P. v. Ross

Filed 3/23/07 P. v. Ross CA4/1

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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Frederick Maguire and Peter C. Deddeh, Judges. Affirmed.

In superior court case No. SCD187472, Artie T. Ross entered a negotiated guilty plea to attempted murder (Pen. Code,  664/187) and waived his Blakely rights. (Blakely v. Washington (2004) 542 U.S. 296.) On April 25, 2005, the court sentenced him to prison for a stipulated nine-year upper term, suspended execution of sentence and placed him on five years' probation including a condition he remain law abiding. On June 26, 2006, after holding an evidentiary hearing the court formally revoked probation and lifted the suspension on the nine-year prison term.

In case No. SCD194043, on July 18, 2006, Ross entered a negotiated guilty plea to conspiracy to commit theft. (Pen. Code,  182, subd. (a)(4).) The court sentenced him to prison for a stipulated three-year upper term concurrent with the sentence in case No. SCD187472. The record does not include a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)

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. In case No. SCD187472, on August 4, 2004, Ross stabbed his roommate Jimmy Monroe twice in the chest and twice in the abdomen. Ross accused Monroe of taking his money. Monroe was taken to the hospital and placed in a medically induced coma. Officers obtained a search warrant for Ross's apartment. In the apartment, they found narcotics paraphernalia and a loaded firearm. On March 9, 2006, probation was revoked after the People presented evidence at an evidentiary hearing that Ross failed to remain law abiding, i.e., was caught engaging in a confidence game known as the "Jamaican Switch." Because Ross entered guilty pleas, he cannot challenge the facts underlying the convictions. (Pen. Code,  1237.5; People v. Martin (1973) 9 Cal.3d 687, 693.) We need not recite the facts in greater detail.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436.

We granted Ross permission to file a brief on his own behalf. He has responded. Ross contends there was insufficient evidence to support the finding at the evidentiary hearing that he failed to remain law abiding and he was denied the right to confront and cross-examine the victim at the evidentiary hearing.

Evidence Supporting Revocation of Probation

A court may revoke probation "if the interests of justice so require and the court . . . has reason to believe from the report of the probation officer or otherwise" that grounds for revocation exist. (Pen. Code, 1203.2, subd. (a).) To formally revoke probation, the defendant must be provided a formal hearing in conformance with due process. (People v. Vickers (1972) 8 Cal.3d 451, 458-461.) The purpose of the formal hearing is to give the probationer an opportunity to explain or deny the allegations of the violation petition or show that revocation is not warranted due to mitigating circumstances. (People v. Perez (1994) 30 Cal.App.4th 900, 907.) A probation revocation hearing is not a criminal prosecution and thus does not invoke the "full panoply" of constitutional rights ordinarily due a defendant in a criminal prosecution. (Morrissey v. Brewer (1972) 408 U.S. 471, 480; People v.Vickers, at p. 458.) The minimum due process requirements at a formal probation revocation hearing include written notice of the claimed violations, disclosure of evidence against the probationer, an opportunity for the defendant to be heard and to present evidence, and the right to confront and cross-examine adverse witnesses unless the hearing officer specifically finds good cause for not allowing confrontation. (People v. Arreola (1994) 7 Cal.4th 1144, 1152-1153.)

Here, Ross argues that the evidence presented at the evidentiary hearing did not support the finding that he failed to obey all laws because it was insufficient to show he conspired to defraud Jeremiah Spicher of money. At the outset of the evidentiary hearing, the People presented evidence that Spicher was in the Navy, was deployed, and was unavailable to testify. The court found him unavailable and granted the People's request it consider the transcript of a preliminary hearing in case No. SCD194043. At the preliminary hearing, Spicher testified that on September 29, 2005, Ross's co-defendant Mark Jackson approached Spicher near Horton Plaza. Jackson told Spicher he was looking for a hotel and had just been robbed. Jackson asked Spicher for help finding the hotel. They went to a telephone booth several blocks away to look in a telephone book. Spicher looked through the yellow pages but discovered the pages covering hotels were missing. While Spicher was looking at the telephone book, Ross approached. Ross did not appear to be acquainted with Jackson. Ross appeared to be in a hurry and wanted to use the telephone. Ross told Jackson and Spicher that the hotel they were looking for was gone. The three began to walk to a different hotel Ross said he knew about. At the evidentiary hearing, San Diego Police Officer Roberto Casillas testified that on September 29, he saw three men at a telephone booth near city hall. As they walked away, he approached them because several days earlier a victim of a scam told him the scam began when a male took him to the same telephone booth at which Casillas saw the males on September 29 to help find a hotel. The pages for hotels had been torn from the telephone book. A second male approached and wanted to use the telephone. A conversation ensued and the second male told the victim and the first male that the hotel they were looking for had been demolished. Later, the two males convinced the victim to withdraw money from the bank. They put all the money together in a bandana, the bandana was switched, and the victim lost the money he had withdrawn from the bank. When Casillas stopped Spicher and the two other males on September 29, Ross had what appeared to be a "wad" of money in his pocket. Upon examination, the officer discovered that the wad was false money with an actual dollar bill on the outside. Ross also had a bandana. Retired Los Angeles Police Detective Cesario Reyes testified that he had worked for 19 years with the bunco unit. He described a scam known as the Jamaican Switch that involves two to four perpetrators. One approaches a potential victim and engages in a conversation with the potential victim. The individual usually ask for assistance. A second individual arrives and the two individuals show the victim a wad that looks like money but it is actually paper wrapped with an actual bill, and they convince the victim to withdraw money from a bank and put it in a bandana. The bandana is then switched for another that does not contain the money and the scam is completed. The retired detective testified that in his opinion, the apparent wad of money and the bandana here were paraphernalia to carry out a Jamaican Switch.

As Ross correctly notes, a conspiracy requires two or more persons conspiring to commit a crime. As a general rule, a conspiracy can only be proven by circumstantial evidence. It is not necessary to prove that the parties actually met and agreed to conduct the unlawful acts. (People v. Corro (1959) 174 Cal.App.2d 812, 819.) A trier of fact's determination that a conspiracy existed will not be overturned unless there is no substantial evidence to support the conclusion. (Ibid.) The circumstances must reasonably justify the conclusion. (Id. at p. 820.) A probation violation must be proven by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.) Substantial evidence may include inferences that are the product of logic and reason rather than speculation or conjecture. (Louis & Diederich, Inc. v. Cambridge European Imports, Inc. (1987) 189 Cal.App.3d 1574, 1584-1585.) Here, given the circumstances, it was logical and reasonable to conclude that Ross and Jackson met and agreed to defraud Spicher.

Confrontation of Victim

At the evidentiary hearing, Ross was given the opportunity to confront and cross-examine Officer Casillas and Retired Detective Reyes. At the preliminary hearing, Ross was given the opportunity to confront and cross-examine Spicher. The trial court found good cause for Spicher's unavailability at the evidentiary hearing, and properly considered his testimony at the preliminary hearing. (See People v. Winson (1981) 29 Cal.3d 711, 719.) It did not deprive Ross of the opportunity to confront and cross-examine the victim.

A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, and the issues raised by Ross, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Ross on this appeal.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

HALLER, Acting P. J.

AARON, J.

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