Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA063221, Joan Comparet-Cassini, Judge.
Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Albert Walker appeals the judgment (order revoking probation) entered after the trial court imposed a two-year state prison term based on the finding Walker violated probation by knowingly possessing counterfeit Nike shoes in violation of Penal Code section 350. Walker contends the proceedings in the trial court violated his due process right to confront and cross-examine witnesses. Walker also asserts the trial court’s refusal to reopen the case after the close of evidence deprived him of his right to testify at the hearing. We conclude Walker’s arguments lack merit and affirm the order.
Subsequent unspecified statutory references are to the Penal Code.
BACKGROUND
In 2006, Walker pleaded no contest to possession of a firearm by a felon (§ 12021, subd. (a)(1)) and was granted probation. One condition of probation required Walker to obey all laws.
In 2008, while still on probation, Walker was arrested for knowingly possessing counterfeit Nike shoes in violation of section 350. Walker’s arrest took place during field officer Andrew Gonzalez’s undercover investigation of counterfeit shoe sales in the City of Wilmington. Walker initiated a conversation with Gonzalez in the parking lot of a doughnut shop. Walker told Gonzalez “I got them Air Force Ones” (referring to a style of Nike shoe), quoted Gonzalez $300 per case, and showed Gonzalez the shoes stored in Walker’s trunk.
On September 10, 2008, the trial court held a probation violation hearing based on the section 350 charge. Walker appeared in propria persona.
The People called Victor Murillo, an expert in the identification of counterfeit goods, including counterfeit Nike goods. Murillo testified he “could tell right away” the shoes at issue were counterfeit. Walker then cross-examined Murillo. He asked Murillo several questions, including: who produces and distributes counterfeit goods, what resources are needed to manufacture counterfeit Nike shoes, which stores are monitored for counterfeit goods, and who purchases counterfeit goods. The trial court sustained the People’s relevance objections to these questions.
Murillo pointed out several characteristics of the shoes in support of his conclusion the shoes were counterfeit. The shoes were “constructed poorly,” did not smell like new Nike shoes, and had detached soles as opposed to glued-in soles. The shoes were stored in damaged boxes that did not include serial security numbers. In addition, each box contained silica packs absent from authentic Nike shoeboxes.
Before the close of evidence, the trial court asked if Walker wished to call witnesses to testify on his behalf. Walker indicated he did not.
The matter proceeded to argument. Instead of arguing from the evidence presented at the hearing, Walker stated, “[h]ad I known that these shoes were counterfeit, your honor, I would not have purchased those shoes.” The trial court directed Walker to “argue the evidence that was introduced” and advised Walker his intentions were not relevant because he did not testify. Walker responded, “I will testify, your Honor, if I have to.” The court declined to reopen the case to allow Walker to testify.
The trial court found the evidence “overwhelming[ly]” showed Walker possessed “blatantly counterfeit” Nike shoes and Walker “knew very well that they were counterfeit.” The trial court revoked Walker’s probation and sentenced him to two years in state prison.
CONTENTIONS
Walker contends the trial court improperly sustained the People’s relevance objections during cross-examination of Murillo and abused its discretion when it refused to reopen the case to allow Walker to testify.
DISCUSSION
1. Legal principles.
Probation may be revoked if the trial court has reason to believe the probationer has violated any of the conditions of probation or has committed a new offense. (§ 1203.2, subd. (a); see § 1203.3, subd. (a) [“The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence”].) The trial court must hold a formal hearing before exercising its authority to revoke probation. (§ 1203.3, subd. (b)(1).) “Revocation of probation is not part of a criminal prosecution, and therefore the full panoply of rights due in a criminal trial does not apply to probation revocations. [Citation.]... The standard of proof in probation revocation proceedings is proof by a preponderance of the evidence. [Citation.]” (People v. Stanphill (2009) 170 Cal.App.4th 61, 72.)
With respect to the admission of evidence, trial courts “ ‘ “determine[] relevancy in the first instance and retain[] discretion to exclude evidence whose probative value is substantially outweighed by the probability that its admission will create substantial danger of confusing the issues or misleading the jury.” ’ [Citation.]” (People v. Williams (2006) 40 Cal.4th 287, 320.) Evidence is relevant when it tends to prove or disprove any disputed material fact. (Evid. Code, § 210.)
A reviewing court evaluates a trial court’s decision to admit or exclude evidence under the abuse of discretion standard. (People v. Williams, supra, 40 Cal.4th at p. 317.) A reviewing court shall not disturb a trial court’s judgment unless it is “ ‘ “reasonably probable” a result more favorable [to the non-prevailing party] would have been reached had the error not occurred.’ [Citation.]” (Id. at p. 301.)
