Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P03CRF0050
SIMS, Acting P.J.Defendant Jerry Dean Stroup appeals from the revocation of his probation and the imposition of his previously stayed prison sentence. The trial court found that he knowingly possessed drug paraphernalia and that this was his third violation of probation. Defendant contends that there was insufficient evidence to support the court’s findings. Defendant does not recognize that the substantial-evidence standard of review applicable to criminal convictions does not apply to a probation revocation. We find enough evidence to support the trial court’s revocation of probation. Accordingly, we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2004, defendant pled no contest in El Dorado County Superior Court to fraudulent use of an access card, in return for the People’s agreement to dismiss counts of theft of an access card and receiving stolen property. The trial court suspended imposition of sentence and granted three years’ probation on terms and conditions which included 90 days in the county jail. The conditions also included the requirements that defendant violate no laws and submit to search and seizure of his person, residence, vehicle, business, and property at any time for illegal drugs, with or without probable cause.
In November 2004, the El Dorado County Probation Department petitioned to revoke defendant’s probation because defendant had failed to report to the probation department as directed on May 23, 2004, and his whereabouts had been unknown since August 23, 2004. The trial court revoked probation. On December 27, 2004, after defendant admitted the allegations in the petition, the court reinstated him on probation under the original terms and conditions, including 60 days’ additional time in jail with credit for time served.
In May 2005, the probation department again petitioned to revoke defendant’s probation, alleging that since his release from custody in January 2005 he had failed to report to his probation officer. The court summarily revoked probation. On June 14, 2005, defendant failed to appear; the court ordered his probation revoked. On September 2, 2005, after defendant admitted the allegations in the petition, the court sentenced him to the upper term (three years in state prison) but ordered imposition of the term stayed, then reinstated him on probation under the original terms and conditions, including an additional 60 days in jail with credit for time served.
On December 27, 2005, the probation department again petitioned to revoke defendant’s probation, alleging that on December 24, 2005, he had been in unlawful possession of a methamphetamine pipe (Health & Saf. Code, § 11364, subd. (a)). The trial court ordered probation revoked. In March 2006, the court held a hearing on the matter.
Evidence at the probation revocation hearing
On December 24, 2005, El Dorado County Deputy Sheriff Lance Bryant went to Douglas Tappan’s residence to serve an arrest warrant on defendant’s girlfriend, Mandy Hayes. According to defendant and Tappan, defendant had rented a room there since October 2005, but Hayes and her children were staying in it over the holidays, while defendant slept in the living room.
Bryant encountered defendant near the back door of the apartment. After learning from Tappan that the bedroom was defendant’s, Bryant searched it for narcotics-related contraband, as incident to Hayes’s arrest and because defendant was on searchable probation.
There were three shelves built into the bedroom wall. On the middle shelf, Bryant found two rent receipts and a “methpipe.” On a shelf just below that, Bryant found defendant’s California identification card and defendant’s cell phone.
The evidence about the shelf’s height conflicted. Bryant recalled it as “about eye level” to him, “[s]o six feet, maybe a little under.” Tappan gave a similar estimate. Defendant, who is five feet seven inches tall, testified that he would have needed to stand on a step-stool to see what was on the shelf. However, Hayes, who is five feet four inches tall, testified that the shelf was at her eye level.
The “meth pipe” was a glass pipe wrapped in tissue, holding black and white residue. (He did not find methamphetamine, however.) He also found marijuana on the shelf, which Tappan claimed was medically prescribed for him. Tappan and Hayes denied owning the pipe.
Tappan testified that he had lived at the apartment for two years; as well as defendant and Hayes, Tappan’s son and daughter had also lived there at times. Defendant had been staying there as of late October 2005. He had possession of the bedroom, but so did Tappan; it was a kind of storage room which Tappan had been cleaning up. Among other things, he had moved his son’s possessions in there after his son’s arrest. He “had no idea if there was anything improper in [his] son’s stuff.”
They had met and become friends in jail. Tappan “saw that he was a good guy” and helped him after his release.
When Bryant showed him the pipe, Tappan claimed that it did not belong to him or defendant. Tappan had never seen it before.
About a week later, on the same shelf Tappan found another wrapped pipe which looked like the first one. He thought it must have been his son’s, because his son was arrested “previous to Christmas” for drug-related matters, including methamphetamine.
