Opinion
H046061
09-07-2021
THE PEOPLE, Plaintiff and Respondent, v. DWAYNE EVERETTE ROBINSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. B1579314, B1476527
GREENWOOD, P.J.
Defendant Dwayne Everette Robinson pleaded no contest to several theft offenses in two separate cases and was sentenced to a five year split sentence, under which one year and six months would be served in county jail and the remainder would be served on mandatory supervision. While Robinson was on mandatory supervision, the probation department filed a petition alleging that he had violated several terms of his mandatory supervision by traveling outside of Santa Clara County and by fraudulently using credit cards. After a contested hearing, the trial court revoked Robinson's mandatory supervision.
On appeal, Robinson argues: (1) the travel restriction was unconstitutional and unreasonable, (2) the trial court improperly admitted a witness's hearsay testimony during the revocation hearing, thus denying him due process of law, (3) his trial counsel rendered ineffective assistance by failing to object to the alleged hearsay, (4) substantial evidence does not support the trial court's conclusion that he violated the terms of his mandatory supervision, and (5) the trial court erred when calculating his custody credits.
As we explain, we conclude that Robinson's trial counsel was not ineffective by failing to object to the alleged hearsay testimony at the revocation hearing, and substantial evidence supported the trial court's finding that Robinson violated the terms of his mandatory supervision by fraudulently using credit cards. We further determine that Robinson's travel outside Santa Clara County could not support a violation of his terms of mandatory supervision because the travel condition was not reasonably related to a condition of probation imposed by the trial court, but any error was harmless. Finally, we reverse and remand the matter to the trial court for the limited purpose of recalculating Robinson's custody credits to award him credit for time spent on mandatory supervision pursuant to Penal Code section 1170, subdivision (h)(5)(B).
Unspecified statutory references are to the Penal Code.
I. Factual and Procedural Background
A. The Underlying Offenses and Sentence
On May 16, 2016, in case No. B1579314, Robinson pleaded no contest to grand theft of property valued at more than $950 (§§ 484, 487; count 1), using personal identifying information without authorization (§ 530.5; count 2), and possession of stolen property (§ 496, subd. (d); count 13). In case No. B1476527, Robinson pleaded no contest to identity theft (§ 530.5, subd. (a); count 1) and grand theft (§§ 484, 487; count 3).
On February 23, 2017, the trial court held a sentencing hearing. The trial court sentenced Robinson to an aggregate term of five years in case Nos. B1579314 and B1476527. The trial court ordered that after Robinson served 18 months in county jail, the remainder of his sentence would be suspended and he would be placed on mandatory supervision subject to various terms. The trial court did not impose any terms restricting Robinson's travel, but it did impose terms that prohibited Robinson from entering or being within 30 feet of the entrances of Central Liquors in Mountain View and Bloomingdale's in Palo Alto.
The five year aggregate term was calculated as follows: In case No. B1579314, the trial court sentenced Robinson to a term of three years for count 1, eight months for count 2, and eight months for count 13, for a total term of four years four months. In case No. B1476527, the trial court sentenced Robinson to a term of eight months for count 1 and three years for count 3, with the three year sentence to run concurrently with the sentence imposed for count 1 in case No. B1579314, for a total term of three years eight months.
B. Revocation of Mandatory Supervision
1. The Revocation Petition
On April 26, 2018, the probation department filed an amended petition seeking to revoke Robinson's mandatory supervision. The petition alleged that Robinson had violated his mandatory supervision in four ways: (1) “[Robinson] left the State of California without permission of the Probation Officer on or about January 28, 2020, ” (2) “[Robinson] left the County of Santa Clara without permission of the Probation Officer, ” (3) “On January 28, 2018, [Robinson] committed a new law violation, three [c]ounts of Identity Theft in [the] Second Degree in the State of Washington, ” and (4) “Between December 20, 2017, through January 25, 2018, [Robinson] committed new law violations of Sections 459, 484E (D), 484E (B), and 529 (A) of the Penal Code, all Felonies and Sections 484 G and 484 G of the Penal Code, both Misdemeanors.”
2. The Revocation Hearing
On June 18, 2018, the trial court held a hearing on Robinson's alleged violations of mandatory supervision. During the hearing, the trial court granted the People's motion to dismiss the allegations that Robinson violated his mandatory supervision by leaving the State of California and by committing identity theft in Washington State.
i. Probation Officer Gloria Fernandes's Testimony
Probation Officer Gloria Fernandes was assigned to supervise Robinson while he was on mandatory supervision. Fernandes started supervising Robinson on February 1, 2018. According to Fernandes, Robinson was subject to a mandatory supervision term that required him “not to travel out of state or out of county.” These travel conditions were explained to Robinson by his previous probation officer and reinforced by Fernandes when she met with Robinson in person. Robinson also signed a document that explained this travel condition, and the document was located in Robinson's “file.” Fernandes never gave Robinson permission to travel outside Santa Clara County while he was under her supervision. To her knowledge, no other probation officer ever gave Robinson permission to travel outside of the county.
The document referenced by Fernandes is not part of the record on appeal.
