Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. SF083744A, TF030945A (San Joaquin)
HULL, J.
Pursuant to a plea agreement, defendant Lafayette Toney entered a plea of guilty to inflicting corporal injury on his spouse (Pen. Code, § 273.5, subd. (a)) and admitted a great bodily injury enhancement in case No. SF083744A, and a plea of guilty to felony escape (Pen. Code, § 4532, subd. (b)) in case No. TF030945A. The court imposed concurrent one-year jail terms in both cases and placed defendant on five years’ probation.
The People later alleged defendant violated probation by committing battery on a cohabitant (Pen. Code, § 243, subd. (e)). The court sustained the allegation and terminated probation after a contested hearing. Defendant was sentenced to an aggregate term of three years eight months in state prison.
Defendant appeals, contending the order revoking probation is not supported by substantial evidence, and the court violated his right to due process by not admitting the tape of a 911 call made by defendant. We affirm the judgment.
Facts and Proceedings
The facts are taken from the probation revocation hearing. The facts of defendant’s initial crimes are not relevant to his appeal.
Brianna Posadas testified that she had been defendant’s girlfriend since December 2006. In March 2007, they were living together in a Stockton apartment. According to her testimony, on the afternoon of March 12, defendant asked her to leave the apartment, but she said no. The two were outside the apartment complex and defendant called 911. Police officers arrived, and Briana falsely claimed defendant had hit her. She lied about defendant hitting her because she was angry with him and wanted to get defendant into trouble.
Posadas denied being injured by defendant. Although she showed injuries to the officers and told them they were inflicted by defendant, she testified the wounds were self-inflicted. She said she received some of them when she was admitted to the County Mental Health two days before the incident. Further, she got a black eye when she bumped into a cupboard door, she cut her hands by picking up glass from a broken mirror, and she was bruised because she is anemic and bruises easily. She also sustained a bruise on her throat when defendant grabbed her, “but not violently” while they were having sex. Posadas remembered the police giving her a restraining order, but did not remember asking for one.
Posadas said she had previously been taken to County Mental Health by the police after slitting her wrists with a knife and drinking half a bottle of peroxide. She testified to being bipolar and a sociopath with severe depression who took Lexapro, Zethroplan, Valium, and Seroquel. She stopped taking her medication when she was pregnant last year, and did not start taking it again until after going to County Mental Health. Posadas had not started taking her medication when she told officers defendant injured her.
When she is off of her medication, Posadas can get angry or depressed. She was depressed when she slit her wrists, but defendant was trying to help her. When defendant asked her to leave, she threatened to damage his car, which was parked outside the apartment, by kicking in the windshield. She was getting ready to damage defendant’s car when he called the police.
In response to the 911 call, Officer Cliff Hoffman of the Stockton Police Department spoke with defendant and Posadas. Posadas told Hoffman that she and defendant got into an argument around 2:00 a.m. that morning and defendant asked her to leave the apartment. Defendant became angry and grabbed Posadas by the throat and held her against a wall. Defendant then let her go and they went to sleep.
After Posadas and defendant woke up, they continued to argue, outside the apartment where defendant said he was going to call the police. They went next to defendant’s car where there was a cell phone. Posadas reached for the cell phone and one of them dropped it as the two struggled. Posadas tried to pick up the phone and defendant stepped on her hand and knocked her over. Defendant then took the cell phone, called 911, and drove away.
Hoffman saw that Posadas had multiple bruises on her arms, a bruise on her chin, bruises and a scratch on her throat, and a black eye. Posadas told the officer her injuries were inflicted by defendant as a result of the recent incident and the one which took place earlier in the morning. There were some bruises on her body that Posadas would not explain. Hoffman took photographs of the injuries which were admitted as evidence. Posadas declined first aid, but accepted Hoffman’s suggestion that she obtain an emergency protective order.
Although Hoffman responded to a call to 911 from a passerby who saw defendant and Posadas fighting, he believed another call also came in from defendant. Defendant told the officer Posadas had threatened to damage his car. Defendant had a bite mark on his left shoulder, and said he had a videotape of Posadas.
Defendant testified stating Posadas tried to drink some peroxide and rubbing alcohol on March 9, but he managed to stop her. Posadas responded by yelling and screaming at him. After defendant said he did not want to deal with her conduct and was going to work, Posadas apologized. When defendant arrived home from work on March 10, Posadas had slit her wrists and developed bruises. He also noticed the bathroom mirror was broken with lots of broken glass.
On March 10, defendant made a videotape of Posadas inside their apartment, in which, according to defendant, he asked her questions about damaging the car. Defendant stated that the tape would show she already had scars, bruises, and cuts all over her body.
On March 12 at around 1:00 a.m., defendant came home and found Posadas outside, wondering why he had taken so long to come home. She appeared to be on drugs and started screaming at defendant, asking where he had been. Defendant told Posadas he did not need “this” as he was on parole and probation and that she should leave, but he agreed to let her stay until the morning.
They woke up between 10:30 and 11:00 a.m., and defendant asked Posadas if she was ready to go. She replied that she was not going anywhere. Defendant threatened to call the police about an earlier incident in which Posadas had vandalized his car. When defendant picked up the cell phone to call, she pleaded with him, promising to take her medication, which would keep her from acting like this.