He admitted, however, that he did not notify anyone about the second pipe until three months after he allegedly found it.
On cross-examination, he admitted that his son was arrested on December 24, 2004, and had not lived there since then.
Hayes, who had dated defendant on and off for eight years, recalled seeing an officer take marijuana and a pipe off a shelf, which had “all kinds of stuff” on it. However, although she watched Bryant’s entire search of the shelf, she did not see him take rent receipts or a cell phone from it. She denied telling him that the pipe belonged to defendant.
Recalled to the stand, Officer Bryant testified that she did tell him that after her arrest.
Defendant testified that on the day of the search he was “in the process of moving in.” The officers met him in the apartment, then moved him into another room while they searched the bedroom. After one said, “We found paraphernalia,” they handcuffed him. An officer brought out “something that looked like a pot pipe” wrapped in paper and asked if it was his; he said he had never seen it before and did not know what it was. He had never used a methamphetamine pipe; nor had he ever used methamphetamine or marijuana. His rent receipts were not on the shelf, but on the desk in the bedroom.
On cross-examination, he admitted that he had used methamphetamine 10 years ago. He also admitted that he had seen meth pipes before, though he still denied ever using one.
The court’s ruling
The court found that defendant had violated probation. Even if he was in the process of moving in, his rent receipts showed that he had had control over the premises for some time. The pipe was on those premises, on the second shelf, wrapped as such pipes commonly are. Defendant “certainly” could have seen the shelf because Hayes, who was shorter, could see it.
The court’s sentencing statement
The court rejected defendant’s request to reinstate probation. The court observed that, when presiding over the previous probation violation proceedings, it had been inclined to send defendant to prison then, but had decided to give him another chance at his request. His latest violation had “used up his last chance.”
In response to counsel’s arguments, the court added:
“And I don’t understand what part was complicated about [‘]you’re to obey the law[’]. And [Penal Code section] 1164 is certainly a basis to send someone to prison when the terms are very clearly spelled out.
“When we entered into this agreement against my better judgment, I did not execute the sentence that day I imposed it. I looked through the defendant’s bail study. I saw all the previous violations. He has a long history of insignificant but increasing problems that start way back in 1990. And I reviewed the fact that there were -- on the bail study alone, there were 14 failures to appear, and there . . . was a violation of causing a fire under 452 of the Penal Code.
“He had drug charges in the past in Minnesota. He had defrauding an in[n]keeper. He had a forged registration and then various driving violations for misdemeanors, . . . having a suspended, revoked license, and we went through all of that.
“I then placed him on probation, or Judge Proud did for 90 days, giving him the chance to work through his probation. Apparently, he violated that probation, came back before the Court, and that was in November of ’04, didn’t contact probation, didn’t provide an address. These are silly things, but it’s like the message did not get through.
“So he admitted the violation of probation, and he was again put back on probation and a petition was filed on May the 3rd, and that was 2005 and again, he couldn’t report to probation. That’s not complicated.
“So we reinstated him back on probation for that. But it was the Court’s feeling that he just really was not able to be successful on probation. He got 60 days imposed back on September the 2nd, 2005, and that’s when the Court had imposed the upper term of three years state prison and told him nothing in his life was to go wrong. He was to have no problems, just obey the law. And there he is back in a circumstance where I conducted a hearing, and I was of the view that he did actually possess the pipe.
“My recollection of the testimony is that he had rent receipts there for periods of time. In fact, some of the rent receipts and his other personal property from that room were in very close proximity, if not on top of, the area of the pipe. And so I’m of the view he just didn’t get it.”
DISCUSSION
Citing the substantial-evidence standard of review that applies following a criminal conviction where the defendant’s guilt must be proven beyond a reasonable doubt, defendant contends that the trial court’s finding of probation violation must be reversed because there was insufficient evidence that he knowingly used paraphernalia, that it was used for an illegal purpose, or that he knew the residue in the paraphernalia was methamphetamine. Defendant is mistaken.
