Filed 1/8/19 P. v. Williams CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Daniel G. Lamborn, Judge. Affirmed.

Gary V. Crooks, under appointment by Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant James Earl Williams appeals from a judgment revoking his probation. The court based its ruling on evidence adduced at a preliminary hearing on an unrelated case, indicating that Williams received stolen property and possessed methamphetamine. He argues that his Fourteenth Amendment right to due process was violated because substantial evidence did not support the court's factual findings and because the court applied an unconstitutionally low standard of proof. Defendant also contends that his Sixth Amendment rights were violated when defense counsel failed to object to the admission of certain evidence.

We conclude substantial evidence supports the court's factual findings, and there is no evidence that the trial court failed to apply the correct legal standard. As to Williams's ineffective assistance of counsel claim, even if law enforcement officers failed to follow statutory procedures when they took money from his pocket and gave it directly to the victim without regard to any potential evidentiary value, he has failed to show prejudice resulting from counsel's failure to object to the admission of testimony relating to this evidence. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural Overview

Williams was granted probation in December 2016 after he pled guilty to methamphetamine-related charges and the court suspended the consequent four-year prison sentence.[1] While he was on probation, the San Diego District Attorney filed another action charging him with three counts of (1) grand theft under Penal Code section 487, subd. (a); (2) possession of a controlled substance under Health & Safety Code section 11378; and (3) receiving stolen property under Penal Code section 496, subdivision (a).[2] (Super. Ct. San Diego County, 2018, No. SCE374516.) At the preliminary hearing, the court dismissed the grand theft charge but found probable cause to proceed on counts 2 and 3, and revoked probation on the instant case. On November 21, 2017, the court sentenced him to the four-year prison term and dismissed the charges in the new case.

B. Facts Leading to the Revocation of Probation[3]

At the preliminary hearing in October 2017 on case No. SCE374516, the court heard testimony from Cheyanne L., the victim of the alleged theft, and three La Mesa law enforcement officers attesting to the following facts.[4] While shopping at the Costco on Fletcher Parkway in La Mesa, Cheyanne L. lost track of her purse. She may have had the purse with her in her shopping cart, which is her usual practice, or she may have left it in her car. When she was walking out of Costco, Cheyanne L. noticed Williams in the parking lot. Cheyanne L. testified that Williams "stood out a little bit, and he was carrying a duffel bag" that was "black with re[d]." According to Cheyanne L., Williams "was right in front of me when I was walking out. . . . He had a duffel bag and he was tall and big."

Cheyanne L. left Costco and drove a couple miles to Albertson's grocery store, where she realized her purse was missing. She "flew back to Costco" and looked in the shopping carts and asked employees, to no avail. Because she was leaving town shortly, Cheyanne L. had several valuable items in her purse that day: (1) an iPhone; (2) an iPad; (3) "a little over $700 cash" including "seven $100 bills"; (4) a wallet with two checkbooks; (5) an appointment book for business; (6) two pairs of glasses; and (7) miscellaneous items, including a rescue remedy spray.

Cheyanne L. then contacted the police and her husband who, via the Find My iPhone application, was able to approximate the location of the missing phone and tablet. When Cheyanne L. and her husband arrived at that location to meet the police, she saw that other police officers had made contact with Williams, who was there "sitting on the ground with officers around him."[5] That location, a parking lot between Rigoberto's taco shop and bank, was on the opposite end of the same block of Fletcher Parkway as the Costco. At that point, police officers showed Cheyanne L. a maroon wheeled duffel bag and backpack, which they claimed belonged to Williams and had found behind an animal hospital in the same general vicinity. The officers opened the bags in front of Cheyanne L., retrieving from the duffel one of her two checkbooks, two pairs of eyeglasses, and rescue remedy spray, all of which she identified as having been in her purse. The officers gave those items directly to Cheyanne L. Inside the backpack officers found approximately 12.8 grams of methamphetamine as well as "a printout of a California I.D. belonging to" Williams and "identification . . . belonging to other subjects . . . ." Officers also located "several other items of [Williams's] identification" inside the duffel bag.

