Opinion
A158300
03-18-2020
THE PEOPLE, Plaintiff and Respondent, v. RYAN TREGASKIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. CR181757)
Ryan Tregaskis (defendant) appeals from a judgment entered after the trial court found he violated two probation conditions, revoked and reinstated probation, and ordered him to serve 90 days in county jail. He contends the court erred in finding he violated the condition that prohibits him from owning or possessing "any firearm, ammunition or other dangerous or deadly weapon." We agree and remand the matter for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
On November 6, 2017, an amended information was filed charging defendant with one count of dissuading a witness by force or threat (Pen. Code, § 136.1, subd. (c)(1), count one) and three counts of misdemeanor battery (§ 242, counts two through four). The information was based on an incident in which three individuals reported that defendant approached them outside of a bar and hit them. A jury found defendant guilty of misdemeanor battery in count two. The jury was unable to reach a verdict on all remaining counts and the trial court dismissed those counts.
All further statutory references are to the Penal Code. --------
Thereafter, pursuant to a negotiated agreement, an additional charge of assault by means of force likely to cause great bodily injury was added to the information (§ 245, subd. (a)(4); count five) and defendant pleaded no contest to that count. Defendant also admitted to a probation violation in another case. The trial court placed defendant on probation for three years under various conditions, including that he "not own or possess any firearm, ammunition, or other dangerous or deadly weapon" and "not drink or possess alcoholic beverages."
On July 22, 2019, a petition to revoke probation was filed alleging defendant had violated the weapons and alcohol conditions. At a contested revocation hearing, Napa Police Officer Joshua Tony testified that he and his partner were on patrol when they contacted defendant and another individual who appeared to be "hanging out" in a vehicle parked inside of an apartment complex parking lot. Tony recognized both defendant (in the front passenger seat) and another individual (in the driver's seat) from prior contacts. Tony approached the passenger side and saw an open can of beer near defendant's feet and numerous beer cans throughout the car. Defendant admitted he drank some of the beer.
Tony searched defendant and found a "red handled" "folding knife" with a "razor blade" in defendant's right jean pocket. Tony believed the knife was a "weapon" capable of "stabbing or cutting" and "could . . . inflict great bodily injury or death." On cross-examination, Tony acknowledged the knife is commonly referred to as a "utility knife" or "box cutter," is manufactured by a company that makes tools, and is used in construction. The blade, which is removable, was "seated in the knife" and was approximately one inch long as "seated." Tony testified that defendant told him he had gotten off of "some type of" "physical labor," "contracting" work earlier that day.
The prosecutor stipulated that a box cutter is not "inherently deadly for purposes of a 245 instruction" but argued the trial court should find a probation violation under the circumstances of this case because defendant was convicted of a battery and "the prohibition against him possessing . . . deadly or dangerous weapons is very important to ensure that that type of violence doesn't happen again, and doesn't happen with use of a weapon."
The trial court initially stated it did not find a violation of the weapons condition but, after further argument, ruled as follows: "It's an interesting legal analysis here. I am going to change my original tentative ruling that I started making earlier. We all agree that a box cutter or utility knife is not an inherently deadly weapon pursuant to case law, however it seems clear that one must look at the circumstances of possessing the item. And here there has been no evidence one way or the other as to why Mr. Tregaskis was in possession of a box cutter, however the circumstances where that he was on probation for 245, an assault, and I understand a weapon wasn't used then but it was an act of violence. [¶] There is a reason for having conditions of probation that prohibit dangerous or deadly weapons especially in an assault case so that it won't happen again. Some [sic] dangerous situation won't happen again."
The court continued: "Mr. Tregaskis is a passenger in a vehicle drinking alcohol which is also a violation of his probation. There was no evidence one way or the other as to whether he was going to work, whether he had the knife in the context of an employment situation. Why he had it is not before the court. But the court is persuaded that it is a dangerous precedent to allow a probationer to be carrying an item that can be used as a deadly weapon. It's sharp and it's pointed and can cut and injure and kill people. And so the court does find this was a dangerous or deadly weapon." "So the court is finding that Mr. Tregaskis violated his probation by being in possession of a box cutter. And the recommendation is to refer this to probation for a probation revocation report which the court will do at this time." At sentencing, defendant agreed to have a different judge sentence him. The court revoked and reinstated probation and ordered defendant to serve 90 days in county jail.
DISCUSSION
The Attorney General (respondent) concedes—and we conclude—"the trial court erred in finding [defendant] possessed a 'dangerous or deadly weapon' . . . without evidence of [defendant's] intent to use it as a weapon." (People v. Aledamat (2019) 8 Cal.5th 1, 3 [box cutter is not inherently deadly and is a deadly weapon only if used in a way that makes it deadly].) Respondent argues the error was harmless, as "it is not reasonably probable that [defendant] would have obtained a more favorable result since he had still violated the alcohol condition." We disagree. " Section 1203.2 subdivision (a), authorizes a court to revoke probation if the interests of justice so require and the court, in its judgment, has reason to believe that the person has violated any of the conditions of his or her probation. [Citation.] ' "When the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period." ' " (People v. Urke (2011) 197 Cal.App.4th 766, 772, fn. omitted.) "The standard of proof in a probation revocation proceeding is proof by a preponderance of the evidence" and we review the trial court's findings or substantial evidence. (Id. at pp. 772, 773.)
Here, the trial court likely considered defendant's violation of the weapons condition more aggravating than the alcohol violation. From the record before us, we cannot say it is more likely than not the court would have made the same decision without a weapons condition violation. (People v. Watson (1956) 46 Cal.2d 818, 836-837.) Accordingly, we reverse the court's order revoking and reinstating probation and remand the matter for further proceedings as set forth in the disposition.
DISPOSITION
The trial court's order revoking and reinstating probation and sentencing defendant to 90 days in county jail is reversed. On remand, the court shall determine whether the alcohol violation alone supports a probation revocation and, if so, the appropriate penalty for the violation.
/s/_________
Petrou, J. WE CONCUR: /s/_________
Fujisaki, Acting P.J. /s/_________
Jackson, J.