Opinion
E067671
06-26-2018
THE PEOPLE, Plaintiff and Respondent, v. DEVON HAYES, Defendant and Appellant.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR010479) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata and Miriam Ivy Morton, Judges. Affirmed, and remanded with directions. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Devon Hayes appeals from the trial court's order revoking his probation for failing to cooperate with his probation officer and for failing to report to his probation officer. On appeal, defendant argues (1) the evidence was insufficient to support the finding he willfully violated his probation, and (2) the trial court erred in calculating his custody credits. We affirm the judgment, but remand the matter for the limited purpose of clarifying defendant's confinement date and determining defendant's custody credits.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background of the underlying criminal offenses is taken from the probation report.
On April 8, 2016, defendant forcibly stole his aunt's cellular phone. On that same day, defendant's aunt reported the incident to the police. Defendant's aunt also advised the police that defendant had taken his grandmother's vehicle without her permission from Los Angeles several days previously. Defendant's aunt provided the license plate number of defendant's grandmother's vehicle. A records check of the license plate revealed the vehicle had been reported stolen out of Los Angeles. A deputy subsequently conducted a traffic stop of the vehicle. Defendant was the driver and sole occupant of the vehicle, and he was taken into custody. As defendant was exiting the police vehicle, defendant informed the deputy that he had methamphetamine in his left sock.
On April 12, 2016, a complaint was filed against defendant, charging defendant with second degree robbery (Pen. Code, § 211; count 1), unlawfully driving or taking a vehicle, to wit, a 2011 Mazda CR-7, without the owner's consent (Veh. Code, § 10851, subd. (a); count 2), and possession of a controlled substance, to wit, methamphetamine (Health & Saf. Code, § 11377; count 3). The complaint also alleged that defendant had suffered one prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and three prior prison terms (Pen. Code, § 667.5, subd. (b)).
On April 25, 2016, defendant pled no contest to vehicle theft (count 2) and admitted that he had suffered three prior prison terms. In return, the remaining allegations were dismissed, and defendant was granted formal probation for a period of three years on various terms and conditions of probation, including cooperating with his probation officer and following all reasonable directives of his probation officer.
On November 8, 2016, a petition to revoke defendant's probation was filed alleging that defendant failed to cooperate in a plan of rehabilitation, follow all reasonable directives of his probation officer, and report to probation in person every 14 days or as directed.
Specifically, defendant's probation conditions required defendant to "Cooperate with the Probation Officer in a plan of rehabilitation and follow all reasonable directives of the Probation Officer"; and "Report to the probation officer in person immediately/upon release from custody and thereafter once every fourteen (14) days or as directed. If you are removed from the United States, you are to report to the Probation Officer by phone or mail within fourteen (14) days of your release from immigration custody and inform Probation of your address and phone number." --------
On November 15, 2016, defendant's probation was revoked and a bench warrant was issued for defendant's arrest.
On November 20, 2016, defendant was arrested, cited, and released by the San Bernardino County Sheriff's Department for misdemeanor obstruction of a public officer pursuant to Penal Code section 148.
Several days later, on November 22 or 23, 2016, defendant was arrested again by the San Bernardino County Sheriff's Department for misdemeanor battery on a spouse in violation of Penal Code section 243, subdivision (e)(1). Defendant remained in custody thereafter. On December 20, 2016, another petition to revoke defendant's probation was filed alleging defendant violated the law based on his misdemeanor battery offense.
A hearing on the November 8, 2016 petition to revoke defendant's probation was held on January 10, 2017. At that time, defendant's probation officer Escoto testified to the following. Officer Escoto stated that he was familiar with defendant's terms and conditions of probation and that one of those terms required defendant to "cooperate with the probation officer in a plan of rehabilitation and follow all reasonable directives of the probation officer." Another term of defendant's probation required defendant to "report to the probation officer in person immediately upon release from custody and thereafter once every 14 days or as directed."
