Opinion
F054878.
2-10-2009
THE PEOPLE, Plaintiff and Respondent, v. ERIC ASHLEY ARMSTRONG, Defendant and Appellant.
Lynette G. Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
OPINION
THE COURT
In 2006, after appellant Eric Ashley Armstrong pled no contest to certain offenses, the court imposed a nine-year prison term, stayed execution of sentence and placed appellant on five years probation. One of the conditions of appellants probation was that he obey all laws.
On December 11, 2007, the court revoked appellants probation based on new charges in Fresno Superior Court case No. F07909297 (case 297). On January 28, 2008, the court conducted, simultaneously, the preliminary hearing in case 297 and a probation revocation hearing in the instant case. At the close of the hearing, the court held appellant to answer in case 297 and found appellant was in violation of the condition of probation that he obey all laws. On February 15, 2008, the court lifted the stay on the execution of the previously imposed nine-year prison term.
On appeal, appellant contends (1) the evidence was insufficient to support the courts finding that appellant violated his probation, and (2) the court, in conducting the preliminary hearing and the hearing on the violation of appellants probation in a single proceeding, violated appellants right under the Fifth and Sixth Amendments to the United States Constitution to testify on his own behalf. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
At approximately 6:52 a.m. on December 7, 2007 (December 7), City of Fresno Police Officer Loren Kasten, responding to a report of domestic violence, made contact with Mickey Brewster at the apartment where, according to neighbors, a "disturbance" and been "going on inside ...." Also present in the apartment were appellant and Brewsters 14-year-old daughter, Z.
Officer Kasten noticed a swelling around Brewsters right eye. Initially, Brewster told the officer that she (Brewster) had received the injury the previous day in a physical altercation with another female. Officer Kasten asked for "further details" of the altercation, but Brewster could not tell the officer either the name of the other person involved or where the altercation occurred.
Officer Kent Pichardo, who also responded to the domestic violence report, made contact with Z., who told the officer the following. She usually "stayed with" her grandmother, but she spent the past night in her mothers apartment. "[E]arly in the morning" she "[h]eard some arguing," and "[r]ealized" a man was in the apartment. Thereafter, she heard her mother "screaming" and "yelling," and "[s]aw a physical disturbance." Z. saw her mother "pinned down on the ground." Z. "intervened by using a choke hold to take the individual off her mom, stop the fighting." Z. noticed some swelling in her mothers face, in the "eye area," that "[was not] there prior to [Z.] going to bed."
Officer Kasten, after learning from Officer Pichardo what Z. had said, questioned Brewster again, at which point Brewster stated "she had hit herself." The officer then asked Brewster "why she was lying," and Brewster responded "that she did not want to get anyone in trouble." Brewster further told the officer that after discovering that some of her money was missing she had accused appellant of stealing it; however, her accusation was "untrue," so "she invited [appellant] over about midnight that evening to advise him and make up with him for accusing him of stealing the money." Officer Kasten asked Brewster "whether it was the first time [appellant] had hit her[.]" Brewster "said yes."
Brewster testified to the following. On December 7 she and appellant, with whom she had been involved in a "romantic relationship," were at her apartment, in the process of "trying to ... make up and work something out," when they "got into an argument ...." The argument was not a "major" one, and after it had "stopped," and Brewster and appellant were "just talking and being intimate," the police arrived and "forced entry" into Brewsters apartment. The police had come to Brewsters home before and arrested her, so Brewster, thinking the police had come to arrest her again, became frightened, tripped, fell and "accidentally hit [her] eye on the doorknob running from them ...." Brewster told Officer Kasten "exactly what happened." She told him "about the doorknob." She did not tell him she hit herself.
Officer Kasten testified Brewster did not say anything "about a doorknob hitting her in the face."
Z. testified to the following. She "spent the night" at her mothers apartment and was planning to go to school in the morning. Appellant, her mothers boyfriend, was at the apartment that day. Z. was sleeping when she was awakened by "yelling." She came out of the room where she had been sleeping, entered the living room and saw her mother and appellant, "kissing and stuff," "being romantic." Z., however, thought appellant was "fighting [her] mom" and that appellant was hurting her mother, so she "put a choke hold" on appellant. When she realized appellant was not hurting her mother, she "just went back in [her] room and finished dressing for school."
Trial Courts Ruling
The court ruled as follows: "As to the violation of probation, the Court finds the ... victim in this case incredible. The Court finds there is sufficient evidence for there to be a finding of violation of probation based upon any alleged failures to obey all laws and the use of force or violence and the situation does not amount to lawful self-defense. So the Court does find Mr. Armstrong in violation of probation."
DISCUSSION
Sufficiency of the Evidence
Appellant contends the court abused its discretion in revoking his probation because the evidence was insufficient to establish he willfully violated the obey-all-laws condition of his probation. He does not dispute that the evidence was sufficient to support the conclusion that he struck Brewster in the face. He argues, however, that the evidence is nonetheless insufficient to establish he violated any laws because it cannot be "ruled out" that he acted in self-defense. There is no merit to this contention.
A trial court may revoke a defendants probation "if the interests of justice so require and the court, in its judgment, has reason to believe ... that the person has violated any of the conditions of his or her probation ...." (Pen. Code, § 1203.2, subd. (a).) Revocation of probation lies within the sound discretion of the trial court. (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) Facts supporting the revocation of probation need only be proved by a preponderance of the evidence. (Id. at p. 447; People v. Monette (1994) 25 Cal.App.4th 1572, 1575.) On appeal, we look to see if substantial evidence supports the trial courts conclusion that there was a preponderance of evidence to justify revocation of parole. (People v. Kurey (2001) 88 Cal.App.4th 840, 848.) "In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (Id. at pp. 848-849, fns. omitted.)
