Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. SC-158539-A
Dondero, J.
Following a hearing defendant’s probation was revoked and the trial court executed a previously imposed sentence of five years eight months. In this appeal defendant seeks return of money seized from him upon his arrest, claims that the revocation of his probation was improper, and requests a stay of the eight-month term for his conviction of identity theft (Pen. Code, § 530.5, subd. (c)(2)). We find that defendant cannot obtain review of the denial of his motion for return of property on appeal, and conclude that the trial court did not err by revoking his probation and imposing a consecutive term for identity theft. We therefore affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The underlying convictions are based on offenses that were committed on consecutive days at the Bank of America in Corte Madera. On March 25, 2008, defendant entered the bank and fraudulently withdrew $4,200 from the account of the victim of the offenses, Frank Silva. To do so, he presented a driver’s license and credit card in Silva’s name to the bank teller. Later that day, the bank teller received notification from the victim’s bank that the withdrawal was fraudulent. The next morning defendant returned to the bank and sought to withdraw an additional $4,000 from Silva’s account. The bank teller recognized defendant, contacted the police, and defendant was arrested.
On May 12, 2009, defendant entered a guilty plea to two counts of commercial burglary (§ 459), one count of identity theft (§ 530.5, subd. (c)(2)), and one misdemeanor count of possession of a deceptive government document (§ 529.5, subd. (c)). He also admitted allegations of a prior conviction of identity theft (§ 530.5, subd. (c)(2)), ineligibility for probation absent unusual circumstances due to numerous prior convictions (§ 1203, subd. (e)(4)), and prior prison terms served (§ 667.5, subd. (b)).
Following the sentencing hearing the trial court found unusual circumstances, and imposed a sentence of five years four months, but suspended execution of the sentence and placed defendant on formal probation for five years upon standard terms and conditions, including a county jail term of 18 months. Defendant was also ordered to pay restitution to the victim in the amount of $4,200.
On February 1, 2010, the Marin County Probation Department filed a petition for revocation of defendant’s probation, which was amended on April 1, 2010. The petition as amended alleged that defendant violated his probation by failing to complete his treatment program, failing to report as required, and failing to refrain from use of controlled substances.
At the probation revocation hearing testimony was adduced from Angela Passalacqua, defendant’s probation officer in Marin County, who met with defendant on October 1, 2009, to respond to his questions “about his custody time” and “what he needed to do” following completion of his one-year residential treatment program at the Center Point facility. Passalacqua told defendant, who was then on parole, that he must report to her within 72 hours of release from his residential treatment program and parole, report any change of address, and complete his remaining six-month program of electronic monitoring or custody, as stated in the terms of probation he previously signed. Passalacqua also verbally reviewed the terms and conditions of defendant’s probation with him.
Defendant completed the “residential portion” of his treatment program on January 1, 2010. Thereafter, defendant never met with probation officer Passalacqua, never informed her of completion of his treatment programs, and never reported a change of address to her. Passalacqua was “unaware of his whereabouts.”
On January 11, 2010, defendant met with Contra Costa County Deputy Probation Officer Elisabeth Miller, who was assigned to defendant’s domestic violence case. Miller discussed with defendant the terms and conditions of his probation, the content of his restraining order, his fees and fines, and the nature of his drug treatment and batterer’s programs to be completed. Miller advised defendant to contact his parole and probation officers in Marin County. Miller also administered an immunoassay “drug test on him.” Defendant tested positive for opiates and cocaine. Defendant “at first denied” any drug use, then “admitted that he had smoked marijuana laced with cocaine.” Three days later, defendant again tested positive for cocaine, and admitted using cocaine the morning before his prior drug test. Defendant was then arrested and taken into custody.
The immunoassay test was done with a urine sample into which a “dip stick” was placed to detect drugs. The defense presented expert opinion testimony that the immunoassay test administered to defendant is “not conclusive [as] to the presence of any particular compound, ” but rather is a “general type of screening test which reacts to a class of compounds.”
Defendant did not test positive for marijuana.
