Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 197577
Sepulveda, J.
Defendant Frederick Stewart challenges the trial court’s order revoking his probation. He argues that there was insufficient evidence that he violated the terms of his probation. We disagree and affirm.
I. Factual and Procedural Background
Defendant was arrested on October 12, 2005, near the intersection of Eddy and Taylor Streets in San Francisco. According to the probation report (defendant waived his right to a preliminary hearing), police approached defendant after they saw him leaning into a blue vehicle that drove away as officers approached. One of the officers noticed that defendant had slurred speech and was concealing narcotics in his mouth. Defendant eventually spit from his mouth seven rocks of what was later confirmed to be cocaine base.
Defendant was charged by complaint with one felony count of possession of cocaine for sale. (Health & Saf. Code, § 11351.5.) The complaint also alleged that defendant had suffered one prior strike conviction (Pen. Code, § 667, subds. (d), (e)), that he had served two prior prison terms (Pen. Code, § 667.5, subd. (b)), that he had a prior conviction for sale or transportation of a controlled substance, and that he was ineligible for probation (Health & Saf. Code, § 11370, subd. (a)).
Defendant pleaded guilty on December 22, 2005, pursuant to a plea agreement, to one felony count of possession of cocaine for sale. (Health & Saf. Code, § 11351.5.) On February 2, 2006, the trial court suspended execution of a four-year sentence, and placed defendant on probation for three years.
Between 11:00 a.m. and noon on May 4, 2006, defendant’s parole agent Bill Hazelton was in the 200 block of Eddy on unrelated business when he saw defendant. Hazelton was “very concerned” about defendant being in that area, and told defendant that he did not want defendant there. When Hazleton reviewed defendant’s file later that day, he saw that defendant had previously been arrested for parole violations on that block, and that he was on probation for an offense on that block. He then drafted an order that defendant stay away from the area where Hazelton saw him earlier in the day.
Defendant was on parole at the time of the original offense.
Hazelton returned to the 200 block of Eddy after he had the stay-away order approved and signed by his supervisor in order to have defendant sign the order. Hazelton, who was with another parole agent at the time, saw defendant in the same location where he had seen him earlier in the day. Defendant was talking on a cell phone. When he turned and saw Hazelton, defendant appeared “very nervous.” Hazelton told defendant to get off the phone, and to walk from the sidewalk area to a wall. Hazelton then placed defendant in handcuffs “because there was a pretty good crowd there, and for safety reasons.” Hazelton testified that there were “a few people on the street at that hour,” which was “more than normal in that area.” The people in defendant’s immediate area dispersed as Hazelton approached defendant. According to Hazelton, there was no one “side by side” with defendant when he approached defendant, although there were people within 10 feet of him. Hazelton called for police backup.
As Hazelton was going to search defendant, defendant yelled, “Come get the keys. Come get the shit.” In response to Hazelton’s call for backup, police officers arrived around this time, “which was very quick.” Police officer Timothy Kiely noticed narcotics on the ground where defendant previously had been, on the path that defendant had taken from the sidewalk to the wall. Kiely saw two individually wrapped rocks of suspected base rock cocaine between five and ten feet from where defendant was standing. Kiely also saw another officer find a metal box with another sack of suspected base rock cocaine, which also was found in an area where defendant had been. No contraband was found on defendant, and Hazelton did not see defendant drop anything or spit anything out of his mouth.
Hazelton found car keys and a parking ticket when he searched defendant. The keys had a remote control on them, and when Hazelton pressed the control’s button, it turned on the lights of an empty car parked across the street. The parking ticket listed the license plate of the same car. Hazelton and another parole agent searched the car, and the second agent found suspected narcotics in a center console between seats. Defendant did not own the car that was searched. The person who did own the car went to the police station later in the day, presumably to retrieve it.
Subsequent tests of the suspected narcotics recovered at the scene verified that they were cocaine base, totaling nearly 18 grams.
On May 8, 2006, the People filed a motion to revoke probation, and a contested probation revocation hearing was held on September 15, 2006. The trial court found “by more than a preponderance of the evidence” that defendant had violated the terms of his probation. The court revoked defendant’s probation and sentenced him to four years in prison. Defendant timely appealed.
II. Discussion
The trial court may 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 . . . .” (Pen. Code, § 1203.2, subd. (a).) A probation violation must be proven by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 445-446.) “Our trial courts are granted great discretion in determining whether to revoke probation.” (Id. at p. 445.) “Although that discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based upon the facts before it.” (People v. Buford (1974) 42 Cal.App.3d 975, 985.)