Officer Escoto explained that, in August 2016, defendant was allowed to travel to Nevada as part of his probation. This was on a temporary travel permit, pending Nevada's approval of defendant's request to reside at a proposed address in that state. On October 21, 2016, Nevada denied defendant's request. Five days later, on October 26, 2016, Officer Escoto advised defendant that he needed to find a new address in Nevada or report back in California within 14 days. The following week, on November 3, 2016, defendant called to complain about the timeline, arguing with Officer Escoto that it was an unreasonable amount of time. Officer Escoto confirmed that defendant needed to report to probation in California by November 8, 2016. On November 8, 2016, Officer Escoto again spoke to defendant, and informed defendant that the guidelines were placed by interstate compact and that "if [defendant] doesn't report by the end of the day, that there would be a no-bail bench warrant issued for him. At that time, [defendant] told [Officer Escoto] that he was not going to return." Defendant did not report on November 8, 2016, but called Officer Escoto on November 10, 2016, to speak to Officer Escoto's supervisor. Officer Escoto then transferred the call to his supervisor.
Defendant testified on his own behalf to the following. On or about October 25, 2016, defendant's mother advised him that there had been a voice message stating that the interstate compact was not granted. On October 26, 2016, defendant contacted Officer Escoto by phone. At that time Officer Escoto told him that he had 14 days to either find a new address or return back to California to check in with probation. On or about November 4 or 5, 2016, defendant called Officer Escoto again and told him he had been looking for a residence in California. On November 8, 2016, defendant called and spoke to Officer Escoto again. At that time, defendant told Officer Escoto that he had not yet been able to find a place, that he was in the process of trying to put a down payment on an apartment, and he asked if there was any way he could get an extension. Officer Escoto told him there were strict guidelines and 14 days was the allotted time he had to return to California. Defendant then asked to speak to a supervisor or the person in charge of the interstate compact to see if he could get "a couple of days' extension." Defendant spoke to a supervisor, who advised defendant to "put [himself] on calendar." Defendant did so, and then contacted Officer Escoto to advise him that he was back in California, staying at a hotel, and had a receipt "from the 13th to the 21st" for the hotel. Defendant also informed Officer Escoto that by request of his supervisor, he had placed himself on the calendar and had a court date for December 1, 2016. Officer Escoto responded that "it didn't matter at the moment because he already had issued the warrant for the revocation of [his] probation." When defendant asked Officer Escoto if he should come see him, Officer Escoto told him "No. Just go to court."
Following testimony, defense counsel argued that although defendant had not strictly complied with the conditions of his probation, he had made efforts, was trying to find new housing, and had been in contact with his probation officer. The prosecutor argued that defendant "is no stranger to the criminal justice system as referenced by his criminal history" and that defendant "decided on his own timeline over that of the probation officer's." The trial court concluded defendant violated the conditions of his probation by failing to cooperate with his probation officer and failing "to report as ordered." The court thereafter revoked defendant's probation and sentenced defendant to a total term of six years in state prison as follows: the upper term of three years for the vehicle theft conviction, plus one consecutive year for each of the three prior prison term enhancements. Defendant was awarded a total of 357 days presentence custody credits consisting of 179 actual days and 178 conduct days.
On January 30, 2017, defendant filed a timely notice of appeal.
III
DISCUSSION
A. Revocation of Probation
Defendant contends there was insufficient evidence to support the trial court's finding he willfully violated probation because the evidence shows his probation officer gave him 14 days to report to the probation office when his probation officer spoke to him on October 26, 2016, but only waited 13 days before filing a petition to revoke his probation on November 8, 2016. We disagree as it is undisputed defendant knew his probation officer wanted him to report by November 8, 2016, which he did not do.
