Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
County of Contra Costa Super. Ct. No. 032101129.
Pollak, Acting P. J.
Defendant Eric Brandon Esco appeals from an order revoking his probation and executing a previously suspended three-year sentence for a lewd act on a minor. He challenges only the sufficiency of the evidence. The trial court did not abuse its discretion in finding that he violated the terms of his probation and we shall therefore affirm.
BACKGROUND
On August 26, 2003, defendant was charged by felony complaint with three counts of committing a lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (a)), and one count of committing a lewd act on a child between the ages of 14 and 15 (Pen. Code, § 288, subd. (c)(1). He pled no contest to one count of a lewd act on a child under the age of 14 and to the count of a lewd act on a child between the ages of 14 and 15, and the remaining charges were dismissed. He was sentenced to the mitigated term of three years on the first count and a concurrent sentence on the second count. The trial court suspended imposition of sentence and placed defendant on probation subject to special conditions for sex offenders, including that he have “no contact with any minors under the age of 18, until authorized by the Probation Officer[,] except for his own children.”
On July 20, 2006, a petition was filed to revoke probation, alleging that “On July 18, 2006, the probation officer received a report from the San Francisco Police Department indicating the defendant had a four-month sexual relationship with a minor under the age of 18 (17).” On September 22, 2006, the trial court reinstated probation.
On February 9, 2007, a second petition to revoke probation was filed, alleging that “On February 8, 2007, the probation officer received information from the Contra Costa County Sheriff’s Department . . . indicating the defendant had contact with a minor under age 18 on 1/31/07 & 2/07/07, which is against his terms and conditions of probation.” A supplemental petition was filed on February 16, 2007, alleging that “On February 13th and 15th, 2007, the defendant failed to appear for his pre-scheduled sex offender treatment sessions.” The court summarily revoked probation and issued a warrant for defendant’s arrest.
The victim testified that she was 14 years of age at the time of the probation revocation hearing on May 4, 2007. She stated that on January 31, “I was walking home from school. And a guy in a white Volkswagen asked me for my name and number when I was walking . . . home.” She did not give him her name or number, but “kept on walking.” She saw the man “for just a few seconds.” She identified defendant as the man who had spoken to her.
She testified she saw defendant again on February 7, 2007. He drove past her while she was standing at a bus stop and asked her the name of the school she attended. “[H]e said that he . . . wanted to get his niece enrolled in my school. And he asked me what’s the name of my school, where it’s located at.” Approximately 10 to 15 minutes later, the bus arrived and the victim boarded. Defendant followed the bus toward the school and continued past the school when the bus turned. The next day she identified defendant when shown a photograph by the police. She recognized defendant as someone who lived in her neighborhood. Because she recognized defendant, after the first incident she found a photograph of him on a web site of registered sex offenders. She printed the photograph and after the second incident gave it to the school principal. The police were then notified about both incidents. One of the investigating police officers showed the victim photographs of both defendant and his brother. She identified defendant as the man who had spoken to her. She stated that she specifically remembered the gray in his beard. She stated that she had never before seen defendant’s brother.
Defendant’s brother Marcus testified that he lives with his girlfriend, defendant, defendant’s girlfriend, and defendant’s children. He drives a white Volkswagen that belongs to his girlfriend and defendant drives a Montero truck. He stated that defendant also sometimes drives a BMW, but had never driven the white Volkswagen. Marcus stated that in “probably the latter part of January, the beginning of February” he had been in his car and asked the victim what school she attended because he was interested in finding a school for his niece to attend. At the time this conversation occurred, he stated that defendant was out of town.
Marcus’s girlfriend Cristina also testified. She reiterated that defendant had never driven the white Volkswagen. However, she was not present when the incidents occurred.
