 hearing to determine whether Alvarado could cross-examine C.H. and E.P. regarding whether they intended to apply for citizenship based on being a victim in this case. At the hearing, C.H. testified that he was undocumented, that he was aware victims of crimes can apply for United States citizenship, and that he planned on applying for citizenship based upon being a victim in this case. E.P. also testified that he was undocumented, that he was aware victims of crimes can apply for United States citizenship, and that he planned on applying for citizenship based upon being a victim in this case.
Alvarado argued that this evidence showed bias and motive to lie. The prosecution argued that the probative value was outweighed by the danger of prejudice. The trial court ruled that Alvarado could cross-examine C.H. and E.P. regarding this issue.
At trial, E.P. testified on cross-examination that he was undocumented, that he wanted to become a United States citizen, and that he planned on trying to get citizenship based upon being a victim in this case. C.H. testified on cross-examination that he was undocumented, that he wanted to become a United States citizen, and that he planned on applying for citizenship based upon being a victim in this case.
Ultimately, the jury found Alvarado not guilty on count 7 but could not reach a unanimous verdict on the other counts. Accordingly, the trial court declared a mistrial on the remaining counts.
The retrial was assigned to a different trial court. The parties once again argued over whether Alvarado could cross-examine C.H. and E.P. about whether they intended to apply for citizenship based on being a victim in this case.
After hearing arguments and taking the matter under submission, the trial court ruled as follows:
"Evidence Code Section 351.4([a]) ... expressly precludes information regarding a person's immigration status from being disclosed in a criminal proceeding unless the judge presiding over the matter first determines that evidence is admissible in an in-camera hearing requested by the parties seeking disclosure of the person's immigration status. The proponent of proffered testimony has the burden of establishing its relevance and the foundational requirements for its admissibility.
"Evidence Code [section] 351.4 limits the evidence of a person's immigration status in civil and criminal cases with some exceptions. The statute was intended to address the danger of the evidence of a witness's legal status as an undocumented alien may prejudice the jury against a witness. The jury may believe convicting the defendant will be tantamount to granting the witness permanent status in the United States.
"No evidence is admissible except relevant evidence. As a general matter, a defendant is entitled to explore whether a witness has been offered any inducements or expects any benefit for his or her testimony as such evidence is suggestive of bias. Although cross-examination to test the credibility of a prosecution witness in a criminal case should be given wide latitude, such latitude does not prevent the trial court from imposing reasonable limits on defense counsel's inquiry based on concerns about harassment, confusion of issues, or relevance.
"In this case the evidence before the [c]ourt was that the prosecutor here did not have any information showing the witnesses had received benefits from the government or the District Attorney's Office in return for their cooperation in the instant case. There is no evidence of any bargaining between the witnesses and the District Attorney's Office.
"Exclusion of U [v]isa applicability to the witnesses in this cases [ sic ] does not violate ... defendant's right to confront witnesses against him or present a defense. While the Confrontation Clause of the Sixth Amendment provides that the accused shall enjoy the right to be confronted with the witnesses against him, . . . it guarantees an opportunity for effective cross-examination, not ... cross-examination that is effective in whatever way and to whatever extent the defendant might wish.
"The [c]ourt finds that the exceptions to . . . Evidence Code [section] 351.4 do not apply to the facts of this case and are not relevant here. The witnesses' legal status is neither material ... nor exculpatory information. Even if another [c]ourt finds otherwise, this [c]ourt would exclude this evidence under Evidence Code [section] 352. A, necessitate undue consumption of time. And, B, could create substantial danger of undue prejudice or confusing the issues or misleading the jury."
D. Analysis
The trial court excluded evidence that C.H. and E.P. intended to apply for citizenship based on being a victim in this case pursuant to Evidence Code sections 352 and 351.4. Alvarado argues that the trial court abused its discretion, that the trial court's error violated the Confrontation Clause of the Sixth Amendment, and that the error was not harmless. We disagree on all counts.
i. The Trial Court Did Not Err
Alvarado's arguments regarding error rely largely on Castaneda-Prado, supra, 94 Cal.App.5th 1260. However, while Castaneda-Prado has some similarities with this case, it is readily distinguishable.