Fernandes knew that Robinson lived in East Palo Alto, which is not in Santa Clara County. Robinson, however, was granted permission to live outside of Santa Clara County. Fernandes also knew that Robinson worked at a “motor shop” located in Redwood City, which is also outside of Santa Clara County. Fernandes did not recall having discussions with Robinson about how his job duties took him to locations that were outside of Santa Clara County. Fernandes, however, testified that if she could confirm that a probationer needed to travel for work, she would not find work related travel to be a violation of probation. Fernandes clarified that giving someone permission to live and work in one county should not be equated with giving someone blanket permission to travel to all other counties.
i i. Alex Amini's Testimony
Alex Amini worked at his father's gas station in Livermore. The gas station had an attached convenience store, which accepted credit cards for payment. Amini explained that a “chargeback” occurs when a credit card company reverses payment of funds after a fraudulent purchase: “it's like a forced like reversal of funds from when a fraudulent purchase occurs.” The gas station is responsible for the financial loss if the credit card company initiates a chargeback.
Amini recognized Robinson. He recalled that he had seen Robinson making purchases inside the gas station's convenience store at least six times in the past. Amini remembered that Robinson first came inside the store sometime around December 20, 2017. Robinson would often have a handful of credit cards, and he would insert the credit cards into the credit card machine's chip reader even though the cards did not have chips. Robinson would swipe his credit cards multiple times, and if one credit card did not work, he would keep trying other credit cards until one of them was approved.
After a while, Amini received chargebacks for some of the purchases that Robinson made in the gas station's store. Amini explained that the gas station received information about chargebacks “through the credit card services [the gas station] get[s] in the on line portal for 76, ” and “they send us debits and credits, and chargebacks is one of those.” A chargeback at the gas station was “a rare occurrence.” After receiving the chargebacks, Amini looked at the gas station's surveillance video to determine what happened. The gas station's surveillance video went back two weeks, so Amini was able to investigate only two of the chargebacks that the gas station received. Amini said he personally watched the surveillance videos and linked a transaction that resulted in at least one chargeback to Robinson: “I had the video date, the video which I saved, and then I double checked that's the date of the chargeback and that coincided.” Later, Amini clarified that “I didn't do like a full complete like-but I knew I checked [the videotape] one time, and that one time was good enough for me to understand that this is what's happening.” Amini confirmed that on the one occasion he checked the videotape, he saw Robinson on the video using a credit card. That credit card purchase was “declined by a chargeback by the credit card company.” Amini could not confirm the date of the transaction, but when his recollection was refreshed by a statement he had provided to the Livermore Police Department, he recalled that the transactions resulting in the chargebacks occurred in December 2017 and January 2018.
Amini also pulled receipts and attempted to match signatures for the fraudulent transactions. Amini acknowledged that he did not match the “majority” of the signatures and that task was something that the gas station's “big boss” likely did. Amini, however, said: “For that one [(the owner)] showed me, I pulled the receipt out of our filing cabinet and it was signed, and the chargeback did match for that purchase.”
Amini never specified the identity of his “boss, ” but Amini's father was the owner of the gas station. We hereafter refer to Amini's “boss” as the owner of the gas station for clarity. Amini identified himself as “a little of both” a manager and an owner of the gas station.
Amini reported the dates of the transactions to the police. In late January 2018, after Amini made his police report, Robinson came back to the gas station. By that time, Amini had placed a piece of black electrical tape over the card slider in an effort to prevent fraudulent transactions. When Robinson came inside the gas station's convenience store, Amini was in the back office doing paperwork. Amini watched Robinson speak to the gas station cashier over the store's surveillance video. The cashier explained to Robinson that the gas station's new policy was to use only chip cards. Robinson had some items that he wanted to purchase, but Amini thought that the cashier's statement had “spooked him, ” and Robinson left without purchasing anything.
Amini estimated that the gas station lost around $400 as a result of chargebacks that he attributed to Robinson. Amini, however, was unable to articulate how this figure was calculated. Amini explained that the $400 figure came from the gas station's owner who handled “the majority of the chargebacks.”
Amini recalled that he provided some receipts to the Livermore Police Department. Amini was not sure if the receipts generated by the credit card machines at the gas station distinguished between Visa credit cards, debit cards, or gift cards. Debit card transactions never require a signature. Credit card transactions always require a signature. Amini believed that a “majority” of gift cards require a signature. Amini was not sure if the credit card machine typically printed the name of the credit card holder on the receipt. The gas station employees did not ask for identification when customers paid by credit card.
Amini affirmed that the gas station received notice that there were fraudulent charges resulting in chargebacks, that he took the dates of those fraudulent transactions and matched a receipt and a video to at least one of the fraudulent transactions, and that Robinson was the person in the video corresponding to that transaction.
iii. Robinson's Testimony
Robinson lived in East Palo Alto and worked at Muffler Express, a store in Redwood City. Robinson's job was to deliver parts and “do whatever [his] boss, [his] supervisors, tell [him] to do.” Robinson's previous probation officer, “Mr. Snyder, ” verified his employment with his supervisor. As part of his duties, Robinson often delivered and picked up auto parts in other cities, including Livermore, “south city, ” and Daly City. Robinson was unaware that he was not permitted to go on these types of errands for work. He recalled that he spoke with Snyder and told him that he ran errands, and Snyder never told him that he could not leave Santa Clara County. Robinson acknowledged that he had signed a document that listed specific terms for his mandatory supervision, but he did not recall a restriction that prohibited him from leaving Santa Clara County.