Defendant’s girlfriend testified that defendant drives either a gold Mitsubishi Montero or a silver BMW, and that she had never seen him drive the white Volkswagen. She stated that on Tuesday February 6, 2007, she and defendant drove to San Francisco, spent the night there with friends, drove to Monterey on Wednesday, and on Thursday attended a wedding there. After the wedding they drove to Sacramento. On January 31, she was at work during the day.
Defendant testified that he had never spoken to the victim and that he had never driven the white Volkswagen. He stated that on February 7, he was in San Francisco with his girlfriend and some friends. He told his probation officer that he was going to Monterey that week for a wedding. He testified that he was not in the town where he lives on February 7. He chose not to have the friends he had stayed with in San Francisco or the couple who were married testify on his behalf because he did not want them to know about his status as a sex offender.
Defendant’s probation officer testified that defendant did not attend his February 13 therapy session.
The trial court found that “Even if you do not accept the February 7th incident, and I’m not certain that I don’t, but even if you remove that from the equation, you have the January 31st incident. And in my mind, it’s far too coincidental that [the victim], when she identifies someone in a car, it’s not just someone that she sees on the street. It’s someone that she knows lives up the block from her. And when she identifies a vehicle, it’s not a red Ford truck or a blue Mazda Miata. It’s a white Jetta that is directly affiliated with the house in which [defendant] lives. She is clearly a young girl. She is obviously in her teens. So he knows when he rolls down his window and asks for her phone number this is not an adult he’s dealing with. There is no explanation other than her testimony today and her identification of him for the actions on the 31st of January. I find her credible. I believe that when she made her identification of him that she did so based not just on the fact that she knew he lived near her but on the fact that she saw his picture on the registration site, but also I believe she identified him because that is the person who asked her for that information. That is a prohibited contact.”
The trial court terminated probation and imposed the previously suspended three-year sentence with credit for 359 days of custody. Defendant timely filed a notice of appeal.
DISCUSSION
Defendant challenges the sufficiency of the evidence that he had contact with a minor in violation of his probation conditions and that he did so knowingly. Under Penal Code section 1203.2, subdivision (a), the 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 . . . .” The violation must be proven only by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.) Because “revocation of [probation] is not part of a criminal prosecution, ‘the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.’ ” (Ibid.) “To reverse a [probation] revocation order, the probationer must establish that the [trial] court abused its discretion.” (Id. at p. 442.) “ ‘[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.’ ” (Id. at p. 443.)
Although contradicted by other testimony that would have supported contrary findings, there nonetheless was substantial evidence that defendant, rather than his brother, made contact with the victim. The victim identified defendant independently using the sex offender web site, again to the police, and finally in court as the man who spoke to her on both occasions. Defendant questions the reliability of eyewitness identifications in general, citing United States v. Wade (1967) 388 U.S. 218, 228 [“The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification”]. Such questions go only to the weight of the identification. Although one may question whether the victim’s observations were affected by viewing defendant’s picture on the sex offender website, the evidence indicated that the victim had ample opportunity to view the man who approached her. Nothing prevented the court, as the trier of fact, from finding her identification to be reliable. Even the “uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296.)
Defendant also argues that there was no proof that he knew the victim was a minor. A probationer’s conduct must be shown to have been a willful violation of a condition of probation to justify the revocation of probation. (People v. Zaring (1992) 8 Cal.App.4th 362, 378-379.) The trial court observed that the victim was “clearly a young girl,” and she was only 14 years of age at the time of the hearing. This was sufficient to support an implicit finding that defendant knew the victim was a minor and the trial court’s explicit finding that defendant willfully violated the terms of his probation.
Defendant cites no authority supporting his final argument that asking the victim for her name and phone number and asking where she attended school was not “contact” as “envisioned by the court when setting the special probation conditions and thus cannot be the source of a probation violation finding in this case.” To the contrary, such preliminary contact may well lead to further encounters and undoubtedly was contemplated when the trial court prohibited all contact with minors except for defendant’s children.
DISPOSITION
The judgment is affirmed.
We concur: Siggins, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.