Opinion
H030066
4-30-2007
THE PEOPLE, Plaintiff and Respondent, v. BRIAN KENNETH LARSEN, Defendant and Appellant.
NOT TO BE PUBLISHED
Defendant appeals from the superior courts postjudgment order revoking his probation. We will affirm the order.
FACTS
I. Defendants Underlying Convictions
In 2002, defendant was convicted of the sexual abuse of then 11-year-old K. C. and nine-year-old M. C., who are sisters. A jury found him guilty on six counts of sex offenses and acquitted him on a seventh. Neither the nature of the underlying crimes nor the statutes under which defendant was convicted are at issue in this appeal, and we need not set them forth in detail.
Over the district attorneys strong objections, the trial court placed defendant on probation under strict terms, warning him that the smallest lapse would result in his confinement in state prison. The court ordered, among other things, that defendant have no contact with either victim.
II. Facts and Findings Regarding Probation Revocation
On February 14, 2006, the trial court began a series of probation revocation hearings on allegations that defendant had contacted K. C., one of his victims. Defendant waived formal reading of the alleged violations. After discussing its concerns about the allegations, the trial court continued the proceedings to March 10 so that witnesses could be summoned and their testimony heard. The People told the court that it would be receiving a report on defendants alleged misconduct.
At the outset of the March 10, 2006 hearing, counsel for defendant said he had received the probation departments written petition that day and that defendant was "prepared to proceed." The petition recommended revocation and five years imprisonment. As relevant here, the petition accused defendant of violating Penal Code section 647.6, i.e., annoying or molesting a minor, by intentionally contacting and harassing one of his victims.
During the March 10, 2006 hearing, the superior court heard testimony from K. C., defendant, and other witnesses. It continued the proceedings to March 24.
On March 24, 2006, the final day of the hearings, the probation department formally filed the written petition furnished to defendant in time for the March 10 hearing.
A. Testimony at the Revocation Hearings
K. C. testified that beginning in September of 2005 defendant, driving a pickup truck, appeared five to 10 times in the parking lot of a 7-Eleven convenience store in her neighborhood. On two or three occasions defendant made eye contact with her. On one such occasion, "[h]e kept eye contact, and I tried not to look at him when he looked, he was looking." From the way defendant observed her, she believed that he knew who she was. The store was situated one to two blocks from K. C.s high school.
K. C. acquired a cellular telephone equipped with a camera around Christmas of 2005. Evidently it emboldened her to confront defendant and document his presence close to her school. On January 25, 2006, defendant was inside the 7-Eleven store at a time she was on the outside premises. She walked inside, photographed him, and called him a child molester. Evidently she then left the store but remained nearby. At some point she also photographed his pickup truck. Defendant emerged and hurled expletives at her.
As K. C. walked away from the store, defendant drove by her three times in his truck, executing two U-turns to make the second and third passes. On his second pass, defendant made an angry gesture toward her with the middle finger of his left hand. Frightened, K. C. ran to a nearby supermarket parking lot and found a police officer, to whom she complained.
In 2002 K. C. stood four feet ten or eleven inches tall and weighed 85 to 90 pounds, whereas now she stood five feet four inches tall and weighed 125 pounds.
Defendant testified that he was living in the neighborhood because he could not lawfully live outside Santa Clara County while on probation and the only landlord who would rent to him, given his sex-offender status, owned property in the vicinity of the 7-Eleven store. He would visit the store several times a day to obtain coffee, work from the front seat of his truck, and smoke, an activity his landlady forbade. He did not recognize the person who he testified heatedly called him a child molester inside the store on January 25, 2006, but the accusation panicked him and he left in a daze, not seeing his accuser walking down the street as he drove away. He did not make any U-turns. Even now he did not recognize K. C. in the courtroom as one of his victims, because her appearance had changed dramatically in the intervening years. If he had recognized K. C. at the 7-Eleven store, he would have left immediately.
Defendant mistakenly thought his victims no longer lived in their old neighborhood. His wife had told him that they had moved.
Defendant also testified that he had been wrongfully convicted and was not a child molester.
Defendants brother testified that it would be illegal to make a U-turn in one of the locations K. C. apparently identified, and that making U-turns on the street in question would also be a difficult maneuver given the wide turning radius of defendants pickup truck.