In Castaneda-Prado, the victim admitted that "she knew of and was motivated by potential U visa benefits when she first gave a sworn statement accusing [the defendant] of abuse[.]" (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1288.) While both C.H. and E.P. testified that they planned to try to get citizenship based upon being a victim in this case, neither testified that this potential benefit motivated them to accuse or testify against Alvarado. Moreover, on the day of the incident, E.P. told a deputy that he was stabbed in the head, and C.H. told a deputy that Alvarado had swung the knife at C.H. as well. There is nothing in the record suggesting that these statements were motivated by the potential of obtaining citizenship, or that either thought they could obtain citizenship based on being the victim of a crime.
Additionally, in Castaneda-Prado, the victim's testimony "grew more detailed and more incriminating to [the defendant] over time." (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1288, fn. omitted.) Here, however, Alvarado does not argue, nor can we discern from the record, that the testimony of C.H. and E.P. became more incriminating over time to any substantial degree.
Moreover, in Castaneda-Prado, the trial court excluded the impeachment evidence without conducting an Evidence Code section 402 hearing on the matter, because it would exclude the evidence "no matter what facts were presented." (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1288.) "[D]ue to the court's unwillingness to consider any additional information, the ruling was made without adequate consideration of the relevant Evidence Code section 352 factors." (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1289.) In contrast, here, the trial court that conducted the first trial held an Evidence Code section 402 hearing prior to admitting the evidence, and during the retrial, the parties stipulated that the trial court could rely on the transcript from the first trial.
Further, the court in Castaneda-Prado noted that the record did not support the trial court's prejudice concerns. (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1289.) Importantly, it was the victim's mother who would have benefited from the U visa, and the victim's mother did not testify at trial. (Ibid.) Thus, the Castaneda-Prado court stated that "[e]ven accepting the eminently reasonable premise that evidence concerning the immigration status of parties or witnesses is inherently volatile in some communities, we do not think it follows that evidence pointing to the undocumented status of someone in the family and community network of which [the defendant] and [the victim] were part would inspire feelings of anti-immigrant prejudice specifically toward one or both of them in the eyes of a reasonable jury." (Ibid.) In contrast, here, the jury would have learned that both victims were undocumented.
Finally, unlike Castaneda-Prado, supra, 94 Cal.App.5th at page 1291, where the defendant was left with "almost nothing to use on the subject of bias ... which as a practical matter meant [the victim's] testimony stood effectively unchallenged," Alvarado was able to impeach E.P. and C.H. on numerous issues. This included extensively crossexamining both E.P. and C.H. with a different motive to lie about being victims in this case, that is, because they were the perpetrators and Alvarado was the victim. As one example, at the retrial, E.P. testified that he was running toward C.H.'s residence when he slipped, and that he was not running at (or even near) Alvarado. Defense counsel was allowed to impeach him with testimony from the prior trial, where E.P. testified that he slipped in a puddle as he was running toward Alvarado. As another example, defense counsel questioned C.H. regarding who landed the first blow, and C.H. admitted that he hit Alvarado with a broomstick almost immediately after he got outside and before Alvarado had stabbed E.P. Defense counsel was also able to cross-examine both regarding the opportunities they had to coordinate their stories.
