P. v. Nunez

Filed 7/19/07 P. v. Nunez CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant was sentenced to state prison for a term of two years and eight months following a finding that he violated probation by possessing ammunition. He claims that the evidence does not prove his possession of the ammunition, and the court erred by imposing a state prison term rather than reinstating his probation. We conclude that the trial court did not abuse its discretion by revoking defendants probation or imposing a state prison term, and therefore affirm the judgment.

STATEMENT OF FACTS

The Probation Revocation Hearing

A probation search of defendants residence at 1608 Travian Court, apartment No. 3, in Fairfield, was conducted by officers of the Solano County Sheriffs Department on the night of June 9, 2006. Defendant was present at the residence with his parents and brother Antonio.^[1]

The officers contacted defendant outside the apartment. He advised them that he slept on a couch in the living room. The officers checked the living room. In response to the officers inquiry, defendant stated that he kept his clothing and articles in the southwest bedroom of the apartment.

The officers proceeded directly to the bedroom, which contained two beds and nightstands, a video game player, and a closet. A dresser located in the closet was searched. Inside the cluttered drawer of the dresser the officers discovered 20 unexpended cartridges of .25-caliber ammunition. A condition of defendants probation prohibited him from possessing ammunition.

The defense presented evidence that defendants brothers Danielle and Antonio occupied the bedroom where the ammunition was found. Danielle and Antonio testified that they each occupied half of the southwest bedroom of the apartment and half of the closet in the bedroom. According to Danielle, the left side of the closet is his, the right side is Antonios. Danielle claimed that the ammunition seized from the dresser drawer belonged to him, not defendant. He explained that he found the bullets six to eight months before in a small green box left in a parking lot, and put them in the dresser drawer without telling anyone. He completely forgot about them until the search. Antonio testified that he did not look in Danielles side of the closet, and never saw the ammunition. Danielle and Antonio also testified that defendant kept all of his clothing and other personal belongings in a hallway closet, not the southwest bedroom.

Defendants mother Estela essentially corroborated the testimony of Danielle and Antonio that defendant slept in the living room and did not occupy the southwest bedroom. She added that only Antonios and Danielles belongings are kept in the bedroom closet.

The trial court balanced the defense evidence with the officers testimony that defendant told the officers where he kept his stuff, in the bedroom. The court found that the officers testimony was credible and satisfied the prosecutions burden of proof of defendants possession of these bullets.

The Sentencing Hearing

The supplemental probation report recommended reinstatement of defendants probation with specified modification of terms and conditions, despite his known Sureno gang affiliations/membership and status as marginal candidate for reinstatement on probation. Testimony offered at the sentencing hearing focused on defendants gang membership. The prosecution presented testimony from Solano County Correctional Officer Henry Pimentel, who had been assigned to the Gang Intelligence Unit for the past three years and was familiar with the housing of gang members in the county jail. Officer Pimentel testified that defendant was a self-acknowledged member of the Sureno gang, the Calle San Marcos. He also related an incident that occurred in the Solano County Jail. Defendants jail issued jumpsuit, which had the logo on the back Solano County Jail, was obtained by correctional officers from defendant. The letter N in the word Solano had been Xed out faintly. For Sureno gang members, the significance of crossing out the N is that it shows disrespect for the rival Nortenos gang. When questioned by officer Pimentel, defendant denied making the mark on the jumpsuit.

The court found that defendant is a member of a gang and repeatedly failed to meet the requirements of probation. An aggregate state prison sentence of two years and eight months was imposed in defendants two cases.

DISCUSSION

I. The Finding of a Probation Violation.

Defendant argues that the evidence does not support the trial courts finding of a probation violation based upon possession of ammunition. He claims that the evidence failed to establish his dominion and control over the ammunition found in the dresser drawer.

