Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR 255138
Jenkins, J.
This is an appeal from an order extending probation after final judgment. Probation was initially imposed following the entry of a no contest plea by appellant Eric Jeffery Nelson to felony assault by means likely to produce great bodily injury with an enhancement for participation in a criminal street gang. The trial court subsequently revoked, modified, and reinstated appellant’s probation after finding he violated probation terms by knowingly associating with a gang member. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 13, 2008, an information was filed charging appellant with one count of assault with a deadly weapon by means likely to produce great bodily injury in violation of Penal Code, section 245, subdivision (a)(1) (count one), and a misdemeanor count of exhibiting a deadly weapon in violation of section 417, subdivision (a)(1) (count three). The prosecution alleged count one was committed for the benefit of a criminal street gang under section 186.22, subdivision (b)(1). Count three was allegedly committed for the benefit of a criminal street gang under section 186.22, subdivision (d), and pursuant to that section qualified as a misdemeanor punishable as a felony. Codefendant Anthony Martin Jimenez faced identical charges for his role in the incident.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
On August 12, 2008, appellant pleaded no contest to count one and admitted the offense was committed in connection with the Norteño criminal street gang. Pursuant to the stipulated disposition, the trial court sentenced appellant on September 8, 2008, to 180 days time served and placed him on probation for a period of three years. As conditions of his probation, appellant was required to register as a member of a criminal street gang and prohibited from associating with known members of a street gang. On October 28, 2008, appellant admitted violating the terms of his probation by failing to obey all laws, failing to not associate with gang members, failing to abstain from the use of alcohol, and failing to submit to a blood alcohol test. On November 24, 2008, the trial court modified appellant’s probation, imposing a 180-day sentence in county jail, and extended the probation term to five years.
On March 17, 2009, the prosecution filed a request to revoke appellant’s probation for associating with gang members and failing to obey all laws. Appellant contested the alleged probation violations. This request, which is the subject of this appeal, was based on the following facts.
On the morning of March 11 or 12, 2009, Sammy James Troyer was working for Express Personnel as a traffic controller on Elmira Road near Vacaville in Solano County. At midday, Troyer observed a silver Pontiac Grand Am twice cross the railroad tracks at his location. Troyer’s brother, Darren, warned him that the car was full of people who wanted to “jump” Troyer. By the time the Pontiac drove by the second time and stopped, Troyer had retreated towards his brother’s car. Three individuals exited the stopped Pontiac, and two ran towards Troyer. Troyer locked himself in his brother’s car and drove away. Troyer identified the three individuals who exited the Pontiac to investigating officers as “Fat Rob, ” “Chango, ” and appellant.
As will be discussed at length, the exact date of this incident is in question.
The next day, Troyer saw the same silver Pontiac approach and stop at his worksite on Hawkins Road at approximately 12:00 p.m. Troyer initially identified Fat Rob and appellant as passengers in the car. Fat Rob got out of the car and yelled that Troyer’s “ time is up, ” and “come get your teeth kicked in.” Fat Rob also yelled “BSL, ” and according to Troyer’s statement to the investigating officer, yelled “this is Norte life” and “Brown Street.” Fat Rob said he was going to wait for Troyer until he got off work. Fat Rob eventually left the worksite, and Troyer’s employer allowed him to leave work early. On March 13, 2009, Troyer identified photos for investigating officers of Fat Rob and appellant that placed them at the scene of the two incidents. Appellant was taken into custody the next day, March 14, 2009, for violating the terms of his probation.
At appellant’s probation revocation hearing, Detective Douglas Grundy of the Solano County Sheriff’s Department, testifying as a gang expert, identified “Fat Rob” as Robert Edwards. Edwards had previously self-admitted to Detective Grundy during a jail classification interview that he was a member of the Norteño criminal street gang from the City of Vacaville. Detective Grundy further identified Edwards as a member of the Brown Street Locos (BSL), or 200 Block Boys “set, ” of the Norteños based on Edwards’ self-admission and a “200 Block” tattoo on his forearm. Troyer had told investigating officers that Fat Rob was wearing a red hat and red undershirt on the day of the first incident. Detective Grundy testified that the red clothing was indicative of Edwards’ gang membership. Edwards’ yelling during the second incident that “this is Norte life, ” and “Brown Street, ” were described by Detective Grundy as referring to the Norteño lifestyle and the Brown Street Locos set.
