P. v. Smith

Filed 7/31/07 P. v. Smith CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. John J. Cheroske, Judge. Affirmed.

Marilee Marshall & Associates, Inc. and Marilee Marshall for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Darnell Lamar Smith appeals from a judgment entered after revocation of his probation. Appellants sole contention on appeal is that witness Aaron Carter was not credible in testifying, and therefore, there was insufficient evidence to prove a violation of probation. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Underlying Conviction and Grant of Probation

In an information filed on January 17, 2006, appellant was charged with four criminal counts. Count 1 alleged that on or about November 20, 2005, appellant and Christine Haynes unlawfully and by means of force and fear took personal property from victim Orlando Chaname in violation of Penal Code section 211.^[1] Count 2 alleged that appellant assaulted Chaname with a deadly weapon or by means of force likely to create bodily injury in violation of section 245, subdivision (a)(1). Count 3 alleged that on or about November 25, 2005, appellant attempted to rob victim Myesha Finley in violation of sections 664/211. Count 4 alleged that appellant assaulted Finley in violation of section 245, subdivision (a)(1).

In March 2006, appellant pled no contest to counts 1 and 3, imposition of sentence was suspended and he was placed on three years probation. Two conditions of his probation were that he obey all laws and that he stay away from the victims and witnesses in the case. Identified as victims and witnesses were Chaname and Finley and Tonzania Bowers. Although Aaron Carter had also testified as a witness to appellants attempted robbery of Finley, he was not specifically identified in the probation condition.^[2]

Probation Violation Hearing

On May 18, 2006, a hearing was conducted to determine whether appellant violated the terms of his probation by threatening witness Carter. Pursuant to the substantial evidence standard of review, we state the facts in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Lewis (1990) 50 Cal.3d 262, 277.)

Prosecution Evidence

Carter testified at the probation revocation hearing that he received a telephone call either during the night of April 1, 2006, or the early morning hours of April 2. The caller failed to identify himself but said, You are a snitch. Carter testified that he could not identify the person who called him because he did not recognize the callers voice and because he did not have caller ID.

Carter also testified that a few hours after receiving the telephone call, he was on the sidewalk in Long Beach near 49 South Pine Avenue when appellant approached him in the company of another male. Appellant called Carter a snitch and said that he had his address. Appellant said that he had papers on Carter concerning his testimony in the Finley case and that the two of them were going to have to fight. Carter told appellant that he had been subpoenaed and his probation officer had forced him to testify. Someone then hit Carter on the right side of his neck, which caused him to fall down and cut his tongue and lip. When Carter attempted to stand up, someone pushed him down again and took over $100 from his pocket. Carter testified that appellant was not the individual who hit him and that appellant was in fact standing about six feet away when he was hit. But Carter admitted that immediately before the probation revocation hearing he told both his probation officer, Valerie Cane, and the prosecutor that he believed that appellant was the individual who hit him.

Cane testified that she met with Carter on April 2 or 3.^[3]After Carter told her someone named Darnell had assaulted him, Cane told Carter that if he wanted to file a police report he should do so immediately. When Carter stated that he was afraid contact with the police would cause him to violate his probation, Cane assured him that it would not. Cane also stated that during her conversation with Carter, he may have told her that he did not have the money to pay the probation department.

Carter denied telling Cane that appellant hit him but instead explained that the only reason he had told Cane he was robbed of $100 after running into appellant in April was because he needed an excuse as to why he did not have the money to pay her.Carter testified that on April 3, 2006, he met with a Long Beach police officer to report the April 2 incident and told the officer he did not want to be listed as a robbery victim but as a victim of a threat. At the probation revocation hearing it was stipulated that on April 3, 2006, a Long Beach police officer interviewed Carter who stated that appellant called his home and that there were no witnesses pertaining to the incident on Pine Avenue.

Defense Evidence

Appellant testified that he was not present during the altercation on Pine Avenue and that he did not personally call or cause anybody to call or confront or to threaten Carter.