Robinson was familiar with the gas station in Livermore, and he stopped there several times in December 2017 and January 2018. He used Visa gift cards to make purchases when he went inside the gas station's convenience store. He usually had more than one gift card in his possession, and he was often unsure about how much money he had on each individual gift card. On the back of each gift card is a printed phone number where users can call and request balances, but Robinson's eyes were “bad” and he often did not try to check how much money remained on each card. Robinson used to write down each card's remaining balance on the back of the card with a pen, but he stopped that practice because it got “kind of messy.” As a result, he usually kept the gift cards together in a stack with a rubber band. Because he did not know how much money was on each gift card, he frequently had to use more than one gift card to make purchases.
Robinson explained that he always inserted his Visa gift cards into the credit card machine's chip reader, even though the gift cards had no chip. He did so because that was the only way to get the credit card machine to prompt him to slide his gift cards. According to Robinson, he had tried sliding his gift cards first without inserting them into the chip machine, but doing so did not prompt the credit card machine to start. Robinson testified that he needed to repeat the process-insert the chip less gift card into the chip reader before sliding it-each time he used a different gift card.
Robinson claimed that he only used gift cards because he was not permitted to have a credit card. Sometimes, Robinson purchased the gift cards himself. Other times, his employer gave him gift cards. The credit card machine typically prompted Robinson to sign the receipts after he used gift cards.
Robinson recalled that on a few occasions, he was unable to complete his transaction at the Livermore gas station after he had already selected items to purchase. One time, he remembered that he went inside the gas station's convenience store because he could not complete his purchase outside using the gift cards that he had in his possession. He inserted the gift card in the credit card machine's chip reader and the machine prompted him to slide the card, but he could not slide it because there was a piece of electrical tape blocking the way. Robinson asked the cashier about the tape on the credit card machine, and the cashier told him that the machine was broken.
Robinson denied that he ever went into the Livermore gas station to make purchases using stolen credit or debit cards. Robinson testified that he believed that the credit card holder's name would be printed on the receipt if he had used a credit card. Robinson was shown two receipts that were printed out from the Livermore gas station. The receipts did not have a name of a credit card holder printed on them, and both receipts indicated that items were purchased using a Visa card. Robinson confirmed that his signature was on the two receipts. Robinson insisted that the Visa cards referenced on the receipts were gift cards. Robinson claimed that his father paid the gas station owner for the chargebacks that were later attributed to him.
3. The Trial Court's Decision and Sentencing
After considering the evidence presented at the hearing, the trial court determined by a preponderance of the evidence that Robinson had fraudulently used credit cards at the Livermore gas station and thus had violated the law. The trial court also determined by a preponderance of the evidence that Robinson had traveled outside of Santa Clara County without the probation officer's permission.
The trial court did not specify which law Robinson had violated and merely stated that there was sufficient evidence “to establish the law violation and the fraudulent use of the credit cards in this case.” However, the petition alleged and the prosecutor argued that Robinson had fraudulently used credit cards in violation of section 484g.
Subsequently, the trial court revoked Robinson's mandatory supervision and ordered him to serve the remainder of his term, a total of 1, 150 days, in county jail. The trial court awarded Robinson a total of 180 presentence custody credits, composed of 90 actual days and 90 days of conduct credit.
II. Discussion
A. Revocation of Mandatory Supervision
1. Standard of Review
A trial court may revoke mandatory supervision when it has reason to believe the person under supervision has committed another offense or has otherwise violated the terms of supervision. (§ 1203.2, subd. (a).) The prosecution must prove the grounds for revocation by a preponderance of the evidence. (People v. Buell (2017) 16 Cal.App.5th 682, 687 (Buell).) On appeal, we consider “ ‘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.' ” (Ibid.) Substantial evidence is “ ‘evidence that is reasonable, credible, and of solid value.' ” (People v. Powell (2018) 5 Cal.5th 921, 944 (Powell).) “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.' ” (Buell, at p. 687.)
2. Violation of Law
Robinson challenges the trial court's finding that he violated the law and committed a new criminal offense by fraudulently using credit cards, which was one of the grounds for the trial court's revocation of his mandatory supervision. Robinson argues that the trial court erroneously relied on multiple levels of hearsay evidence in Amini's testimony and that Amini's testimony was unreliable. He further argues that there was insufficient evidence to prove by a preponderance of the evidence that he fraudulently used credit cards.
a. Forfeiture
Robinson claims that Amini's testimony consisted of statements made to him by the gas station owner. Characterizing this testimony as testimonial hearsay, Robinson insists that the admission of Amini's testimony violated his due process rights and deprived him of the opportunity to confront witnesses. He also argues that the trial court deprived him of his due process rights when it did not require the prosecution to disclose the online portal records or the surveillance videos, relying instead on Amini's hearsay testimony.
We conclude that Robinson has forfeited these challenges on appeal. Robinson did not object to Amini's testimony during the revocation hearing, and he did not argue that the prosecutor's failure to use evidence such as the physical chargeback records and the actual surveillance videos infringed upon his due process rights. His failure to object in the trial court forfeits his claim that the trial court erroneously relied on hearsay. (People v. Stevens (2015) 62 Cal.4th 325, 333 [failure to object to hearsay at trial forfeits issue on appeal]; Evid. Code, § 353, subd. (a).) His failure to object also forfeits the constitutional claims that he now raises on appeal. (People v. Burgener (2003) 29 Cal.4th 833, 869 [failure to object on grounds that evidence violated due process and confrontation rights waived argument on appeal].)
