Filed 10/30/18 P. v. Miranda CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

This is an appeal of the trial court’s order to revoke the mandatory supervision of defendant Victor Cruz Miranda for failure to report to probation upon his release from jail. Defendant challenges this order as unsupported by substantial evidence that he willfully failed to report. Defendant also contends the trial court miscalculated his presentence mandatory supervision credits by 20 days, a fact not disputed by the People. We instruct the trial court to amend the abstract of judgment to reflect this additional 20 days of credit, and in all other regards affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On August 7, 2013, defendant pleaded no contest to identity theft, driving or taking a vehicle without consent, theft, and second degree commercial burglary. The trial court suspended imposition of sentence and placed defendant on probation for five years.

On May 4, 2017, defendant was found in violation of probation for failing to obey all laws and to report to probation. The trial court terminated defendant’s probation and sentenced him to a two-year term of mandatory supervision.

On August 17, 2017, the trial court revoked defendant’s mandatory supervision for failing to obey all laws and to report to probation. The court then reinstated mandatory supervision and sentenced defendant to 32 days in jail.

On January 26, 2018, the trial court revoked defendant’s mandatory supervision for failing to report to probation upon his release from jail. The trial court then reinstated mandatory supervision and sentenced defendant to 90 days in jail, with credit for 76 days served.

On February 15, 2018, the prosecution filed a petition to revoke defendant’s mandatory supervision for failing to report to probation upon his release from jail. In its petition, the prosecution noted defendant was a habitual absconder, having thrice violated the terms of his supervision following his initial placement in May 2017. The trial court held a hearing on this petition on May 17, 2018, at which Jonathan Aronce, defendant’s probation officer, testified. Aronce described visiting defendant in jail on January 26, 2018, the day he was sentenced to 90 days in jail. Aronce advised defendant: “There was a discrepancy with the time credits for his—he was supposed to be given time for being in Solano when he was transferred over here. So I went [to jail], saw him, said hey, I believe you’re going to get additional credits [so] when you get out, come see me. And that was the same . . . well, from my notes it was the same day. [¶] . . . [¶] He was released early by the jail. After redoing the time credits, they gave him an early kick.”

Aronce went on to testify that defendant was in fact released “[p]robably that same day of the hearing, I think, according to my notes. January 26th or within a few days.” However, Aronce continued, defendant never reported to him or anyone else in the probation department. When asked to explain, Aronce testified that the probation department used an automated system called CJNet and, if defendant had contacted probation, his contact would have been noted in the CJNet system. Aronce checked CJNet prior to the hearing and determined there was no record of contact upon defendant’s release from jail.

Following this hearing, on May 31, 2018, the trial court revoked defendant’s mandatory supervision for failing to report to probation upon his release from jail. The trial court then declined to reinstate mandatory supervision, sentencing defendant to 359 days in jail. This timely appeal followed.

DISCUSSION

As stated above, after an evidentiary hearing, the trial court sustained the allegation that defendant violated mandatory supervision for failing to report to probation upon his release from jail. On appeal, defendant contends: (1) the prosecution failed to produce sufficient evidence to prove he willfully failed to report upon his release from jail; and (2) he is entitled to an additional 20 days of presentence mandatory supervision credit (Pen. Code, § 1170, subd. (h)(5)(B)). We address these contentions in turn below.

I. Revocation of Mandatory Supervision.

The governing law is not in dispute. A prosecutor petitioning for revocation of a defendant’s mandatory supervision must prove a violation of the terms of that supervision by a preponderance of the evidence. (People v. Buell (2017) 16 Cal.App.5th 682, 687.) In particular, the prosecutor must prove the defendant willfully violated the terms of supervision, meaning the defendant harbored “ ‘a purpose or willingness to commit the act . . . .’ ” (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438 [“Stated another way, the term ‘willful’ requires only that the prohibited act occur intentionally”]; see also People v. Cervantes (2009) 175 Cal.App.4th 291, 295.) Willfulness can be inferred from the totality of circumstances. (See People v. Sem (2014) 229 Cal.App.4th 1176, 1188.)

