Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 208140
Haerle, Acting P.J.
I. INTRODUCTION
After he had pled guilty in 2007 to one count of felony stalking while subject to a restraining order prohibiting that conduct (Pen. Code, § 646.9, subd. (b)), the trial court suspended sentencing appellant and placed him on three years probation. After the filing, and later withdrawal, of one petition to revoke that probation because of domestic violence directed at a girlfriend, a second such petition was filed, considered, and then granted by the court after a contested hearing. The court revoked appellant’s probation and sentenced him to a two-year low term for the offense to which he had previously pled guilty, with credit for time served. Appellant appeals, claiming that (1) the notice of the alleged probation violations was deficient and (2) there was insufficient evidence that he had violated the terms of probation. We disagree with both contentions and hence affirm.
All further statutory references are to the Penal Code, unless otherwise noted.
II. FACTUAL AND PROCEDURAL BACKGROUND
On August 20, 2007, appellant entered a plea of guilty to one count of violating section 646.9, subdivision (b). As part of a negotiated disposition, the remaining counts were dismissed. On September 18, 2007, imposition of a sentence on that count was suspended by the trial court which, instead, placed him on three years probation. The trial court issued a 10-year protective order ordering appellant to stay away from his ex-wife, her sister, and his teen-age daughter.
On July 23, 2008, a petition to revoke that probation was filed; it alleged that appellant had engaged in domestic violence directed at his live-in girlfriend, Jamee Newkirk five days earlier, i.e., on July 18, 2008 (hereafter, the July 2008 incident). The court issued a stay-away order as to Newkirk and her residence, and scheduled a hearing on the motion to revoke probation for September 16, 2008. However, due to the unavailability of the responding police officer at that hearing, the prosecution withdrew its petition, specifically “without prejudice,” and the court granted appellant’s counsel’s request to terminate the stay-away order.
However, on March 11, 2009, a second petition to revoke appellant’s probation was filed by the probation department; it alleged that he had committed domestic violence against Newkirk on March 6, and resisted the police investigation of that incident. The San Francisco District Attorney’s office filed a similar motion the following day. The court issued new stay-away orders as to Newkirk on both March 11 and 25, 2009.
A contested hearing was held on April 13, 2009. At that hearing, San Francisco Police Officer David Almaguer testified that, on March 6, 2009, he (and apparently a companion officer) were dispatched to Newkirk’s residence at 1492 36th Avenue in response to a 911 call reporting alleged domestic violence there. On their arrival, they found the front door open. They entered the residence and were met by Newkirk, who was just exiting the bathroom. She stated to the officers that she was the one who had made the 911 call, because appellant had repeatedly hit her on her head and body. Officer Almaguer testified that Newkirk did, indeed, have visible swelling on one of her ears and bruises on her left leg and hand. Newkirk told the officers that she had locked herself in the bathroom until appellant left the home—which he then shared with her—and the police had arrived. As appellant was not present, the officers left.
Two days later, on the afternoon of March 8, several other San Francisco police officers, including Officer Benny Lew, went to the 36th Avenue house where they observed appellant, recognized by them from a “mug shot,” in the “driveway area on his cell phone.” Shortly after these officers arrived on the scene, and after they had requested additional uniformed officers, appellant went inside the house. The officers did not know whether or not appellant had observed them before he entered the residence.
The officers followed appellant into the residence because, per the police computer, he was subject to a stay-away order as to both Newkirk and her residence. Appellant was standing by an upstairs window holding a metal pipe or stick. The officers repeatedly asked him to drop the stick and then lie on the floor, but he refused to do either. The officers then placed handcuffs on appellant, a process he resisted according to their testimony. After he was handcuffed and being transported to the police station, he told the officers that the earlier stay-away order as to Newkirk and her residence had been terminated.
Newkirk declined to testify at the April 13, 2009, hearing. However, the prosecution offered into evidence a tape recording and a “computer aided dispatch” (CAD) record of her July 18, 2008, 911 call, the call which had led to the prosecution’s earlier, i.e., July 2008, petition to revoke probation. Appellant’s counsel objected to the admission of the former on hearsay grounds but, after argument on the issue, the court admitted both into evidence.
Appellant opted not to present any evidence at the hearing.