Robinson claims that he has not forfeited his arguments, relying on People v. Gomez (2010) 181 Cal.App.4th 1028 (Gomez). In Gomez, the defendant objected to the trial court's admission of a probation report during a probation revocation hearing solely on the ground that the report was hearsay. (Id. at p. 1033.) On appeal, the defendant again challenged the admission of the probation report, arguing that the report was hearsay evidence and its admission violated his due process right to confront and cross examine adverse witnesses. (Ibid.) Gomez concluded that the defendant did not forfeit his constitutional claims by failing to object on those grounds below because “[t]he due process issue is inextricably entwined with the evidentiary problems presented by the report in this context” (ibid.), citing People v. Partida (2005) 37 Cal.4th 428, 436 (Partida).
In Partida, the California Supreme Court reinforced the general principle that a defendant who challenges the erroneous admission of evidence on appeal generally cannot argue “that the court should have excluded the evidence for a reason different from his trial objection.” (Partida, supra, 37 Cal.4th at p. 435.) The Supreme Court, however, recognized that the defendant, who raised an objection to the evidence in the trial court on the ground that its admission violated Evidence Code section 352, could raise “a very narrow due process argument on appeal” that admitting the evidence over his objection “had the additional legal consequence of violating due process.” (Partida, at p. 435.)
Gomez applied the narrow exception described in Partida and concluded that failing to object in the trial court on the constitutional ground raised by the defendant on appeal did not result in forfeiture because “[n]o unfairness to the parties or the court results from considering [the] claim on appeal.” (Gomez, supra, 181 Cal.App.4th at p. 1033.) The exception described in Partida and applied in Gomez is inapplicable here. Robinson did not object on any ground to Amini's testimony in the trial court, nor did he request that the prosecutor produce the chargeback records or the surveillance video in court. Therefore, his constitutional claims are not “inextricably entwined with the evidentiary problems” that were presented to the trial court below. (Ibid.) His constitutional claims have been forfeited.
b. Ineffective Assistance of Counsel
Robinson next argues that his trial counsel rendered ineffective assistance by failing to object to Amini's testimony during the revocation hearing on the ground that it was consisted entirely of multiple levels of hearsay evidence.
i. Governing Law
To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance caused prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 688 (Strickland).) Counsel's performance is deficient if it falls below an objective standard of reasonableness under prevailing professional norms. (Ibid.) Prejudice is demonstrated by showing that absent counsel's omissions, there is a reasonable probability that the result of the proceeding would have been different. (Id. at pp. 693 694.)
When we review a claim of ineffective assistance of counsel on direct appeal, a conviction will be reversed “only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
ii. Deficient Performance
As noted, ante, Robinson argues that Amini's testimony amounted to a recitation of statements that the gas station owner made to him about how the chargebacks reflected in the online portal corresponded with the surveillance videos showing Robinson making purchases with cards. He characterizes this as testimonial hearsay that was admitted without the requisite showing of good cause or reliability. Thus, he argues that his trial counsel rendered ineffective assistance by failing to object to Amini's testimony as hearsay.
Amini's hearsay testimony was admitted in the context of a hearing to revoke mandatory supervision, where “the full panoply of Sixth Amendment rights available in criminal trials” is not applicable. (Buell, supra, 16 Cal.App.5th at p. 689; Morrissey v. Brewer (1972) 408 U.S. 471, 480; Stats. 2012, ch. 43 (S.B. 1023), § 2, subd. (b) [stating that amendments to the Realignment Act were meant to incorporate procedural due process protections held to apply to probation revocation procedures to mandatory supervision revocation procedures].) Although the Sixth Amendment right to confront witnesses does not apply in the context of a probation revocation proceeding, “probationers have a general due process right to confrontation and cross examination in such proceedings.” (People v. Stanphill (2009) 170 Cal.App.4th 61, 78.) However, in a revocation proceeding, “ ‘the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.' ” (People v. Arreola (1994) 7 Cal.4th 1144, 1153 (Arreola).)
Hearsay that does not fall within one of the exceptions to the hearsay rule can be admitted in a probation revocation hearing, and decisions by the California Supreme Court have clarified the type of hearsay evidence that is permissible. The high court has drawn a distinction between hearsay that can be considered a substitute for live testimony and documentary hearsay. Testimonial hearsay that is a substitute for live testimony is admissible upon a showing of good cause, and documentary hearsay is admissible if it bears a sufficient indicia of reliability. (Arreola, supra, 7 Cal.4th at p. 1159 [showing of good cause must be made before defendant's preliminary hearing transcript could be admitted at a probation revocation hearing]; People v. Maki (1985) 39 Cal.3d 707, 715 [car rental agreement and receipts were sufficiently trustworthy to be admitted into evidence in a probation revocation hearing] (Maki); People v. Abrams (2007) 158 Cal.App.4th 396, 401, 404 [probation officer's testimony regarding department procedures sufficient to admit report prepared by another probation officer and probation department's call logs] (Abrams).)
“The broad standard of ‘good cause' is met (1) when the declarant is ‘unavailable' under the traditional hearsay standard (see Evid. Code, § 240), (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant's presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant.” (Arreola, supra, 7 Cal.4th at pp. 1159 1160.)