At the conclusion of the probation revocation hearing, the trial court found that defendant failed to complete all aspects of his specified treatment program, failed to properly report to his probation officer, and tested positive for use of controlled substances. The court revoked defendant’s probation and imposed the previously stated sentence.
DISCUSSION
I. The Denial of Defendant’s Motion for Return of Property.
Defendant complains that the trial court erred by failing to grant his motion for return of his property, in the nature of $1,106 in cash, seized during a warrantless search conducted at the time of his arrest on March 26, 2008. Defendant first requested return of the seized funds in October of 2009, following his entry of a guilty plea and the imposition of sentence. The request was denied, and the district attorney was ordered to transfer the confiscated funds to a trust account pending an inquiry into defendant’s payment of restitution to the victim. Defendant renewed the motion for return of property on April 7, 2010, pursuant to section 1538.5, as the product of an “unreasonable” search, and on “nonstaturory” grounds. At the conclusion of the sentencing hearing following the revocation of defendant’s probation, the trial court denied the motion and ordered the seized funds returned to the crime victim – either Silva or the bank. Defendant argues that the presumption of his ownership of the $1,106 seized from his possession was “not overcome by any evidence” adduced by the prosecution, and therefore the property must be returned to him.
“A criminal defendant may move for return of property before trial on the ground the seizure was unreasonable. (§ 1538.5.) A defendant may also bring a nonstatutory motion for return of property seized by warrant or incident to arrest which was not introduced into evidence but remained in possession of the seizing officer.” (People v. Lamonte (1997) 53 Cal.App.4th 544, 549; see also Chavez v. Superior Court (2004) 123 Cal.App.4th 104, 107, fn. 2.) Due process principles require return of lawfully possessed property to the defendant. (See City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 387; Ensoniq Corp. v. Superior Court (1998) 65 Cal.App.4th 1537, 1547 (Ensoniq).)
Defendant cannot base a motion for return of property on section 1538.5. He did not file any motion in the trial court to suppress evidence or for return of property, nor did he offer any assertion of the unlawful seizure of the funds, until after he entered his guilty plea and sentence was imposed. “Section 1538.5(m) expressly provides that ‘[t]he proceedings provided for in this section, and Sections 871.5, 995, 1238, and 1466 shall constitute the sole and exclusive remedies prior to conviction to test the unreasonableness of a search or seizure where the person making the motion for the return of property or the suppression of evidence is a defendant in a criminal case and the property or thing has been offered or will be offered as evidence against him or her.’ ” (People v. Richardson (2007) 156 Cal.App.4th 574, 591–592; italics added.) “[R]eview of a suppression issue may be obtained if and only if at some point before conviction the defendant raised the issue.” (People v. Davis (2008) 168 Cal.App.4th 617, 629, italics added.) Thus, after his plea defendant was not entitled to pursue a motion for return of property pursuant to section 1538.5, either in the trial court or on appeal. (See People v. Richardson, supra, at p. 592.)
Treated as a nonstatutory motion for return of property, the ruling is not appealable. “Although the trial court has the inherent authority to entertain the motion for return of property seized under color of law, the right to appeal is wholly statutory and a judgment or order is not appealable unless it is expressly made so by statute. [Citation.] An order denying a motion for return of property – whether or not the property has been admitted as evidence in a criminal trial – is not among the matters for which an appeal is permitted under Penal Code section 1237. That section authorizes appeals from ‘any order made after judgment, affecting the substantial rights of the parties.’ ” (People v. Hopkins (2009) 171 Cal.App.4th 305, 308.) A nonstatutory motion for return of property “is not directed to the criminal action resulting in defendant’s conviction; and the order therein could not have affected any substantial right subject to that action.” (People v. Tuttle (1966) 242 Cal.App.2d 883, 885.) “A motion for return of property is a separate procedure from the criminal trial and is not reviewable on an appeal from an ultimate judgment of conviction. [Citation.] If the ‘separate proceeding’ of a motion for return is regarded as a criminal proceeding, for which the right to appeal is governed by Penal Code section 1237, an order denying the motion is nonappealable because such an order is not listed among any of the matters for which an appeal is authorized by Penal Code section 1237.” (People v. Hopkins, supra, at p. 308.) “The proper avenue of redress” for defendant was “through a petition for writ of mandate, not an appeal.” (Ibid.)
