P. v. Boyd

Filed 9/24/07 P. v. Boyd CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard R. Romero, Judge. Affirmed.

Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.

introduction

Defendant Anthony Tyrone Boyd appeals from the judgment entered following revocation of probation. He previously pled no contest to one count of kidnapping (Pen. Code,  207, subd. (a)); the court selected an eight-year prison sentence, suspended execution of the sentence, and placed defendant on formal probation for three years. The terms of probation included that he serve 365 days in county jail (he was given credit for 230 days), obey all laws and orders of the court and probation department, and report to his probation officer as directed.

factual and procedural background

Imposition of Additional Conditions of Probation

In October 2005, appellant was arrested for a possible violation of probation. Long Beach Police Detective Bobby Anguiano detained appellant and his two companions, James Oliver and Tyjuan Bouldin, because they were loitering in an area commonly known to be a hangout of the Insane Crips criminal street gang. Anguiano learned from probation officer C. Coseglia that, according to his probation records, appellant was not allowed to be in Long Beach. He was given permission to be in Long Beach only to visit his brother, who had been shot recently, but appellant was not with his brother at the time he was detained. His companions, Oliver and Bouldin, were arrested for outstanding warrants. Both were stated to be members of the Insane Crips gang. Appellant denied being a gang member, but Coseglia indicated that appellant was a member of the Insane Crips, with the moniker Tublow. Appellants cell phone contained a picture of appellant displaying a C sign with his fingers, as is commonly done by members of the Crips.

At a probation revocation hearing held on October 4, 2005, the court indicated there did not appear to be a probation violation because no gang conditions had been imposed on appellant previously. Rather, appellant had violated conditions of probation imposed by his parole officer, including that appellant stay out of Long Beach unless he had permission. The court expressed doubt about the validity of such a condition. Appellants counsel agreed, arguing that a condition that appellant stay out of Long Beach was too broad to withstand constitutional scrutiny, [b]ut I think if the court certainly imposed the gang admonition or prohibition, that would be sufficiently broad to cover these circumstances, at least.

The district attorney pointed out that when appellant was arrested, he was hanging out with alleged members of the Insane Crips, and his own cell phone had photos of himself throwing gang signs. She noted: I think thats why the recommendation is phrased the way it is in adding the gang conditions, because of the circumstances surrounding [appellants] arrest.

Appellant was continued on probation. The court imposed the following condition: You are not to associate with or have any contact with any individuals that you know to be gang members, Insane Crips or any others. That means youre not to be in their company. Youre not to be speaking with them on the phone or in person. Youre not to be throwing gang signs with them or having any kind of contact with people you know to be gang members. Although he had been identified as a gang member by the Long Beach Police Department, appellant denied that he was a gang member.

The Current Proceedings

On November 30, 2005, appellant was again arrested for a possible probation violation. A week earlier, on November 22, 2005, Anguiano and Detective Tim Olson had seen appellant at the back of an apartment building at 2444 Pasadena Avenue. That location was known to be a hangout for members of the Insane Crips gang. Olson spoke with appellant, who said he was living with his grandmother, who lived on Linden Street about a block away. Olson contacted the probation department and spoke to Coseglia, who said that appellant should not be spending time in the 2400 block of Pasadena Avenue because it was a known gang hangout. Olson reminded appellant of this. He told appellant not to use the alley to cut through to his grandmothers house, or be on the 2400 block of Pasadena Avenue at all.

On the date of his arrest, November 30, 2005, appellant was again seen by Olson on the 2400 block of Pasadena Avenue, along with James Oliver (one of the men with whom he had been detained in October 2005, leading to the imposition of the gang condition). The previous day, an armed robbery had occurred involving four males in a purple, two-door vehicle. On November 30th, appellant and Oliver were stopped as they got out of a purple Camaro along the 2400 block of Pasadena Avenue. Two pellet guns, which looked like real handguns, were recovered from the trunk of the car. Oliver was a documented member of the Insane Crips gang. Oliver has an 80 tattooed on the back of his neck, which relates to the West Coast Rolling 80s Crips. His cell phone contained a picture of himself throwing a hand sign for the West Coast Crips. Oliver said that he and appellant were play cousins, meaning they had known each other for a long time and were close friends.

According to Olson, a certified drug recognition expert, at the time of his arrest on November 30, 2005, appellants hands smelled like marijuana, his pulse was elevated, his eyes were bloodshot and his pupils were dilated, and he had a white paste on his tongue. He was unable to follow a pen with his eyes. Olson testified that these were indications of marijuana use, and that he formed the opinion that appellant had been using marijuana. Appellant denied using any marijuana, but said he had been around people who were using it.