During the revocation hearing, the prosecutor asked Amini, “[D]id you receive a list of several dates from the credit card company with chargebacks?” Amini answered, “Yes.” The prosecutor then asked Amini, “Did you personally watch the videotape of the transaction [involving Robinson]?” Amini answered, “Yeah.” Later, Amini clarified that he knew that he checked the surveillance video “one time, and that one time was good enough” for him to understand that Robinson was the source of the chargeback. Amini then confirmed that he and the owner attempted to pull receipts and match signatures. The prosecutor asked Amini, “How many signatures did you match to the person who was on the video that ended up being fraudulent chargebacks? Do you know how many separate transactions?” Amini answered, “Uhm, I didn't do the majority of it. Likely the big boss did. For that one he showed me, I pulled the receipt out of our filing cabinet and it was signed, and the chargeback did match for that purpose.” Amini further clarified that he had related “for certain, just one” chargeback to Robinson, stating, “Like the boss showed it to me. He showed me that one and we compared it.” He further indicated, “I had the video date, the video which I saved, and then I double checked that's the date of the chargeback and that coincided.”
Amini's testimony indicates that at least on one occasion, he personally viewed the online portal and saw a chargeback to the gas station, viewed the surveillance video that showed Robinson conducting the transaction on the corresponding date, and compared the signature on the receipt with that in the declined transaction. Therefore, we find no merit in Robinson's argument that Amini's testimony did no more than relay information provided to him by the owner and that the nature and quality of Amini's testimony was demonstrably unreliable. Rather, Amini's testimony reflects that he and the owner engaged in a collaborative process to identify the individual responsible for the fraudulent transactions by linking the chargeback records, the surveillance videos, and the receipts, and that he personally made the connection establishing that Robinson had effected a fraudulent credit card transaction constituting a violation of his terms of mandatory supervision.
Amini's testimony describing what he personally viewed on the surveillance video was not hearsay and was admissible. Evidence Code section 1200 defines hearsay as “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” A statement, in turn, is defined as an “oral or written verbal expression or... nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression.” (Evid. Code, § 225.) A person “includes a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.” (Id., § 175.)
First, Amini's testimony that he saw Robinson on the video was not hearsay because it did not recount an out of court statement made by Robinson; Amini's testimony merely identified Robinson as the individual in the video. Second, Amini's testimony that he saw Robinson use a credit card on the surveillance video was not hearsay because Robinson's conduct was not a statement since it was not intended by him to be a substitute for oral or written expression. Robinson was not attempting to communicate through the video. Rather, the videotape was used to connect him to the gas station and the credit card machine on a particular date and time. (Evid. Code, § 225, subd. (b) [a statement includes “nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression”]; see People v. Jurado (2006) 38 Cal.4th 72, 129 [for purposes of hearsay rule, conduct is assertive if actor intended conduct to convey a particular meaning to others, such as a nod of the head or a gesture pointing to a particular person when asked to identify a perpetrator]; People v. Myers (2014) 227 Cal.App.4th 1219, 1223 [oral testimony describing a surveillance video that showed the victim holding up his hands was not hearsay because testimony was not offered to prove the truth of the matter asserted].) Finally, Amini's testimony that recounted the date and time on the surveillance video was not hearsay because computer generated data is not a “statement” by a person. (See People v. Goldsmith (2014) 59 Cal.4th 258, 274 [information printed on data bar on photographs taken by red light traffic camera was not hearsay].)
We agree with Robinson, however, that Amini's testimony about the contents of the online portal that documented the declined transactions was hearsay evidence. Amini's testimony was admitted to prove the truth of what the portal's entries denoted- that a credit card transaction had been charged back to the gas station and that the declined transaction occurred on a certain date. This evidence was essential to establish that Robinson had fraudulently used a credit card on at least one occasion.
The Attorney General contends that Amini's testimony relaying the content of the online portal was admissible as documentary hearsay with sufficient indicia of reliability. (Arreola, supra, 7 Cal.4th at pp. 1157 1159.) We are not persuaded. Here, little evidence establishing the source of the online portal's contents, or even a description of the portal, was elicited in the revocation hearing. Unlike the car rental agreement and receipts presented to the court in Maki, no records related to the portal were offered or admitted into evidence to be assessed by the trial court. (Maki, supra, 39 Cal.3d at p. 715.) Unlike the foundation laid by the probation officer in Abrams describing how calls were logged at the department and how probation reports were prepared contemporaneously with the revocation hearing, no testimony was adduced identifying the source of the information on the portal. (Abrams, supra, 158 Cal.App.4th at pp. 401, 404.) The evidence describing the portal itself was provided by Amini, who indicated that at least one credit card purchase was “declined by a chargeback by the credit card company.” He also stated, “through the credit card services we get in the on line portal for 76, they send us debits and credits, and chargebacks is one of those.” He did not identify who “they” were, such as the gas station's parent company or financial institutions or credit card services. When probed regarding the level of detail provided on the portal related to the chargeback transaction or whether a specific credit card is identified as stolen in such an event, Amini indicated that he did not know: “[I]n terms of details with chargebacks, that question, I don't know if it's the credit card or the portal. [¶]... [¶] That's not my job task, like to go that far into the chargeback situation.” This record provides insufficient foundational evidence of reliability to sanction the admission of the online portal's contents.
However, even if Amini's testimony about the portal entries failed to establish that they bore sufficient indicia of reliability and should not have been admitted, Robinson cannot demonstrate ineffective assistance of counsel. Defendants carry a heavy burden to demonstrate ineffective assistance of counsel on direct appeal, and “ ‘ “[r]eviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.”' ” (People v. Lucas (1995) 12 Cal.4th 415, 437.)