In conclusion, we agree with Alvarado that the impeachment evidence was relevant, but the trial court was correct that there was a substantial danger of undue prejudice if it was admitted. While there is a "sharp tilt" in favor of admissibility in this instance (Castaneda-Prado, supra, 94 Cal.App.5th at p. 1285), we review claims of error under Evidence Code section 352 for abuse of discretion, and we cannot conclude that the trial court's decision was arbitrary, capricious, or patently absurd (Merriman, supra, 60 Cal.4th at 74.) As to the Confrontation Clause, given the cross-examination defense counsel was allowed to conduct, and that the excluded evidence did not provide an especially strong motive to fabricate, the jury would not have had a significantly different impression of C.H. and E.P.'s testimony had the excluded impeachment evidence been introduced. Therefore, Alvarado's argument that the trial court erred by excluding that C.H. and E.P. intended to apply for citizenship based on being a victim in this case fails.
As discussed above, neither C.H. nor E.P. testified that they were motivated to claim they were victims of a crime in order to obtain citizenship, and nothing in the record suggests that either thought they could obtain citizenship based on being the victim of a crime at the time they reported the incident to law enforcement.
We note that the cross-examination appears to have been largely successful, given that the jury acquitted Alvarado on all offenses against E.P.
ii. Any Error Was Harmless Beyond a Reasonable Doubt
Additionally, even if the trial court erred under Evidence Code section 352 and the Confrontation Clause, any error was harmless beyond a reasonable doubt.
As to the trial court's decision not to allow Alvarado to impeach E.P. with the evidence, Alvarado was found not guilty on all counts related to E.P. even absent the evidence. Moreover, E.P.'s testimony did not support the only count for which Alvarado was convicted, assaulting C.H. with a deadly weapon. In fact, E.P. testified that he never saw Alvarado attack C.H. with the knife. Accordingly, any error in failing to admit the impeachment evidence was harmless beyond a reasonable doubt.
As to the trial court's decision not to allow Alvarado to impeach C.H., it is a closer call. However, as discussed above, the excluded evidence did not provide an especially strong motive to fabricate, and defense counsel was permitted to (and did) extensively cross-examine C.H. Moreover, Alvarado does not argue that the excluded evidence would have also tarnished A.G.'s credibility, and A.G. largely corroborated C.H.'s version of events as relevant to count 5. Like C.H., A.G. testified that Alvarado was holding a knife or blade when he first approached C.H., and that Alvarado chased C.H. while holding a knife or blade. Accordingly, any error in failing to admit the impeachment evidence was harmless beyond a reasonable doubt.
Alvarado's arguments to the contrary are not persuasive. He argues that the error was prejudicial because the "case was already shown to be weak, having had one mistrial, and acquittals on all counts except one in the second trial." However, we do not know why the jury could not reach a unanimous verdict in the first trial. Alvarado asserts that it is because the first jury was provided with the evidence that was excluded in this case, but there is no evidence before us to support this assertion. In fact, as to multiple counts, Alvarado received a more favorable result absent the evidence. That is, in the first trial, the jury hung on all counts related to E.P. In the retrial, where the allegedly powerful impeachment evidence was excluded, the jury found Alvarado not guilty on those counts instead. While we do agree with Alvarado that the case against him was not strong, as discussed above, neither was the impeachment evidence that was excluded.
Alvarado also asserts that the trial court erred and we know the error was not harmless because "10 jurors stayed after the trial and told counsel that they disbelieved the testimony of the witnesses based on the bias and motive of potential U-Visa applications." However, Alvarado does not cite to any evidence supporting this assertion. Instead, he refers to defense counsel's assertion that "10 out of 12 jurors stayed behind and spoke to us and they told us that that was a big consideration the fact that they did have a motive, bias and interest in the case." This assertion was not made under penalty of perjury, and it is hearsay. Moreover, the prosecution "disagree[d] with defense counsel['s] characterization of how the jurors interpreted that issue last time." According to the prosecution, "they were considering the witnesses immigration status and it was not based on how they testified in determining what bias they had." Given the lack of evidence, even assuming we can consider properly supported juror comments, this argument fails as well.