On appeal, we review a revocation order for substantial evidence, resolving all conflicting evidence in support of the trial court’s order. (People v. Kurey (2001) 88 Cal.App.4th 840, 848; People v. Rodriguez (1990) 51 Cal.3d 437, 443.) “Substantial evidence is evidence that is reasonable, credible, and of solid value. [Citation.] 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.’ [Citation.]” (People v. Buell, supra, 16 Cal.App.5th at p. 687.)

The parties also agree on what evidence is relevant in deciding this appeal. They disagree, however, on whether this evidence carries sufficient weight to support the trial court’s order to revoke defendant’s mandatory supervision. Of significance, Aronce testified he visited defendant in jail on January 26, 2018, just after an evidentiary hearing at which the trial court determined he had violated the terms of his supervision. Defendant was then sentenced to a 90-day jail term with credit for 76 days. Aronce advised defendant on this date (January 26) that he would be released early “because he was entitled to [additional custody credits].” Aronce then instructed him in no uncertain terms to report to probation upon his release from jail.

During the revocation hearing, Aronce was also asked by the prosecutor, “Do you know approximately when [defendant] was released?” Aronce testified that defendant’s credits were recalculated in his favor and that he was released “[p]robably that same day of the hearing, I think, according to my notes. January 26th or within a few days.” According to Aronce, however, defendant never reported to his office as required by the terms of his mandatory supervision. In so testifying, Aronce explained that the probation department employed an automated system called CJNet and, if defendant had contacted probation, his contact would have been noted in the CJNet system. Aronce checked CJNet prior to the hearing and determined there was no record of contact upon defendant’s release from jail.

Defendant insists this evidence is not substantial because, one, Aronce, the probation officer called to testify at the hearing, merely speculated defendant was released from jail and therefore capable of reporting (but unwilling to report) to probation; and, two, the prosecutor offered no other evidence regarding defendant’s actual release date from custody. We disagree this evidence is insubstantial. While the prosecution does not offer direct evidence relating to defendant’s release date and willful decision not to contact probation, there is sufficient circumstantial evidence to permit the reasonable inference that he was released on or within days of his January 26, 2018 meeting with Aronce, and yet intentionally disregarded Aronce’s instruction to report to his department. For one, Aronce testified based on his notes that he confirmed defendant was released from his 90-day term early because his time credits were recalculated. Further, Aronce testified that, according to CJNet, defendant at no point made contact with probation: “Through CJNet . . . , you just check to see when the last time they’ve had any contact either through the jail or us, and the only thing I saw was whatever [defendant’s] release day was from the jail.” As a habitual absconder who had had his supervision and probation revoked several times for failing to obey all laws and to report to probation, defendant was well aware of the consequence of his noncompliance. Accordingly, we conclude this evidentiary showing, viewed in a light favorable to the trial court’s order, constitutes substantial evidence that defendant willfully violated his mandatory supervision. (See People v. Buell, supra, 16 Cal.App.5th at p. 687 [revocation order affirmed on appeal so long as “ ‘upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court’s decision’ ”].) The order thus stands.

II. Additional Custody Credits.

The Attorney General does not respond to defendant’s contention on appeal that the trial court, by mistake, miscalculated his custody credits by omitting those earned for the period of time from May 4, 2017, to May 24, 2017, when he was on mandatory supervision. Defendant’s contention, impliedly conceded by the other side, appears correct. (Pen. Code, § 1170, subd. (h)(5)(B) [“During the period when the defendant is under [mandatory] supervision, unless in actual custody related to the sentence imposed by the court, the defendant shall be entitled to only actual time credit against the term of imprisonment imposed by the court”]; People v. Samuels (2018) 21 Cal.App.5th 962, 965 [a defendant on mandatory supervision is entitled to actual time credit].) Accordingly, we grant defendant’s request to instruct the trial court to issue an amended abstract of judgment granting him 20 additional days of presentence credit, such that his total term is 339 days rather than 359 days.

DISPOSITION

The trial court is ordered to amend the abstract of judgment to reflect that defendant has earned 20 additional presentence mandatory supervision credits, such that his total term is 339 days rather than 359 days. In all other regards, the judgment is affirmed.

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Jenkins, J.

We concur:

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Siggins, P. J.

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Pollak, J.

A154533/People v. Victor Cruz Miranda