Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County,Andrew C. Kauffman, Judge. Affirmed. Los Angeles County Super. Ct. No. BA211978
Maxine Weksler, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel Jr. and Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Tameka Crosland appeals from a judgment sentencing her to state prison for three years following revocation of probation. She contends the evidence was insufficient to support a probation violation, and alternatively, the trial court abused its discretion by refusing to reinstate probation rather than executing the previously suspended prison sentence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Underlying Conviction
On April 10, 2001, Crosland was charged by information with one count of committing petty theft with a theft-related prior conviction. (Pen. Code, § 666.) Crosland waived her constitutional rights and entered a negotiated plea of no contest on August 6, 2001. Pursuant to the plea agreement, Crosland was sentenced to the three-year upper term, execution of her sentence was suspended and she was placed on five years of formal probation.
Statutory references are to the Penal Code.
2. The Probation Violation Hearing
On November 15, 2006, the trial court began a contested probation violation hearing after Crosland was arrested on November 29, 2005, and her probation was summarily revoked.
At the hearing, Avery Jackson, testified he was working as a security officer for the South Bay Galleria on November 4, 2005. On that afternoon, Jackson was on the third floor of the Galleria. Looking down, he saw Crosland with a male companion inside the Planet Funk store on the first floor of the Galleria. Crosland engaged a store employee in conversation while pushing jeans from a clothing rack towards her companion, who was crouched behind her. He put the jeans in a shopping bag. Crosland and her companion left the Planet Funk store with the shopping bag and headed towards the Galleria exit to the parking structure. Jackson radioed for assistance and then stopped the couple at the exit. He asked them to accompany him to the Planet Funk store. Crosland protested, “We didn’t do anything” and ran out the exit, pursued by Takasha Starwell, another Galleria security officer. Jackson remained with Crosland’s companion, who pushed Jackson and fled, leaving behind the shopping bag he was carrying. Starwell testified to having chased Crosland into the parking structure. She ignored his commands to stop, climbed into a car and drove away. Starwell recorded the car’s license plate number and gave it to police.
Redondo Beach Police Officer Fernando Mata testified that he responded to the reported theft and recovered the shopping bag left behind by Crosland’s companion. Inside the bag, Mata found 10 pairs of Planet Funk jeans, with a total value in excess of $2,000. The bag was lined with aluminum, a common means used by thieves to thwart a store’s anti-theft system.
Redondo Beach Police Officer Richard Kochheim testified that he ran the license plate number recorded by Starwell. Kochheim discovered the car was registered to Crosland, and she was currently on probation. After receiving permission from the probation department, Kochheim searched Crosland’s North Hollywood apartment and found bills for gas and telephone services bearing Crosland’s address but someone else’s name. Kochheim also found two California driver’s licenses, two American Express credit cards, and some Planet Funk jeans with the “tags” still attached.
While Kochheim was searching the apartment, he overheard Crosland say to her sister, “They want me to identify him.” Her sister responded, “Don’t tell them anything,” to which Crosland replied, “I’m not going to say who he is.”
As a result of further investigation, police learned the person named on the recovered bills had neither lived in North Hollywood, nor had authorized utility or telephone services to be provided to Crosland’s address. Officers also discovered the account for telephone service at Crosland’s apartment was fraudulent, the American Express cards displayed invalid account numbers, and the driver’s licenses were counterfeit.
Crosland testified in her own defense that several weeks before the police search, her female roommate had moved out, leaving behind some belongings in the North Hollywood apartment. When Crosland was at the South Bay Galleria on November 4, 2005, she encountered an acquaintance, Maria, who was with her baby. They talked while shopping at the Planet Funk store. Crosland showed Maria a jacket, before Maria departed with her baby. Crosland then also left the store. En route to the parking structure, Crosland noticed an altercation involving some men. One of the Galleria security officers said, “Grab her.” Crosland said, “Why?” Frightened, she immediately left the Galleria. An unknown man was behind her in the parking structure; Crosland got into her car and drove away.
According to Crosland, when Officer Kochheim came to her apartment he used abusive language and was threatening. Kochheim insisted that Crosland “give us the guy” although Crosland stated repeatedly she had no idea who he was talking about and began to cry. Crosland claimed that she had purchased the jeans found during the police search and that her utilities were already turned on when she moved into her apartment. Crosland admitted having prior theft-related convictions and being on probation in November 2005. She denied assisting anyone in stealing jeans from the Planet Funk store. She denied using someone else’s personal information to have the utilities turned on at her apartment or possessing the driver’s licenses and credit cards found during the police search.
Angelique Molina, Crosland’s cousin, testified that Crosland asked her to come to the North Hollywood apartment during the police search. While Molina waited outside the apartment, she heard male voices repeatedly saying, “Give up the guy.” According to Molina, when Crosland moved into the apartment, her roommate had already been living there. The roommate moved out about one month before police conducted the search.
Leila Ortiz, the Planet Funk store manager, testified as a defense witness. On November 4, 2005, from the back of the store, Ortiz saw Crosland in the women’s section with a female companion who had a baby stroller. Crosland was carrying a shopping bag. At one point, Crosland held up a jacket, showing it to her companion. Ortiz testified she also saw two men in the store who walked into the women’s section. It appeared to Ortiz that the men knew Crosland and her companion. The woman with the stroller left the store, and then the two men left. Ortiz did not see Crosland leave the store.