II. The Probation Violations in Case 1 and Case 2 Must Be Dismissed
A. Applicable Law and Standard of Review
" 'Probation revocation proceedings are not a part of a criminal prosecution, and the trial court has broad discretion in determining whether the probationer has violated probation.'" (People v. Urke (2011) 197 Cal.App.4th 766, 772.) "The standard of proof in a probation revocation proceeding is proof by a preponderance of the evidence." (Ibid.)" 'Absent abuse of ... discretion, an appellate court will not disturb the trial court's findings.'" (People v. Kelly (2007) 154 Cal.App.4th 961, 965.)
B. Analysis
We agree with Alvarado that the trial court erred by finding that he violated probation based on the incident in Case 3 because his period of supervision expired in both cases before the incident in Case 3 occurred.
In Case 1, the probationary period was extended to January 16, 2021. In Case 2, on February 6, 2020, Alvarado was placed on probation for a period of three years. However, as the trial court correctly noted, his period of supervision was reduced by operation of law to two years, meaning it expired on or around February 6, 2022. (People v. Prudholme (2023) 14 Cal.5th 961, 963 ["Assembly Bill No. 1950 (2019-2020 Reg. Sess.) (Assembly Bill 1950) became effective on January 1, 2021 and reduced the maximum length of probation for most felonies to two years. (See Pen. Code, § 1203.1, as amended by Stats. 2020, ch. 328, § 2.) _ We hold Assembly Bill 1950 applies retroactively to nonfinal cases and the proper remedy is to modify the probationary term to conform with the new law while maintaining the remainder of the plea agreement."]; see also People v. Sims (2021) 59 Cal.App.5th 943, 964; People v. Quinn (2021) 59 Cal.App.5th 874, 878.)
On August 31, 2020, while Alvarado was on probation in both cases, the Kern County Probation Department filed a Declaration Letter in both cases requesting that Alvarado's probation be revoked based on conduct alleged to have occurred on May 18, 2020. This tolled the running of the period of supervision in both cases while the trial court adjudicated this violation. (§ 1203.2, subd. (a) ["The revocation [of probation], summary or otherwise, shall serve to toll the running of the period of supervision"]; People v. Leiva (2013) 56 Cal.4th 498, 518 (Leiva).)
However, on December 20, 2022, the trial court found that Alvarado did not violate probation based on the conduct alleged to have occurred in the Declaration Letters. While the period of supervision was tolled to allow the trial court to make this determination (§ 1203.2, subd. (a)), the court did not have authority to then revoke Alvarado's probation based on conduct that occurred on June 24, 2022, which was after the date his period of supervision expired in both cases. (Leiva, supra, 56 Cal.4th at pp. 514-515 ["Nothing in the legislative history [of section 1203.2] suggests the Legislature intended to permit the trial court to find a violation of probation based on conduct that occurred after the probationary period had expired. Instead, the legislative history reveals that the tolling provision was enacted to preserve the trial court's authority to hold a formal probation violation hearing at a time after probation would have expired with regard to a violation that was alleged to have occurred during the probationary period."].)
The People do not address the holding in Leiva, supra, 56 Cal.4th 498.
Instead, the People's only argument appears to be that the trial court never found that Alvarado did not violate probation based on the conduct alleged to have occurred in the Declaration Letters. This argument is without merit. The court clearly found that
Alvarado did not violate probation based on conduct alleged to have occurred in the Declaration Letters.
DISPOSITION
Alvarado's conviction on count 5 in Case 3 (Kern County Superior Court case No. SF020884A) is affirmed. The orders revoking and terminating probation in Case 1 (Kern County Superior Court case No. BF148259A) and Case 2 (Kern County Superior Court case No. SF018778A) are reversed, and the sentences imposed based on the violations are vacated.
The trial court is directed to prepare an amended abstract of judgment in Cases 1, 2, and 3, reflecting that the sentences imposed based on the violations of probation, including the fines, are vacated, and to advise the appropriate authorities.
WE CONCUR: HILL, P. J., PENA, J.
[*] Judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.