At the probation revocation hearing on February 1, 2006, probation officer Kane testified that she met with appellant on October 14, 2005, after his case was transferred back to Long Beach from Pomona. He told her that he was living with his girlfriend at 2418 Atlantic Avenue in Long Beach. Kane knew this to be a gang hangout and instructed him not to hang out in the rear of that building, where gang members were known to congregate and shoot dice. She also advised him to stay away from the area of 2444 Pasadena Avenue because it was also a known gang hangout. Appellant failed to appear for a scheduled meeting with Kane on October 27, 2005.[1] He met with her on November 9, 2005, November 17, 2005, and November 22, 2005. He failed to appear for his meeting on November 30, 2005, which was scheduled to occur well before the time of his arrest. At the meeting on November 22nd, appellant told Kane that he no longer lived with his girlfriend, and was going to ask his grandmother if he could stay with her. Kane told him he was required to call that afternoon to report what his grandmother said, and on an ongoing basis he was required to keep Kane informed of his whereabouts. He did not call her on November 22nd or thereafter to advise her where he was living.

Defense counsel questioned probation officer Kane about the log-in sheet, maintained by the receptionist at her office, dated October 27, 2005. Kane stated that the receptionist had written the name Boyd on the log-in sheet for that date, but she confirmed that he never saw her that day as he was required to do. Kane stated that his name appearing on the sheet did not necessarily mean that he came to the office; it simply meant that someone came to the window and gave the receptionist the name Boyd. Kane said it was common for people to sign in and then leave before their appointment, or for someone other than the probationer to sign in.

Appellants grandmother, Mary Boyd, testified that appellant lived with her from late September through November 2005, at her home located at 2461 Linden Avenue. She stated that Linden Avenue shared an alley with Pasadena Avenue. Appellants brother had been shot and appellant came to live with her to help take care of him. She testified that appellant is always respectful toward her, helps her a lot, and goes to church with her when he stays with her. She further stated that appellant and Oliver grew up together. Oliver attended family functions and he was considered part of the family. Oliver was respectful toward her as well, although she did not know how he behaved when he was not with her. She was not aware that appellant or Oliver were gang members, but she knew Oliver had been in prison.

Appellants mother, Essie Boyd, stated that appellant lived with his grandmother at 2461 Linden Avenue from October 2005 until the time of his arrest in late November. Appellants brother was shot in late September 2005, and appellant went to live with their grandmother in order to help take care of him after he was released from the hospital three weeks after the shooting.

The Ruling

The district attorney argued that appellant could not seriously contend that he had no idea Oliver was a gang member because it was being detained with Oliver and another gang member, in the 2400 block of Pasadena Avenue, that prompted the courts order that he not associate with gang members. Appellants violations of the conditions of his probation included associating with gang members at a known gang hangout, being under the influence of marijuana, and missing two probation meetings.

Appellant addressed the court, stating that when he was arrested with Oliver in early October 2005, the police told him Oliver was being arrested for a warrant. I knew nothing about him as a gang member in the file. To my recollection, hes still never a gang member.

Defense counsel argued that the 2400 block of Pasadena Avenue was just too close to home to really hold that against him. He further argued that the order not to hang out on the 2400 block of Pasadena came from the police detective, not from the court, and was therefore not a valid order.

The court concluded that appellant most likely did go to the probation office on the date that his name was on the sign-in log but was not seen for some reason. So Ill call that an ambiguous violation. He was not seen, but he did appear. He did appear for other appointments and missed one day. [] I find that the order of the probation department, Ms. Kane, not to be on the 2400 block of Pasadena was a valid exercise of her authority in supervising [appellant] because the court had ordered [appellant] not to be in the company of known or suspected gang members, and to carry out that condition of [appellants] probation, the probation officer could implement it by indicating that certain areas were off bounds. The court found appellant violated that order by being on the 2400 block of Pasadena. Whether or not he was residing with his grandmother nearby, he was not to be on that block. He would have to find other means of getting to the residence. It wasnt as if that was the only way to get to his grandmothers residence or his girlfriends. [] He was aware, in my opinion, and I find that he knew that his family friend, Mr. Oliver, was a gang member. Since they were close family friends, I find he would have known that. In addition, that was the basis of the first alleged violation that prompted the court order that he stay away from known gang members. So it was obvious Mr. Oliver was a gang member because thats what prompted the gang condition.