“Alternatively, the individual may seek return of his or her property in a civil action for recovery of property with an attendant right to appeal from any adverse civil judgment.” (People v. Hopkins, supra, 171 Cal.App.4th 305, 308.)
In any event, we would not find that defendant is entitled to the money seized from him, despite the undisputed rule “that ‘ “[t]he right to regain possession of one’s property is a substantial right....” [Citation.] Continued official retention of legal property with no further criminal action pending violates the owner’s due process rights. [Citation.]’ [Citation.]” (City of Garden Grove v. Superior Court, supra, 157 Cal.App.4th 355, 387.) “Section 1408 provides that a person who claims to be the owner of the allegedly stolen or embezzled property may apply to the magistrate for an order delivering the property to him, upon satisfactory proof of ownership. Section 1408 also requires that reasonable notice and an opportunity to be heard be given to the person from whom the property was seized.” (Ensoniq, supra, 65 Cal.App.4th 1537, 1547–1548.) “ ‘Penal Code section 1411 assumes that stolen property is not to be returned to the possession of the person from whom it was taken, even if that person was not charged with or convicted of any crime and even if a third party owner is not found.’ [Citation.]” (Id. at p. 1549.)
Here, defendant was charged with and admitted commission of crimes related to theft of money from the victim’s bank account on consecutive days. During the first burglary, defendant fraudulently obtained $4,200. When defendant was arrested during commission of the second burglary in the same bank the very next day after the first burglary occurred, he was found in possession of cash in the amount of $1,106. The most reasonable inference from the circumstances presented is that the great amount of money in defendant’s possession was obtained during the theft the day before. At the hearing, defendant did not present any evidence to suggest that the money was derived from a source other than the prior theft from the victim’s bank account. Further, the court properly applied the funds to the restitution order. Defendant has not offered satisfactory proof of his ownership of the property. The motion was properly denied.
II. The Revocation of Defendant’s Probation.
Next, defendant argues that the trial court erred by executing the previously imposed sentence rather than reinstating his probation on modified terms. Defendant maintains that his probation “violations – failure to report for fourteen days and two dirty tests – were ‘de minimus’ and should not trigger imposition of a five year, four month prison term.” Defendant adds that “[i]n today’s climate, ” he “should not be incarcerated, either because of the high cost of incarceration or because of the triviality of the triggering probation violation.”
“Penal Code section 1203.2, subdivision (a) authorizes a trial court to 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....’ ” (People v. Jackson (2005) 134 Cal.App.4th 929, 935; see also In re Eddie M. (2003) 31 Cal.4th 480, 487, 503–504; In re Alex U. (2007) 158 Cal.App.4th 259, 265.) “ ‘When the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period. [Citations.]’ [Citation.]” (People v. Johnson (1993) 20 Cal.App.4th 106, 110.) “ ‘[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.’ [Citation.] However, the 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; see also People v. O’Connell (2003) 107 Cal.App.4th 1062, 1066; People v. Zaring (1992) 8 Cal.App.4th 362, 379.) A willful violation requires “ ‘simply a purpose or willingness to commit the act..., ’ without regard to motive, intent to injure, or knowledge of the act’s prohibited character. [Citation.] The terms imply that the person knows what he is doing, intends to do what he is doing, and is a free agent. [Citation.] Stated another way, the term ‘willful’ requires only that the prohibited act occur intentionally.” (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438; see also People v. Valdez (2002) 27 Cal.4th 778, 787–788; People v. Atkins (2001) 25 Cal.4th 76, 85; People v. Lara (1996) 44 Cal.App.4th 102, 107.) The requirement of a knowing or willful violation does not additionally require proof of defendant’s awareness that his acts constituted a violation of the condition or was otherwise culpable in nature. (See People v. Valdez, supra, at pp. 787–788; People v. Ramsey (2000) 79 Cal.App.4th 621, 632.)
