Opinion
B227239
10-26-2011
THE PEOPLE, Plaintiff and Respondent, v. ANGELIQUE MARIE BONGIOVANNI, Defendant and Appellant.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stacy S. Schwartz, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. YA068855)
APPEAL from a judgment of the Superior Court of Los Angeles County. Richard F. Walmark, Judge. Affirmed.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Angelique Marie Bongiovanni appeals from the judgment entered following a probation violation hearing. The record shows appellant suffered two prior convictions for possession of a controlled substance. On each occasion, in accordance with a plea agreement, the court suspended imposition of sentence and placed appellant on formal probation for three years. In the current charge, a jury failed to reach a verdict on counts that appellant had dissuaded a witness and made criminal threats with special allegations of gang association. After declaring a mistrial, the trial court found that appellant had violated the terms of her probation and imposed the previously suspended three-year sentence.
Appellant contends that the evidence is insufficient to support the determination that appellant violated her probation. We affirm the judgment.
BACKGROUND
Procedural Background
On July 23, 2007, in case No. YA068855, appellant was charged with transportation of a controlled substance. (Health & Saf. Code, § 11352, subd. (a).) In accordance with a plea agreement, appellant pleaded no contest to possession of a controlled substance. (Health & Saf. Code, § 11350, subd. (a).) The trial court suspended imposition of sentence and placed appellant on formal probation for three years under the terms and conditions of Proposition 36. Due to numerous violations of the terms of her probation, the court revoked appellant's probation and terminated the Proposition 36 program. On February 20, 2009, the court modified and reinstated probation, with the condition that appellant serve 365 days in county jail.
On March 5, 2009, in case No. PA063581, appellant was charged with possession of methamphetamine, a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) In accordance with a plea agreement, appellant pleaded no contest and was again placed on formal probation for three years, with the condition that she serve 365 days in county jail. The suspended sentence was to run concurrently with the sentence in case No. YA068855.
On February 3, 2010, in case No. PA066371, appellant was charged with one count of making criminal threats (Pen. Code, § 422) and one count of dissuading a witness by force or threat (Pen. Code, § 136.1, subd. (c)(1)). Both counts were alleged to have been committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members. (Pen. Code, § 186.22, subd. (b)(1)(B).) Appellant's trial ended in mistrial after the jury deadlocked. Pursuant to Penal Code section 1385, the trial court granted the People's motion to dismiss.
At the probation violation hearing on August 27, 2010, the trial court found appellant in violation of her probation in both case No. YA068855 and case No. PA063581 based on the testimony it had heard at appellant's trial in case No. PA066371. The trial court sentenced appellant to state prison for a term of four years on case No. YA068855. On case No. PA063581, appellant was sentenced to state prison for a term of two years, to run concurrently with the sentence imposed in case No. YA068855. This appeal followed.
Appellant had been incorrectly sentenced to a four-year term in case No. YA068855. The abstract of judgment filed on September 7, 2010, with respect to the August 17, 2007 conviction, incorrectly reflected that appellant was convicted of a violation of Health and Safety Code section 11352, subdivision (a), rather than section 11350, subdivision (a), which carried a maximum three-year sentence. The abstract of judgment was corrected and appellant's sentence in case No. YA068855 was reduced to three years.
Prosecution Evidence
On November 1, 2009, Wendy Diaz was living with her husband and three children in a Los Angeles neighborhood inhabited by rival gangs "Vincent Town" and "Columbus Street."
Earlier that evening Diaz and a friend had taken their children trick or treating. At approximately 1:00 a.m. Diaz went outside to look for her friend, who was parking on the street. While Diaz was outside she saw appellant and another person walking towards her from across the street. Appellant was dressed in dark clothing and her companion was wearing a pumpkin costume. Appellant approached to within eight feet of Diaz and called Diaz a "fucking snitcher." Appellant also yelled "you been fucking snitching," "you and your family are coming down," "you fucking rata," and "fucking all biccicletas." As appellant walked away, she yelled "fuck you all biccicletas," followed by "Columbus Street."
Term used by Columbus Street gang members to disrespect Vincent Town gang members.
