Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA27733, Michael A. Knish, Temporary Judge.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Donald W. Ostertag and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant was sentenced to state prison for five years, pursuant to a plea bargain, upon revocation of his probation for violating a gang condition. He challenges (1) the admission of hearsay evidence at the contested hearing (ref. People v. Vickers (1972) 8 Cal.3d 451 [Vickers hearing]), (2) the sufficiency of the evidence to support the finding he violated one of the gang conditions, and (3) the ineffectiveness of his trial counsel for failing to object to the admission of the hearsay evidence.
1. Background
Defendant was charged by way of information with one count alleging robbery. (Pen. Code, § 211.) It was further alleged that in the commission of the offense, he personally used a firearm (Pen. Code, § 12022.5, subd. (a)), and that the offense was committed for the benefit of a criminal street gang. (Pen.Code, § 186.22, subd. (b)(1)(A).) On November 28, 2006, defendant pled guilty to the robbery in return for a promise that he would receive a five-year sentence, with execution suspended, and would be placed on probation with gang conditions, as well as serve 365 days in local custody. The prosecutor also agreed to dismiss all the enhancement allegations.
Defendant was charged along with a second defendant, Leon Martin, who is not a party to this appeal. The facts of the underlying offense are not relevant to the issues in the appeal, so we omit them.
Pursuant to the plea agreement, the court sentenced defendant to five years in state prison, and suspended execution of the sentence pursuant to the plea agreement. He was placed on supervised probation for three years, with conditions of probation that included gang conditions. Specifically, defendant was ordered to cooperate with the probation officer in a plan of rehabilitation and follow all reasonable directives of the probation officer (probation term No. 4), and that he not wear, display or have in his possession any item associated with gang dress or any items prohibited by the probation officer, including, but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandanna, or any article of clothing, hand sign or paraphernalia associated with membership or affiliation in any gang. (Probation term No. 28.)
On April 10, 2007, sheriff’s deputy Jesse Duran went to defendant’s listed address because he recently noticed gang graffiti appearing at that address. The deputy noticed a large amount of graffiti related to the Lynwood Dukes gang from Los Angeles on the property, including the areas along the front curb of the house, on the fence in front of the house, and on trash cans belonging to the house, and knew gang members lived at that address. The deputy approached the house, but two women who lived there (defendant’s mother and sister) refused to permit him to enter.
The deputy returned two days later and contacted the same two women. On this occasion, they permitted him to enter the house, where he noticed more graffiti associated with the Lynwood Dukes gang in every room of the house, on the walls, on books, and on other items throughout the residence. Defendant’s mother informed the deputy that defendant lived at the house and that he slept on the couch in the living room. On the wall above the couch where defendant slept, the word “Lynwood” was written. All the graffiti in the house, as well as the graffiti outside the house, was from the same gang. The deputy was of the opinion that someone who lived at that residence was not trying to disassociate himself from a gang.
A petition to revoke probation was filed on April 16, 2007, alleging that defendant had violated probation term Nos. 4 and 28. Following a contested Vickers hearing, the trial court found defendant had violated probation term No. 28. The court revoked his probation and imposed the previously suspended five-year prison term. Defendant appeals from the revocation of probation.
2. Discussion
Defendant contends: (1) the trial court improperly admitted hearsay testimony at his probation revocation hearing; (2) his trial counsel was ineffective for failing to object to the testimony, and thus preserve the issue for appeal; and (3) the lower court abused its discretion in revoking his probation because there was insufficient evidence he violated probation term No. 28.
1. Use of Reliable Hearsay at a Probation Revocation Hearing Did Not Violate Defendant’s Due Process Rights.
Defendant argues his due process rights were violated because his probation was revoked on the basis of Officer Duran’s hearsay testimony. The only hearsay complained of—for the first time on appeal—related to statements attributed to defendant’s mother regarding where defendant slept in the residence. Defendant acknowledges he failed to preserve this issue for appeal by failing to interpose a timely objection. A defendant’s failure to object forfeits his claim on appeal that the evidence was improperly admitted. (People v. Geier (2007) 41 Cal.4th 555, 611.)