In this case, defense counsel may have decided tactically to decline to object to Amini's hearsay testimony about the chargeback records precisely because it was vague and, by its nature, assisted the defense's case that there was insufficient evidence to support a finding that Robinson had violated the law. In fact, defense counsel used Amini's testimony to his advantage by arguing to the trial court that “the only information regarding knowledge and intent” to prove that Robinson fraudulently used a credit card was to be “drawn exclusively from the credit card company issuing a chargeback to the store, ” and observing that Amini testified that the store received “no information regarding again identifying an actual person to whom the card belongs” and “that level of detail and depth is not something that [Amini] had any knowledge about.”
In this calculation, the defense attorney may have also weighed the ease with which a foundation could have been laid to cure any defect in the admission of the testimony regarding the online portal against the benefit of objecting. Defense counsel may have rationally concluded that objecting would have been futile because the deficiencies in Amini's testimony could have been cured by additional evidence that clarified what appeared to be suggested by his statements (Amini testified that “the credit card services we get in the on line portal for 76, they send us debits and credits, and chargebacks is one of those”) but was never elicited by the prosecutor: the content of the online portal was a record of various electronic financial transactions related to the gas station. (See People v. Dorsey (1974) 43 Cal.App.3d 953, 961 [requirements to admit bank statements prepared in regular course of banking business under business records hearsay exception can be “inferred from the circumstances”].) The prosecution could have also presented the written records. In fact, had the prosecutor presented the records related to the portal, the prosecution's case against Robinson would have been strengthened, and the evidence against Robinson would have been overwhelming-the prosecutor would have had documentary evidence showing the dates of the declined transactions, Amini's testimony describing surveillance videos that linked Robinson to the fraudulent transactions, and the accompanying receipts authenticated by Robinson himself. Although an objection to Amini's testimony could have been validly lodged, “competent counsel may often choose to forgo even a valid objection.” (People v. Riel (2000) 22 Cal.4th 1153, 1197.) In this case, Amini's relatively weaker testimony furthered the defense's strategy to argue that there was insufficient evidence, and we “ ‘should not second guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.' ” (People v. Weaver (2001) 26 Cal.4th 876, 926 (Weaver).)
In this case, “counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record.” (Weaver, supra, 26 Cal.4th at p. 926.) Nor is this a circumstance where there “simply could be no satisfactory explanation” for defense counsel's omission. (Mai, supra, 57 Cal.4th at p. 1009.) Thus, we conclude Robinson has not met his burden to demonstrate that defense counsel rendered ineffective assistance (Strickland, supra, 466 U.S. at p. 688).
c. Sufficiency of the Evidence
Next, Robinson argues that there is insufficient evidence that he violated the terms of his mandatory supervision by fraudulently using credit cards. We disagree and conclude that the trial court's finding was supported by substantial evidence.
Section 484g criminalizes fraudulent use of access cards or account information and provides in pertinent part that “[e]very person who, with the intent to defraud, (a) uses, for the purpose of obtaining money, goods, services, or anything else of value, an access card or access card account information that has been altered, obtained, or retained in violation of Section 484e or 484f, or an access card which he or she knows is forged, expired, or revoked, or (b) obtains money, goods, services, or anything else of value by representing without the consent of the cardholder that he or she is the holder of an access card and the card has not in fact been issued, is guilty of theft.”
Preliminarily, we acknowledge that some of the evidence supported Robinson's claim that he was merely using gift cards to make transactions. The receipts that were admitted into evidence required a signature, and Amini testified that he believed a “majority” of gift card purchases require a signature. Robinson himself testified that he never fraudulently used credit cards, and he argues on appeal that his entire testimony at the revocation hearing constitutes substantial evidence. However, the trial court was able to observe and assess Robinson's credibility at the revocation hearing when he testified and was not required to find Robinson's testimony credible. Based on the trial court's determination that Robinson violated the law, it made an implied determination that his testimony at the revocation hearing was not credible, and we do not reevaluate a witness's credibility. (People v. Tapia (2018) 26 Cal.App.5th 942, 953 [“[w]e do not reevaluate witness credibility”]; People v. Harris (2015) 234 Cal.App.4th 671, 695 [“[w]e may not disturb [the trial court's] implied credibility finding”].)
Additionally, Amini testified that he matched at least one transaction resulting in a chargeback to a transaction made by Robinson after he viewed surveillance videos and the receipts. As we explained in the previous section of this opinion, this testimony recounted hearsay, but Robinson did not object to it on any ground below. “ ‘ “[I]t is settled law that incompetent testimony, such as hearsay or conclusion, if received without objection takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding.”' ” (People v. Panah (2005) 35 Cal.4th 395, 476; see also McDaniel v. Brown (2010) 558 U.S. 120, 131 (per curiam) [in evaluating a sufficiency of the evidence claim under Jackson v. Virginia (1979) 443 U.S. 307, “ ‘a reviewing court must consider all of the evidence admitted by the trial court,' regardless of whether that evidence was admitted erroneously”].)
Even if we disregard Amini's testimony recounting the online portal content, there was substantial evidence that Robinson fraudulently used credit cards. Amini testified that he saw Robinson use a stack of credit cards to complete transactions by inserting his credit cards into the credit card machine's chip reader even though they did not have chips, swiping the cards multiple times, and using multiple credit cards until one was approved. Two of the receipts associated with Robinson's transactions were admitted into evidence, and, as the trial court observed, each receipt indicated that it was a “credit” transaction with a signature affirmed by Robinson to be his own. In January 2018, after Amini had spoken to the police, Robinson returned to the gas station to make a purchase. By that time, Amini had placed a piece of black electrical tape over the credit card machine's card slider in an effort to prevent fraudulent transactions, and the cashier explained to Robinson that the gas station's new policy was to use only chip cards. Robinson had selected some items to purchase, but Amini, who was watching over a surveillance camera, thought that the cashier's statement had “spooked” Robinson, and Robinson left without purchasing anything. This evidence was circumstantial, but it supported the inference that Robinson was fraudulently using credit cards.