Trial Court Findings

The trial court found that appellant violated his probation by threatening Carter. Specifically, the court found appellant told Carter, Ive got your name. Ive got your address. Were later going to fight or Im going to come down on you. As to the battery, the trial court found that either appellant or someone accompanying appellant knocked Carter to the ground. The trial court revoked appellants probation under section 1203.2, subdivision (a)^[4]and sentenced appellant to five years for robbery of Chaname in violation of section 211 and two years to be served concurrently for attempted robbery of Finley in violation of sections 664/211. Appellant was given credit for 187 days plus an additional 28 days good time work time for a total of 215 days credit.

This appeal followed.

DISCUSSION

I. Contention on Appeal and Standard of Review

Appellants only argument on appeal is that there was insufficient evidence to support the courts finding that he violated the terms of his probation because the principal witness, Carter, was not credible. We review appellants contention under the substantial evidence standard of review. Under this standard, we view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Lewis, supra, 50 Cal.3d at p. 277.) Where a witnesss credibility is questioned, we must defer to the trial courts findings, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (People v. Gunn (1959) 170 Cal.App.2d 234, 239; In re Gary G. (1981) 115 Cal.App.3d 629, 635636; People v. Lewis (2001) 26 Cal.4th 334, 361.)

II. Carter Was a Credible Witness

Appellant contends that Carter was not a credible witness because he recanted the statements he gave to his probation officer, the Long Beach police, and the prosecutor. It is undisputed that Carter gave two different versions of the incident on Pine Avenue. First, he told Cane that someone named Darnell had assaulted him and an individual with Darnell took over $100 from him. Carter reiterated this version to the Long Beach police and the prosecutor prior to the probation revocation hearing. Carter then testified at the probation revocation hearing that appellant did not assault him but someone with appellant did punch him and took his money.

The trial court ultimately determined that Carters initial statements to Cane, the Long Beach police, and the prosecutor were the most believable. Carter made it clear that he didnt want to come testify in the first place. The court concluded that Carter had recanted his original statements because appellant had threatened him and told him, Ive got your name. Ive got your address. Were later going to fight or Im going to come down on you. The court found that because of these threats, Carter was justifiably scared to death to be [in court]. . . . and concluded that it was understandable that Carter recanted due to fear because its hard to imagine anybody feeling otherwise. The court found there was no evidence of any motive for Carter to fabricate his entire testimony or to pick out this particular defendant. The trial court found that appellant threatened Carter and that either appellant or somebody who was with him knocked Carter to the ground. We are satisfied that the trial courts determinations were supported by substantial evidence.

III. Substantial Evidence Supports the Trial Courts Finding That Appellant Violated the Terms of His Probation

Violation of Section 140, Threatening a Witness

Appellants probation agreement required that he obey all laws. Section 140 provides that it is a crime to threaten to use force or violence on the witness because the witness provided information to law enforcement in a criminal proceeding. Carter insisted that he was the victim of a threat and not the victim of an assault and robbery when he filed a police report with the Long Beach police. And while he recanted certain statements during his testimony at the probation revocation hearing, he never recanted the evidence of the threats appellant made to him. Carter testified that appellant said, He had papers on me. He said well have to get down or if you dont want to get down were goingIm going to get at you . . . . He said he was going to catch me sooner or later when I was by myself. This testimony is substantial evidence that appellant violated probation by committing the crime of violating section 140.

Violation of Sections 242 and 211

Carter told his probation officer, the Long Beach police, and the prosecutor prior to the probation revocation hearing that he believed that it was appellant who hit him on April 2, after which $100 was taken from him. This would constitute substantial evidence of the commission of a battery in violation of section 242 and a robbery under section 211.

We find substantial evidence to support the trial courts finding that appellant violated his probation.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, Acting P. J.

DOI TODD

We concur:

_______________________, J.

ASHMANN-GERST

_______________________, J.

CHAVEZ

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^[1] All further references are to the Penal Code unless otherwise indicated.

^[2] The underlying facts of the probation grant are not contested in the instant appeal.

^[3] On July 13, 2005, Carter was placed on probation for an unrelated robbery.

^[4] Under section 1203.2, subdivision (a), a court has the authority to revoke a persons 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. . . .