With these principles in mind, we turn to Walker’s claims.
2. No abuse of discretion in the trial court’s limitation of Walker’s cross-examination of Murrillo.
Walker contends the trial court improperly limited his constitutional right to cross-examine Murillo regarding known suppliers and buyers of counterfeit shoes. (See People v. Arreola (1994) 7 Cal.4th 1144, 1158 [generally a probation revocation hearing must preserve the probationer’s due process right to confront and cross-examine witnesses].) Walker asserts Murillo’s testimony about the production of counterfeit shoes could have buttressed Walker’s defense that he bought the shoes from a seemingly legitimate store and did not know the shoes were counterfeit.
Walker’s claim lacks merit.
Section 350 prohibits any person from “willfully manufactur[ing], intentionally sell[ing], or knowingly possess[ing] for sale any counterfeit mark.... (§ 350, subd. (a).) “ ‘Knowingly possess’ means that the person possessing an article knew or had reason to believe that it was spurious, or that it was used on or in connection with spurious articles, or that it was reproduced without authorization of, or in excess of any authorization granted by, the registrant.” (§ 350, subd. (e)(4).)
The central issue at the probation violation hearing was whether Walker knowingly possessed counterfeit shoes. Murillo’s testimony focused on whether the shoes in Walker’s trunk were counterfeit. However, Walker’s cross-examination sought to elicit testimony about other counterfeit shoes and other participants in the counterfeit shoe trade. Thus, Walker’s cross-examination had little connection to the subject matter of Murillo’s testimony.
Indeed, any response Murillo could have given to Walker’s questions about other participants in the counterfeit shoe trade would not have a tendency to prove or disprove whether Walker knew the shoes in his trunk were counterfeit. (Evid. Code, § 210; see People v. Loker (2008) 44 Cal.4th 691, 730 [no abuse of discretion in exclusion of mitigating evidence that “had no bearing on defendant’s character”]; People v. Monterroso (2004) 34 Cal.4th 743, 780 [video featuring individual other than defendant properly excluded from evidence where video had “no relevance to defendant’s character, prior record, or the circumstances of his offense”]; People v. Sapp (2003) 31 Cal.4th 240, 290 [no abuse of discretion where trial court did not allow defendant to cross-examine expert regarding matters “nominally relevant to the subject matter of [the expert’s] testimony”].)
Application of the foregoing authority reveals no abuse of discretion in the limitation of Walker’s cross-examination of Murillo.
Walker also contends the limitation of cross-examination prevented him from establishing that his possession of the shoes was not criminal because he did not knowingly possess counterfeits. However, Walker concedes Murillo “could not have answered the question pertaining to what exactly was in the mind of the lay person on the basis that such [question] was speculative....”
In sum, we find no error in the trial court’s limitation of Walker’s cross-examination of Murillo.
3. Trial court did not abuse its discretion in declining to reopen the hearing.
Walker contends the trial court abused its discretion when it refused to reopen the hearing to permit him to testify. Walker insists this error requires reversal per se.
Initially, we address the People’s assertion Walker failed to preserve this issue for appeal because he never asked the trial court to reopen the hearing. For the purpose of appeal, we construe Walker’s statement, “I will testify, your Honor, if I have to,” as a motion to reopen the hearing. Nonetheless, we conclude Walker’s claim fails on the merits.
The decision to grant or deny a motion to reopen rests within the trial court’s sound discretion. (People v. Monterroso, supra, 34 Cal.4th at p. 779.) Moreover, a trial court does not abuse its discretion in refusing to reopen where “the evidence the defense sought to offer at reopening was indisputably available during the trial.” (Ibid.)
Here, Walker’s testimony was available during the hearing and the trial court gave Walker an opportunity to testify or call witnesses prior to the close of evidence. Walker declined this opportunity and proceeded to argument. Thus, the trial court’s refusal to reopen the case appears to have been appropriate. (See People v. Monterroso, supra, 34 Cal.4th at p. 779 [“The trial court was entitled to rely on defendant’s lack of diligence in denying the motion to reopen”].)
In any event, no different result would have obtained had Walker testified. The trial court found the evidence against Walker was “overwhelming,” the shoes were “blatantly counterfeit,” and Walker “knew very well that they were counterfeit.” In sum, even if the trial court erred, Walker is unable to demonstrate prejudice.
For all the foregoing reasons, we reject Walker’s claim of error based on the trial court’s refusal to reopen the probation violation hearing.
DISPOSITION
The judgment (order revoking probation) is affirmed.
We concur: CROSKEY, J., KITCHING, J.