NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51510874)
Defendant Tyler Fred Rae appeals from a judgment revoking probation and sentencing him to three years, four months in prison. The trial court found defendant violated the terms of his probation, first, by leaving a Salvation Army residential program without completing a year and without notifying his probation officer and, second, by violating a criminal protective order. Defendant contends the court erred in finding the first probation violation because completing the Salvation Army program was not a condition of probation and, in the alternative, the court relied on inadmissible evidence to find the violation. He also contends the trial court improperly relied on probation violations "neither alleged nor found to be true." We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant entered a plea prior to trial, the facts of the offenses are based on the preliminary hearing transcript.
Defendant and his former girlfriend Christina M. began a sexual relationship when they were teenagers. When Christina turned 18 in 2013, she began living with defendant. They stayed in hotel rooms, "people's houses, [and] trap houses." According to Christina, a trap house is where "drugs and girls" are sold. Defendant did not have a job, and they made money by Christina working as a prostitute.
In November 2014, defendant and Christina argued because Christina, who was pregnant, wanted to leave defendant and go home to her parents. Defendant grabbed Christina, pushed her on the floor, and punched her in the mouth. He tried to stab her stomach with a knife. Christina told defendant to stop because of the baby, but he did not stop. Defendant choked her, and she went in and out of consciousness. Christina thought she might be having a miscarriage because her stomach hurt. The next day, her father took her to the hospital, where she stayed for two weeks.
In January 2015, defendant and Christina argued again. Defendant pinned her against a chain-link fence and choked her. Defendant threatened "to beat the shit out of [her] for creating a scene in public." Six days later, Christina gave birth.
Two days after Christina gave birth, defendant argued with Christina at the hospital because he did not want her last name on their son's birth certificate. Defendant punched Christina while she was in a hospital bed. He called her names and spit on her. When Christina went to the bathroom, defendant took their baby out of his bassinet. When she returned, Christina wanted the baby back, defendant refused, and they argued. Defendant held the baby in his right arm and punched Christina with his left hand. Defendant tried to choke her and put his hand over her mouth. As a result of defendant's attack, Christina had swollen lips and bruises around her mouth and eye. At some point, defendant also tried to pull the ankle band alarm off the baby's leg. Defendant told Christina he was going to take the baby home, and she would never see him again.
Christina testified the alarm was "so people couldn't take the baby," and defendant "was trying to break the alarm."
A few days later, defendant sent Christina a message through Facebook, which she understood to mean he was going to come to her house "with people with guns." Christina obtained a restraining order against defendant. Charges, Plea Agreement, and Probation
By information filed July 10, 2015, defendant was charged with three counts of corporal injury to a cohabitant or child's parent (Pen. Code, § 273.5, subd. (a); counts 1, 3, and 4), false imprisonment (§§ 236, 237, subd. (a); count 2), child abuse (§ 273a, subd. (a); count 5), attempted kidnapping (§§ 207, subd. (a), 664; count 6), attempted child custody deprivation (§ 278.5, subd. (a), 664; count 7), and criminal threats (§ 422; count 8).
Further undesignated statutory references are to the Penal Code.
On November 30, 2015, pursuant to a negotiated plea agreement, defendant pleaded no contest to false imprisonment (count 2), corporal injury to a cohabitant (count 3), child abuse (count 5), attempted child custody deprivation (count 7), and criminal threats (count 8). The prosecution dismissed the remaining counts.
Defendant's counsel explained the offer her client was accepting: "The terms and condition would be five years [formal] probation," and "097 terms, the parenting class as required in Count Five [child abuse], a ten-year stay away, restitution, a year in county jail. Mr. Rae would have to waive all of his credits. He's prepared to do that. He can satisfy the year in the county jail . . . by participating with day-for-day credit in the Salvation Army program, drug terms, no alcohol, a search clause, and no weapons." The prosecutor added, "And that's assuming he successfully completes the program, he gets credit for the program." Defense counsel concurred.
Section 1203.097 specifies certain required terms of probation when a person is granted probation for an offense involving domestic violence.