During the course of the hearing, inconsistencies arose regarding the dates and times the incidents took place. According to a sheriff’s report prepared on March 14, 2009, which was discussed at the hearing but not introduced into evidence, Troyer told the interviewing officer that the dates of the two incidents were March 11 and March 12, 2009. However, during testimony, Troyer stated that the first incident occurred on March 12, and the second on March 13. When confronted with this inconsistency at the hearing, Troyer maintained he had his days mixed up and the first incident took place on March 12, and the second on March 13.
During testimony, Troyer initially agreed with the prosecutor that the first incident took place at 11:00 p.m. However, a review of the record suggests that Troyer simply misspoke. With the exception of this one anomaly, Troyer consistently maintained that both incidents took place at midday.
While testifying, Troyer repeatedly identified appellant as having been present at the first incident. Troyer stated that appellant got out of the car during the first incident, and that a “couple people” ran towards him, but that he did not personally see appellant run towards him because his back was turned as he retreated to his brother’s car. However, in contrast with his statement to the sheriff’s deputy, Troyer testified at the hearing that he was uncertain whether appellant was in the car during the second incident.
The defense also attempted to impeach Troyer’s credibility, challenging his reliability as a convicted felon and gang member, questioning his ability to identify appellant during the brief period he was chased by Fat Rob, and raising doubts whether Troyer’s description of appellant matched his actual appearance at the time of the incidents.
Appellant called his parents, Rose Aispuro-Crowhurst and Jeff Nelson, to provide testimony regarding his whereabouts on March 11, 12, 13, and 14. Aispuro-Crowhurst accounted for appellant’s whereabouts on March 11 from 11:00 a.m. to 2:00 p.m., stating that he was at her home doing yard work during that time. She also testified to being with appellant from 11:00 a.m. to 6:00 p.m. on March 12. Jeff Nelson testified that he was with his son from approximately 8:15 a.m. to 2:00 p.m. on March 13 in a effort to find appellant work. On March 14, Jeff Nelson picked up appellant at 9:00 a.m. and arranged to meet with a sheriff’s deputy after being informed that the police were looking for his son. Appellant was then taken into custody.
When Troyer was recalled to testify after appellant’s parents testified, he stated he was unsure of the date on which the first incident took place, but ultimately stood by his original belief that the first incident occurred March 11 around noon. Troyer also indicated that the second incident was on the following day, March 12, at approximately 12:00 p.m. or 1:00 p.m.
When testimony was completed, the court took notice of Troyer’s confusion regarding the dates the incidents took place. Concerned that appellant may not have been given fair notice of the alleged date of the violations, and that his due process rights may thus have been violated, the court requested appellant’s counsel brief the court on the issue and continued the hearing until May 27, 2009.
On May 27, the court found no due process violation, and that appellant had violated his probation by knowingly associating with a gang member, Robert Edwards, on or about March 11, 2009. However, the court ruled that it had not been proven by a preponderance of the evidence that appellant was present at the second incident, and therefore no probation violation was associated with it.
On June 29, 2009, appellant’s probation was revoked, modified, and reinstated. Appellant was sentenced to one year in county jail, and his probation was extended by another three years, for a total of eight years through September 8, 2016. On July 28, 2009, appellant timely appealed the judgment.
DISCUSSION
Appellant seeks reversal of the order extending the term of his probation on two grounds. First, appellant claims his due process rights were violated by a lack of sufficient notice regarding the date of his alleged probation violations. Second, appellant claims the prosecution failed to establish by a preponderance of the evidence that he violated his probation by knowingly associating with a gang member. We consider each claim below.
I. Appellant’s Due Process Rights Were Protected.
A court may revoke probation “if the interests of justice so require and the court, in its judgment, has reason to believe... the person has violated any of the conditions of his or her probation.” (§ 1203.2, subd. (a).)