 [S]ection 1203.2 provides the court may revoke probation if it has reason to believe that the person has violated any of the probation conditions. . . . [Citation.] (People v. McGavock (1999) 69 Cal.App.4th 332, 337.)  When the evidence shows that a defendant has not complied with the terms of probation, the order of probation may be revoked at any time during the probationary period. [Citations.] [Citation.] (People v. Johnson (1993) 20 Cal.App.4th 106, 110.) The evidence must prove a willful violation of a probation condition.^[2] (People v. Zaring (1992) 8 Cal.App.4th 362, 379.)  More lenient rules of evidence apply than at criminal trials [citations], and the facts supporting revocation need only be proved by a preponderance of the evidence [citation]. . . . [Citation.] (People v. McGavock, supra, at p. 337; see also In re Miller (2006) 145 Cal.App.4th 1228, 12341235; People v. Jackson (2005) 134 Cal.App.4th 929, 935; Jones v. Superior Court (2004) 115 Cal.App.4th 48, 6061; People v. Bracey (1994) 21 Cal.App.4th 1532, 1548.)^[3] Thus, Many times circumstances not warranting a conviction may fully justify a court in revoking probation granted on a prior offense. (People v. Vanella (1968) 265 Cal.App.2d 463, 469.) Probation revocation proceedings are not a part of a criminal prosecution, and the trial court has broad discretion in determining whether the probationer has violated probation. (People v. DeGuzman (1995) 33 Cal.App.4th 414, 419.) The defendant bears the burden of demonstrating an abuse of the trial courts discretion. (People v. Vanella, supra, at p. 469.) On appeal, we must of course view the facts in the light most favorable to the judgment, drawing all reasonable inferences in its support. (People v. Cochran (2002) 103 Cal.App.4th 8, 13; see also People v. Bento (1998) 65 Cal.App.4th 179, 193; People v. Hayes (1992) 3 Cal.App.4th 1238, 12491250.)

Here, the probation violation is based upon possession of a prohibited item, ammunition. The elements necessary to prove possession are dominion and control of the substance,  with knowledge of its presence and nature. (People v. Palaschak (1995) 9 Cal.4th 1236, 1242.)  Each of these elements may be established circumstantially. [Citations.] (People v. Martin (2001) 25 Cal.4th 1180, 1184.) Possession may be either actual or constructive as long [as] it is intentional. (People v. Spirlin (2000) 81 Cal.App.4th 119, 130.) Actual possession occurs when the defendant exercises direct physical dominion and control over the item, however briefly (e.g., in the hand, clothing, purse, bag, etc.). [Citation.] Constructive possession does not require direct physical control over the item but does require that a person knowingly exercise control or right to control a thing, either directly or through another person or persons. [Citation.] (People v. Austin (1994) 23 Cal.App.4th 1596, 16081609; see also In re Daniel G. (2004) 120 Cal.App.4th 824, 831.)

Proof of possession does not require a showing of exclusive or physical possession; and may be established by an inferential showing of joint and constructive possession. (People v. Haynes (1967) 253 Cal.App.2d 1060, 1064.) Property may be in the joint possession of several persons. (People v. Bonner (2000) 80 Cal.App.4th 759, 763.) Proof of possession is supported by evidence that  the accused had the immediate right to exercise dominion and control over an item,  even though his possession is constructive [citation] or joint with that of another person. [Citations.] [Citation.] (People v. Shoals (1992) 8 Cal.App.4th 475, 495; see also People v. Pea (1999) 74 Cal.App.4th 1078, 10831084.)  Although proof of opportunity of access to a place  where a prohibited item is found,  without more, will not support a finding of unlawful possession [citation], possession may be imputed where the contraband is found in a location which is subject to joint dominion and control of the accused and another. [Citations.] [Citation.] (People v. Ingram (1978) 87 Cal.App.3d 832, 844; see also Goodlow v. Superior Court (1980) 101 Cal.App.3d 969, 975.)

The trial court accepted the testimony of the officer that defendant admitted he kept his belongings in the southwest bedroom where the ammunition was found, and rejected the contrary testimony received from defendants brothers and mother. Viewing the evidence in a light favorable to the trial courts judgment, as we must, we cannot reweigh the courts credibility determinations. (In re Jorge M. (2000) 23 Cal.4th 866, 888.) The testimony of a witness who was apparently believed by the trier of fact may be rejected on appeal only if that testimony was physically impossible of belief or inherently improbable without resort to inferences or deductions. (People v.Jackson (1992) 10 Cal.App.4th 13, 21; In re Andrew I. (1991) 230 Cal.App.3d 572, 578; People v. Breault (1990) 223 Cal.App.3d 125, 140141.) We do not consider any of the testimony of the officer so inherently improbable or lacking in credibility as to be unworthy of consideration on appeal. At most, the record reveals discrepancies in the testimony of the witnesses that do not subject the officers description of the critical events to repudiation or impossibility of belief. (People v. Cantrell (1992) 7 Cal.App.4th 523, 538.)