Following counsels’ argument on November 16, 2006, the trial court summarized its reasons for finding Crosland in violation of probation. “[I]t was certainly a remarkable coincidence for a person, such as [Crosland], to be previously convicted of burglary and theft to be living in a residence where utilities had been obtained under a false name, arguably by means of identity theft, to have in that residence false--two types of false identification and false credit cards; and, thereafter, to be in a store and [in] close proximity to one or more persons who are actually engaged in the commission of theft. [¶] And in order for the court to believe that such a series of coincidences were to have occurred, the court would have to believe that, despite being surrounded by theft, dishonesty, and fraudulent activity, that [Crosland] is, nevertheless, an innocent victim of circumstance, and the court is not persuaded to that extent. [¶] However, the court is persuaded that the testimony of Officer Jackson is the more credible. Accordingly, the court finds [Crosland] to be in violation of probation.”
3. The Sentencing Hearing
The sentencing hearing occurred on December 18, 2006. In arguing Crosland should be reinstated on probation, defense counsel noted Crosland had refrained from engaging in criminal activity for more than four years. Her only prior probation violation was for failing to report to her probation officer when she was pregnant and in ill-health. Crosland was currently attending school, caring for her young son and schizophrenic mother, and she enjoyed a supportive family. Crosland had already served over five months in custody, and she made all court appearances following her release on bail.
The trial court declined to reinstate Crosland on probation because “she continued to engage in criminal conduct” notwithstanding a suspended state prison sentence. The court ordered immediate execution of her previously imposed but suspended three-year state prison sentence.
DISCUSSION
1. Substantial Evidence Supports the Probation Violation Finding
Crosland challenges the trial court’s finding she violated probation. Specifically, Crosland contends “a preponderance of the evidence did not support the court’s finding that she actually participated in the theft from Planet Funk or had committed or intended to commit any fraud.”
A probation violation must be proved by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441; People v. Jackson (2005) 134 Cal.App.4th 929, 935.) In reviewing the sufficiency of the evidence to support the finding of a probation violation, we view the evidence in the light most favorable to the People and presume in support of the judgment the existence of every fact the court could reasonably deduce from the evidence. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Jones (1990) 51 Cal.3d 294, 314.) “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge . . . to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the [finding of a violation] is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder.” (Id., at p. 314.)
Implicitly conceding Security Officer Jackson’s testimony, if believed, was sufficient to support the trial court’s finding of a probation violation (see, e.g., People v. Young (2005) 34 Cal.4th 1149, 1181 [“unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction”]), Crosland argues Jackson’s testimony on cross-examination rendered impossible his direct testimony that Crosland was pushing jeans from a clothing rack towards her companion, who was crouched behind her. Crosland points to Jackson’s concessions -- that he was viewing the two individuals some distance above the first floor, that he was unable to see them above their chests, and that he never saw the woman whom he identified as Crosland either pick up any jeans from the rack or speak to the man – as calling into question Jackson’s version of the incident. Noting several additional purported inconsistencies in Jackson’s descriptions of the incident, particularly when compared with manager Ortiz’s testimony, Crosland argues Jackson’s testimony should have been discredited by the trial court.
To be inherently improbable, “‘the evidence must assert that something has occurred that it does not seem possible could have occurred under the circumstances disclosed.’” (People v. Mayberry (1975) 15 Cal.3d 143, 150; People v. Headlee (1941) 18 Cal.2d 266, 267.) “‘“Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, 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. [Citation.]”’” (Mayberry, supra, 15 Cal.3d at p. 150.)
Nothing about Security Officer Jackson’s description of the November 4, 2005, theft of Planet Funk jeans, whatever its minor inconsistencies, was inherently improbable or physically impossible. His testimony constituted sufficient evidence to establish, by a preponderance of the evidence, Crosland had committed a theft and was in violation of the probation condition that she obey all laws.
Because there was substantial evidence Crosland had violated probation by participating in taking the Planet Funk jeans on November 4, 2005, we need not address whether the items seized during the police search were sufficient evidence of a probation violation.
2. The Trial Court Did Not Abuse Its Discretion in Declining to Reinstate Probation and Ordering Crosland To Serve the Previously Suspended State Prison Sentence
“[A] grant of probation is not a matter of right but an act of clemency.” (People v. Covington (2000) 82 Cal.App.4th 1263, 1267.) A decision to revoke probation when the defendant has failed to comply with its terms and conditions rests within the broad discretion of the trial court: Pursuant to section 1203.2, subdivision (a), “a court is authorized 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 . . . .’” (People v. Rodriguez, supra, 51 Cal.3d at p. 440.) “It has long been recognized that the Legislature, through this language, intended to give trial courts very broad discretion in determining whether a probationer has violated probation.” (Id. at p. 443.) “[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation.” (People v. Lippner (1933) 219 Cal. 395, 400.)
The trial court’s decision not to reinstate Crosland’s probation and to order into effect the previously imposed and suspended state prison sentence was a proper exercise of discretion. As a theft, the probation violation itself supported revocation of probation. Additionally, the court properly determined that reinstating probation was not appropriate in light of Crosland’s record of theft-related convictions (1996 burglary and 2001 petty theft with a prior theft-related conviction) and her continued similar criminal conduct notwithstanding her grant of probation and suspended prison sentence. (See People v. Beaudrie (1983) 147 Cal.App.3d 686, 691.)
The trial court had no authority to reduce Crosland’s previously imposed but suspended three-year prison sentence. (People v. Howard (1997) 16 Cal.4th 1081, 1084.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J. ZELON, J.