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People v. Evans

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Feb 8, 2012
B231661 (Cal. Ct. App. Feb. 8, 2012)

Opinion

B231661

02-08-2012

THE PEOPLE, Plaintiff and Respondent, v. DEMETRIS EVANS, Defendant and Appellant.

Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA109045)

APPEAL from a judgment of the Superior Court of Los Angeles County. Pat Connolly, Judge. Affirmed as modified.

Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Scott A. Taryle and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Demetris Evans pled no contest to one count of possession for sale of cocaine base in violation of Health and Safety Code section 11351.5 and admitted the allegation that the offense was committed for the benefit of a criminal street gang in violation of Penal Code section 186.22, subdivision (b)(1)(A). The court sentenced appellant to a total of seven years in state prison, but suspended the sentence and placed appellant on formal probation for three years.

All further statutory references are to the Penal Code unless otherwise indicated.

About one year after being placed on probation, appellant was arrested for being in violation of a gang injunction. The court revoked appellant's probation, then following a formal hearing, found appellant in violation of probation. The court imposed the previously suspended sentence of seven years in prison.

Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support the trial court's probation violation finding, and that even assuming a violation, the court abused its discretion in imposing the prison sentence. Appellant also contends that the trial court erred in imposing certain fines and assessments. We correct certain fines and assessments, as set forth in more detail in the disposition. We affirm the judgment of conviction in all other respects.

Facts

On November 20, 2010, Los Angeles Police Officer Jesus Garcia stopped a car for speeding near the intersection of 114th Street and Parmelee near Nickerson Gardens. The area was off-limits under the terms of an injunction against the Bounty Hunter Bloods gang.

Appellant was a passenger in the car. Officer Garcia had served appellant with a copy of the gang injunction on September 16, 2007 because appellant had previously admitted that he was a member of the Bounty Hunters. The driver of the car was Delvan Adams and the other passengers were Deshawn Evans ("Deshawn"), Toijuana Collins, Derek Sykes and Damien Harris. Harris had previously admitted to Officer Garcia that he was a member of the Bounty Hunters gang. Collins was documented as associating with the Bounty Hunters. Officer Garcia was aware that Deshawn and Adams had been served with the gang injunction. Deshawn is appellant's brother and Adams his cousin.

Appellant told Officer Garcia that he was employed in the area and had just attended a football game that his brother had played in nearby. Appellant was arrested for violating the gang injunction.

Appellant testified in his own behalf at the probation violation hearing. He admitted that he had been served with the gang injunction, but claimed that he had never read it before being arrested. He acknowledged that the terms of the injunction prohibited him from associating with gang members or being in the area of Nickerson Gardens. He stated that he did not know that Collins and Harris were gang members. He was aware that Adams and Deshawn were stated members of that gang.

Appellant also testified that at the time of the stop he had a job in Nickerson Gardens and was going there daily. On the night of the stop, he went to his brother's football game in the area.

Discussion

1. Sufficiency of the evidence

Appellant contends that there is insufficient evidence to support the trial court's finding that he violated his probation. Specifically, he contends that the trial court found that he violated probation by associating with gang members, but that there was no prohibition against such association in his probation conditions.

A trial court may revoke a defendant's probation if he is arrested, as long as the trial court has reason to believe that grounds for revocation exist. (§ 1203.2, subd. (a).) A defendant is then entitled to a formal hearing in conformance with due process. (People v. Vickers (1972) 8 Cal.3d 451, 458-461.) At the hearing, the prosecution must prove a probation violation by a preponderance of the evidence. "[T]he evidence must support a conclusion the probationer's conduct constituted a willful violation of the terms and conditions of probation." (People v. Galvan (2007) 155 Cal.App.4th 978, 982.) We review a trial court's finding of a probation violation for substantial evidence. (People v. Kurey (2001) 88 Cal.App.4th 840, 848.)

Based on the record before this Court, appellant appears to be correct that the terms of his probation do not include a prohibition against associating with gang members or staying away from areas where gangs congregate. We do not agree with appellant that the trial court was confused about this point.

At the conclusion of the probation violation hearing, the prosecutor argued: "I think that there are two basis of the violation, one was associating with other gang members, and two was trespassing, so that's A and L, I believe, of the injunction. And I believe it was a condition of probation as well." The court replied: "Okay. I don't see it being a condition of probation. All right." The court's reply shows that it recognized that the terms of appellant's probation did not include a prohibition against associating with gang members or going to areas where gang members congregate.