Here, there was evidence of the following: Brewsters face was swollen; she admitted appellant hit her; and Z. saw appellant and Brewster engaged in a "fight[]" in which appellant had Brewster "pinned" to the ground. From this evidence, the court reasonably could have concluded that it was established by a preponderance of the evidence that appellant committed a criminal assault and therefore violated the condition of his probation that he obey all laws.
As appellant indicates there was no evidence presented from which it could be determined whether appellant acted in self-defense. And we recognize that "[t]ypically, the prosecution has the burden to prove a defendant did not act in self-defense, because self-defense negates an element of the offense." (People v. Saavedra (2007) 156 Cal.App.4th 561, 571.) However, a criminal defendant who seeks to raise a defense that negates an element of the defense bears the burden of producing evidence sufficient to create reasonable doubt regarding that defense; it is not unless and until such evidence is put before the trier of fact that the Peoples burden of persuasion arises. (Id. at pp. 570-571, see also People v. Mower (2002) 28 Cal.4th 457, 479-480.) Here, as appellant indicates, there was no evidence appellant did not act in self-defense, but neither was there any evidence he did so act. On this record, appellant has not met his burden of producing evidence sufficient to create a reasonable doubt. Therefore, it is of no moment that it cannot be "ruled out" that appellant acted in self-defense.
Dual-Purpose Hearing
Appellant argues that the court, in holding one hearing to serve as both the preliminary hearing in the new criminal charges and the violation-of-probation hearing, denied him his constitutional right to testify on his own behalf. The dual-purpose hearing, he argues, "compromised [his] right to litigate the probation revocation fully, without fearing that his testimony would be used at the trial of the criminal charge." We disagree.
The trial court had broad authority to revoke probation "[a]t any time" following appellants commission of new criminal offenses "regardless whether he ... ha[d] been prosecuted for such offenses." (Pen. Code, § 1203.2, subd. (a).) The California Supreme Court has refused "to adopt a `supervisory rule which mandates staying such revocation proceedings as a matter of course until trial of the pending criminal charges has occurred." (People v. Weaver (1985) 39 Cal.3d 654, 659.)
Our Supreme Court addressed the problem appellant complains of in People v. Coleman (1975) 13 Cal.3d 867 (Coleman), by setting down an evidentiary rule intended to protect probationers from prejudice caused by holding revocation hearings in advance of criminal trials, namely, that on a proper objection, the probationers testimony is inadmissible at a subsequent criminal trial, except for use as impeachment or rebuttal in the face of probable perjured testimony. (Id. at p. 889; People v. Lucido (1990) 51 Cal.3d 335, 351.) This rule "guarantees the probationer the ability to present a full case at the hearing without running the risk of prejudicing his defense at a subsequent trial." (People v. Lucido, supra, 51 Cal.3d at p. 351; accord, People v. Coleman, supra, 13 Cal.3d at p. 889.)
In People v. Jasper (1983) 33 Cal.3d 931, the court declined to reconsider Coleman on a defendants contention that his revocation hearing should have awaited completion of trial on the pending criminal charge on which revocation was based. (People v. Jasper, supra, 33 Cal.3d at p. 933.) In part, the defendant in Jasper argued the procedure served to provide the People with pretrial discovery regarding the theory and details of his defense to the burglary charge. (Ibid.) The court rejected that argument: "[A] probationers voluntary testimony or defense presented at a probation revocation hearing cannot fairly be characterized as a `compelled disclosure ... [¶] ... `[T]he taking of testimony of defense witnesses voluntarily called by the defendant at a revocation hearing cannot be equated with pretrial discovery in the sense that it is the result of a prosecution demand to compel the defense to produce anything or provide information." (Id. at p. 934.) The court in Jasper noted, however, that a "routine practice" of scheduling all revocation hearings in advance of trial on the criminal charge would be inconsistent with Colemans statement that "`the most desirable method of handling the problems of concurrent criminal and probation revocation proceedings may well be" to hold revocation proceedings after disposition of the criminal charges. (People v. Jasper, supra, 33 Cal.3d at p. 935.) Thus, the Jasper court emphasized the trial court was to exercise its judicial discretion in deciding whether to permit revocation proceedings to commence in advance of the disposition of related criminal proceedings: "Whether a revocation hearing should be held before trial rests in the reasonable discretion of the trial court." (Ibid.)
Finally, we note that in People v. Arreola (1994) 7 Cal.4th 1144, the California Supreme Court, in dicta, endorsed use of a coordinated preliminary hearing/probation revocation proceeding: "As a means of avoiding needless duplication and promoting judicial economy, in some instances the preliminary hearing on the charges that give rise to the probation revocation proceeding may be coordinated with the final revocation hearing, in a single proceeding. [Citation.] Either pursuant to an existing blanket cross-assignment to the municipal court, or a specific assignment in a particular case (see Cal. Const., art. VI, § 6), it sometimes will be possible for a superior court judge to act as a magistrate in conducting a preliminary hearing in the municipal court while conducting concurrently a probation revocation hearing. In this coordinated proceeding, the decision maker charged with the determination whether to revoke probation necessarily would observe the demeanor of those witnesses who testify for purposes of the preliminary hearing, thereby satisfying that component of a defendants constitutional right of confrontation, rather than attempt to assess credibility from a cold record or defer to the other judges assessment of the witnesses credibility." (Id. at p. 1159.)
Appellant was fully protected by the Coleman evidentiary rule. His rights were not violated by the dual-purpose-hearing procedure utilized by the court in the instant case.
DISPOSITION
The judgment is affirmed. --------------- Notes: Before Vartabedian, Acting P.J., Gomes, J., and Dawson, J.