The prosecution was required to prove the grounds for revocation by a preponderance of the evidence. (Buell, supra, 16 Cal.App.5th at p. 687.) “A party required to prove something by a preponderance of the evidence ‘need prove only that it is more likely to be true than not true.' [Citation.] Preponderance of the evidence means ‘ “that the evidence on one side outweighs, preponderates over, is more than, the evidence on the other side, not necessarily in number of witnesses or quantity, but in effect on those to whom it is addressed.” (Italics added.)' [Citation.] In other words, the term refers to ‘evidence that has more convincing force than that opposed to it.' ” (People ex rel. Brown v. Tri Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567.) Furthermore, “ ‘[i]f the circumstances reasonably justify the [trial court's] findings' the judgment may not be overturned when the circumstances might also reasonably support a contrary finding.” (People v. Baker (2005) 126 Cal.App.4th 463, 469.)
Here, there was sufficient evidence to support the trial court's finding, by a preponderance of the evidence, that it was more likely true than not true that Robinson had violated the law. In the end, the trial court credited Amini's testimony that described Robinson's suspicious behavior and discredited Robinson's explanation for his actions. The trial court also considered the copies of the receipts that were admitted into evidence. Although there was some conflicting evidence in the record and a different conclusion could have been reached, there was sufficient evidence that was “ ‘reasonable, credible, and of solid value' ” that supported the trial court's determination. (Powell, supra, 5 Cal.5th at p. 944.)
3. Violation of the Travel Condition
Robinson argues that the travel condition that was imposed in his case is unconstitutionally overbroad, is unreasonable, and interferes with his day to day life. Robinson acknowledges that he did not object to the condition below. However, he argues that he was not given the opportunity to object to the travel condition because it was not imposed by the trial court-the condition was imposed by the probation department after he began to serve his term of mandatory supervision.
The People argue that Robinson's travel condition is not unconstitutionally overbroad because it does not constitute a blanket prohibition on travel. According to Fernandes's testimony at the mandatory supervision revocation hearing, the travel condition prohibited Robinson from leaving Santa Clara County without the probation officer's permission. Moreover, the People insist that the travel condition was not unreasonable under People v. Lent (1975) 15 Cal.3d 481 because it was directed toward preventing future criminality and rehabilitating Robinson.
In response, Robinson rejects the People's suggestion that the travel condition is not overbroad because it permits him to leave the county with the probation officer's permission. Robinson argues that the trial court did not impose the travel condition, so the travel condition grants too much discretion to the probation officer. Thus, he claims that his ability to request permission to leave the county from the probation officer does not render the travel condition constitutional, and the probation department exceeds its authority when it restricts his travel without first being granted the discretion to impose such a condition by the trial court.
We need not determine whether the travel condition at issue here is constitutionally overbroad. Because the travel condition was imposed by the probation department and was not reasonably related to a condition of probation imposed by the trial court, we agree with Robinson that his travel outside of Santa Clara County could not support a violation of his terms of mandatory supervision. Under section 1170, subdivision (h)(5)(B), proceedings to “revoke or modify mandatory supervision... shall be conducted pursuant to either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3.” Section 1203.3, subdivision (b)(1) and (b)(2) requires a notice and a hearing before a term of mandatory supervision can be added or modified. Here, there is no indication that the trial court ever intended to impose a travel condition, and the trial court never held a hearing to modify the terms of Robinson's mandatory supervision to include a restriction on travel.
The only conditions that were imposed by the trial court that were in any way related to travel were the two conditions that restricted Robinson from entering or being within 30 feet of the entrances of Central Liquors in Mountain View and Bloomingdale's in Palo Alto. In the context of probation, courts have held that “[p]robation officers have wide discretion to enforce court ordered conditions, and directives to the probationer will not require prior court approval if they are reasonably related to previously imposed terms.” (In re Pedro Q. (1989) 209 Cal.App.3d 1368, 1373 (Pedro Q.); People v. O'Neil (2008) 165 Cal.App.4th 1351, 1358 (O'Neil).)
The Santa Clara County travel restriction, however, was not a “derivative order that flowed logically from a general term” that was imposed by the trial court. (Pedro Q., supra, 209 Cal.App.3d at p. 1373.) The county specific travel restriction was an entirely new term of mandatory supervision. Restricting Robinson's travel outside of Santa Clara County did not clarify the court imposed order to stay at least 30 feet away from Central Liquors or Bloomingdale's, and, as demonstrated by the facts of the current case, Robinson could readily violate the Santa Clara County travel restriction without violating the court imposed term that prohibited him from frequenting these two Santa Clara County retail establishments. (Id. at p. 1373 [for an order to be derivative of a general order, violation of the derivative order would violate the general order].) “Although probation officers may be given ‘wide discretion to enforce court ordered conditions' [citation], they may not create conditions not expressly authorized by the court.” (O'Neil, supra, 165 Cal.App.4th at p. 1358.)
