Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA700022, Raymond L. Haight III, Judge.
Jill M. Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kelley A. Johnson and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, Acting P. J.
On May 25, 2007, an amended information charged defendant and appellant Richard Allen Wynne with second degree robbery under Penal Code section 211. The information also alleged that the robbery was committed for the benefit of, at the direction of, or in association with a criminal street gang under section 186.22, subdivision (b). The information further alleged that defendant had a strike prior under sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d), and a prison prior under section 667.5, subdivision (a).
All statutory references are to the Penal Code unless otherwise specified.
On July 20, 2007, under a negotiated plea agreement, defendant pled guilty to an added count of grand theft under section 487, subdivision (c), and admitted the prior strike. Thereafter, the trial court granted the prosecution’s motion to dismiss the robbery count, the gang allegation, and the prison prior. Moreover, the court imposed the agreed upon sentence of six years in state prison, suspended, and granted supervised probation for five years.
On September 18, 2007, the probation department filed a petition for revocation of probation alleging that defendant violated five terms of his probation. At the probation revocation hearing on December 14, 2007, the court found that defendant violated two terms of his probation. Thereafter, the court revoked defendant’s probation and sentenced him to the previously suspended term of six years in state prison.
On appeal, defendant contends that there is insufficient evidence to prove that he violated terms of his probation and that the trial court abused its discretion in revoking his probation. For the reasons set forth below, we shall affirm the judgment.
I
FACTUAL AND PROCEDURAL HISTORY
A. Underlying Grand Theft Conviction
On January 9, 2007, defendant and another male approached the victim while she was walking along the street. One male told the victim to give him her purse or they would kill her. The other male pulled on the victim’s purse until he was able to pull it away from her.
B. Probation Violations
1. Probation Term No. 27
Term No. 27 of defendant’s probation provided that defendant shall:
“Not wear, display or have in your possession any item associated with gang dress or any items prohibited by the probation officer. Including but not limited to any insignia, emblem, button, badge, cap, hat, scarf, bandana, or any article of clothing, hand sign or paraphernalia associated with membership or affiliation in any gang.”
At the probation revocation hearing, Officer Brian Keyner, a gang expert, testified that defendant was a member of the No Love Crips or No Luv Crips, a criminal street gang. The gang is based primarily in Rialto, and is a clique of the Crip gang based in Los Angeles. Crip gang members typically wear the color blue to reflect their gang membership.
On September 13, 2007, Officer Keyner met with defendant in a courtroom hallway. Defendant was wearing a blue baseball cap, a blue “do-rag” on his head, a blue shirt, dark pants, and blue shoes with blue shoelaces. This clothing was consistent with what Crip gang members often wear. It appeared that defendant was representing his gang by wearing his colors.
Probation Officer Marc Garcia testified that defendant was in violation of term No. 27 of his probation because Crip gang members often wear blue.
Defendant testified that he wore a blue shirt and blue hat when he went to the courthouse, but his jeans were black. The clothes belonged to defendant’s brother. Defendant had to borrow his brother’s clothes because his own clothing was in storage and he did not have money to buy new clothes. Defendant’s brother was not a gang member and defendant did not intend to represent a gang. Defendant knew Crips generally wore blue, but he was never told he could not wear blue or any specific color. Defendant said that he was not a Crip gang member, and the color for No Love Crips was white.
Defendant’s brother testified that when defendant was released from custody, defendant needed to borrow clothes because he did not have any. The brother gave defendant some bluish-black pants, a shirt, socks, a blue cap with a “B” for Boston, and a blue “way cap” to control defendant’s hair.
2. Probation Term No. 7
Term No. 7 of defendant’s probation provided that defendant shall:
“Keep the probation officer informed of place of residence and cohabitants and give written notice to the probation officer twenty-four (24) hours prior to any change. Prior to any move provide written authorization to the Post Office to forward mail to the new address.”
At the probation revocation hearing, Probation Officer Garcia testified that defendant did not inform the probation department of his exact residence. Therefore, defendant was in violation of probation term No. 7. Defendant provided an address on Butte Street in Adelanto to the San Bernardino County Probation Department, but provided an address on Cliff Rose in Adelanto when he was contacted by the Fontana Police Department. Thereafter, he tried to register with the San Bernardino Police Department, which led authorities to believe defendant may yet have another address. Consequently, it was unclear where defendant was living.
During his testimony, Probation Officer Garcia testified that defendant registered with the San Bernardino “PD.” Later on, the officer testified that defendant went to the San Bernardino County Probation Department.