The United States Supreme Court established minimum due process standards for parole revocation hearings under the Fourteenth Amendment to the United States Constitution in Morrissey v. Brewer (1972) 408 U.S. 471 (Morrissey). The California Supreme Court, following Morrissey, found no substantial distinction between parole revocation hearings and probation revocation hearings with respect to an offender’s due process rights. (People v. Vickers (1972) 8 Cal.3d 451, 458). As such, probationers’ due process rights in probation revocation hearings, like parole revocation hearings, include: (1) written notice of the claimed violations of probation; (2) disclosure to the probationer of evidence against him; (3) an opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a “neutral and detached” hearing; and (6) a written statement by the fact finder as to the evidence relied on and reasons for revoking probation. (Jones v. Superior Court (2004) 115 Cal.App.4th 48, 61-62, citing Morrissey v. Brewer, supra, 408 U.S. 471, at p. 489; see also People v. Vickers, supra, 8 Cal.3d at pp. 458, 460-462.)
The United States Supreme Court has since reaffirmed these procedural protections for probation revocations, while noting, as has the California Supreme Court, that a probation hearing “does not require the full panoply of procedural safeguards” as does a criminal trial. (Black v. Romano (1985) 471 U.S. 606, 613; People v.Vickers, supra, 8 Cal.3d at p. 458, fn. 7.)
However, “[w]hile revocation can be had only with due process protections, the precise nature of the proceedings need not be identical as long as they assure ‘equivalent due process safeguards.’ ” (People v. Felix (1986) 178 Cal.App.3d 1168, 1172; quoting People v. Vickers, supra, 8 Cal.3d at p. 458.)
For example, the California Supreme Court in Vickers has held that “a probationer is entitled to the representation of retained or appointed counsel at formal proceedings for the revocation of probation, or following such summary revocation in appropriate cases.” (Vickers, supra, 8 Cal.3d at pp. 461-462, fn omitted.)
Here, appellant claims his due process rights were violated during the probation revocation proceedings because the written notice of his alleged probation violations was inadequate. Appellant specifically points to inconsistencies between the dates of his alleged violations in the information and those testified to at the probation revocation hearing. As a result, appellant argues, his alibi defense was prejudiced because he was unable to fully investigate and offer exculpatory evidence regarding his whereabouts on the dates in question.
As appellant acknowledges, the precise time at which an offense or probation violation was committed need not be stated in the accusatory pleading except where the time is a material ingredient of the offense. (§ 955.) The trial court, relying on People v. Fortanel (1990) 222 Cal.App.3d 1641, remarked that “inexact pleadings do not in and of itself constitute a due process violation unless the time that’s specified is a material element of the crime.” Further, a notice of revocation based on information in a police report meets the written notice requirement of Morrissey and Vickers. (People v. Santellanes (1989) 216 Cal.App.3d 998, 1002-1003, fn. 4.)
As the record before us demonstrates, before the probation revocation hearing in this case was held, appellant was served with a Request to Calendar for Revocation of Probation, which referenced a Solano County sheriff’s report dated March 14, 2009. This sheriff’s report, sometimes referred to as the “police report” in the record, was available to appellant and his counsel before the revocation hearing. This report stated that appellant’s alleged probation violations occurred on March 11 and March 12, 2009. Subsequently, at the hearing, Troyer, the victim in this case, testified that he was uncertain of the exact dates of the two incidents during which appellant allegedly violated the terms of his probation, but that he knew they occurred on either March 11 and 12, or March 12 and 13, 2009, and that both incidents occurred around midday.
Appellant disputes that this information in the sheriff’s report and revealed at the hearing provided sufficient notice of his alleged probation violations, insisting “if the defense is alibi... the exact time of commission becomes critically relevant to the maintenance of the defense.” (People v. Barney (1983) 143 Cal.App.3d. 490, 497.) For the reasons that follow, we disagree.