B. The Superior Courts Findings
The superior court judge presiding over the probation revocation hearing was the same judge who had presided at defendants trial. After hearing the testimony, the superior court stated:
"Defendants defense is that he did not recognize [K. C.], and, therefore, did not knowingly violate the conditions not to contact her. I find this hard to believe for a number of reasons, and one of them is the video today. [¶] I had seen [K. C.] at the trial, and I saw her again in the video and she looks very, very similar today. I would recognize her. . . . Obviously she has changed. But the relation between [K. C.] and the defendant from the time she was very small until the trial was more like father and daughter. He didnt just see her occasionally. . . . [¶] Now, if he had only seen her briefly on January 25th at the 7-[Eleven], maybe an argument would be made that he did not immediately realize who she was, but he had seen her there several times. He had looked at her. Even with sunglasses, someone can tell whether someone is looking in their direction or not. [¶] Every time he was sitting in his truck allegedly working on his computer and smoking his cigar, on several occasions [K. C.] was there. I do not believe that after seeing her there before on several times, he did not eventually realize who she was. [¶] What is further disturbing is that he had been ordered to stay away from children. Nevertheless, he keeps returning to the 7-[Eleven] which is so very near the high school where he knows kids from the high school are gathering after school. His defense is that he couldnt smoke anywhere else so he had to sit there. And why choose the 7-[Eleven] in a neighborhood where he knows [K. C.s] family lives, where he might run into her or her sister? . . . [Defendant] claims today that he thought they had moved away. And I know at the trial there was mention that they were going to move away, but it was never confirmed. He himself said the last time he heard about them moving away was at the trial, which was two and a half years ago. He never confirmed that [they] had actually left the area."
"The defendant argues that he couldnt move away because his terms of probation didnt allow him to move out of the county[,] which is correct, but it is a very large county. He could have lived on the east side. He could have lived on the south side. He could have lived in a number of neighborhoods with the permission of the probation department, a safe distance from the home and school of the victim. Why live in the very neighborhood where you should have known he might run into one of the victims?"
"I happen to know in this county we have a 7-[Eleven] at every corner. Why did he have to choose this 7-[Eleven] . . . so near the victims residence? The only reason I can see is because he noticed that she goes there after school, and he was watching her and he was getting angry."
"Now, theres an argument that he couldnt have made a legal U-turn. Of course, he couldnt have [made a] legal U-turn; that never stopped anyone. . . . Apparently his behavior was such that she was traumatized which was evident from the police officers testimony and her reaction while testifying about it at the hearing on March 10th. The only conclusion I can reach is that he knew she was the one who testified against him at trial. She was the one who convinced the jury to convict him. She was the one who has ruined his life, and now he finds out where she goes after school and he keeps watching her. Hes angry at her . . . ."
The superior court summarized its reasoning for revoking probation: "[It] was one of my main concerns at the time of sentencing that there be no contact with the victim. I made it . . . absolutely clear to him that even the smallest violation of probation[,] especially any contact with the victim[s,] would result in a prison sentence. [¶] . . . [¶] Now, of course, he has become a real danger to the victim, and, therefore, probation is revoked . . . . A state prison sentence is . . . appropriate . . . because defendant has demonstrated that he cannot comply with one of the most important conditions of probation, and that is [not] contacting the victim and intimidating and traumatizing her."
DISCUSSION
I. Sufficiency of Notice of Conduct Warranting Revocation of Probation
Defendant claims that he received inadequate notice of the probation-violation claims, which infringed on his right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution. We disagree.
"As a matter of due process, a defendant facing a formal traditional probation revocation hearing is entitled to written notice of the claimed violations, disclosure of the evidence against him, opportunity to be heard and to present evidence, the right to confront and cross-examine adverse witnesses (unless the hearing officer finds good cause for not allowing confrontation), a neutral and detached fact finder and a written statement of the evidence relied on and the reasons for revoking probation." (People v. Tanner (2005) 129 Cal.App.4th 223, 234.)