At the conclusion of the April 13, 2009, hearing, the court found, by a preponderance of the evidence, that appellant had violated the terms and conditions of his probation, revoked that probation, and sentenced appellant to state prison for the low term of two years for the 2007 offense, less credit for time served.
Appellant filed a timely notice of appeal.
III. DISCUSSION
Appellant’s first argument is that the notice he received of the March 11 and 12, 2009, petitions to revoke his probation were defective because neither specifically advised him that one basis upon which the prosecution intended to urge that his probation be revoked was the July 2008 incident which led to the July 23, 2008, motion to revoke his probation. Relying on the principles laid down in People v. Vickers (1972) 8 Cal.3d 451, 457-458 (Vickers) and the later holdings in People v. Mosley (1988) 198 Cal.App.3d 1167, 1173 (Mosley) and In re Moss (1985) 175 Cal.App.3d 913, 929 (Moss), appellant contends: “[N]either the revocation motion submitted by the Probation Department on March 11, 2009 nor the motion to revoke probation filed by the District Attorney’s Office on March 12, 2009 provided written notice to appellant within the meaning of Penal Code section 1203.2, subdivision (b) that the prosecution was alleging that the incident of July 18, 2008 constituted a current basis on which the revocation of appellant’s probation was sought.”
The statute appellant relies upon, Penal Code section 1203.2, subdivision (b), provides in relevant part: “The court shall give notice of its motion, and the probation officer or the district attorney shall give notice of his or her petition to the probationer, his or her attorney of record, and the district attorney or the probation officer, as the case may be.” (Pen. Code, § 1203.2, subd. (b) (section 1203.2(b).)
Appellant argues that the probation department’s March 11, 2009, motion to revoke probation made “[n]o reference whatsoever... to any prior incident in July 2008” and that the motion filed by the District Attorney the following day, i.e., March 12, 2009, referenced the July 2008 incident “in the context of the probation officer’s expression of concern about the violence involved in the current offense. Clearly, the reference to the July 18, 2008 incident was not that it constituted a separate violation of the conditions of appellant’s probation but, rather, that it indicated that the alleged violence in the charged incident was not an isolated occurrence.”
We disagree because, among other reasons, appellant is placing entirely too narrow an interpretation on the statements in the two March 2009 petitions to revoke probation. The March 11 petition filed by the probation department specifically stated that there were “2” alleged incidents and that “Incident Report(s) [are] attached.” A few pages later, the same report recites: “This is the defendant’s second Motion to Revoke” and goes on the explain: “This is the second incident with the same victim. The first incident occurred on 7/18/08 in which the defendant threw the victim on the bed, struck her a couple of times on her head, and threw a leather ball at her chest.” Finally regarding the attachments to this motion, the San Francisco Police Department Narrative of the March 2009 incident also includes this sentence: “Victim reported that there had been one prior incident of domestic violence, on 07/18/08, which had been documented. (See SFPD incident report #080757005).”
Immediately preceding this description of the July 2008 incident, the report stated: “[T]he undersigned officer is concerned about the violence involved in the current offense.” However, that introductory sentence does not, in our view, detract at all from the specific reference to the July 2008 offense, quoted above.
Even more significantly, the March 12 motion of the district attorney’s office to revoke probation specifically recites that it is based on both “1) the forthcoming supplemental probation report, and 2) in San Francisco Police Department Report No. 90240084.” The latter report deals with, clearly, the March 2009 incident, but it is clear from the reporter’s transcript of the April 13 hearing that the court had before it the probation officer’s extensive “Supplemental Report” regarding the July 2008 incident. This is so because the court specifically stated: “But the supplemental report goes on at great length about the incident in July. Not only in the body of the supplemental report but even actually attached a police report.” It thus appears that this report was what was meant by the “forthcoming supplemental probation report” on the first page of the March 12 motion to revoke filed by the district attorney.
We therefore agree with the trial court that there was clearly adequate notice provided appellant regarding the fact that that incident would be at issue in the April 13 hearing.