As described above, Troyer limited the timing of the two incidents wherein appellant allegedly violated probation to two sets of dates (March 11 and 12 or March 12 and 13) and one time of day (midday). The defense took full advantage of its opportunity to impeach Troyer’s credibility based on this evidence, confronting him with his inconsistent statements regarding these dates, challenging his credibility as a convicted felon, and questioning his ability to identify appellant during such a brief interaction. Thereafter, appellant had an opportunity to prove he was elsewhere during the alleged time of these two incidents. Appellant called both of his parents as alibi witnesses, each of whom testified that he was in the company of one or the other during the midday period on March 11, 12, and 13, and thus could not have been present for either incident.
Following this testimony, the trial court took note of Troyer’s confusion over the exact dates, and ordered supplemental briefing regarding whether appellant’s due process rights had been violated. Ultimately, the trial court ruled that his rights were in fact protected, and accepted Troyer’s testimony with respect to appellant’s presence on March 11, 12 or 13 over that of appellant’s parents. In doing so, the trial court acted appropriately, considering the exculpatory evidence presented by appellant yet finding it wanting.
This record demonstrates, we believe, that although there was some confusion as to the exact dates of the two incidents involving appellant and Troyer, appellant nonetheless received the notice to which he was entitled with respect to the alleged probation violations. Most significantly, appellant had ample opportunity to address Troyer’s confusion with respect to the dates during cross-examination, as well as to otherwise investigate and prepare an alibi defense for those dates. As such, his due process rights were protected and the fundamental fairness of the proceedings preserved. The law required nothing more. (People v. Vickers, supra., 8 Cal.3d at p. 458. Cf. People v. Mosley (1988) 198 Cal.App.3d 1167, 1174 [defendant denied due process because he had “no opportunity to prepare and defend against [revocation] allegation”].)
Appellant’s authority, People v. Barney, supra, 143 Cal.App.3d490, does not require a contrary holding. There, the court held that the “defendant is entitled as a matter of due process to have the time of commission of the offense fixed in order to demonstrate he was elsewhere or otherwise disenabled from its commission.” Thus, applying this principle to the facts of that case, the court concluded it was error to instruct the jury that the offense occurred “on or about” February 8, when the People’s evidence fixed the commission of the offense to either Saturday, February 7, or Sunday, February 8, to the exclusion of any other time. (Id. at pp. 497-498.) Here, to the contrary, the evidence fixed the time of appellant’s commission of the alleged probation violations to either March 11 and 12, or March 12 and 13. Appellant’s ability to investigate and present an alibi defense for these dates was not obstructed. He could and did present evidence to the trial court, the ultimate finder of fact, regarding his whereabouts on all three of these dates in question. There was no jury instruction. Accordingly, People v. Barney is inapposite. (See also People v. Fortanel (1990) 222 Cal.App.3d 1641, 1644-1645 [when addressing whether the defendant’s ability to raise an alibi defense was impaired by inexact pleading, the reviewing court concluded that “it is unreasonable to require the pleading or proof of a specific day, even when defendant raises an alibi defense”].)
II. A Preponderance of Evidence Demonstrates Appellant Violated Probation.
Appellant’s second claim is that the evidence before the trial court was insufficient to support the finding that he knowingly associated with a gang member in violation of the terms of his probation. The California Supreme Court has held that the standard of proof for probation revocation is a preponderance of the evidence. (People v. Rodriquez (1990) 51 Cal.3d. 437, 447.) “The constitutionality of proof by a preponderance of the evidence of the facts supporting probation revocation derives from the fact that ‘[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... restrictions.’ ” [Citations] (Id. at p. 442.)
“[W]here the trial court was required to resolve conflicting evidence, review on appeal is based on the substantial evidence test.... [R]eview 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, citing Bowers v. Bernards (1984) 150 Cal.App.3d 870; Denham v. Superior Court (1970) 2 Cal.3d. 557, 564, fns. omitted.)
