Opinion
E068202
05-23-2018
THE PEOPLE, Plaintiff and Respondent, v. SHARAE WILSON, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Poulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1503644) OPINION APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie, Judge. Affirmed. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Poulos and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL BACKGROUND
On July 15, 2016, defendant and appellant Sharae Wilson pled no contest to spousal abuse under Penal Code section 273.5, subdivision (a), and admitted inflicting great bodily injury within the meaning of section 12022.7, subdivision (e). On August 12, 2016, at the sentencing hearing, the trial court placed defendant on three years of supervised probation with terms and conditions, including obeying all laws and not violating a restraining order obtained by defendant's husband, Anthony Bryers.
All further statutory references are to the Penal Code unless otherwise indicated. --------
On January 3, 2017, a petition to revoke defendant's probation was filed, alleging that on December 29, 2016, defendant committed assault with a deadly weapon and violated a protective order.
After a probation violation hearing on April 11, 2017, the trial court found defendant violated her probation and on April 12, 2017, the court terminated defendant's probation and sentenced her to a term of seven years in prison.
Defendant filed a timely notice of appeal.
B. FACTUAL BACKGROUND
On December 28, 2016, defendant's daughter Dania Major lived in an apartment in Rialto with her young daughter; her father, Bryers; and her father's daughter. Defendant had been staying at the Rialto apartment since her release from jail on August 13, 2016. Bryers was not in the home on December 28, as he had been working in Arizona.
At around noon, defendant and Majors got into an argument, which became physical. At some point, Majors pushed defendant into the kitchen counter. Defendant reached into a dish rack, grabbed a knife, and raised the knife over her head with the blade pointed at Majors. Defendant and Majors wrestled and the knife became entangled in defendant's wig. Majors bit defendant, who dropped the knife. Defendant then reached into the sink and grabbed a multi-bit screwdriver tool; the tool was missing the bit/tip. Defendant dropped the tool after the women calmed down.
At approximately 10:00 p.m. that evening defendant called police to report the incident with Majors. Defendant was the only person in the apartment at that time. An officer came, took defendant's statement, noted her injuries, and left.
At 2:00 a.m. on December 29, 2016, officers were again dispatched to the apartment in Rialto. Majors and Bryers were waiting in a parking lot when officers arrived. The parking lot was less than 100 yards from the apartment. Defendant was inside the apartment. Bryers told officers he had been in Arizona that day. Majors called and told him about the fight; she asked him to return home. Bryers told the officers he could not go inside the apartment because there was a restraining order prohibiting defendant from having any contact with him.
Defendant testified at the hearing. Defendant denied living at the apartment; Bryers told her she could list the Rialto apartment as her residence on her probation forms. She was at the apartment to babysit Majors's daughter while Majors went to work. She and Majors argued over "suspicious" people and a missing bag of medication. Defendant denied pushing Majors and she did not grab a knife during the argument. Majors was the aggressor in the fight, pushing defendant repeatedly and biting her in the face. Defendant called the police twice, the first time to report the incident and the second time when Majors returned to the apartment after the incident. Defendant testified Bryers was not home during the fight but returned while the officers were there.
DISCUSSION
Defendant contends that her sentence should be vacated and the case remanded for resentencing. We disagree.
"Our trial courts are granted great discretion in determining whether to revoke probation." (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) The level of certainty required to support a probation revocation is less than that required to support a criminal conviction. Section 1203.2, subdivision (a), authorizes probation revocation "if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the [probationer] has violated any of the conditions of his or her supervision." The California Supreme Court has interpreted "reason to believe" under section 1203.2, subdivision (a), to impose a "preponderance of the evidence" standard of proof. (Rodriguez, at p. 445.) A lower threshold is appropriate because "'[r]evocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special [probation] restrictions.'" (People v. Coleman (1975) 13 Cal.3d 867, 877, fn. 8.)
An appellate court will not disturb a decision to revoke a defendant's probation unless it finds the trial court abused its discretion. (People v. Kelly (2007) 154 Cal.App.4th 961, 965.) " '[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation.' " (People v. Rodriguez, supra, 51 Cal.3d at p. 443.) "A trial court abuses its discretion by revoking probation if the probationer did not willfully violate the terms and conditions of probation." (People v. Galvan (2007) 155 Cal.App.4th 978, 983 (Galvan).)
"[W]here the trial court was required to resolve conflicting evidence [to determine whether a defendant violated the conditions of his probation], review on appeal is based on the substantial evidence test. Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.)
In this case, the trial court revoked defendant's probation on two grounds—defendant (1) assaulted her daughter with a deadly weapon; and (2) violated the criminal protective order prohibiting her from contacting Bryers. Defendant concedes substantial evidence supports the felonious assault finding, but argues there is insufficient evidence that she willfully and intentionally violated the criminal protective order.
We need not determine whether defendant violated the criminal protective order because defendant concedes that substantial evidence supports the court's finding she violated probation by assaulting Major with a deadly weapon. In fact, defendant concedes that the court properly revoked her probation based on its finding she committed the assault. Defendant, however, argues that the matter should be remanded for resentencing because the court may choose to impose a lesser sentence with a probation violation based only on the assault. Defendant states, "it is impossible to know whether the court's decision to impose the middle-term of three years or not strike the great bodily injury finding was impacted by both factual violations having been found true." We disagree with defendant's argument. The transcript of the hearing makes it clear that the court primarily relied on its finding that defendant committed assault with a deadly weapon in revoking probation and imposing the seven-year prison term.
In finding that defendant violated the terms of her probation, the court stated that it was "utterly convinced" that defendant attacked Majors with a knife and that defendant's conduct was "dangerous." The court stated: "We are talking about an assault with a deadly weapon and I'm utterly convinced that it happened, that [defendant] had a knife. There was no evidence that she was trying to defend herself against the use of lethal force by [Majors] or by anyone else. . . . [¶] . . . [¶] . . . I'm convinced that [defendant] used a knife that night, that you had a knife and that you attacked [Major]." The court went on to state its belief that defendant "presents a serious risk to public safety, specifically to members of her own family. And I can't in good conscious [sic] subject that family to continued violence from [defendant]. [¶] The underlying facts of the one case is that she hit her husband in the head with a mallet, then after being released from custody she's trying to stab her daughter with a knife."
When discussing defendant's sentence the following day, the prosecutor recommended a sentence of seven years; defense counsel requested that the court reinstate probation to allow defendant to receive mental health services. Defense counsel also argued that if the court was not inclined to reinstate probation, the court sentence defendant to the low term of two years and stay the enhancement. In response, the court stated: "The Court finds that probation is not an appropriate sentence here. I think that perhaps [defendant], I would like to think she could have benefitted from those services but I think the circumstances of the violation demonstrate that is not, in fact, true because [defendant] has not benefitted from those services having not been on probation for very long. But despite her testimony to the contrary, I am convinced that she used a knife and she at least threatened her—threatened her daughter, so I believe she presents a serious risk to public safety and a risk to the safety of her own family. Criminal Protective orders are not going to do the job here— [¶] . . . [¶] . . . in keeping them safe."
In sum, although the court found that defendant violated the protective order, the court imposed the sentence based on its finding that defendant had attacked Majors with a knife, and hence, continued to be a danger to her family and society. Therefore, even if the court erred in finding that defendant violated the protective order, remand is not necessary because the court based its sentence on the unchallenged fact that defendant attacked her daughter with a knife.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. FIELDS
J.