P. v. Ford

Filed 2/21/07  P. v. Ford CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

            APPEAL from an order of the Superior Court of Los Angeles County.  Larry  S.  Knupp, Judge.  Reversed.

            Douglas A. Linde, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________________

            Defendant Marlon Lamont Ford has faced two probation violation hearings in this action.  In the first hearing, the trial court ruled defendant was not in violation of probation, having resolved credibility issues in defendant's favor.  The second probation violation hearing was based on the allegation defendant had committed perjury (Pen. Code, § 118)^[1] at the first violation hearing in answering the prosecutor's questions pertaining to two prior arrests.  The trial court found defendant had committed perjury at the first hearing and revoked probation.  Probation was reinstated on the condition defendant serve 180 days in county jail.  Defendant contends in this appeal that there was legally insufficient evidence of perjury to support a probation violation.  We agree and reverse.

PROCEDURAL BACKGROUND AND STATEMENT OF FACTS

            On April 2, 2004, defendant entered a guilty plea to resisting an executive officer (§ 69) and battery against his fiancée, Maria Ibarra (§ 243, subd. (e)), in an incident arising out of a domestic dispute.  He received a suspended upper term sentence of three years and was placed on formal probation for three years, subject to specified conditions, including that he obey all laws.  His probation was initially revoked on December 29, 2004, based on an arrest in which he was found in possession of cocaine base.  The probation revocation hearing began on October 12, 2005.

            The parties presented drastically different versions of the circumstances surrounding defendant's December 10, 2004 arrest.  According to the prosecution witnesses, defendant was arrested by Officers Santos, Ortega, and Oviatt in a downtown Los Angeles area notorious for transients and drug use.  During the early morning hours, defendant was observed lying underneath a Ford Explorer, apparently â€