The trial court placed defendant on formal probation for five years with one year in county jail and no custody credits. The court stated, "According to the plea agreement you get day-for-day credit if you attend and complete the Salvation Army program, and I understand you have to complete the program in order to get the benefit of that day-to-day credit." Among the terms of probation, defendant was required to report any change of address to his probation officer and report any arrest to his probation officer within five days of arrest. By criminal protective order, defendant was ordered to have no contact with Christina or her son.
The Probation Revocation Proceedings
On November 30, 2016, the Probation Department filed a petition to revoke probation, alleging defendant violated the terms of probation in that "defendant voluntarily left Salvation Army, his court ordered residential treatment program, and was discharged as AWOL." (Capitalization omitted.) A no bail bench warrant was issued.
On January 15, 2017, defendant was arrested on the bench warrant. At a hearing on the bench warrant two days later, defense counsel told the court, "I know [defendant] left the Salvation Army, but I believe he's been in touch with [his probation officer] and I think he left that program voluntarily." The court informed counsel defendant was not allowed to leave voluntarily.
On February 10, 2017, the Probation Department filed a supplemental petition alleging (1) "defendant violated the terms of the CPO [criminal protective order] in this matter, as evidenced in an investigative report dated 1/31/17, submitted by the Contra Costa County District Attorney's Office," and (2) "according to Antioch Police Department report #17000490, dated 1/15/17, the defendant disobeyed the law by committing an act of thievery." Thus, three probation violations were alleged: first, leaving the Salvation Army program and being discharged as AWOL, second, violating the criminal protective order, and, third, committing theft in Antioch.
Attached to the supplemental petition were (1) an investigative report from the District Attorney's Office documenting attempts by defendant to contact Christina on December 25, 2016, in violation of the criminal protective order, and (2) an Antioch Police Department case report documenting a petty theft (burglarizing vehicles) reported on January 15, 2017.
A contested hearing took place on February 17, 2017. The prosecutor explained what he intended to prove: "I have to prove, one, that the defendant absconded from his program and his whereabouts were unknown by the probation officer for approximately six months. During that time frame, he was contacted by Brentwood Police Department, and the contact was related to [a] burglary investigation. Admissions [by defendant] showed his involvement in that burglary. . . . And then also during that time period where he absconded, he contacted the victim on the criminal protective order, in violation of that protective order."
Defendant's probation officer, Keisa Booth, testified that one of the conditions of probation was successful completion of the Salvation Army program. She received a letter from the Salvation Army reporting that defendant "was unsuccessfully discharged on June 30th, , six months prior to the one-year commitment." Booth did not receive any contact from defendant notifying her that he had left the program, and she did not know where he was.
Brentwood Police Detective Brian Lodge testified that he spoke with defendant about a burglary on November 10, 2016, in front of defendant's mother's house in Pittsburg. Defendant told Lodge he had pawned a ring using the identification of Shawn Johnson. Later, defendant told Lodge the burglary, which was of Johnson's grandparents' house in Brentwood, was Johnson's idea. Defendant said he went in the house but refused to help load any of the stolen property, and he received "a little bit of crystal" (methamphetamine) for his part in the burglary. The burglary occurred sometime between the end of August and October 17, 2016.
Defense counsel objected to Lodge's testimony on the ground it was unrelated to the three alleged probation violations. The prosecutor told the court Lodge's testimony did not support the Antioch theft allegation, but the prosecution had produced the police reports related to Lodge's testimony to defense during a pretrial conference. The trial court overruled the objection because defense had notice of the issue.
Lodge learned in his investigation that the burglary victims went out of town at the end of August 2016. A landscaper noticed the house had been broken into and reported the break-in on October 17, 2016.
Christina testified that she received a Facebook message from defendant in December 2016. He said he had a Christmas present for their son and he wanted to give it in person. The message "made [Christina] feel really upset." Defendant also called Christina on Christmas morning.
