Opinion
A153617
06-11-2018
THE PEOPLE, Plaintiff and Respondent, v. STEPHONN PHILLIPS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR333517)
On December 2, 2016, Stephonn Phillips was convicted of felony assault (Pen. Code, § 245, subd. (b)) and sentenced to a three-year prison term. He was released on parole supervision in Ukiah. On October 31, 2017, a petition was filed in the Solano County Superior Court seeking to revoke Phillips's parole on the basis of his arrest for new offenses. Following a contested revocation hearing, the court sustained the violation allegation and reinstated parole on the same terms and conditions with the added requirement that Phillips serve 180 days in county jail.
Phillips received 173 days of presentence credits.
Assigned counsel submitted a Wende brief, certifying that counsel was unable to identify any issues for appellate review. Counsel also submitted a declaration confirming Phillips was advised of his right to personally file a supplemental brief raising any points he wished to call to the court's attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106.) We find no arguable issues and therefore affirm.
People v. Wende (1979) 25 Cal.3d 436.
BACKGROUND AND PROCEDURAL HISTORY
At Phillips's parole revocation hearing, Vallejo Police Officer Rashad Hollis testified that he arrested Phillips on October 28, 2017, after responding to a domestic violence call. As Hollis arrived at the reported location, he saw a man "[v]iolently" "punching into a black sedan" with one hand through the open front driver's side window. Hollis made contact with Phillips and handcuffed him. A woman was seated behind the wheel of the car. Phillips was "yelling at the lady in the driver's seat" that she "better not say anything." Hollis observed the woman had a cut and blood dripping from her left eye. She refused to provide her name and declined medical attention. She turned away when Hollis attempted to photograph her. Hollis observed an injury to Phillips's right hand, specifically a small laceration to a joint on his middle finger. Phillips identified himself as Jamal Roberson. A photograph of Jamal Roberson obtained from a computer database did not match Phillips's appearance, although Phillips continued to insist that he was Roberson. En route to the jail, Phillips said the woman was his fiancée.
A photograph of the injury was admitted in evidence.
Parole Agent Carmen Alexander testified she checked Phillips's name and Department of Corrections and Rehabilitation number in a state computer database of parolees. The database was updated "frequently" and included parolee photographs, effective dates of parole, and conditions of parole. She was familiar with the database, using it daily from its inception in 2013 through November 2016. She identified Phillips as the person depicted in her search results, and she determined he was on parole through the Ukiah office. One condition of Phillips's parole, applicable to all parolees, was that he obey all laws. Alexander had no personal knowledge as to whether Phillips's parole conditions were discussed with him by his parole officer, but she testified it is "protocol and policy" that a parolee is served with conditions of parole prior to being paroled, and "he wouldn't be released if he didn't agree to the conditions of parole. So he's served with conditions of parole prior to being released, and then he's again served with conditions of parole once he reports to his parole office."
Phillips's counsel argued Alexander's testimony was insufficient to establish that Phillips was the individual on parole. The court found the identification "uncontroverted" and stated it was satisfied that Phillips "is the individual and the identification has been made and it is sufficient. [¶] The Court does find him in violation of his probation [sic] based upon the testimony regarding the incident at the . . . parking lot."
DISCUSSION
"[T]he revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply . . . ." (Morrissey v. Brewer (1972) 408 U.S. 471, 480; People v. Sword (1994) 29 Cal.App.4th 614, 635.) The alleged parole violation must be proved by a preponderance of the evidence. (In re Miller (2006) 145 Cal.App.4th 1228, 1234-1235.) " ' "As long as hearsay testimony bears a substantial degree of trustworthiness it may legitimately be used at a probation revocation proceeding. . . . In general, the court will find hearsay evidence trustworthy when there are sufficient 'indicia of reliability.'. . . Such a determination rests within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion." ' " (Id. at p. 1235; People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197-1198 [trial court's decision to admit or exclude evidence in probation revocation hearing reviewed for abuse of discretion].)
"Parole revocation and probation revocation after the imposition of a sentence are constitutionally indistinguishable." (In re Miller, supra, 145 Cal.App.4th at p. 1235.) --------
Phillips's counsel objected to Alexander's testimony on hearsay and foundational grounds, and ultimately complained only that the evidence was insufficient to support a finding "Phillips is the actual person subject to these conditions of parole." Phillips presented no evidence tending to contradict the accuracy of either Alexander's testimony or the database.
We find no evidence the trial court abused its discretion in determining Alexander's testimony regarding her examination of the computerized parole database, and her comparison of Phillips with the subject photograph within that database, bore sufficient indicia of reliability. (See, e.g., People v. Brown (1989) 215 Cal.App.3d 452, 455 [in adult probation revocation case, police officer permissibly testified to chemist's findings that the substance recovered from defendant tested positive for cocaine].)
DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.