As appellant acknowledges, it was a condition of his probation that he "[o]bey all laws and orders of the court." The gang injunction was clearly an order of a court. Further, it is a misdemeanor to be in contempt of court for willful disobedience of a court order. (§ 166, subd. (a)(4).)

After hearing argument from appellant's trial counsel, the court discussed the injunction, and appellant's violation of it, at length. The court stated: "First of all, that injunction came down in 2003, which is four years prior to Mr. Evans being served with it, but it's a permanent injunction against the Bounty Hunter Bloods. So the court would not expect his name to be incorporated in it. [¶] He has been served with it. And beyond that, though, I find it a little bit disingenuous for Mr. Evans to get up here and speak about different individuals in that car, whether or not he thought they were gang members or did not believe that they were, and whether or not he is actually - be it either through self admission or be it found to be a gang member. [¶] And the reason why I say that is because, first of all, he was served. He was enjoined by that injunction. But in the case that's before this court, he actually took the mid term of four years. But also, beyond that, he received three years because of the 186.22 [gang allegation]. [¶] So at this point in time I am going to find him in violation. He is going into custody at this time."

We have no doubt that the trial court found appellant in violation of his probation because it found that he violated the gang injunction. There is ample evidence to support the trial court's finding. Officer Garcia testified that he served the gang injunction on appellant on September 16, 2007. Appellant acknowledged that he had been served with the injunction. There was no dispute that appellant had been in an area proscribed by the injunction. Officer Garcia testified that appellant had admitted gang membership and that at least one other person in the car was an admitted gang member, another was known to associate with the gang, and two additional men had been served with the injunction. This evidence clearly shows a violation of the gang injunction.

2. Revocation

Appellant contends that the trial court abused its discretion when it terminated his probation and executed the seven-year sentence because the trial court did not consider the probation report.

We review the trial court's sentencing choices for an abuse of discretion, and do not interfere with the court's exercise of its discretion when it has considered all facts bearing on the offense and the defendant. (People v. Vargas (1975) 53 Cal.App.3d 516, 533; People v. Downey (2000) 82 Cal.App.4th 899, 909-910.) To merit relief on appeal from an alleged abuse of discretion, it must clearly appear that the resulting injury is sufficiently grave to manifest a miscarriage of justice. (People v. Preyer (1985) 164 Cal.App.3d 568, 573-574.)

A violation of probation does not automatically trigger revocation of probation and imposition of a prison term. (People v. Hawthorne (1991) 226 Cal.App.3d 789, 795.) "Once the court has decided that a violation of probation has occurred, the court must go on to decide whether under all the circumstances the violation of probation warrants revocation." (People v. Avery (1986) 179 Cal.App.3d 1198, 1204.) In considering whether to revoke probation the court's inquiry is directed to the probationer's performance on probation. "[T]he focus is (1) did the probationer violate the conditions of probation and, if so, (2) what does such an action portend for future conduct?" (People v. Beaudrie (1983) 147 Cal.App.3d 686, 691.)

Appellant contends that the trial court abused its discretion in failing to consider the February 2, 2011 probation report, prepared for the sentencing hearing in this matter.

It is not clear whether the court considered the report. At the beginning of the sentencing hearing, the court noted: "Well, it's P and S. We also had ordered a probation officer's report." The court did not make any further references to the report at the sentencing hearing and did not sign the section of the report stating that the court had read and considered the report.

It is clear that the court was aware of the favorable contents of the report from other sources. Appellant's trial counsel pointed out to the court that appellant had been regularly reporting to his probation officer, and this was not disputed by the prosecution. Additional favorable information was provided to the court at the sentencing hearing, including the fact that he had a job offer if he was continued on probation.

As appellant points out, the report recommended that the court withhold disposition in the matter pending resolution of case OCA15850, the case which the district attorney had filed arising from appellant's arrest on November 20, 2010 in connection with the gang injunction. However, this says nothing about the probation officer's opinion on the appropriate action to take if appellant was convicted of violating the gang injunction.

Further, contrary to appellant's suggestion, the probation report was not entirely favorable to him. It states: "Probationer is not making an effort to cooperate." The report also concluded that appellant's new arrest "indicates that he continues to make poor choices and decisions."