The officers then searched Williams and found $765 in cash in his front pants pocket, which Cheyanne L. identified as belonging to her. The cash included seven $100 bills; a $20, $10, and $5 bill; and thirty $1 bills. The bills were not marked. The money was given directly to Cheyanne L.

Nearly all the items from Cheyanne L.'s purse were recovered in various locations on the same block as the Costco: (1) the iPhone was found in a restaurant parking lot; (2) the iPad was found in an unknown location; (3) the cash was presumably found in Defendant's front pants pocket; (4) one of the checkbooks was found in the duffel bag and the other was found approximately 50 feet from the duffel bag behind the animal hospital; (5) the appointment book was found either in "the bushes" or in a "flower pot" at a location otherwise unknown; (6) two pairs of glasses were found in the duffel bag; (7) the rescue remedy spray was found in the duffel bag, and several other items were "strewn about in the bushes behind" the animal hospital. All the items in the purse—except for her wallet and the missing purse itself—were returned to Cheyanne L.

DISCUSSION

A. Legal Standards

A trial court may revoke probation if the interests of justice so require and the court finds, by a preponderance of evidence, that the probationer violated any of the conditions of probation. (§ 1203.2, subd. (a); see also People v. Stanphill (2009) 170 Cal.App.4th 61, 72 [preponderance of evidence standard].) Revocation of probation is not part of a criminal prosecution, and therefore "the full panoply of rights due in a criminal trial does not apply . . . ." (Stanphill, at p. 72.) On appeal, the trial court's decision to revoke probation is reviewed for abuse of discretion. (People v. Urke (2011) 197 Cal.App.4th 766, 773.) "[G]reat deference is accorded the trial court's decision, bearing in mind that probation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court." (Ibid., internal citations and quotation marks omitted.) We review the court's factual findings for substantial evidence. (Ibid.; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.)

B. Substantial Evidence Supports the Court's Factual Findings Leading to

Revocation of Probation

At the preliminary hearing, the trial court heard testimony regarding charges that Williams received stolen property and possessed methamphetamine.[6] Based on that evidence, the trial court revoked his probation. On appeal, Williams challenges the sufficiency of the factual findings of the 'possession' element required for both charges. A defendant constructively possesses an item where he maintains some control or right of control over it, or where a defendant exercises some control or right to control over the place where the contraband was found. (People v. Morante (1999) 20 Cal.4th 403, 417; People v. Rushing (1989) 209 Cal.App.3d 618, 622 (Rushing).) According to Williams, there was insufficient evidence for the court to find that he possessed, constructively or otherwise, any stolen property or methamphetamine.

The substantial evidence test is a deferential standard of review, particularly where the burden of proof, as here, is by a preponderance of the evidence. (See, e.g., Wollersheim v. Church of Scientology (1999) 69 Cal.App.4th 1012, 1017.) Although the evidence in this case was largely circumstantial, it firmly supports the court's finding that Williams constructively possessed the methamphetamine and Cheyanne L.'s property. Cheyanne L. identified Williams as having been in the Costco parking lot when she was there, and he was found shortly thereafter in a place nearby that Cheyanne L.'s Find My iPhone application identified as the location of her phone and tablet. In that same general vicinity officers found a pair of bags containing Cheyanne L.'s property, methamphetamine, and a print-out of Williams's California identification card and "several other items of identification" belonging to Williams. While it is true that identification materials belonging to other individuals were also found in the backpack, only Williams's identification materials were found in both the duffel and the backpack, and testimony suggested that the identification materials primarily belonged to him. Regardless, we need not rule out whether other individuals constructively possessed the duffel and backpack; two or more people may jointly possess an object at the same time. (See Rushing, supra, 209 Cal.App.3d at p. 622; People v. Saldana (1984) 157 Cal.App.3d 443, 455.) Therefore, substantial evidence supports the court's factual finding, by a preponderance of evidence, that Williams constructively possessed the duffel bag and backpack containing stolen property and methamphetamine.