Here, Troyer consistently testified before the trial court that appellant was with “Fat Rob” during the first incident on March 11 or 12, when three individuals exited a silver Pontiac at Troyer’s work site and “a couple people” ran towards him. Indeed, when his identification of appellant was challenged by the defense, Troyer responded: “Yeah. I had a very good look, yes.” The trial court accepted this testimony, finding that “Mr. Troyer clearly observed somebody that [he] was easily able to identify as Mr. Nelson, with somebody who he easily identified as Robert Edwards [also known as “Fat Rob”].” Given that the trial court’s finding in this regard was neither arbitrary, capricious nor irrational, it must stand on appeal. (People v. Stewart (2000) 77 Cal.App.4th 785, 790 [“the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact”]; People v. Zaring (1992) 8 Cal.App.4th 362, 378.)
As discussed above, the defense presented appellant’s parents as alibi witnesses, who testified that they were with their son at midday on March 11, 12, and 13, and thus that he could not have participated in the incidents in question. However, the trial court did not accept this testimony, a ruling that we will not disturb on appeal. (E.g., People v. Kurey, supra, 88 Cal.App.4th at p. 848.)
Further, there was also testimony presented below that Robert Edwards, also known as “Fat Rob, ” with whom appellant was associating during the first incident on March 11 or 12, was a gang member. Specifically, Fat Rob was identified at the hearing by a gang expert from the Solano County Sherriff’s Department as a self-admitted member of the Norteños and, more specifically, the “Brown Street Locos” or “BSL” set. This expert also testified that the statements allegedly directed at Troyer by Fat Rob during the second incident on March 12 or 13 ─ “this is Norte life” and “Brown Street” ─ referred to the Norteño lifestyle and the Brown Street Locos set. The expert identified the red clothing worn by Fat Rob in appellant’s presence during the first incident as indicative of gang membership.
In challenging this evidence as insufficient to prove a probation violation, appellant points out that the trial court made a misstatement of fact on the record when finding that he had knowingly associated with a gang member. Specifically, the trial court found that the evidence was sufficient to prove appellant was present with Fat Rob during the first alleged incident at Troyer’s work site on March 11 or 12, at which time, the trial court noted, Fat Rob “yelled gang related messages.” However, Troyer testified at the hearing that neither appellant nor Fat Rob spoke during the first alleged incident, but that Fat Rob yelled gang-related messages to him during the second alleged incident on March 12 or 13. The trial court previously found the evidence insufficient to prove appellant was present during the second alleged incident, and thus that no violation of probation occurred at that time.
It appears the trial court may have conflated the two incidents.
While acknowledging the trial court’s confusion regarding when Fat Rob yelled the gang-related messages, we nonetheless reject appellant’s challenge. In particular, there is ample evidence in the record, aside from those messages, that appellant knew during the first incident on March 11 or 12 that he was associating with Fat Rob, a self-admitted member of the Brown Street Locos, a set of the Norteño street gang.
For example, as part of his no contest plea to the underlying assault charge, appellant admitted the offense was committed in connection with his membership in the Norteños gang, the Brown Street Locos set, and was thus ordered by the court to register as a gang member. Further, when appellant committed another probation violation just three months before the violation before us, he admitted to associating with yet another self-admitted Norteño gang member. And during this most recent incident, the record proved appellant acted in concert with Fat Rob, a fellow Norteño, in exiting the silver Pontiac with Fat Rob and another individual, at which time at least two of the three individuals ran towards Troyer. While appellant may not have been present with Fat Rob the next day, when Fat Rob exited the same vehicle and yelled gang-related messages at Troyer, the similarities of these incidents suggest both were part of a common gang-related plan.
Thus, given the long record of appellant’s continued association with the Norteños, we have no doubt the trial court acted within the scope of its discretion in finding by a preponderance of the evidence that he knowingly associated with a fellow Norteño member, Fat Rob, when confronting Troyer at his work site on March 11 or 12. As such, the trial court’s decision that appellant violated the terms of his probation on March 11 or 12 is affirmed. (E.g., People v. O’Shell (2009) 172 Cal.App.4th 1296, 1309 [a correct ruling by the trial court must be affirmed on any ground supported by the record].)
DISPOSITION
The judgment is affirmed.
We concur: Pollak, Acting P. J., Siggins, J.