Because we conclude that the probation department acted without the authority of the court by imposing an out of county travel restriction on Robinson, we conclude that his travel outside of Santa Clara County could not support the trial court's conclusion that he violated the terms of his mandatory supervision.
Assuming, as Robinson asserts, that the harmless beyond a reasonable doubt standard applies, the trial court's reliance on Robinson's alleged violation of the travel restriction was harmless. (See Arreola, supra, 7 Cal.4th at p. 1161.) The trial court did not solely rely on Robinson's violation of his travel condition when it revoked his mandatory supervision. As we have concluded, the trial court's determination that Robinson violated his mandatory supervision by fraudulently using credit cards was supported by substantial evidence, and there is no reasonable doubt that the trial court would have found that Robinson violated his terms of mandatory supervision even without considering the travel condition. (See ibid. [observing that substantial evidence of other probation violations, apart from the probation violation supported by erroneously admitted evidence, supported revocation of defendant's probation].)
The Attorney General argues that substantial evidence also supports the trial court's conclusion that Robinson violated the terms of his mandatory supervision by possessing credit cards. The revocation petition, however, did not allege that Robinson violated his mandatory supervision by possessing credit cards. As we previously described, the revocation petition alleged that Robinson violated his mandatory supervision by (1) leaving the State of California without his probation officer's permission, (2) leaving Santa Clara County without his probation officer's petition, (3) committing new law violations in Washington State, and (4) committing new law violations by fraudulently using credit cards. At the revocation hearing, the trial court granted the People's motion to dismiss the allegations that Robinson violated his mandatory supervision by leaving the State of California and by committing new law violations in Washington State.
B. Custody Credits
Finally, Robinson argues that the trial court erred when awarding custody credits and erred in calculating his total remaining sentence for both cases. We agree that the trial court erred and that remand is appropriate for recalculation of credits.
Robinson was released on mandatory supervision on November 19, 2017, and was returned to custody on March 21, 2018. On June 18, 2018, when the trial court revoked Robinson's mandatory supervision, it granted Robinson 90 days of actual custody credit and 90 days of conduct credit for the period of time that Robinson spent in custody while waiting for his revocation hearing (between March 21, 2018, and June 18, 2018), for a total of 180 days. The trial court did not award Robinson day for day custody credits, without conduct credits, for the time that he spent on mandatory supervision (between November 19, 2017, and March 21, 2018) as required under section 1170, subdivision (h)(5)(B), which states that “[d]uring the period when the defendant is under that supervision, unless in actual custody related to the sentence imposed by the court, the defendant shall be entitled to only actual time credit against the term of imprisonment imposed by the court.” The Attorney General concedes that Robinson should have received credit for the time spent on mandatory supervision, and we accept the concession. Although Robinson did not object to the amount of credits that he received below, “[a] sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered.” (People v. Taylor (2004) 119 Cal.App.4th 628, 647.)
Moreover, during the sentencing hearing, the trial court stated that Robinson had 1, 150 days of mandatory supervision left at the time of the revocation hearing, a figure that is also reflected in the minute order. This calculation appears to be inaccurate. Here, Robinson was released on mandatory supervision for a period of four months and two days (between November 19, 2017, and March 21, 2018). The total term that he was supposed to spend on mandatory supervision was three years and six months (two years, 10 months in case No. B1579314, and eight months (described by the trial court as 236 days) in case No. B1476527). By our calculation, two years and 10 months (approximately 1, 034 days) plus 236 days is 1, 270 days, and 1, 270 days less four months and two days on mandatory supervision (122 days) is 1, 148 days.
In case No. B1579314, Robinson was sentenced to a total term of four years four months and was ordered to serve 18 months of his sentence in county jail and the remainder of the term, two years 10 months, on mandatory supervision. Robinson was awarded five actual days and four days of conduct credit in case No. B1579314. In case No. B1476527, Robinson was sentenced to a term of three years to be served concurrently to his term in case No. B1579314, and a consecutive eight month term. The trial court ordered the consecutive eight month term in case No. B1476527 to be served on mandatory supervision following his term of mandatory supervision in case No. B1579314. Robinson was awarded a total of two actual days and two days of conduct credit for case No. B1476527.
Robinson and the Attorney General disagree about how many additional days of actual custody credit Robinson is entitled to-Robinson argues that he is entitled to 123 days, and the Attorney General argues that he is entitled to 122. Accordingly, we find that the trial court is best suited to determine Robinson's remaining sentence and to recalculate the amount of custody credit owed to Robinson. We therefore remand the matter to the trial court for this limited purpose.
We note that it appears that the Attorney General correctly calculated the number of actual custody credits to which Robinson is entitled because there were 122 days between November 19, 2017, and March 21, 2018. The Attorney General notes that Robinson's miscalculation may be attributed to his inclusion of his release date, November 19, 2017, to his calculation. However, Robinson spent his release date in custody and was served as part of his term in county jail and cannot be used as credit toward his mandatory supervision period. (See § 2900.5 [credit is given once for a single period in custody].) Regardless, we remand the matter to the trial court so that it may accurately calculate the amount of presentence credit that Robinson should receive.
III. Disposition
The matter is reversed and remanded solely for the trial court to recalculate Robinson's custody credits and remaining sentence. The trial court is directed to award Robinson custody credit for time spent on mandatory supervision under Penal Code section 1170, subdivision (h)(5)(B).
WE CONCUR: Elia, J., Grover, J.