Nothing in Vickers, Mosley or Moss is to the contrary. In Vickers, our Supreme Court simply laid down the rules applicable to probation revocation hearings, and made clear that there is both a state and federal constitutional right to, among other things, both a notice and a hearing before a final revocation of probation. In so holding, the court quoted the-then applicable version of section 1203.2(b), and implicitly held that compliance with the provisions of that statute, at least as far as the notice issue is concerned, satisfied those constitutional requirements. (Vickers, supra, 8 Cal.3d at pp. 455-460.)
The Vickers court held, however, that the then-applicable version of section 1203.2 did not satisfy all relevant constitutional requirements because, among other things, it did not mandate a hearing at which the probationer is allowed to be present and present evidence. (Vickers, supra, 8 Cal.3d at pp. 458-462.)
Subsequent to Vickers (and the subsequent amendments of section 1203.2 regarding, e.g., probation revocation hearings), two of our sister courts held, in Moss and Mosley, that the respective trial courts had erred in revoking probation because the mandates of the amended section 1203.2 had not been fulfilled. In Moss, it (1) was “undisputed that petitioner received no written notice of his probation violation,” (2) “there was no compliance with [section 1203.2 (b)], which requires a notice of [a] motion to revoke probation,” and (3) there was also no “formal revocation of probation hearing.” (Moss, supra, 175 Cal.App.3d at pp. 929, 930.)
In Mosley, the defendant was before the court for both a trial for alleged rape and for the revocation of probation because of (per the district attorney’s notice) the same alleged rape. But, after the jury acquitted the defendant of the rape charge, the court—at the urging of the district attorney—revoked the defendant’s probation on the ground that he had violated “a condition of his probation that he not consume any alcohol.” (Mosley, supra, 198 Cal.App.3d at p. 1172-1173.) Our colleagues in the Sixth District had no problem in reversing the revocation of probation on the constitutional grounds set forth in Vickers, i.e., a total lack of notice that such was a potential ground for revocation of probation.
As the Attorney General correctly argues in his brief to us, both of these cases are easily distinguishable. In the court below, there clearly was advance notice, sufficient under both constitutional standards and the requirements of section 1203.2(b), regarding the July 2008 incident to justify reliance on it as a basis for revocation of appellant’s probation.
But even if there had been a lack of notice regarding the intention to rely upon the July 2008 incident as one basis for the revocation of probation, there certainly was such notice regarding the March 2009 incident and, contrary to appellant’s second contention, the evidence adduced at the April 13 hearing regarding that incident was more than sufficient to justify the revocation of appellant’s probation.
First of all regarding that hearing, and as our Supreme Court has made clear several times, the relevant standard of review is whether the trial court abused its discretion in revoking probation, and it does not do so if the preponderance of the evidence is adduced to support the revocation. The trial court is accorded great flexibility in making this determination. (People v. Rodriquez (1990) 51 Cal.3d 437, 443, and cases cited therein; see also id. at p. 445.) On review of such an order on appeal, that standard is met if there is “sufficient evidence” on the record supporting the conclusion that the probationer did, in fact, commit acts inconsistent with his probationary conditions. (See People v. Maki (1985) 39 Cal.3d 707, 717; 3 Witkin, Cal. Criminal Law (3d ed. 2000) Punishment, §§ 577(2) & 586(1), and cases cited therein.)
There clearly was such here. At the April 13 hearing, the court received evidence from the officers who went to the 36th Avenue residence that appellant had refused the officers’ demands that he put down the pipe or stick he was holding and lay on the floor, and that he had also resisted being handcuffed. Thus, the obstruction allegation included in the police report both referenced in and attached to the District Attorney’s March 12, 2009, motion to revoke was clearly established.
And so was the domestic violence allegation, which was substantiated by the tape and the CAD of the 911 call made by Newkirk. Both were admitted into evidence by the trial court as “spontaneous utterances” as defined by Evidence Code section 1240, a ruling which, of course, is itself reviewed for abuse of discretion. (See People v. Phillips (2000) 22 Cal.4th 226, 236; People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1588.) Indeed, appellant’s counsel ultimately agreed that the CAD printout of that call was admissible because it was a “government record.”
In conclusion, the combination of the testimony regarding the substance of Newkirk’s March 2009 911 call and the CAD printout regarding that call clearly constitute “sufficient evidence” of acts of domestic violence having been committed by appellant on Newkirk.
IV. DISPOSITION
The judgment is affirmed.
We concur: Lambden, J., Richman, J.