At the close of evidence, the prosecutor stated he was unable to prove the third alleged probation violation (Antioch theft) because the officer involved in that investigation was unavailable to testify. The trial court dismissed that allegation. Defense presented no evidence. As to the first violation (leaving the Salvation Army program), defense counsel said, "I think the evidence would show that . . . Mr. Rae was not in the program when he was interviewed by the police in November, so I think that would probably suffice for a violation." The trial court then found the two alleged probation violations true.
At the sentencing hearing on April 14, 2017, defense counsel argued defendant's probation violations were de minimis. "He entered a program and stayed for quite some period of time, almost six, seven months. He left the program and relapsed. It was after his relapse, essentially, what was found in violation was he was sort of tangentially involved in this burglary committed by someone else, and that person committed it against his own grandparents. And Mr. Rae sent a message on Christmas Day to [Christina], in violation of the order, that was frankly a rather innocuous statement, about wishing his son a merry Christmas." Defense counsel asked that defendant be allowed to remain on probation.
Defense counsel misstated the probation violations. The trial court found the two alleged probation violations true, and these were (1) leaving the Salvation Army program, and (2) violating the protective order. The third alleged violation related to a theft in Antioch, not the burglary in Brentwood, and the third alleged violation was dismissed. --------
The trial court revoked probation, denied the request to reinstate probation, and sentenced defendant to three years, four months in state prison.
A. The Violation Based on Defendant Leaving the Salvation Army Program
"[A] probation condition ' "must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated." ' " (People v. Pirali (2013) 217 Cal.App.4th 1341, 1352.) A "probationer facing revocation is not entitled to the 'full panoply of rights' due a defendant in a criminal trial [citation], and a probation revocation hearing is more flexible and less formal than a criminal trial." (People v. Quarterman (2012) 202 Cal.App.4th 1280, 1294.) The facts supporting revocation of probation must be proven by a preponderance of the evidence. (People v. Rodriguez (1990) 51 Cal.3d 437, 441.)
Defendant contends the trial court erred in revoking his probation for leaving the Salvation Army program because he was never ordered to complete the program as a condition of probation. The Attorney General responds that this condition of probation was sufficiently precise for defendant to know what was required of him: he was required to serve one year in county jail or spend one year in the residential program at the Salvation Army—he had to do one or the other. Defendant chose the residential program. After he failed to complete the residential program, he failed to report to his probation officer. The Attorney General argues that defendant's failure to report his whereabouts to his probation officer after he left the Salvation Army "was clearly an attempt to avoid the jail term the court had ordered as the alternative to the residential program."
We agree with the Attorney General. When defendant left the Salvation Army program before successfully completing one year there, he was required to serve his one-year jail term in jail. By failing to present himself to be taken into custody to serve his one-year jail term, defendant violated this condition of his probation.
Moreover, another term of his probation was to report any change of address to his probation officer. Defendant does not deny that, when he left the Salvation Army program, he did not notify his probation officer of his new address. His probation officer testified that she did not know defendant's whereabouts for about six months. Thus, even if we assume defendant had no affirmative duty to turn himself in to serve his one-year jail term, he still violated his probation by leaving the residential program without notifying his probation officer of his new location.
In his reply, defendant argues the trial court could not rely on the fact he failed to notify his probation officer that he left the program in finding the first probation violation because there was no specific allegation that defendant failed to communicate with his probation officer. We disagree. The Probation Department alleged defendant was discharged from the Salvation Army program "as AWOL" (absent without leave), meaning defendant left the program without notice or permission. In the context of probation, "AWOL," implies running away or absconding. (E.g., In re Carl N. (2008) 160 Cal.App.4th 423, 427; In re Oscar A. (2013) 217 Cal.App.4th 750, 753.) The allegation that defendant was discharged as AWOL put defendant on sufficient notice that part of the alleged probation violation was leaving the residential program without notice to, or permission from, his probation officer. As we have noted, it was not until defendant was arrested on a bench warrant—about six weeks after the Probation Department filed the initial motion to revoke probation—that the probation officer had any information about defendant's whereabouts. At the outset of the contested hearing, the prosecutor stated that he intended to prove "defendant absconded from his program and his whereabouts were unknown by the probation officer for approximately six months." Defense counsel did not object that these facts were outside the scope of the charges, presumably because he understood they were relevant to the first alleged probation violation that he was discharged from the Salvation Army program as AWOL.