Defendant argues that the trial court abused its discretion when it revoked his probation, because there was insufficient evidence to support the revocation. Defendant claims that no eyewitness saw him commit any wrongful or unlawful act, and that there were no “ ‘facts’ ” to support the revocation of probation, only “conclusions based on inferences.” We disagree with this characterization of the evidence. The trial court heard testimony that defendant appeared nervous when his parole agent approached him in an area where he had been previously arrested for drug offenses, that he yelled, “Come get the keys. Come get the shit,” when agent Hazelton went to search him, that drugs were found near where defendant had been standing soon after he was moved to a different area, and that he held keys and a parking ticket for a car that also contained drugs.
Defendant emphasizes the fact that no drugs were found on him when he was searched, and that it was therefore never shown that he possessed drugs. He all but ignores the evidence that he yelled, “Come get the shit” when agent Hazelton went to search him, an indication that he had contraband. Although it is true that Hazelton did not personally see any narcotics on the sidewalk in the area where he detained defendant, he explained that “I wasn’t looking. That wasn’t the focus of my attention. It was just on [defendant].” Police found narcotics on the nearby sidewalk a short time after defendant was initially detained.
We likewise disagree with defendant’s characterization of the conditions surrounding his detention. He claims that because he was arrested in a “large crowd in a high-crime area,” it was simply “unsubstantiated speculation” that the narcotics found on the sidewalk belonged to him, as opposed to someone else in the crowd. In fact, although Hazelton testified that there was “a pretty good crowd” where defendant was detained, he also explained that people in defendant’s immediate area dispersed when Hazelton approached him, and that there was no one standing next to defendant when Hazelton walked to him. Officer Kiely testified that by the time he arrived at the scene, there was no one within 20 feet of defendant, and people had moved down the street. As to how many people were down the street, Kiely stated, “It wasn’t a crowd. There were people around watching, but I wouldn’t call it a crowd.”
Defendant claims, without citation to the record, that Hazelton drafted a new condition of parole “to keep [defendant] out of the high-crime Eddy Street area.” Hazelton wanted defendant to stay away from the area not only because it was a high crime area generally, but also because defendant himself committed crimes there. Hazelton testified that he “realized that [defendant’s] last two arrests were with parole violations on that block, and one he was on probation for.”
Defendant also points to the fact that he did not own the car where narcotics were found, and that it was therefore not shown that he ever possessed the contraband. Constructive possession occurs where a defendant “maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to this dominion and control.” (People v. Williams (1971) 5 Cal.3d 211, 215.) “Exclusive control and dominion over a car found to contain a narcotic is, of course, a potent circumstance on the question of possession of its contents.” (People v. Antista (1954) 129 Cal.App.2d 47, 51.) Here, the trial court heard testimony that defendant had car keys and a parking ticket for an empty car parked across the street from where he was detained that contained contraband, evidence that the car was at that time subject to his dominion and control. Defendant yelled, “Come get the keys. Come get the shit,” when Hazelton went to search him, further evidence that he had control of the car, and knew that it contained contraband. Even assuming arguendo that there was insufficient evidence to prove beyond a reasonable doubt that defendant was guilty of a crime, the People certainly showed by a preponderance of the evidence that he had violated the conditions of his probation. (People v. Buford, supra, 42 Cal.App.3d at p. 986 [finding that defendant failed to comply with terms of probation must be supported by substantial evidence].) The trial court did not abuse its discretion in revoking defendant’s probation.
People v. Maki (1985) 39 Cal.3d 707, People v. Turner (1975) 44 Cal.App.3d 753, and In re Thomas (1972) 27 Cal.App.3d 31, which defendant relies upon, are not to the contrary. In People v. Maki, supra, 39 Cal.3d at pages 709, 716, the court upheld the revocation of probation where a signed invoice from a rental car agency, as well as an unsigned hotel receipt, provided sufficient evidence that defendant had violated the terms of his probation by leaving the county. The question presented in Maki was whether otherwise inadmissible hearsay (the invoice and receipt) could be considered in determining whether to revoke probation. (Id. at pp. 709, 713-714.) Defendant here claims that Maki held “that there has to be a direct, verifiable, nexus between a probationer and the evidence used to revoke probation.” The testimony of Hazelton and Kiely here provided a sufficient link between defendant and the drugs that were found.
People v. Turner, supra, 44 Cal.App.3d at page 756, and In re Thomas, supra, 27 Cal.App.3d at page 35, held that a revocation of probation must be based on eyewitness accounts, and not just the conclusions of police officers who did not witness an alleged offense. Contrary to defendant’s argument, this requirement was easily satisfied here, where two people provided testimony that linked defendant with contraband. We reject defendant’s argument that his due process rights were violated when the trial court revoked his probation.
III. Disposition
The judgment is affirmed.
We concur: Ruvolo, P.J., Reardon, J.