The officers testimony indicates that defendant had the immediate right, along with his brothers, to exercise dominion and control over the property in the bedroom closet. (People v. Newman (1971) 5 Cal.3d 48, 53; People v. Austin, supra, 23 Cal.App.4th 1596, 1609.) The primary factor supporting an inference of joint and constructive possession is joint occupancy of premises where the property is located. (People v. Haynes, supra, 253 Cal.App.2d 1060, 1064; People v. Saldana (1984) 157 Cal.App.3d 443, 455; People v. Crews (1952) 110 Cal.App.2d 218, 220.) While the case is a close one, in light of our severely constrained reviewing function and the lesser preponderance of the evidence standard necessary to prove a probation violation, we conclude that the officers testimony is sufficient to support the revocation of defendants probation. (People v. Hawkins (1975) 44 Cal.App.3d 958, 968.)

II. The Imposition of a State Prison Term.

Defendant also challenges the trial courts decision to impose a state prison term rather than reinstate probation. He points out that the supplemental probation report recommended reinstatement of probation, and no new evidence of his marginal level of gang affiliation was presented at the sentencing hearing. Defendant maintains that the trial court abused its discretion under the circumstances by imposing a prison term for the sole reason that he might have gang affiliations.

The consequences of a violation of probation are governed by Penal Code section 1203.2, subdivision (c), which provides that [u]pon any revocation and termination of probation the court may, if the sentence has been suspended, pronounce judgment for any time within the longest period for which the person might have been sentenced. [However,] if the judgment has been pronounced and the execution thereof has been suspended, the court may revoke the suspension and order that the judgment shall be in full force and effect. . . .  (People v. Johnson, supra, 20 Cal.App.4th 106, 110.) In placing a criminal on probation, an act of clemency and grace [citation], the state takes a risk that the probationer may commit additional antisocial acts. Where probation fails as a rehabilitative device, as evidenced by the probationers failure to abide by the probation conditions, the state has a great interest in being able to imprison the probationer without the burden of a new adversary criminal trial. (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) The inquiry upon revocation of probation is not directed to the probationers guilt or innocence but to performance on probation, that is whether the probationer violated the conditions of probation and if so what does that action signify for future conduct. The focus is whether a probationer has shown he can conform his behavior within the parameters of the law. (People v. Johnson, supra, at pp. 110111.) Obviously, a court must consider postprobation events to determine whether or not there has been a violation of probation and, if probation has been revoked, whether the defendant should be reinstated on probation or incarcerated. (People v. White (1982) 133 Cal.App.3d 677, 681.)

The abuse of discretion standard guides our review of the trial courts decision not to reinstate probation, and we will not interfere with the courts broad discretion  when it has considered all facts bearing on the offense and the defendant to be sentenced. [Citation.] (People v. Downey (2000) 82 Cal.App.4th 899, 910.)

We find no abuse of that discretion in the present case. As the record reveals and trial court observed, defendant repeatedly violated his grants of probation. His prior, known gang associations were corroborated by his acknowledgement of continued Sureno affiliations to a correctional officer and apparent tampering with his jail jumpsuit while currently in county jail. The recommendation to reinstate probation was quite equivocal, and the trial court was not required to follow it. (People v. Warner (1978) 20 Cal.3d 678, 683; People v. Downey, supra, 82 Cal.App.4th 899, 910.) We conclude that the imposition of a state prison term was not error.

Accordingly, the judgment is affirmed.

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^[1] For the sake of clarity and convenience, we will refer to defendants brothers and mother by their first names. Antonio arrived during the course of the search; another brother who also lived in the apartment, Danielle, was with his girlfriend when the search occurred.

^[2] A willful violation requires  simply a purpose or willingness to commit the act . . . , without regard to motive, intent to injure, or knowledge of the acts prohibited character. [Citation.] The terms imply that the person knows what he is doing, intends to do what he is doing, and is a free agent. [Citation.] Stated another way, the term willful requires only that the prohibited act occur intentionally. (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438; see also People v. Valdez (2002) 27 Cal.4th 778, 787788; People v. Atkins (2001) 25 Cal.4th 76, 85; People v. Lara (1996) 44 Cal.App.4th 102, 107.) The requirement of a knowing or willful violation does not additionally require proof of defendants awareness that his acts constituted a violation of the condition or was otherwise culpable in nature. (See People v. Valdez, supra, at pp. 787788; People v. Ramsey (2000) 79 Cal.App.4th 621, 632; People v. Honig (1996) 48 Cal.App.4th 289.)

^[3]  A preponderance of the evidence standard . . . simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence . . . .  [Citation.] (In re Angelia P. (1981) 28 Cal.3d 908, 918; see also In re Michael G. (1998) 63 Cal.App.4th 700, 709, fn. 6.)