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Diaz feared for her and her family's safety because she believed appellant's threats were related to a neighborhood shooting and attempted break-in at her residence that she had reported to the police a few days earlier. A Columbus Street gang member was arrested for the incident at Diaz's residence.
Diaz reported the November 1, 2009 incident to the police. She told them that the woman who yelled at her was white, approximately five feet two inches tall, and 120 pounds. Detectives met with Diaz a couple of weeks later and showed her a number of different "six-pack" photo lineups. Diaz circled and initialed appellant's photograph. At trial, Diaz also identified appellant as the person who threatened her on November 1, 2009.
On December 4, 2009, Los Angeles Police Officer Martin Contreras was driving in a gang neighborhood on gang suppression duty when he saw appellant and arrested her in connection with the criminal threats. Officer Contreras had had numerous prior contacts with appellant and knew that she had been a member of the Columbus Street gang for approximately nine years, went by the gang name "Diabla," and had tattoos signifying that gang on her body.
Los Angeles Police Officer Adam Sandoval, a member of the Mission Division's gang enforcement detail assigned to the Columbus Street gang, testified as the prosecution's gang expert. He testified that the Columbus Street gang had approximately 150 active members. The Columbus Street gang is heavily involved in narcotic sales and their primary activities include murders, assaults, car thefts, vandalism and criminal threats. Officer Sandoval testified that appellant had been a member of the Columbus Street gang for many years. His opinion was based on his own personal contact with appellant having arrested her in 2008, her admission of gang membership when she was arrested, her gang tattoos, and conversations he had about appellant with other police officers.
Defense Evidence
Appellant testified in her own defense. On October 31, 2009, appellant testified that she attended a costume Halloween party in Diaz's neighborhood. Appellant stated that she is five feet five inches tall and at the time of the incident weighed 172 pounds, and had red hair. She claimed that she had never seen Wendy Diaz prior to Diaz's testimony in the courtroom. She denied being an active Columbus Street gang member, and stated that she had no reason to threaten Diaz.
DISCUSSION
I. Contention on Appeal and Standard of Review
Appellant contends that there was insufficient evidence to support the court's finding that she violated the terms of her probation. Specifically, she contends that this was a case of mistaken identity by Wendy Diaz and that appellant's version of the facts was more believable.
Probation is "an act of clemency and grace" in lieu of the prescribed statutory punishment. (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) Probation is designed to serve society "in effecting desirable rehabilitative goals." (People v. Edwards (1976) 18 Cal.3d 796, 802.) Penal Code section 1203.2, subdivision (a) authorizes a trial court to revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation . . . or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses . . . ." "[P]robation may be revoked despite the fact that the evidence of the probationer's guilt may be insufficient to convict [her] of the new offense." (In re Coughlin (1976) 16 Cal.3d 52, 56.)
We review appellant's contention under the substantial evidence standard of review. Under this standard, "we view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Lewis (1990) 50 Cal.3d 262, 277.) Where a witness's credibility is questioned, we must defer to the trial court's findings, for "'it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends."' (People v. Gunn (1959) 170 Cal.App.2d 234, 239; In re Gary G. (1981) 115 Cal.App.3d 629, 635-636; People v. Lewis (2001) 26 Cal.4th 334, 361.)
II. Substantial Evidence Supports the Trial Court's Finding That Appellant Violated the Terms of Her Probation
Appellant's probation agreement required that she "obey all laws." The evidence presented at trial included testimony from police officers that appellant was known to be a member of the Columbus Street gang, a member of the Columbus Street gang was arrested in connection with the break-in at Diaz's residence, appellant threatened Diaz and her family, and Diaz identified appellant as the perpetrator of the threat from a photo lineup a few weeks after the incident, and again in court.
Appellant's argument that a jury vote of 10-2 for acquittal supports her credibility is not persuasive because the fact finder in the probation violation hearing was the trial judge, not the jury. Because probation revocation differs substantially from criminal prosecution and the facts supporting revocation need only be proved by a preponderance of the evidence, we find substantial evidence to support the trial court's finding that appellant violated her probation. (People v. Monette (1994) 25 Cal.App.4th 1572, 1575.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
J.
DOI TODD
We concur:
P. J.
BOREN
J.
ASHMANN-GERST