Defendant testified that he did not receive a copy of the terms and conditions of probation when released from custody. He went to court on September 13, 2007, to get his property and receive his terms and conditions. He tried to register with the police departments in San Bernardino and Adelanto, but was unable to because he did not have a copy of his terms and conditions. Defendant stated that he went to the San Bernardino probation office twice, the Victorville office twice, the Adelanto office once, and to the court three times to try to comply with the terms of his probation. However, defendant was told he could not register because he did not have his terms and conditions.
II
ANALYSIS
A. There Was Sufficient Evidence to Support the Trial Court’s Finding that Defendant Violated the Terms of His Probation
Defendant contends that “there was insufficient evidence to support the trial court’s finding that [defendant] violated terms 7 and 27 of his probation.” We disagree.
1. Standard of Review
Our review of any claim of insufficiency of the evidence is limited. “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence that is, evidence—that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Hill (1998) 17 Cal.4th 800, 848-849.)
Given this court’s limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain the court’s finding that he violated term Nos. 7 and 27. If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (Jackson v. Virginia, supra, 443 U.S. 307, 319, 326; People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Hale (1999) 75 Cal.App.4th 94, 105.)
When we review a challenge to the sufficiency of the evidence of a probation revocation order, we determine whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof by a preponderance of the evidence, not beyond a reasonable doubt. (People v. Rodriguez (1990) 51 Cal.3d 437, 447.)
Applying this standard, the evidence here discloses sufficient evidence to support the trial court’s decision.
2. Probation Term No. 27
Officer Keyner, a gang expert, testified that defendant was a member of the No Love Crips, a clique or subset of the Crip gang. Crip gang members typically wear the color blue to reflect their gang membership. When Officer Keyner saw defendant in a courtroom hallway on September 13, 2007, everything defendant had on was blue—the baseball cap, do-rag on his head, shirt, pants (“faded dark bluish black”), shoes and shoelaces. The officer testified that such clothing was consistent with what Crip gang members often wear. Moreover the probation officer also testified that Crip gang members often wear blue.
Moreover, after the trial court looked at a picture taken on September 13, 2007, by Officer Keyner, the court noted: “the photo speaks volumes; that is gang attire. He didn’t have to wear a scarf or hat, but from head to toe.” The court also stated: “And I also think wearing the attire is inherently intimidating; that’s what it is supposed to be for. We have had problems with witnesses and victims feeling intimidated in the courthouse because of graffiti and gang members being in or around the area.”
Based on the evidence presented above, there was sufficient evidence to support the trial court’s finding that defendant violated probation term No. 27.
Nevertheless, defendant argues that “blue clothing, standing alone, was insufficient to establish a violation of probation term 27 because the evidence was insufficient to establish that blue clothing signified membership or affiliation in any alleged gang,” and “there was no language in probation term 27 prohibiting [defendant] from wearing any specific color.” We reject defendant’s arguments. Here, both Officer Keyner and Probation Officer Garcia testified that the color blue was associated with the Crips. Officer Keyner testified that defendant was a member of No Love Crips, a subset of the Los Angeles based Crips. The fact that No Love Crips members were also known to wear white does not change the fact that the gang’s “primary color” is known to be blue. Moreover, we note that defendant just did not wear a blue shirt or blue pants. As noted by the trial court’s summary of defendant’s dress—defendant wore blue “from head to toe.”
Defendant also argues that he did not violate probation term No. 27 because he had no other clothes to wear. We find this argument to be wholly without merit. Defendant’s argument may have more credibility had defendant not worn blue from “head to toe.” We find it difficult to fathom that defendant’s brother did not have a single piece of clothing that was not blue in color that defendant could have borrowed. We note that defendant was released on probation on August 17, 2007—almost one month prior to the time he was dressed in all blue.
It appears defendant is merely rearguing the issue of credibility of the witnesses—the testimony of the officers against the testimony of defendant and his brother. We remind defendant that it is the exclusive function of the trier of fact to determine the credibility of the witnesses and the truth or falsity of the facts upon which the determination depends. (People v. Barnes, supra, 42 Cal.3d at p. 303.) In other words, weaknesses and inconsistencies in testimony are matters solely for the trier of fact to evaluate. (People v. Allen (1985) 165 Cal.App.3d 616, 623.)
3. Probation Term No. 7
Probation term No. 7 required defendant to “[k]eep the probation officer informed of place of residence . . . and give written notice to the probation officer twenty-four (24) hours prior to any changes.”
After hearing the evidence presented at the probation revocation hearing, the trial court found that defendant violated probation term No. 7: “They didn’t know where [defendant] was living. [Defendant] wasn’t keeping them apprised.” Substantial evidence supports the trial court’s finding.