Failure to object to the hearsay also forfeits any companion claim that the revocation of his probation was based on inadmissible hearsay in violation of his right to due process of law. This argument relies heavily on two decisions, People v. Shepherd (2007) 151 Cal.App.4th 1193, and People v. Arreola (1994) 7 Cal.4th 1144. Neither decision is dispositive because in each case there was a timely objection to preserve the claim. (Shepherd, supra, at p.1197; Arreola, supra, at p. 1150.) Even when framed as a due process claim, the claim may be forfeited by a failure to object. (People v. Geier, supra, 41 Cal.4th at pp. 610-611.)
Even if an objection had been made, a different result is not likely. The right of confrontation is not absolute in probation revocation proceedings, so hearsay documents and other types of reliable hearsay may be admitted at probation revocation hearings. (See People v. Abrams (2007) 158 Cal.App.4th 396, 404; see also People v. Brown (1989) 215 Cal.App.3d 452, 454-455.)
2. Trial Counsel Was Not Ineffective for Failing To Object to the Hearsay Evidence Because Relaxed Rules of Evidence Apply to Such Proceedings.
Recognizing that the lack of objection would preclude review, defendant argues in the alternative that counsel rendered ineffective assistance of counsel by failing to object to the deputy’s testimony of defendant’s mother’s statements. We find no constitutional violation.
A claim of ineffective assistance of counsel based on a failure to object cannot succeed unless the petitioner shows that the failure to object fell “below an objective standard of reasonableness . . . [¶] . . . under prevailing professional norms.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [104 S.Ct. 2052, 80 L.Ed.2d 674].) Attorneys often choose not to object for reasons that have no bearing on their competence as counsel. (In re Seaton (2004) 34 Cal.4th 193, 200.) There is a presumption the challenged action was the product of a sound trial strategy. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007-1008.)
Thus, failure to object rarely constitutes constitutionally ineffective legal representation. (People v. Boyette (2002) 29 Cal.4th 381, 424.) Where the record sheds no light on why counsel acted or failed to act in a manner challenged, a claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Lopez (2008) 42 Cal.4th 960, 966; see also, People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; People v. Gray (2005) 37 Cal.4th 168, 207.)
Here, counsel was not asked to explain why he did not object to the hearsay relating to defendant’s mother’s statements. There are several valid tactical reasons for not objecting to the hearsay, which was limited to indicating the area of the house in which defendant slept. For example, probation term No. 7 required defendant to keep the probation officer informed of his place of residence and to give written notice of any changes within 24 hours. Any argument that defendant was not living with his mother would have formed the basis for an additional violation of the conditions of defendant’s probation. This may explain trial counsel’s tactical decision to allow the information to be admitted. The presumption that counsel elected to allow the evidence to come in for a valid tactical reason has not been rebutted.
As to the second prong of Strickland, no prejudice can be found from the lack of an objection because even if an objection had been made, the testimony would have been admissible under the relaxed rules of evidence applicable in probation revocation hearings. (Jones v. Superior Court (2004) 115 Cal.App.4th 48, 60.) So long as hearsay testimony bears a substantial degree of trustworthiness it may legitimately be used at a probation revocation proceeding. (People v. Brown (1989) 215 Cal.App.3d 452, 454.) Defendant has neither asserted nor shown that his mother’s statement about where he slept was unreliable, and the balance of the deputy’s testimony was based on his own direct observations. Given the pervasiveness of the graffiti and the gang paraphernalia in the house, independent of the mother’s statements to the deputy, there could be no finding of prejudice from counsel’s failure to object. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1325.)