Trial courts are afforded broad discretion in deciding whether to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 445 (Rodriguez).) The level of certainty required to support a probation revocation is less than that required to support a criminal conviction. Penal Code section 1203.2, subdivision (a), authorizes probation revocation "if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the [probationer] has violated any of the conditions of his or her supervision . . . ." The California Supreme Court has interpreted "reason to believe" under Penal Code section 1203.2, subdivision (a), to impose a "preponderance of the evidence" standard of proof. (Rodriguez, at p. 445.) A lower threshold is appropriate because " '[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special [probation] restrictions.' " (People v. Coleman (1975) 13 Cal.3d 867, 876, fn. 8.)
An appellate court will not disturb a decision to revoke a defendant's probation unless it finds the trial court abused its discretion. (People v. Kelly (2007) 154 Cal.App.4th 961, 965.) " '[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. . . .' " (Rodriguez, supra, 51 Cal.3d at p. 443.) "A trial court abuses its discretion by revoking probation if the probationer did not willfully violate the terms and conditions of probation." (People v. Galvan (2007) 155 Cal.App.4th 978, 983.)
"[W]here the trial court was required to resolve conflicting evidence [to determine whether a defendant violated the conditions of his probation], review on appeal is based on the substantial evidence test. Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.)
In this case, after the trial court heard the testimony of Officer Escoto and defendant, it found defendant in violation of the terms of his probation. As provided ante, defendant knew that he had to report back to his probation officer by November 8, 2016. He, however, failed to comply. Officer Escoto testified that on October 26, 2016, he advised defendant that he needed to find a new address in Nevada or report back in California within 14 days. On November 3, 2016, defendant called to complain about the timeline, and Officer Escoto informed defendant that he needed to report to the probation office in California by November 8, 2016. On November 8, 2016, Officer Escoto again spoke to defendant and informed him that the guidelines were established by interstate compact and that defendant needed to report by the end of the day or there would be a no-bail bench warrant issued for him. Defendant informed Officer Escoto, at that time, that "he was not going to return." Defendant did not report on November 8, 2016. Defendant indisputably knew that Officer Escoto expected him to report to probation by November 8, 2016, but willfully failed to do so.
Assuming, arguendo, defendant believed he had 14 days from October 26, 2016, to report to probation, defendant did not report on November 9, 2016. Defendant claims it would have been futile to report on November 9, because Officer Escoto stated on November 8, 2016, that a bench warrant had been issued that day. There is no evidence to support defendant's claim it would have been futile to report on November 9, 2016. Moreover, according to defendant's own testimony, all Officer Escoto said on November 8, 2016 was that "14 days was the allotted time that [he] had to return back to California," not that a bench warrant had been issued that day.
The record shows that defendant willingly failed to follow the reasonable reporting directive of his probation officer. Because defendant knew what he was doing, and intended to do what he was doing, his actions were willful. Therefore, we find the trial court properly revoked defendant's probation.
B. Custody Credits
Defendant also argues the trial court miscalculated his presentence custody credits and request this court to correct the error. Defendant claims he was entitled to 180 actual days in custody plus 180 conduct days, for a total of 360 days custody credits rather than 357 days. The People respond a remand is necessary to resolve a discrepancy in defendant's custody credits. We agree with the People.
When the trial court sentenced defendant, defense counsel indicated that defendant had "179 actual" days of custody credits. The trial court agreed and awarded defendant 179 days of actual days in custody credits, plus an additional 178 days of conduct credits pursuant to Penal Code section 4019. It appears the discrepancy stems from confusion over when defendant was arrested, whether on November 22 or November 23, 2016, and thus when he began accruing custody credits. The probation report indicates both dates.
Ordinarily, it would be a simple matter for this court to modify the sentence to reflect the appropriate presentence credits calculated from the time of a defendant's arrest to sentencing. However, because we cannot determine from the record whether defendant was arrested on November 22 or November 23, 2016, remand is necessary for the limited purpose of determining the presentence custody credits to which defendant is entitled. We thus remand for the trial court to verify and correct this discrepancy and calculate the custody credits.
IV
DISPOSITION
The matter is remanded for the trial court to verify defendant's confinement date and calculate custody credits accordingly, amend the abstract of judgment to reflect the calculation, and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. FIELDS
J.