Probation violations -- even alleged new crimes -- need be proved only by a preponderance of the evidence, and we review the trial court’s finding that a violation occurred only for abuse of discretion causing a miscarriage of justice. (Pen. Code, § 1203.2, subds. (a), (b); People v. Rodriguez (1990) 51 Cal.3d 437, 443 (Rodriguez); People v. Zaring (1992) 8 Cal.App.4th 362, 378.) “[P]robation may be revoked despite the fact that the evidence of the probationer’s guilt may be insufficient to convict him of the new offense. [Citation.]” (Rodriguez, supra, 51 Cal.3d 437, 442; followed in In re Eddie M. (2003) 31 Cal.4th 480, 505.) Because defendant was not prosecuted for the alleged new crime in this proceeding, the traditional substantial-evidence standard of review is inapplicable.
With these points in mind, we turn to defendant’s contentions.
I
Defendant claims that there was insufficient evidence he knowingly possessed paraphernalia because Tappan put the “meth pipe” on the shelf, others had access to the bedroom and the shelf, and defendant lacked knowledge of the shelf’s contents due to its height. We disagree. Even if the substantial-evidence standard applied, we would reject defendant’s argument because defendant improperly views the evidence, including credibility questions, most favorably to himself. (Cf. People v. Horning (2004) 34 Cal.4th 871, 901; People v. Johnson (1980) 26 Cal.3d 557, 578.)
Defendant’s assertion that Tappan put the pipe on the shelf assumes the truth of his own and Tappan’s testimony, which the trial court did not credit. We cannot second-guess the court’s implied credibility findings. In any event, we see no reason to do so. An admittedly biased witness, Tappan blamed the pipe’s presence on his son, even though the court’s files showed that his son had never been found to possess drug paraphernalia.
That others had access to the bedroom and the shelf is immaterial because the People did not need to prove that defendant alone had access to them. Shared dominion and control over the place where drugs or paraphernalia are found may suffice to prove possession beyond a reasonable doubt. (People v. Williams (1971) 5 Cal.3d 211, 215.) Defendant admitted that he had officially occupied the bedroom for two months before the search, and his rent receipts were found on the same shelf, next to the pipe. Defendant’s identification and cell phone were found on the shelf just below. This evidence established at least his shared dominion and control over the bedroom and shelf where the meth pipe was located.
Defendant’s assertion that the shelf was too high for him to see its contents, like his assertion that someone else put the pipe there, ignores contrary evidence which the trial court credited. The court evidently believed Hayes’s testimony that she could see the shelf, even though she was shorter than defendant. It does not matter whether Deputy Bryant’s recollection supported defendant’s claim, as the court impliedly found that Bryant simply misremembered the facts on that point.
Defendant has shown no error in the trial court’s finding that he knowingly possessed paraphernalia.
II
Defendant contends that there was insufficient evidence that the paraphernalia was used for an illegal purpose. He reasons: (1) the People did not put on expert testimony establishing that the pipe was used to smoke methamphetamine; (2) Deputy Bryant could not properly testify that the pipe was a “meth pipe” because such a conclusion is beyond the scope of lay opinion; (3) the pipe and the residue it contained were not tested forensically; (4) only marijuana was found on the premises, and Health and Safety Code section 11364, subdivision (a), does not prohibit the possession of a device for smoking marijuana.
Keeping in mind that the evidence required for a revocation of probation need not meet the exacting standards of a criminal trial (People v. Rodriguez, supra, 5 Cal.3d at p. 442), we believe that the police officer’s testimony that the pipe was a “meth pipe” was sufficient to support a revocation of probation.
III
In a supplemental brief, defendant asserts that the People failed to prove that he knew the residue in the pipe was methamphetamine. Defendant relies on People v. Tripp (2007) 151 Cal.App.4th 951, in which the appellate court reversed a criminal conviction for possession of methamphetamine due to insufficient evidence that the defendant knew the powder found in his bedroom was a controlled substance.
The trial court impliedly found that defendant knew what the pipe had been used for. Defendant admitted that he had smoked methamphetamine and seen “meth pipes” before. Those admissions were sufficient to support the court’s implied finding.
The trial court did not abuse its discretion in revoking defendant’s probation. (See Rodriguez, supra, 51 Cal.3d at p. 442.)
DISPOSITION
The judgment (order revoking probation) is affirmed.
We concur: RAYE, J., CANTIL-SAKAUYE, J.
The trial court later observed that it had looked through the files of all the cases involving Tappan’s son and had found that he had never been shown to possess drug paraphernalia.