P. v. Pena

Filed 10/11/06 P. v. Pena CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed as modified.

On September 30, 2003, Emmanuel Pena entered a negotiated guilty plea to robbery. (Pen. Code, § 211.) On October 31, the court suspended imposition of sentence, placed him on three years' probation, and ordered Pena to pay a $200 restitution fine. The terms of Pena's probation included a condition that Pena "[n]ot associate with any known gang member . . . ." Between May 2004 and July 2005, the court repeatedly revoked Pena's probation most commonly for associating with known gang members. On January 10, 2006, the court revoked probation after finding Pena again associated with known gang members and possessed a deadly weapon. It sentenced Pena to prison for the three-year middle term for robbery, imposed a $600 restitution fine and a $600 parole revocation fine.

Pena appeals.

FACTS

Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred. Around 9:45 p.m. on November 10, 2005, San Diego Police Officer John Carroll was on patrol in the area of 41st Street and University Avenue. As he drove by a taco shop known for gang congregation and problems caused by gang members, Carroll saw Pena talking with two known gang members for 15 to 20 seconds. They stood about 20 feet in front of the taco shop just to its south. Pena and the gang members were about one to two feet away from each other in a "football huddle." Carroll drove around the block and parked. After he parked, Carroll saw Pena and the two known gang members talk for another minute. Carroll then got out of his car and approached Pena. Pena put a cellular telephone, which police officers later learned was not functioning, to his ear and began to walk away. Carroll stopped Pena and found a screwdriver in his pants pocket.

DISCUSSION

Pena contends the evidence does not support the court's findings that he violated the conditions of his probation by associating with known gang members and possessing a weapon, and that the trial court erred in imposing the $600 restitution and $600 parole revocation fines.^[1]

He admits that the males he talked with at the taco shop were known gang members, but argues the evidence did not support a finding that he "associated" with them. We analyze this contention below after setting forth the appropriate standard of review.

Standard of Review

"Probation is an act of leniency, not a matter of right." (People v. Walmsley (1985) 168 Cal.App.3d 636, 638.) Revocation of probation, like its grant or denial, lies within the discretion of the trial court. (People v. Walker (1963) 215 Cal.App.2d 609, 611; People v. Rodriguez (1990) 51 Cal.3d 437, 443 ["It has long been recognized that the Legislature . . . intended to give trial courts very broad discretion in determining whether a probationer has violated probation"].) The trial court's exercise of its discretion will only be reversed on appeal if that discretion is exercised in an arbitrary or capricious manner. (People v. Delson (1984) 161 Cal.App.3d 56, 62.) The trial court applies the preponderance of the evidence standard in determining whether a violation of probation has occurred (People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066), and "where the trial court was required to resolve conflicting evidence, review on appeal is based on the substantial evidence test." (People v. Kurey (2001) 88 Cal.App.4th 840, 848.)^[2]

Analysis

As we have indicated, among the conditions of Pena's probation, he was required to "[n]ot associate with any known gang member . . . ." Pena admits the males he was speaking with outside the taco shop were known gang members, but argues there is no evidence he violated the no-association condition of probation because merely greeting a known gang member is not association with a gang member. He argues that "by definition the verb 'associate' connotes interaction between individuals which is more than just transitory, momentary, or without much consequence." He argues that association with another person requires "a state of committed purpose beyond that which can be established by brief interaction."

In support of his claim to have merely greeted the known gang members, Pena relies on his own testimony at the parole revocation hearing that, after ordering food at the taco shop, he noticed two gang members behind him. He said, "Hello, what's up," and walked around them to wait for his food. He testified they had no further conversation. He argues that this interaction is not enough to violate the no-association condition.

We reject Pena's argument because substantial evidence supports a finding that he was involved in activity that was more than "transitory, momentary, or without much consequence," and instead was involved in a more sustained association with the two known gang members. Officer Carroll observed Pena and the two known gang members huddled together for over a minute in conversation outside the taco shop, contradicting Pena's claim that he merely greeted them and then walked around them. The trial court was entitled to credit Officer Carroll's testimony over Pena's testimony, and we will not disturb the trial court's credibility findings. (See People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) Further, Pena, who previously had been caught violating his probation by associating with gang members, showed consciousness of guilt by attempting to leave the scene by pretending to talk on a nonfunctioning cell phone.

Based on Officer's Carroll's testimony describing the interaction of the three men, as well Pena's demonstrated consciousness of guilt, substantial evidence supports a finding that Pena was associating with the gang members rather than merely casually greeting them or briefly interacting. Because substantial evidence supports a finding that Pena was associating with known gang members in violation of his probation conditions, the trial court was within its discretion to revoke Pena's probation.

DISPOSITION

The judgment is affirmed as modified. The trial court shall amend the abstract of judgment to reflect reduction of the parole revocation fine from $600 to $200 and the striking of the $600 restitution fine ordered January 24, 2006, and notify the Department of Corrections and Rehabilitation of the modifications.

IRION, J.

WE CONCUR:

McINTYRE, Acting P.J.

O'ROURKE, J.

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^[1] The People concede the court erred in assessing a second restitution fine and by imposing a parole revocation fine in an amount greater than the initial restitution fine. (See People v. Arata (2004) 118 Cal.App.4th 195, 201-202; Pen. Code, § 1202.45.) Consequently, we modify the judgment to reduce the parole revocation fine from $600 to $200 and by striking the $600 restitution fine, leaving in place the $200 restitution fine ordered on October 31, 2003.

^[2] The trial court also found that Pena violated the probation condition that he shall not "own, transport, sell, possess any weapon, firearm, replica, ammunition, or any instrument used as a weapon," but we need not resolve the issue of whether Pena violated this condition of probation because we find the trial court did not err in revoking probation on the ground that Pena associated with known gang members.