3. The Court Did Not Abuse Its Discretion Finding Defendant Violated Probation.
Defendant argues there was no substantial evidence to support the trial court’s finding that he had violated probation term No. 28 of his probation conditions. He argues: (1) there was no proof he lived at the residence; (2) there was no evidence he owned the house, or any items in the house or any items outside the house; (3) the gang probation condition was limited to gang dress or clothing, and that sleeping near graffiti does not constitute a violation; (4) he was not prohibited from sleeping in the residence nor ordered to remove the graffiti; (5) the prosecutor incorrectly described the condition as forbidding defendant from possessing any items having to do with gang affiliation; and, (6) if the condition encompassed a prohibition against residing in a home where gang-related graffiti was on the walls, the condition is unconstitutionally vague.
We disagree. In pertinent part, Penal Code section 1203.2, subdivision (a), provides “the court may revoke and terminate such 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.”
The court has broad discretion in determining whether a probationer has violated probation (People v. Rodriguez (1990) 51 Cal.3d 437, 443), and may revoke probation if it has reason to believe that the person has violated any of the probation conditions. (People v. Monette (1994) 25 Cal.App.4th 1572, 1575.) The defendant bears the burden of demonstrating on appeal that the trial court abused its discretion in revoking probation. (People v. Self (1991) 233 Cal.App.3d 414, 417.) This standard is deferential; it asks in substance whether the ruling in question falls outside the bounds of reason under the applicable law and the relevant facts. (People v. Williams (1998) 17 Cal.4th 148, 162.) Only in an extreme case will we interfere with the discretion of the trial court in the matter of revoking probation. (People v. Rodriguez, supra, at p. 443.)
First, there was proof defendant lived at the address. Prior to the making of the order granting probation, defendant informed the probation officer he intended to live with his mother. Probation term No. 7 of his probation conditions required defendant to keep the probation officer informed of his residence and notify probation within 24 hours of any change. Sheriff’s deputy Duran testified at the hearing, in response to defense counsel’s question, that the address was listed as defendant’s residence on probation. There was adequate proof defendant lived at the address.
Second, ownership of the residence is not required to establish dominion and control over the area, nor is ownership of the residence required to prove defendant displayed gang insignias, emblems or paraphernalia within the residence. Possession may be constructive, such as when the defendant has a right to control the contraband or has dominion and control over the place where it is found, even if his or her right to exercise dominion and control over the place is shared with others. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.)
Third, the gang condition in question was not limited to gang clothing, contrary to defendant’s interpretation. The condition prohibited “wear[ing], display[ing], or hav[ing] in [his] possession any item associated with gang dress or any item prohibited by the probation officer [¶] including but not limited to any insignia, emblem, button, badge, cap hat, [sic] scarf, bandanna or any article of clothing, hand sign or paraphernalia [¶] associated with membership or affiliation in any gang.” (Italics added.)
A violation of this condition is not limited to proof that defendant possessed the graffiti, or to gang dress, as suggested by defendant. The disjunctive “or” as used in the condition gives rise to an interpretation that the condition covered several separate prohibitions: wearing, displaying or possessing (1) any item associated with gang dress; (2) any item prohibited by the probation officer including but not limited to any insignia, emblem, button, badge, cap hat scarf, bandanna; or (3) any article of clothing, hand sign or paraphernalia associated with membership or affiliation with any gang. The evidence in this case revealed there was paraphernalia associated with membership or affiliation with defendant’s gang in every room of the house.
Fourth, while he was not prohibited from sleeping in the residence nor adequately shown to have been ordered to remove the graffiti, his continued habitation in rooms where gang insignias on the walls and paraphernalia were prominently displayed constituted a violation of probation term No. 28. Defendant’s theory that he was merely in passive proximity to gang graffiti is not persuasive. Given the amount of graffiti and gang-related paraphernalia found throughout the house, defendant’s shared dominion and control over the areas where graffiti was displayed on walls and paraphernalia supports the reasonable inference he violated the gang condition.
Finally, the gang condition is not unconstitutionally vague. Wearing, displaying or possessing any clothing or paraphernalia associated with the gang was prohibited, plain and simple. There was substantial evidence to support the court’s findings. The finding of the violation and the revocation of probation did not constitute an abuse of discretion.
3. Disposition
The judgment is affirmed.
We concur: Richli, Acting P. J., Miller, J.