Defendant claims that he did not receive written notice of the claimed violations. He relies on an assertion that, as relevant to his appeal, the revocation petition alleged only that he had violated Penal Code section 647.6 (annoying or molesting a minor), without mentioning the basis on which the superior court revoked his probation, i.e., that he had made improper contact with K. C.
Defendant misreads the record. The probation report alleged that defendant intentionally contacted and harassed one of his victims at what defendant must have understood to be the 7-Eleven store. On the same page that the report alleged a violation of Penal Code section 647.6, it summarized defendants account of events. "The defendant said he has been going to that same store where the alleged incident took place on a regular basis for some time, and he has never seen the victims there. The defendant said on the day of the alleged incident, he saw a female, but did not recognize her." Two pages later the report alleged, "defendant has violated probation by annoying one of the victims of the underlying offense," and stated, "defendant adamantly denies ever harassing the victim or having any intentional contact with her."
Thus, defendants claim fails because it lacks an accurate factual predicate. The probation revocation report alleged the exact conduct—defendants encounter with K. C. at the 7-Eleven store—that precipitated the hearing and resulted in revoking his probation. At the outset of the March 10, 2006, hearing, defense counsel said it had read the report and defendant was ready to proceed. Because defendant received written notice, we reject his claim.
II. Validity of Superior Courts Findings Regarding Conduct on Probation
Defendant contends in effect that the record lacks substantial evidence to support the superior courts revocation of his probation. And he claims, as an additional legal consequence of the error (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 990, fn. 5; see id. at p. 1031; see also id. at pp. 997, 1000, 1024, 1029, 1055), a violation of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution.
Because defendant presents his due process claim as an additional legal consequence of the superior courts purportedly erroneous ruling, "rejection on the merits of a claim that the . . . court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional `gloss as well. No separate constitutional discussion is required in such cases, and we therefore provide none." (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 990, fn. 5.)
We believe it proper to review a superior courts ruling on a petition to modify or revoke probation under the deferential standard of substantial evidence. (See People v. Howard (1997) 16 Cal.4th 1081, 1086; People v. Arreola (1994) 7 Cal.4th 1144, 1161; People v. Jackson (2005) 134 Cal.App.4th 929, 935 [all implying a standard of substantial evidence]; Pen. Code, § 1203.2, subd. (a) [allowing the superior court to exercise "judgment" in the matter]; but see People v. Rodriguez (1990) 51 Cal.3d 437, 443 [standard of review of ruling revoking probation is abuse of discretion].) Generally, appellate courts review under the abuse-of-discretion standard such procedural or housekeeping matters as rulings on admission of evidence, continuances, shackling, and the like. It is, of course, a deferential standard of review. When instead an appellate court is examining a matter that has required the lower court to conduct a full contested hearing with sworn testimony in order to reach a substantive conclusion on a matter, review, if it is to be deferential, usually is undertaken for substantial evidence.
Under either standard, the superior courts ruling here must be sustained.
"[T]he issue at a probation revocation hearing," of course, "is whether probation has failed ` "as a rehabilitative device, as evidenced by the probationers failure to abide by the probation conditions." " (People v. Herrera (2006) 136 Cal.App.4th 1191, 1203-1204, original italics omitted; see Pen. Code, § 1203.2, subd. (a) ["the court may revoke . . . probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses"].)
Plainly, substantial evidence supported the superior courts ruling to revoke defendants probation and send him to prison. The court was confronted with conflicting versions of events. It found K. C.s testimony credible and did not believe defendant. K. C. testified in effect that defendant observed her intently on more than one occasion. Her description of defendants behavior allowed the superior court to conclude that defendant knew the person he was watching at the 7-Eleven store was one of his victims. Even leaving aside as possibly impermissibly speculative K. C.s testimony that she believed defendant knew who she was, the objective evidence of the location of her school and the 7-Eleven store and K. C.s testimony about defendants behavior sufficed to permit the court to conclude that defendant was contacting one of his victims. K. C. testified that defendant "kept eye contact" with her on one occasion. The terms of probation included a prohibition on contact with either of defendants victims. The courts ruling must be sustained on appeal.
DISPOSITION
The order revoking probation is affirmed.
We concur:
Bamattre-Manoukian, Acting P.J.
Mihara, J.