As defendant picked up the phone again, Posadas walked outside the apartment. Defendant followed and locked the door behind them, taking the videotape with him. Posadas had threatened to damage his car, so defendant walked to the car where he found Posadas. Defendant then started to call 911 on his cell phone. This led Posadas to try to pull the cell phone away from defendant, but he let his arm down, causing Posadas to fall backwards. A passerby asked defendant if he should call the police, and defendant told him to do so. Defendant then called the police, telling the dispatcher Posadas had damaged his car, described what she wore, and asked for a temporary restraining order.
After making the call, defendant drove across the street. The police arrived, and defendant walked up to an officer, who immediately handcuffed him and put him in the back of the patrol car. Defendant gave the videotape to Officer Hoffman, who took it to the county jail with the rest of defendant’s property. Defendant’s mother eventually obtained the videotape and gave it to Posadas, who was to give the videotape to defendant’s attorney.
A defense investigator tried to produce a VHS copy of defendant’s videotape, which was in a different format. This was impossible because the original videotape was wadded up and covered with some type of lotion.
Defendant moved to admit a tape of his 911 call. The People raised a hearsay objection, and the court refused to hear the tape of the 911 call, finding it not relevant in light of defendant’s testimony concerning the contents of the call.
In sustaining the allegation, the court found that the case centered on whether Posadas told the truth at trial or to Hoffman when he responded to the call. The court found Posadas to be “a very emotional witness to say the least” and determined her trial testimony explaining her injuries was absurd. The court concluded Posadas was a recanting victim who was a liar with mental health issues, but it could not believe that her injuries were all accidental, and determined defendant violated his probation.
Discussion
I
Substantial Evidence
Defendant contends the trial court’s finding that he violated probation by committing battery on a cohabitant against Posadas is not supported by substantial evidence. We disagree.
Probation violations--even alleging 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. (People v. Rodriguez (1990) 51 Cal.3d 437, 442-443.) “‘[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.]” (Id. at p. 442.)
Where the trial court resolves conflicting evidence to determine whether a probationer willfully violated probation, review on appeal is based on the substantial evidence test. (People v. Kurey (2001) 88 Cal.App.4th 840, 842, 848.) “Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence . . . support[ing] the trial court’s decision.” (Id. at p. 848.)
The court determined Posadas lied at the hearing when she claimed defendant had not inflicted her injuries because there was no way to believe the many injuries she suffered were all accidental. Posadas’s statement to Hoffman, if believed, is substantial evidence showing he had committed a battery against her. The court implicitly found her story to the police officer credible, and explicitly found her trial testimony to be incredible. We shall not second guess the court’s credibility findings or its finding that defendant violated his probation.
II
The Tape of the 911 Call
Defendant asserts the court violated his right to due process by not admitting the tape of his 911 call. Again, we disagree.
Due process protects the defendant’s right to present evidence in a probation revocation hearing. (People v. Malabag (1997) 51 Cal.App.4th 1419, 1422.) However, the due process rights at a probation revocation hearing should not be confused with the protections of a criminal trial. Thus the United States Supreme Court has “sought to preserve the flexible, informal nature of the revocation hearing, which does not require the full panoply of procedural safeguards associated with a criminal trial.” (Black v. Romano (1985) 471 U.S. 606, 613 [85 L.Ed.2d 636, 643-644].)
The parties analyze the admissibility of the 911 call through decisions addressing whether the admission of hearsay evidence violated defendant’s due process rights. These cases establish the rule that at a probation revocation hearing the court will consider hearsay testimony submitted by the prosecution “[a]s long as [it] bears a substantial degree of trustworthiness. . . . [Citations.] In general, the court will find hearsay evidence trustworthy when there are sufficient ‘indicia of reliability.’ [Citation.]” (People v. Brown (1989) 215 Cal.App.3d 452, 454-455; See also People v. Arreola (1994) 7 Cal.4th 1144, 1154 (Arreola).)
These cases are unnecessary to resolving defendant’s contention. They address whether it was appropriate to admit hearsay evidence against defendant in light of defendant’s right to confrontation. (See Arreola, supra, 7 Cal.4th at pp. 1152-1155.) Defendant does not seek to suppress evidence but instead invokes due process to require that the 911 call be admitted. This is governed by a different component of due process, the right to present evidence.
A defendant’s right to present evidence at trial contemplates the presentation of evidence that has significant probative value. The application of the ordinary rules of evidence does not generally infringe impermissibly on a defendant’s constitutional rights. (People v. Boyette (2002) 29 Cal.4th 381, 427-428.)
Likewise, the rule against hearsay evidence ordinarily does not violate due process when applied against defense evidence (People v. Blackburn (1976) 56 Cal.App.3d 685, 690) unless that evidence was critical to the defense and contained overwhelming indicia of reliability. (People v. Hawthorne (1992) 4 Cal.4th 43, 56.) Assuming this exception, derived from Chambers v. Mississippi (1973) 410 U.S. 284 [35 L.Ed.2d 297]), applies equally to probation revocation hearings, it is not implicated by defendant’s 911 call.
Defendant already testified to the contents of his 911 call, which were at most marginally relevant to the issue of whether he battered Posadas. The court found the 911 tape of minimal relevance in light of defendant’s testimony, and defense counsel admitted a review of the tape showed it was not an excited utterance. Refusing to admit minimally relevant hearsay evidence with no particular indicia of reliability does not violate defendant’s due process right to present evidence at a probation revocation hearing.
Disposition
The judgment is affirmed.
We concur: SIMS , Acting P.J., DAVIS , J.