We see no abuse of discretion in the trial court's decision to terminate probation. Both the probation report and the trial court reasonably viewed appellant's decision to accept a ride with a car full of gang members and associates as a poor choice for a person on probation. Appellant's action did not portend well for his future conduct, particularly given that the underlying offense was gang related and appears to have been committed with other members of the Bounty Hunters gang. (See People v. Beaudrie, supra, 147 Cal.App.3d at p. 691 [in deciding to revoke probation, focus is on what the violation portends for future conduct].)

3. Restitution fine

After appellant's probation was revoked, the trial court imposed a $1,000 restitution fine pursuant to section 1202.4. Appellant contends that the trial court lacked authority to do so because the court had previously imposed a $200 restitution fine at the time appellant was placed on probation. Respondent agrees. We agree as well.

A restitution fine under section 1202.4 remains in force despite the revocation of probation, and a trial court does not possess the statutory authority to impose a second such fine. (People v. Chambers (1998) 65 Cal.App.4th 819, 822; see also People v. Guiffre (2008) 167 Cal.App.4th 430, 434.) Accordingly, the $1,000 restitution fine must be stricken.

4. Parole revocation fine

After appellant's probation was revoked, the trial court imposed a $1,000 parole revocation fine pursuant to section 1202.45. Appellant contends that the trial court lacked authority to impose a parole revocation fine in excess of the restitution fine. Respondent agrees. We agree as well.

Section 1202.45, provides that the court shall impose an additional parole revocation fine in the same amount as the restitution fine. As we discuss in section 3, ante, the original restitution fine in the amount of $200 remained in effect following the revocation of appellant's probation. Accordingly, the parole revocation fine must be reduced to $200.

5. Court security assessment

After appellant's probation was revoked, the trial court imposed a $40 court security assessment fee pursuant to section 1465.8, subdivision (a). Appellant contends that the trial court erred in doing so because the court had previously imposed a $30 security assessment fee when appellant was placed on probation. Respondent agrees. We agree as well.

The first court security assessment remained in force despite the revocation of probation, and a trial court does not possess the statutory authority to impose a second such fine. (People v. Johnson (2003) 114 Cal.App.4th 284, 307; People v. Chambers, supra, 65 Cal.App.4th at p. 823.) Accordingly, the second security assessment in the amount of $40 must be stricken.

Disposition

The $1,000 restitution fine imposed by the trial court on February 4, 2011 is ordered stricken. The $200 restitution fine imposed on December 21, 2009 remains in effect. The $1,000 parole revocation fine is ordered reduced to $200. The $40 court security assessment imposed on the February 4, 2011 sentencing hearing is ordered stricken. The $30 security assessment imposed on December 21, 2009 remains in effect. The clerk of the superior court is instructed to prepare an amended abstract of judgment to reflect these changes, and to deliver a copy to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J. I concur:

KRIEGLER, J. MOSK, J., Concurring

I concur.

Defendant's conditions of probation in connection with a drug offense did not cover gangs. It did require compliance with all laws and orders. Defendant had been served with a gang injunction several years earlier. Defendant attended a football game in which his brother played and thereafter accepted a ride in a car that also included his brother and cousin, who were gang members. He worked in Nickerson Gardens, an area he was enjoined from visiting.

The trial court indicated its reason for finding a probation revocation was defendant's association with a member of a gang who was in the car in which defendant rode. The trial court did not refer to the positive facts concerning defendant in the probation report. Defendant had reported regularly to the Probation Officer. For this type of violation, to revoke probation, resulting in having to serve a seven year prison sentence seems harsh. Defendant is a father and has employment opportunities. I can see no benefit to the community to sentence him to an overcrowded prison, render him completely unemployable, and sever his connections with his family.

Defendant's upbringing and environment suggest he did not fully comprehend the circumstances that might lead to a probation revocation. For such a person, we should not always apply a no margin for error standard. The Probation Department suggested that the final determination await the final disposition of defendant's case for violating the gang injunction. This might have been a wiser course, than automatically revoking probation.

I acknowledge that the trial court has a better perspective in a particular case than I might. From the record alone, it just seemed to me that the probation revocation was troubling. Nevertheless, I concur that there was no abuse of discretion.

MOSK, J.


Summaries of

People v. Evans

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE
Feb 8, 2012
B231661 (Cal. Ct. App. Feb. 8, 2012)
Case details for

People v. Evans

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DEMETRIS EVANS, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Date published: Feb 8, 2012

Citations

B231661 (Cal. Ct. App. Feb. 8, 2012)