Accordingly, the court found that appellant knowingly violated probation by being on the 2400 block of Pasadena, a known gang hangout, and by being with Oliver, whom he knew to be a gang member. The court noted that appellant had agreed with the district attorneys office that if he violated probation in any significant way he was going to be sentenced to eight years, and the court found that he did violate the conditions in a very significant way. The court revoked appellants probation, imposed the suspended sentence of eight years in state prison, and gave appellant credit for 545 days of presentence credit, consisting of 485 days of actual custody credit and 60 days of conduct credit.

This appeal followed.

discussion

Appellant contends on appeal that the probation officer did not have the authority to impose a new condition of probation without obtaining a court order and, in any event, the restriction from being on the 2400 block of Pasadena Avenue abridged his constitutional rights. He further contends there was insufficient evidence to establish a probation violation. We disagree.

I.

Appellant attempts to argue that the probation officer imposed an invalid condition of probation both because it exceeded the scope of her authority, and because it was a violation of his constitutional liberties to ban him from a specific geographic area. We find no merit in either contention.

Simply put, the probation officer did not impose a new or different condition. Rather, she specified that, in order to abide by the court-imposed condition of staying away from gang members and their hangouts, appellant was required to stay away from the 2400 block of Pasadena Avenue. Based on her special knowledge of the Insane Crips, she knew its members congregated around a large apartment complex located at 2442 and 2444 Pasadena Avenue. This was not an unduly large geographical area; it was a specific location that she knew appellant was likely to be drawn to, based on his past associations. In an effort to assist appellant in complying with his terms of probation, she made explicit and unambiguous that the 2400 block of Pasadena Avenue was a location known to be frequented by Insane Crips members, which was therefore off-limits to appellant. The directive to avoid that area was a limited restriction on appellants freedom of movement, and was reasonably related to the compelling state interest in reformation and rehabilitation. (See People v. Delvalle (1994) 26 Cal.App.4th 869, 879; cf. In re White (1979) 97 Cal.App.3d 141, 145.) Appellant chose not to comply with Kanes very specific directive, and cannot now complain that the condition was somehow unauthorized or distinct from the court-imposed requirement.

Furthermore, given the circumstances that appellant was seen getting out of a car with a known gang member in the specific location appellant was told to stay away from, he cannot reasonably assert that his presence there was innocent. He was not simply taking a shortcut to his grandmothers house. As the trial court stated, other routes were available to him to reach home, and he was required to use them instead.

II.

Penal Code Section 1203.2, subdivision (a) allows for a revocation of probation 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 probation or has subsequently committed other offenses. (People v. McGavock (1999) 69 Cal.App.4th 332, 338-339.) Proof of the facts supporting revocation may be made by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 447 (Rodriguez).) [T]he issue at a probation revocation hearing is whether probation has failed as a rehabilitative device, as evidenced by the probationers failure to abide by the probation conditions. (People v. Herrera (2006) 136 Cal.App.4th 1191, 1203-1204.)

A trial courts decision to revoke probation is reviewed for abuse of discretion. (Rodriguez, supra, 51 Cal.3d at p. 443.) An abuse of discretion will be found whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.] We will not interfere with the trial courts exercise of discretion when it has considered all facts bearing on the offense and the defendant to be sentenced. [Citation.] (People v. Downey (2000) 82 Cal.App.4th 899, 909-910; see Cal. Rules of Court, rule 4.414(a) [facts relating to the crime] and (b) [facts relating to the defendant].) Only in the very extreme case will an appellate court interfere with a trial courts exercise of discretion in the matter of revoking probation. (Rodriguez, supra, 51 Cal.3d at p. 443.)

We readily conclude that the evidence was sufficient to support the trial courts finding that appellant violated the conditions of his probation. Appellant was present when the trial court imposed upon him the condition that he not associate with or have any contact with gang members. At that time, he presumably heard the district attorney specifically identify Oliver, with whom he had been detained, as a member of the Insane Crips. Oliver had repeatedly admitted to the police that he was a gang member. Oliver was considered by appellants grandmother to be a member of their family. Appellant had known him for a long time and they were close. Given these circumstances, the court concluded that it was disingenuous for appellant to claim that he did not know Oliver was a gang member. Thus, he knowingly violated a condition of his probation by being with Oliver, in a location he was told to avoid because it was known to be a gang hangout. There was substantial evidence from which the trial court could determine that it was more likely than not that Oliver was a gang member, that appellant knew he was a gang member, and that appellant was observed associating with Oliver. Because the decision to revoke probation lies within the trial courts very broad discretion and its determination is supported by the record, appellant has failed to demonstrate any error. (Rodriguez, supra, 51 Cal.3d at p. 443.)

disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] Appellant admitted to Kane during a meeting on December 7, 2005, that he simply forgot about the meeting on October 27, 2005.