We conclude the trial court did not err in finding defendant violated his probation when he left the Salvation Army residential program before completing a year in the program and without notifying his probation officer. B. Admission of the Salvation Army Letter
Next, defendant argues the trial court erred in admitting into evidence the Salvation Army letter reporting his unsuccessful discharge from the residential program. This argument fails because any alleged error was harmless beyond a reasonable doubt. (See People v. Arreola (1994) 7 Cal.4th 1144, 1161 [applying harmless-beyond-a-reasonable-doubt standard where defendant claimed erroneous admission of evidence prejudiced him at his probation revocation hearing].)
Here, defendant was ordered on November 30, 2015, to serve a one-year jail term, which could be satisfied by successfully completing one year in the Salvation Army program. The one-year term could not have been completed prior to November 29, 2016, even if defendant had been transported directly from court to the Salvation Army on November 30, 2015. Detective Lodge's uncontradicted testimony established that defendant was found in Pittsburg on November 10, 2016, and defendant admitted that he was inside a house in Brentwood as it was being burglarized sometime between the end of August and October 17, 2016. Defendant's probation officer testified that defendant never notified her that he had left the Salvation Army program, and she did not know where he was after he left the program. This evidence established the first probation violation. Indeed, defense counsel conceded that the evidence showing defendant was "not in the program when he was interviewed by the police in November . . . would probably suffice for a violation." On this record, assuming for the sake of argument it was error to admit the letter from the Salvation Army, the error was harmless beyond a reasonable doubt. C. Alleged Reliance on Probation Violations Not Found True
At the sentencing hearing on April 14, 2017, the trial court explained why it did not reinstate defendant on probation. "Under the Rules of Court section 4.414(a)(3), the victim was particularly vulnerable in a hospital bed, had just delivered a baby, when the defendant attacked her. 4.414(a)(6), the defendant was an active participant. 4.414(a)(11), he did occupy a position of trust or confidence. He was the person she ran away from home to be with, and he is the father of the child. 4.414(b)(2), his prior probation performance was unsatisfactory. The violation [of] conditions of probation were absconding from the Salvation Army, not being in touch with the [probation officer], and then violating the criminal protective order. And then there was that tangential involvement in a residential burglary." (Italics added.)
Citing the italicized sentences above, defendant argues the trial court improperly relied on the following "probation violations," which were neither alleged nor found to be true: (1) defendant was not in touch with his probation officer, and (2) he was tangentially involved in a residential burglary. This argument lacks merit.
First, the fact that defendant did not notify his probation officer that he left the Salvation Army program was part of the first alleged probation violation, which the trial court found to be true. As we discussed above, the probation violation of failing to notify his probation officer of his whereabouts was implied in the allegation that he left the program and was discharged "as AWOL." Therefore, it was not an error for the trial court to describe the first probation violation as including "not being in touch with" his probation officer.
Second, we do not read the trial court's statement as meaning the trial court found "tangential involvement in a residential burglary" to be itself a violation of probation. The trial court previously found the two alleged probation violations true. As alleged by the Probation Department the violations were, first, "defendant voluntarily left Salvation Army, his court ordered residential treatment program, and was discharged as AWOL" and, second, "defendant violated the terms of the CPO [criminal protective order] in this matter . . . ." At the sentencing hearing, the trial court characterized the first probation violation as "absconding from the Salvation Army, not being in touch with the P.O." and characterized the second violation as "violating the criminal protective order." The court then observed that defendant was also tangentially involved in the Brentwood burglary while he was on probation. But the court did not imply this was a separate probation violation. Rather, this observation was made in the context of considering whether to reinstate probation given how defendant had performed on probation in the past. We find no error.
The judgment is affirmed.
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________