Williams also challenges the sufficiency of the evidence that the cash seized by police from his pocket and given to Cheyanne L. actually belonged to her. Testimony indicated that Williams had roughly the same amount of money in his pocket, in approximately the same denominations, that the victim reported were in her purse. The coincidence, though not determinative, is at least suspicious and lends circumstantial support to the trial court's decision. (See People v. Brumback (1957) 152 Cal.App.2d 386, 392 [evidence that defendants had sixty-six $100 bills in their possession was admissible where stolen money included twenty $100 bills; factual question whether $100 bills were common was for the jury to resolve].) Even without it, however, the presence of Cheyanne L.'s other property and the methamphetamine in a bag containing several items of identification belonging to Williams, found in close proximity to where he was contacted shortly after the purse went missing, amounts to substantial evidence in support of the court's findings.

C. There Is No Evidence That the Court Applied An Erroneous Standard of Proof

Williams argues that the trial court applied an improper standard of proof when it revoked his probation. He contends that because the trial court recited the phrase "probable cause" when it found sufficient evidence to proceed on two of the three charges at issue in the preliminary hearing, but it did not say "preponderance of the evidence" when it revoked bail, the trial court improperly applied a probable cause standard in deciding to revoke probation. Having reviewed the record, we find nothing to suggest that the trial court applied an improper standard, and therefore, no evidence to overcome the well-established presumption that the trial court knows and applies the correct law. (See People v. Thomas (2011) 52 Cal.4th 336, 361.)

D. Williams Has Not Demonstrated Ineffective Assistance of Counsel

Williams argues that his counsel provided constitutionally ineffective assistance in failing to object to or file a motion to prohibit testimony related to the evidence of cash found in Williams's pocket. He contends that the bills in his pocket were potentially exculpatory, and that La Mesa police violated his due process rights by failing to retain custody of the cash so it could be subject to forensic testing that might have shown Cheyanne L. never touched the currency, or at least that it was extremely improbable she had done so. The proper remedy, he suggests, would have been to preclude the prosecution from eliciting testimony regarding the money and using it against him.

Under well-established law, law enforcement's failure to preserve exculpatory evidence may under certain circumstances amount to a violation of a defendant's due process rights. (California v. Trombetta (1984) 467 U.S. 479, 488–489; Arizona v. Youngblood (1988) 488 U.S. 51, 57 (Youngblood).) But where, as here, the evidence is only potentially exculpatory—that is, "it could have been subjected to tests, the results of which might have exonerated the defendant" (Youngblood, at p. 57, italics added)—the failure to preserve the evidence does not constitute a denial of due process unless the defendant can show that the police acted in bad faith. (Id. at p. 58.) Williams maintains that La Mesa police acted in bad faith by disregarding clear statutory guidelines regarding allegedly stolen property.[7] The Attorney General counters that the statutory guidelines relied on by Williams are not designed to protect criminal defendants. He also suggests that any mistakes "can at worst be described as negligent." (Ibid.)

We need not decide whether Williams has met his burden of establishing bad faith or whether his counsel had any conceivable tactical purpose for her omissions, because Williams has failed to show prejudice. (See Strickland v. Washington (1984) 466 U.S. 668, 677–679, 691–700; People v. Ledesma (1987) 43 Cal.3d 171, 215–218.) As already discussed, the evidence of Cheyanne L.'s other property and the methamphetamine in a bag containing several items of identification belonging to Williams, found in close proximity to where he was contacted shortly after the purse went missing, amounts to substantial evidence in support of the court's findings. Thus, even if testimony about the cash in his pocket had been excluded, there was more than substantial evidence to support the court's decision to revoke probation.

DISPOSITION

The judgment is affirmed.

DATO, J.

WE CONCUR:

IRION, Acting P. J.

GUERRERO, J.