“ ‘As the language of section 1203.2 would suggest, the determination whether to... revoke probation is largely discretionary.’ [Citation.]” (People v. Galvan, supra, 155 Cal.App.4th 978, 981–982; see also People v. O’Connell, supra, 107 Cal.App.4th 1062, 1066.) Where, as here, “the trial court was required to resolve conflicting evidence, 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.) On appeal we must of course “view the facts in the light most favorable to the judgment, drawing all reasonable inferences in its support.” (People v. Cochran (2002) 103 Cal.App.4th 8, 13; see also People v. Bento (1998) 65 Cal.App.4th 179, 193; People v. Hayes (1992) 3 Cal.App.4th 1238, 1249–1250.)
While defendant’s probation violations did not amount to additional serious criminal acts, the evidence viewed in its entirety amply supports the trial court’s decision to revoke probation. “Probation may be revoked whenever the probationer has demonstrated to the trial court that he is unfit to be at large.” (People v. Pinon (1973) 35 Cal.App.3d 120, 123.) The current burglary offenses were hardly trivial, and defendant has exhibited a nearly unrelenting criminal history of 13 prior convictions and poor performance on previous grants of probation or parole over the course of many years. The trial court departed from the probation department’s recommendation by granting defendant probation in the first place, and indicated that any noncompliance with probation conditions, however slight, would trigger revocation. Almost immediately upon leaving his residential treatment program defendant violated probation by failing to complete his treatment, failing to properly report, and engaging in drug use. Defendant promptly returned to the same drug abuse that was mentioned as a primary reason for his chronic history of criminal behavior. This is not a case in which defendant demonstrated an ability to comply with probation conditions or conform his conduct to the law, even for a little while.
“The inquiry upon revocation of probation is not directed to the probationer’s guilt or innocence but to performance on probation, that is whether the probationer violated the conditions of probation and if so what does that action signify for future conduct. The focus is whether a probationer has shown he can conform his behavior within the parameters of the law.” (People v. Johnson (1993) 20 Cal.App.4th 106, 110–111.) Defendant demonstrated his unfitness to continue on probation. The trial court did not abuse its discretion by revoking his probationary status and executing the previously imposed state prison term. (People v. Budwiser (2006) 140 Cal.App.4th 105, 110.)
III. The Imposition of a Consecutive Sentence for Identity Theft.
Defendant also challenges the imposition of a consecutive sentence on the conviction for identity theft. He points out that commission of the commercial burglary offenses “necessarily required him to have false identity documents with him” when he entered the bank. Defendant claims that the commercial burglary and identity theft offenses were “committed with a single intent and objective, ” to appropriate money from the victim’s bank account. He therefore contends that the eight-month sentence for identity theft must be stayed under section 654.
“Section 654 provides in relevant part: ‘An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.’ (§ 654, subd. (a).)” (People v. Duff (2010) 50 Cal.4th 787, 795.) “ ‘Section 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute.’ [Citation.]” (People v. Hairston (2009) 174 Cal.App.4th 231, 240.) “ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citations.]” (People v. Alford (2010) 180 Cal.App.4th 1463, 1468.) “If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267–268.)
“ ‘A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.’ [Citation.]” (People v. Racy (2007) 148 Cal.App.4th 1327, 1336–1337.) “The factual finding that there was more than one objective must be supported by substantial evidence.” (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) “ ‘We review the court’s determination of [a defendant’s] “separate intents” for sufficient evidence in a light most favorable to the judgment, and presume in support of the court’s conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence. [Citation.]’ [Citation.]” (People v. Andra (2007) 156 Cal.App.4th 638, 640–641.)
The burglaries were committed on two separate days, whereas the theft of Silva’s identity was an ongoing act that may have encompassed a far greater time frame. The identity theft offense had the distinct objective of affording defendant the opportunity of committing multiple additional theft offenses apart from the two burglaries. The trial court’s determination that defendant acted with more than one intent and objective in committing the burglary and identity theft offenses is supported by substantial evidence.
Accordingly, the judgment is affirmed.
We concur: Marchiano, P.J., Margulies, J.