Here, Probation Officer Garcia testified that defendant provided an address on Butte Street in Adelanto to the San Bernardino probation office, but provided an address on Cliff Rose in Adelanto when he was contacted by the Fontana Police Department. Consequently, it was unclear where defendant was living. Additionally, defendant tried to register with the San Bernardino Police Department. This led the officer to believe that defendant “may have another address.”
Nonetheless, defendant argues that there was insufficient evidence to show that he violated term No. 7 because he notified the probation office of his place of residence. Defendant, however, fails to acknowledge that he provided two separate addresses to two different agencies, and it was unclear where he was living. Based on the two addresses provided, Probation Officer Garcia testified that it was unclear where defendant was living.
People v. Buford (1974) 42 Cal.App.3d 975, cited by defendant, is inapposite. In Buford,the reviewing court concluded the evidence did not support the trial court’s finding that Buford had failed to report as directed. (Id. at p. 985.) Although the defendant failed to appear for a meeting with his probation officer, three days later he phoned and made an appointment for the following day which he kept. (Id. at p. 983.) He failed to keep his next appointment but again phoned and arranged another meeting. He failed to keep that appointment, but showed up the next day. He failed to respond to a letter, but the letter was not sent to his last known address. (Id. at pp. 983-984.) A letter sent to his last known address advised him that his probation officer would be forced to revoke probation if he did not report. Buford appeared at the probation office and never again missed a scheduled appointment. (Ibid.) The reviewing court concluded Buford’s “probation file revealed that, at worst, he was tardy and undependable in reporting. However, on the few occasions when he failed to keep an appointment, he attempted to remedy the situation by making another appointment.” (Id. at p. 985.) He could not be faulted for failing to respond to a letter sent to an address other than his last known address, and when the letter was sent to his last known address, he responded at once and never again missed a prearranged meeting. Also, Buford’s probation officer could not recall having explained to Buford his duty to report on a regular monthly basis. (Ibid.)
In the case before us, the evidence does not support a finding defendant was tardy and undependable in reporting; rather, it indicates he failed to properly keep the probation officer apprised of where he was actually residing. There is no evidence that defendant attempted to remedy his mistake in reporting his correct address.
Moreover, defendant argues that he did not violate probation term No. 7 because there was “some confusion” as to where he was supposed to report. The evidence, however, shows that, at the time defendant was placed on probation, the court told defendant that he needed to register with the Adelanto police. The court stated: “[W]ithin the next 14 days you have to go to the police agency where you live, and you live in—you have to go to Adelanto Police. You have to register.” When the court asked if defendant understood, he responded, “Yes.”
Based on the above, and in reviewing the evidence in the light most favorable to the judgment, we find that sufficient evidence supports the trial court’s finding.
B. The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s Request to Reinstate Probation
Defendant contends that the trial court abused its discretion in denying his request to reinstate probation because his violations were “de minimis” and not willful. Again, we disagree.
Section 1203.2, subdivision (a), states in pertinent part: “[T]he court may revoke and terminate such probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses.” This statute gives trial courts very broad discretion in determining whether a probationer has violated probation. (See, e.g., People v. Lippner (1933) 219 Cal. 395, 400 [“only 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. Martin (1943) 58 Cal.App.2d 677, 683-684; People v. Rodriguez, supra, 51 Cal.3d 437, 443.)
“[T]here is no abuse of discretion in revocation where it appears from the record that the accused has violated the terms and conditions of probation.” (People v. Nelson (1967) 257 Cal.App.2d 282, 285-286.)
In this case, the trial court found that defendant violated two terms of his probation. Either one of these violations, alone, constituted sufficient grounds for revoking defendant’s probation. (See In re Coughlin (1976) 16 Cal.3d 52, 56.) At the probation revocation hearing, after hearing argument from defense counsel that defendant’s probation should not be revoked, the trial court noted:
“This was a gift plea to begin with. . . . With the defendant’s prior record and the nature of the underlying offense, it just cried out for state prison, but the defendant was given a break and a chance on probation. And I just agree with [the prosecution, defendant] just immediately, basically violated it almost immediately in and in a[n] in-your-face sort of way, so I am going to follow the recommendation. [¶] The probation will remain revoked.”
In sum, given the facts of this case and the court’s careful consideration of them, defendant has failed to satisfy his heavy burden of demonstrating the trial court’s order “exceeds the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.)
III
DISPOSITION
The judgment is affirmed.
We concur: KING J., MILLER J.